A High Court judge has been accused of launching a veiled attack on a fellow justice in a speech slamming those he says want to stack courts with conservatives to achieve political ends.
High Court Justice Robert Beech-Jones was appointed to the bench in 2023 by former Labor Attorney-General Mark Dreyfus. In a speech described as “dynamite” by one prominent barrister, he took aim at a group of constitutionally conservative lawyers and former judges known as the Samuel Griffith Society of Australia.
One of his fellow judges, Justice Simon Steward, addressed the society’s annual conference three times, and the society supported his candidacy on the basis that he was unlikely to read too much into the Constitution. Steward was appointed in 2020 by Liberal attorney-general Christian Porter.
According to Beech-Jones, the historical figure Samuel Griffith, a former Queensland premier and High Court chief justice, had in life been “Marx adjacent” in his beliefs, but the conservative society had “culturally appropriated” his name for ideological and political ends.
The society is led by conservative legal figures including former High Court judge Ian Callinan and barrister Allan Myers. It opposes what it calls “judicial activism”, including reading rights into the Australian Constitution, such as the implied right to freedom of political communication.
Beech-Jones said in the speech the society’s members wanted to import “US-style court stacking” to Australia to promote conservatives and “constitutional originalists” to the bench.
Barristers approached by this masthead declined to comment on the record about a serving High Court judge, but one said, “I thought the speech was dynamite”.
“I read it and thought he must assume no one is listening. It was given in Townsville, and it seemed to me he just wanted to get it off his chest,” the senior barrister said.
Asked on ABC Radio about the speech and whether it was Beech-Jones’ informal job application for the position of chief justice of the High Court, which becomes vacant in 2028, Attorney-General Michelle Rowland declined to comment.
Beech-Jones said he had “no comment on the matter”, and Michael Izzo, the president of the Australian Bar Association, did not return calls.
Speaking to The Australian, Myers, the president of the Samuel Griffith Society, told Beech-Jones to “stay out of politics and stick to the job of deciding cases according to law”.
In the speech, Beech-Jones outlined the beliefs and practices of Griffith, then decried the use of his name by the society.
Beech-Jones said he had found a “theme, bordering on obsession” in the society’s papers opposing the High Court’s landmark Mabo decision of 1992.
“On my count, from 1992 to 2002 the society received and published at least 33 papers attacking or criticising Mabo or what followed, such as the Native Title Act,” Beech-Jones said.
“The point is not that judicial decisions cannot be criticised; it’s the tenor, tone and uniform direction of these criticisms that is telling. One of the papers compared [the] Mabo [judgment] to a disease.”
The focus of Beech-Jones’ critique, though, was the society’s alleged intention of pushing for “specifically the form of originalism practised in the United States which contends that the Constitution should be strictly interpreted according to the original intentions of the Constitution’s framers”.
So successful had proponents of this theory been in the US, he said, that courts had made a series of appalling decisions on gun laws, for example.
“Only a fool would think this was not the intended outcome of a sustained politicised and political process of stacking courts with supine judges,” he told his audience.
“Ordinarily, all this would be none of my business, but these methods are being advocated for in Australia. This has made it my business, and it has made it your business as custodians of the law. We are all interested in this, whether we like it or not. To adapt a phrase, they have driven into my lane.”
The Samuel Griffith society now has 23 chapters at Australian universities – a fact Beech-Jones said was “a little more ominous than first appears”.
People who have addressed the society, Beech-Jones said, suggest it “assume the same role as the Federalist Society in the United States in ‘screening’ judicial appointments and ‘recruiting’ law students and young lawyers”.
Those young lawyers were “then offered access to a network of ‘senior mentors, clerkships with conservative judges and opportunities to extol their judicial beliefs through written work and events’, thereby providing a ‘pipeline of potential judicial nominees’.”
“If anyone thinks this particular US style of court stacking and judicial decision-making is a good idea, then go and live there,” he said.
Myers countered, saying: “The power of the office of High Court judge must be used only for the purposes of performing the duties of that office … If it is used otherwise, the court is brought into disrepute.
“He says that judicial decisions can ‘be criticised’ but not in a ‘tenor, tone and uniform direction’ that he does not like. Too bad,” Myers told The Australian. “If you do not like criticism, write more persuasive reasons for judgment.”
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Michael Bachelard is a senior writer and former deputy editor and investigations editor of The Age. He has worked in Canberra, Melbourne and Jakarta, has written two books and won multiple awards for journalism, including the Gold Walkley.Connect via X or email.From our partners
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