The ‘News Room’ of the High Court’s website contains the following announcement:

Retirement of Chief Justice

The Chief Justice of the High Court has advised the Prime Minister of his intention to resign from office with effect from midnight on 29 January 2017. The resignation will take effect a few weeks ahead of the Chief Justice’s 70th birthday on 19 March 2017 in order that his successor may take up office at the commencement of the 2017 sittings on 30 January 2017.

Andrew Phelan.

Chief Executive & Principal Registrar. 23 Mar 2016

The Chief Justice’s resignation comes 47 days before the date mandated by the Constitution.

The publication of the Chief Justice’s retirement plan is a welcome development, contrasting with the lack of official announcement of Crennan J’s early resignation plans at the end of 2014. It brings Australia’s apex Court into line with the practice of other top national courts, for example the Canadian Supreme Court, which issued a press release two days ago announcing the retirement of Cromwell J from that Court. Amongst other things, the announcement provides an indication (albeit imprecise) of when French CJ will stop sitting on new cases. Presumably, in accordance with the High Court’s usual practice, he will stop hearing new cases a few months before 29 January, during which time a maximum of six judges will be available to hear new matters. (The Court has sittings scheduled in the first two weeks of both November and December.)

The announcement also underlines another connection between the coming federal election and the High Court: that the election will decide whether the Court’s next chief justice will be named by the present Attorney-General George Brandis (assuming he remains in that position in a returned Turnbull government) or the present shadow Attorney-General Mark Dreyfus (assuming he is appointed Attorney-General in a future Shorten government.) The next government will have the option of appointing the next Chief Justice from the current bench (including the possibility of an appointment of Australia’s first female Chief Justice if either Kiefel J, Bell J or Gordon J was appointed), and then appointing a new junior member of the bench from outside, or appointing a new Chief Justice from outside the bench (as occurred with the most recent two chief justices, with French CJ appointed from the Federal Court by the Rudd government and Gleeson CJ appointed from the NSW Supreme Court by the Howard government.) As Justinian notes, both the current and shadow Attorneys-General have the option of appointing themselves to the bench. In late 2013, Senate’s Legal and Constitutional Affairs Committee asked Brandis a series of questions about his appointment policy in late 2013, including ‘ Will you ever seek or accept a position on the bench yourself?’, to which Brandis replied ‘I have no present intention of retiring from the Parliament.’