Does Susan Crennan’s elevation to the High Court add one more conservative or has the Government unwittingly played a wild card? Karen Kissane reports.
WHEN the news got about that Susan Crennan had somehow nabbed a star traineeship with a senior barrister, it caused much consternation. Crennan was working as a librarian in a Sydney law firm while she completed her degree. An august partner at the firm dashed around to her tiny office. He had three questions: Had she lost all capacity for rational thought? Shouldn’t she follow the customary route and spend time as an articled clerk before going to the bar? And did she not understand that his firm could not possibly brief a barrister with so little experience?
Crennan’s response to the first two questions was a smile. In relation to the third, she pleasantly agreed with him. But she did exactly as she had planned. She left the firm when she graduated and became the pupil of David Bennett, now Solicitor-General. And six months later, when the firm’s barrister was unavailable in a simple matter, her former employer offered her a brief. The firm went on to become one of her greatest supporters. Crennan had crashed through without crashing. Humility, after all, is rarely a useful weapon in a barrister’s armoury.
The story illustrates many of the qualities Crennan would display in what was to become a legal career of brilliance: intellectual independence, fierce strength of purpose and shrewd networking (she had approached Bennett through his father, who worked at the firm where she had been a nobody).
On Tuesday she will be sworn in as the 45th judge to sit on Australia’s High Court bench, having spent only 18 months as a Federal Court judge. She will be the fifth High Court appointment by the Howard Government and her arrival will leave only two judges who were appointed by Labor, Michael Kirby and William Gummow.
Crennan will take her place on the bench at a crucial time in the history of the court, the Government and the nation. Prime Minister John Howard’s radical and wide-ranging industrial relations changes are likely to be challenged as unconstitutional; all the state leaders are expected to join Queensland in a High Court case to try to have the legislation overturned. If this happens, the Federal Government will hope the bench will rule the laws constitutional.
What might Susan Crennan – lawyer, wife, mother, Catholic, lover of history and literature and defender of Newman’s idea of the university – bring to this moment of truth? Is she really the conservative that she has been painted, or will the Government find that it has played a wild card?
There was a strange riff running through the responses of almost every legal figure interviewed for this story. All spoke of Crennan’s merit but most, on both left and right, expressed surprise at her appointment by a Government with the goal of “Capital-C conservatives” on the bench, as called for by former National Party leader Tim Fischer after the Wik decision in 1996. “I’m astonished that (Attorney-General Philip) Ruddock appointed her,” says one left-leaning barrister who has appeared before her in refugee cases. “She’s fiercely independent.”
Greg Craven worked as an adviser to the state attorney-general in the Kennett years. He witnessed close up the way Crennan, then head of the Bar Council, fought the Kennett government over many of its planned legal reforms. “She is extremely honest and forthright. She says exactly what she thinks and if she disagrees with you, she’ll tell you.”
Craven says that if, on reflection, she comes to believe the other side has a case, she is capable of compromising. If not, she is implacable. He concludes wryly: “As Sir Humphrey Appleby might have said, it is a ‘courageous’ appointment.”
NO ONE could accuse Crennan of being publicity hungry. She likes her encounters with the media to be minimal and firmly managed. Quotes on professional issues aside, it seems she has given only one personal interview during her career, in 1994 to a Sunday Age reporter writing an article on “The Women Most Likely”. Crennan insisted the article be shown to her in full before publication and sent it to the ethics committee of the Bar Council to ensure she had not breached rules forbidding barristers to advertise. Journalists tell of being chided through third parties for having called her Sue rather than Susan in reports, or for having left QC off her attribution.
Since the news of her High Court appointment, Crennan, 60, has refused requests for interviews and has also refused to be photographed, forcing media outlets to run over and over again the two carefully staged office photographs she has chosen and issued herself. She can set these boundaries because Australia does not scrutinise High Court appointments with the public rigour of America’s Supreme Court process. There is not the same expectation that a candidate should lay her legal, political and personal views open for dissection.
