High Court judges should not air disagreements in public

There are good reasons why judges avoid public controversy. The judicial role is to be the arbiters of disputes, not the protagonists. The arena is the place for politicians and those who prosecute the causes which, ultimately, judges may have to adjudicate.

For judges, like umpires, impartiality is a paramount virtue. So they generally let their judgments speak for themselves. Those who do speak extra-judicially wisely confine themselves to dry addresses to law conferences and learned societies, or authorship of legal treatises.

A speech last month to the North Queensland Law Association by the High Court’s Justice Robert Beech-Jones appeared to risk crossing that boundary.

The unlikely subject was a surprise attack upon the Sir Samuel Griffith Society. Founded in 1992 by a former chief justice, Sir Harry Gibbs, this little-remarked body perpetuates the legacy of Australia’s first chief justice. Its focus is the Constitution; its principal activity is an annual conference which hosts speeches by senior judges and constitutional lawyers.

Over the years, these have included no fewer than 12 current or former High Court judges, including five of the last seven chief justices; chief justices of the Federal Court and state Supreme Courts; many other senior judges and leading silks, a former governor-general and four state governors.

Many illustrious law professors have also given addresses, including Michael Coper, George Williams, Anne Twomey and Cheryl Saunders.

Griffith’s career spanned both the highest political and judicial offices. He was twice premier of Queensland and the principal draftsman of the Constitution, as well as being an accomplished man of letters. Given the breadth of his legacy, the conference has often featured not just lawyers, but scholars eminent in other fields including history (Geoffrey Blainey) and political philosophy (Ken Minogue).

It has also included senior political figures. Most of the politicians have been conservatives. (I addressed the society as shadow attorney-general. In 2024 I also presented an academic paper on the 1951 Communist Party referendum. I am not, however, a member.)

Many leading Labor figures have also delivered addresses, including three premiers (John Brumby, John Bannon and Michael Field) and other senior ministers such as Peter Walsh, John Wheeldon and John Hatzistergos. What they shared was a broadly similar attitude to the role of state governments and scepticism about centralist imbalance in a federal constitution. In that, they reflected Griffith’s own judicial philosophy. But even that viewpoint has not been uniformly held among speakers, as the participation of someone like George Williams demonstrates.

Beech-Jones accused the society of “culturally appropriating [Griffith] for ideological and political ends”, claiming it had “turned Griffith into a warrior in the 21st century culture wars”. This could be insulting to the many judges and scholars who have addressed it; it is particularly disrespectful to the two current members of the High Court (Justices James Edelman and Simon Steward) who addressed its recent conferences in 2024 and 2025.

Beech-Jones’ attack on the society relies upon not just one straw man argument, but two.

First, he offers a highly selective account of Griffith’s political outlook – in my view so misleading as to verge on caricature. In a densely footnoted speech, he makes no reference to the only scholarly biography of Griffith, published in 1984. He does, however, on four occasions cite a paper on Griffith which I delivered to a legal conference in 2001; yet his interpretation in no way reflects my views.

Griffith was to Queensland politics what Deakin was to Victoria – the leading colonial liberal. A politician whose career was defined by hostility to “class politics” would be astonished to find himself described as “Marx adjacent”. His political career followed the not-unfamiliar trajectory from the zealous liberal reformer of his early days to the conservative statesman of his maturity.

One thing for which Griffith’s premiership is best remembered is his use of colonial police to break the shearers’ strikes of the early 1890s – a decision for which Labor politicians at the time, and Labor-aligned historians have ever since, branded him a reactionary.

Beech-Jones’ distorted picture of Griffith as a left-wing radical is then used to set up a second straw man argument, against the society itself. His thesis is that Griffith’s legacy has been hijacked by a sinister right-wing cabal which he describes as “ominous” and “a pre-social media echo chamber,” comparing it to the Trumpian Federalist Society in America – a “secret handshake club”. He is particularly exercised by two recent speakers – former senator Amanda Stoker and Professor James Allan.

Stoker and Allan are both committed culture warriors. Stoker, now a Queensland state MP, sits on the right of the Queensland’s Liberal National Party. Allan writes entertaining polemics in The Spectator. Both criticise me for not appointing right-wing ideologues to the High Court. (They are right. My criterion was legal eminence: the names I took to cabinet were Susan Kiefel, Geoffrey Nettle, Michelle Gordon and James Edelman.) Jim Allan may not be an admirer of mine – he is as strident in denouncing my Liberal moderate views as my judicial selections – but I am an admirer of his: in the barren left-wing monoculture of Australia’s law schools, the presence of a conservative iconoclast is so rare he should be as cherished as a white rhino.

Stoker and Allan argue for the systematic identification of right-wing lawyers for advancement through the profession and ultimate judicial selection. Stoker explicitly suggests the Federalist Society as a model. Beech-Jones rightly criticises that approach. But these were but two of the more than 300 addresses given over the years, most of them by speakers of far greater eminence, expressing widely divergent views. It is a very slender reed indeed for the critique – in fact, parody – of the Samuel Griffith Society which Beech-Jones offers. Unless – as some have suggested – his intention was, in lightly coded language, to embarrass his own judicial brethren.

Perhaps I should be grateful to Justice Beech-Jones for chastising those who criticise me. But this is a fight no judge should ever have started.

George Brandis is a former high commissioner to the UK and a former Liberal senator and federal attorney-general. He is a professor at the ANU’s National Security College.