Constitutional Ableism in the High Court
Australia’s constitutional framework is often celebrated for its commitment to judicial independence and institutional stability. Section 72, in particular, is viewed as a safeguard designed to insulate judges from political interference and preserve the integrity of the High Court. Yet beneath this narrative lies a structural blind spot: the Constitution was built without any meaningful consideration of accessibility. The result was a system that protected judges from external pressure while simultaneously enabling internal discrimination.
The experience of Sir Edward McTiernan illustrates this contradiction with striking clarity.
A distinguished career ended not by incapacity, but by inaccessibility
Sir Edward McTiernan served on the High Court of Australia for an extraordinary 46 years, having been appointed in 1930 at the age of 38. Throughout his tenure, he contributed to landmark constitutional decisions and became a symbol of continuity within the nation’s highest judicial institution. His intellectual capacity remained strong well into his eighties, and he continued to participate meaningfully.
In 1976 McTiernan suffered a hip fracture and began using a wheelchair. This physical change did not diminish his legal reasoning or his ability to adjudicate complex matters. What it did require was a simple accommodation: a wheelchair ramp in the courtroom.
The High Court refused.
Chief Justice Sir Garfield Barwick declined to approve the installation of a ramp in the newly constructed High Court building. This refusal was not a neutral administrative decision. It was a stance that made it physically impossible for McTiernan to continue performing his judicial duties. Faced with an environment that would not adapt to his disability, McTiernan reluctantly retired in September 1976 at the age of 84.
His departure was not the result of cognitive decline or proven incapacity. It was the consequence of an inaccessible court and a constitutional structure that offered no protection against such exclusion.
Seeking constitutional independence
For the first seven decades of the High Court’s existence, judges held life tenure. The framers believed this was essential to judicial independence, but they did not contemplate the possibility that a judge might acquire a disability requiring accommodation. Section 72 provided only two mechanisms for ending judicial service: voluntary resignation or removal by Parliament on the grounds of “proved misbehaviour or incapacity.”
In practice, “incapacity” was interpreted through an ableist lens. Physical disability was treated as inherently incompatible with judicial office, even when it had no bearing on a judge’s ability to reason or decide cases. The Constitution protected judges from political pressure, but it did not protect them from institutional discrimination. It offered no framework for accessibility, no obligation to modify court facilities, and no recognition that disability could coexist with judicial competence.
A catalyst for reform
McTiernan’s situation became a reference point in the debates leading to the 1977 constitutional amendment introducing a mandatory retirement age of 70 for federal judges. While this reform addressed concerns about indefinite tenure, it did not confront the underlying problem revealed by McTiernan’s experience. The amendment did not acknowledge the ableism embedded in the Court’s decision. It did not require accessibility in judicial spaces. It did not recognise that a judge had been effectively removed because the institution refused to install a ramp.
Instead, the narrative was reframed around generational renewal and administrative efficiency. The discriminatory treatment of a disabled judge was quietly omitted from the constitutional story.
Valuing intellect
The legal profession prides itself on being a discipline of the mind. Yet, McTiernan’s experience demonstrates how deeply the profession remains shaped by assumptions about physical ability. The High Court did not ask whether McTiernan could continue to fulfil the intellectual demands of judicial office. It asked whether the building could remain unchanged. When the answer was no, it was the disabled judge, not the inaccessible institution, that was expected to adapt or depart.
This is constitutional ableism; the belief that legal institutions are inherently fixed and that disabled bodies must conform to them, rather than the institutions evolving to accommodate all who serve within them.
The contemporary relevance of McTiernan’s story
Although Australian courts today are more accessible than they were in 1976, the underlying attitudes exposed by McTiernan’s experience persist. Disabled lawyers continue to encounter barriers to entry and advancement. Courtrooms, chambers, and professional expectations are still shaped around able-bodied norms. Disabled judges remain rare, not because they lack the capacity to serve, but because the profession continues to equate disability with diminished capability.
McTiernan’s story is not merely a historical anecdote. It is a reminder that constitutional design and institutional culture can exclude even the most accomplished legal minds when accessibility is treated as optional rather than essential.
Conclusion
Sir Edward McTiernan did not leave the High Court because he could no longer serve the justice system. He left because the Court refused to build a ramp and internal social-politics. His experience reveals a profound tension within Australia’s constitutional framework; a commitment to judicial independence that coexists with a failure to ensure judicial inclusion.
The question his story poses remains urgent. If the High Court could discriminate against a judge of McTiernan’s calibre because of accessibility, what and who, might the legal profession still be losing today?
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