Which does not mean those views are any less significant. The individual mix on the bench is important. A High Court that during the 1990s was seen as either progressive (if you’re on the left) or as pushing the boundaries (if you’re a conservative) has given way to a much more restrained, legalistic bench today. The liberal Mason court that delivered the Mabo judgement, acknowledging Aborigines as original owners of the land, is history. In contrast, today’s more conservative court has ruled, for example, that the Federal Government has the right to detain indefinitely a man who could not be deported because he was stateless (Ahmed Ali al-Kateb). Legal analysts point out that often it is not judges’ personal attitudes that influence their work so much as their attitude to the judicial process, although history suggests that political conservatives are also more likely to be judicially conservative. But it is not always so simple. The Liberal-appointed William Deane was part of the majority on Mabo. Retiring Justice Michael McHugh voted for the Kateb decision but recently called for an Australian bill of rights to empower judges to protect human rights.
So what will Crennan bring to the mix?
Susan Maree Crennan grew up in an Irish Catholic family with five brothers and sisters in a small Housing Commission home in Heidelberg West, where her father Maurie was a barman and, later, a hotel manager. He paid for six Catholic educations on a barman’s wages.
Crennan went to Our Lady of Mercy girls’ college in Heidelberg before doing an English course at Melbourne University (where she studied Anglo-Saxon) and taking up teaching. Some time later she decided to do law. By then she was married to English lecturer Michael Crennan, whom she had met at Melbourne Uni in the ’60s. They returned to Melbourne from Sydney in 1979. They have three children and several grandchildren.
The woman from Struggletown now runs a famously sociable household known for its dinners and for its St Patrick’s Day parties, at which Susan Crennan has been known to play the bodhran, the Irish hand-held drum. As president of the Bar Council, she jokingly complained that her predecessor had not stocked the cupboard with Guinness.
She laughs intensely, says constitutional lawyer and academic Greg Craven: “It’s not like she brays like a horse, but when she laughs, she really laughs.”
Michael Crennan became a lawyer too, “but she’s the more high-powered one in the marriage,” says a QC friend. “He plays the more supportive role.” Another lawyer says the Crennans have a lot in common: “They are such an intellectual couple it’s a bit deflating for everyone else, really. They are into history and literature in a serious way. They are real intellectual partners. They are also very good friends, that’s obvious when you see them together. And he’s very proud of her.”
Crennan is a woman used to authority. As a barrister speaking in court, she was not one to lean over the lectern. She held herself straight and spoke formally and with assurance, her voice unfaltering. She was considered a formidable advocate who mastered with apparent ease the complexities of commercial cases and high-profile corporate fraud prosecutions.
She served as senior counsel to the Tricontinental royal commission and as the lawyer for the National Crime Authority in its pursuit of businessman John Elliott, and helped prosecute the directors of the failed Pyramid Building Society. Former Pyramid head Bill Farrow once described facing her as being “a bit like being picked for fullback against Gary Ablett”.
Her only recorded blunder was as a QC on an arbitration case when she went to view an electricity generator. She absent-mindedly leaned against an emergency stop button and shut down the entire plant. The joke was that the case centred on her client’s claims that the plant’s supply was often interrupted. That week, the availability report recorded “plant stopped by QC”.
Professionally, Crennan rose like a rocket. She took silk in 1989, only 10 years after joining the bar. She became the first woman to be appointed chairman (her choice of title) of the Victorian Bar Council, and the first woman to be appointed president of the Australian Bar Association – grand achievements for any female at the blokey bar. She became a Federal Court judge last year.
Retired lawyer Eve Mahlab says Crennan got ahead “because she thinks like a man and works like a dog”.
Mahlab, a feminist, says diplomatically: “If, as a woman, you want to get on, you devote yourself to the goals of your male colleagues and you don’t rock the boat by asking, ‘Is this fair to women?’ . . . What I think Susan Crennan always did, to her credit, was that she devoted herself to the goals of the male society that makes up the profession of the bar. She really contributed there and excelled.”
A conservative newspaper column welcomed her High Court appointment as “one in the eye for the sisters” because she was not a bra-burner or quota queen. In fact, Crennan’s relationship with feminism is a bit more complicated than it seems at first light.
