Australian
Screen

Teacher’s notes

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This clip shows part of a discussion between an interviewer and five judges of the High Court of Australia, in which the judges talk about how, despite their positions, they are not remote but have remained engaged in everyday life through connections with family and community. The discussion includes justices Mary Gaudron, John Toohey, Kenneth Hayne and William Gummow as well as the then chief justice of the High Court, Sir Gerard Brennan. Justice Gummow indicates that despite perceptions about the rarefied nature of the High Court, the judges are sensitive to what is occurring in the wider community

Educational value points

• The clip presents five judges of the High Court in candid and informal conversation in an attempt to humanise the formal institution of the High Court and penetrate some of its mystique. The High Court building is imposing and appellants do not appear in the courts but are represented by legal teams. This process takes the work of the High Court out of the public domain and over time has made the institution itself, apart from the decisions it makes, difficult to know and understand. This remoteness is perhaps symbolised by the large beautifully crafted table that dominates the judges seated behind it in some frames of the clip.

• The judges in the clip acknowledge that while their work may seem remote and their workplace inaccessible they as individuals are not removed from life and are influenced by their relationships, friendships and the social structures around them. Justice Toohey makes the point that as a parent he has been exposed to the ideas of his children’s generation and that this ensures that as a judge he is not remote or sheltered from the everyday world.

• The role of the High Court of Australia is to interpret and apply the law of Australia and resolve disputes about the meaning of the constitution or the constitutional validity of laws. The High Court is modelled on the Supreme Court of the USA. The High Court may determine whether an Act passed by the Australian parliament is within the legislative powers of the Australian Government. The High Court also shapes and develops the law. The highest court in the Australian judicial system, the High Court is also the final court of appeal for all other types of cases, even those dealing with matters such as the interpretation of state and territory criminal laws.

• The constitution sets out that the High Court should consist of a chief justice and at least two other justices. However, as the role of the Australian Government has expanded, the demands on the Court have grown, leading to the number of justices being increased to five in 1906 and to seven in 1913. An appointee must have served as a judge in a federal, state or territory court or have practised as a barrister or solicitor for at least five years, and must retire at the age of 70.

• High Court judges are appointed by the prime minister and cabinet. Professor Greg Craven, Dean of Law at Notre Dame University in Perth, points out that governments can shape the High Court by appointing justices who share their views. For example, a progressive judge may take an activist role and interpret the constitution more widely, while a conservative judge may take a more literal view. The 1992 Mabo decision, in which the High Court ruled that the land title of Australia’s Indigenous peoples be recognised at common law, represented a major turning point in Australian history.

• Mary Gaudron QC, who speaks in the clip, was the first woman appointed as a High Court judge. She served on the Court from 1987 to 2003, and on her retirement was commended by colleagues for her humanising effect on the law. Justice Gaudron said that the racism she saw directed towards Indigenous Australians while she was growing up in Moree, New South Wales, shaped her attitude towards all forms of discrimination.

• Director Daryl Dellora made The Highest Court, a documentary about the role of the High Court, because he felt that many Australians knew little about the institution. Through its interpretation of the constitution, the Court has a profound effect on the shape of Australian society by virtue of the decisions it makes on key national issues. The film crew gained unprecedented access to the High Court, following the work of its seven judges. Cases included the handing down of two significant judgements, Kruger v The Commonwealth, a case concerning the Stolen Generations of Indigenous Australians, and Ha v the State of New South Wales, which found that the states did not have the legal right to levy excise duties.

• The Highest Court received the NSW Law Society Media Award for Best Television Current Affairs in 1999. Director Daryl Dellora has written and directed a number of documentaries including: John Howard: As Good as His Word (2004), which examines anti-terror laws; A Mirror to the People – the Governor-General (2002), which follows a year in the life of the then governor-general, Sir William Deane; Conspiracy (1994), which explores the 1978 Hilton bombing in Sydney; and Mr Neal is Entitled to be an Agitator (1991), about the controversial legal figure Lionel Murphy.

This clip starts approximately 28 minutes into the documentary.

The clip is of a roundtable discussion in a corporate legal office with Chief Justice of the High Court, Sir Gerard Brennan, and Justices Mary Gaudron, John Toohey, Kenneth Hayne and William Gummow.

Justice Gaudron But we all have lives. I mean, you know, we’re all like other human beings. We have to wait in queues, in the outpatients’ departments. You know, we’ve go to go and front up to the…

Justice Toohey Do the shopping.

Justice Gaudron ...do the shopping in the supermarket, front up to the school teacher on parent-teacher night. You know, we all do – we’ve all got lives that take us out into places.

Justice Toohey It all seems assumed that you don’t grow up in a family.

Justice Gaudron Yes.

Justice Toohey And that you don’t have any friends. I mean it’s a matter for everyone what their range of friends is but if you’ve grown up as, say some of us have, with young children and seen them move from birth to adulthood, I mean to talk about my case, with five daughters, all of whom now are adult, to think that you could grow up in that situation without being exposed to a whole range of ideas – and I don’t overlook my two sons – but my daughters are rather more…

Justice Trouble.

Everyone laughs.

Justice Toohey No. I was looking for a word. The word I was looking for – the word I was going to use was pressing, in relation to their ideas. I mean it’s just unreal to think that you can grow up in that situation without understanding what’s happening in the world around you and I mean – I think probably what people really mean, in a sense, is that you’re sitting in court a lot of the time and particularly if you’re in the appellate court. You’re – it’s a judge to lawyer interreaction. I mean you’re not seeing witnesses giving evidence, as you do if you’re, if you’re a trial judge.

Interviewer It is a rarefied atmosphere up here in the High Court.

Justice Gummow Well, you mean it’s quiet.

Everyone laughs.

Justice Gummow A famous American judge said that the US Supreme Court had the quiet of the eye of the hurricane and that’s true to an extent. It doesn’t mean one doesn’t appreciate there’s a hurricane out there.