She has certainly rejected feminist rhetoric; she says there is no evidence of gender bias in the law and that she has never suffered discrimination at the bar, and she does not believe in affirmative action.
But Crennan is no queen bee, climbing the ladder and pulling it up behind her; she has often reached down to help other women up a rung or two.
And there is evidence that she is aware of the realities of discrimination. Crennan worked as a part-time hearing commissioner for the Human Rights and Equal Opportunity Commission from 1992-1998. Beth Gaze, an associate professor of law at Melbourne University, has examined Crennan’s decisions for The Age.
“I’m not sure John Howard knew who he was nominating,” Gaze says. “She has a good record in human rights. It’s always difficult to make a case of discrimination. People have to show firstly that they were treated less favourably, and secondly that the reason was because of their sex or their race. But Susan Crennan handed down seven decisions in substantive matters and upheld six of the seven, including cases involving sexual harassment, sex, racial and disability discrimination.
“My view is that that’s quite an extraordinary record, because a lot of the other commissioners were reluctant to uphold cases.”
As a Federal Court judge, Crennan the anti-affirmative actioner upheld a union rule requiring 50 per cent representation of women as delegates as a legitimate special measure. “A special measure may, on the face of it, be discriminatory but to the extent that it has, as one of its purposes, overcome discrimination, it is to be characterised as non-discriminatory,” she ruled.
She also overturned a finding of insufficient evidence by the Refugee Tribunal in the case of an Eritrean woman who feared returning to serve in that country’s army because of widespread sexual abuse of female draftees. Crennan said the fact that were were many such examples meant the practice was “non-random and so oppressive that the applicant could not be expected to tolerate it”.
Says Gaze: “Even though I have heard interviews where she has said she never suffered discrimination, she is able to recognise when other people have.”
A friend of the Crennans says she has never told him her politics but that he would characterise her this way: “She is conservative, but I think it’s more to the right wing of the Labor Party, Labor-type Catholic-DLP thing.”
Crennan is reported to be a practising Catholic and was briefly on the board of Eureka Street, the Jesuit magazine of ideas. One lawyer who did not want to be named suggests that her Catholicism, active or otherwise, could prove interesting. “Basically, Catholic judges come to the bench with quite a strong understanding of Catholic social justice. Some of them won’t apply it on the bench, but others have much leakier compartments.”
He believes it will be telling to see how Crennan approaches the IR changes because they undermine collective bargaining, a principle dear to many Catholics: “Papal encyclicals still talk of it.”
Greg Craven, who is now professor of government and constitutional law at Curtin University in Western Australia, agrees Crennan will be one to watch.
“The thing you have to understand about the High Court judges is that they often change when they come into office. On the Federal Court, they are always subject to correction. Suddenly they get to the High Court and all predators are removed, so there is a tendency to behave in quite unpredictable ways . . . This idea that you can buy something from a shop window in the form of a judge and it will always behave a certain way is wrong.
“I don’t expect her to go berserk, but she’s not as predictable as people think.”
The thoughts of Susan Crennan
On proposals that judges should undergo retraining after alleged sexist remarks by colleagues in rape cases:
“I think it is rather a fascist world view to think that if someone does not toe the line . . . we have to educate them . . . There is no need to force them, I would have thought. With natural attrition and time, the percentage who did not want to get up to date with it will retire, and so life goes on.”
On TV coverage of court cases:
The cameras would distract everyone, focus on appearances rather than issues, and give proceedings a soap-opera quality.
On suggestions that contingency fees should be introduced:
“What entitles lawyers to tax their clients’ damages? The size of the damages reflects the injuries suffered by the client, and not the work done by the lawyer; that is properly measured by time spent, nature of tasks undertaken etc.”
On the Kennett government’s attempts to vet the decisions of the public prosecutor:
“(It) clearly compromises the independence of the office and introduces the potential for political persuasion.”
On the Kennett government’s sacking of former equal opportunity commissioner Moira Rayner:
“This should not be done in a way that effectively ends prematurely the term of a statutory office-holder.”
On criticism that the bar was anti-competitive:
“We barristers, we’re such a ready symbol of the litigation process, so we get it in the neck.”
First published in The Age.