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Speeches
Transcript of proceedings
Federal Court of Australia
Ceremonial Sitting of the Full Court
For the Swearing In and Welcome of the Honourable Chief Justice Keane
BENCH:
THE HONOURABLE PATRICK KEANE, CHIEF JUSTICE
THE HONOURABLE JUSTICE SPENDER
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE HIGGINS AO
THE HONOURABLE JUSTICE MOORE
THE HONOURABLE JUSTICE FINN
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE DOWSETT
THE HONOURABLE JUSTICE DOWNES AM
THE HONOURABLE JUSTICE GRAHAM
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE MIDDLETON
THE HONOURABLE JUSTICE GILMOUR
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE REEVES
GUEST ON THE BENCH
THE HONOURABLE MICHAEL BLACK AC QC
BRISBANE
9.32 AM, MONDAY, 22 MARCH 2010
ASSOCIATE: Presentation of commission and swearing-in of the Honourable Chief Justice Keane.
KEANE CJ: Justice Spender, I have the honour to announce that I have received a commission from Her Excellency, the Governor-General,
appointing me Chief Justice of the Federal Court of Australia. I now present my commission.
SPENDER J: Mr Registrar, will you please read aloud the commission.
THE REGISTRAR: Commission of appointment of the Chief Justice of the Federal Court of Australia.
I, Quentin Bryce, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, and
under section 72 of the Constitution, and subsection 6(1) of the Federal Court of Australia Act 1976, appoint the Honourable Patrick Anthony Keane, a judge of the Supreme Court of Queensland, to be the Chief Justice of the Federal
Court of Australia beginning on 22 March 2010 until he attains the age of 70 years, and signed and sealed with the Great Seal of
Australia on 10 February 2010, Quentin Bryce, Governor-General, by Her Excellency’s command, Robert McClelland, Attorney-General.
SPENDER J: Thank you. Chief Justice Keane, I now invite you to take the oath of office.
KEANE CJ: I, Patrick Anthony Keane, do swear that I will bear a true allegiance to Her Majesty, Queen Elizabeth the Second, her heirs
and successors according to law, that I will well and truly serve her in the office of Chief Justice of the Federal Court of Australia,
and that I will do right to all manner of people according to law, without fear or favour, affection or ill will, so help me God.
SPENDER J: I now invite you to subscribe the oath. Mr Registrar, could you please state the commission of appointment and the oath,
and enter them in the records of the Court. May I simply, on behalf of all the judges of the Federal Court of Australia, warmly
welcome Chief Justice Keane to be the third Chief Justice of the Federal Court of Australia.
KEANE CJ: The Right Honourable Robert McClelland MP, Attorney-General for the Commonwealth; do you move, Mr Attorney?
HON McCLELLAND MP: May it please the Court, I do so move, and with great privilege. It is a privilege, indeed, to be here today to
welcome his Honour Justice Patrick Keane as Chief Justice of the Federal Court of Australia. The appointment of a chief justice
is a rare moment in history. Your Honour is only the third Chief Justice to be appointed to this Court. I’ve had the honour
now of knowing all three. Last week I also had the honour of addressing a ceremonial sitting of this Court, a farewell to your
predecessor, the Honourable Michael Black AC, and I’m pleased to see him here today to also wish you well on this auspicious
occasion. In my address I reflected on the many changes that the Court had implemented during his Honour’s tenure.
Your Honour takes the role of Chief Justice at an exciting time in the Federal Court’s development. With the many virtues that
your Honour brings to this office, I have absolute confidence that this court will have strong and effective leadership in the
years ahead. Your Honour is known for your intellectual talent. You were born in Brisbane. You were educated at St Joseph’s
College, and later graduated from the University of Queensland with a Bachelor of Arts and a Bachelor of Laws with first class
honours. I recently discussed your university days with Father Frank Brennan, who I note is here in the audience. He spoke of the
remarkable ease with which you engaged in your studies, but with a complete lack of arrogance in your manner. I pressed him further
on some university anecdotes, but he claimed a phenomena which I hadn’t heard of, and that was priest professional privilege,
and I’ve learnt not to argue with a priest.
Your Honour exhibited a particular flair for law at this early stage. Your Honour won the university medal in law in 1976. You then
studied at Oxford University where you were awarded a Bachelor of Civil Law with first class honours and, indeed, I’m aware
of many other academic awards that you were also granted. It is clear that your Honour’s love of reading, however, is not
limited to the law. Your service as a member of the Supreme Court Library Committee from 1989 to 2005, and as Chairman of the Supreme
Court Library Collection Subcommittees since 2006 is certainly a testament to that. And your interests are not limited to the law;
I understand that your Honour’s recent contribution to a book on prominent champagne houses allowed you to combine your prodigious
knowledge of history with some of your other passions: a love of good food and fine wine, interests I too share, and it was commented
it may have something to do with our slightly robust frames, but I make no formal admissions in that respect.
You have a remarkable capacity to absorb the written word. In fact, one colleague commented that your Honour appears to have the
entire corpus of LexisNexis in your head. Your Honour’s achievements throughout your career demonstrate your ability to apply
that knowledge in a logical and useful way. By combining this talent with your commitment to justice and passion for the law, you
have certainly achieved much. From your admission as a solicitor to the Supreme Court of Queensland in 1976, and as a barrister
in the following years, your Honour had a successful private practice at the Bar, concentrating principally in commercial and constitutional
law, great assets, of course, for this Court. Your colleagues have said that, as a barrister, you set a standard of professionalism
that was impossible to match, and your high ethical and professional standards made you an outstanding exemplar for the Bar and,
indeed, the entire legal profession.
Your Honour’s great skill as an advocate was recognised when you were appointed as Queen’s Counsel in 1988 after just
11 years at the Bar. And in 1992 you were appointed as Solicitor-General for Queensland. In that role your Honour appeared before
the Full Court and the High Court in a great many leading cases. That your Honour was the only barrister in Australia to be asked
to speak at the High Court Centenary Conference in 2003 demonstrates the great esteem in which you were held. In that same year
your Honour was also awarded the Centenary Medal. In 2005 your Honour was appointed to the bench of the Court of Appeal of the
Supreme Court of Queensland, and of course it goes without saying that you are deeply missed by the court; I note the Chief Justice
is here. But as the former Chief Justice commented in his farewell address last Friday, you are sure to be welcomed by this Court
in your new role.
In recent years your Honour has helped define the operation of the law through your appellate determinations. Your Honour’s
judgments, particularly in criminal trials, will leave a permanent impression on this branch of the law, and again, that expertise
will be invaluable to the Federal Court as it takes on its new criminal jurisdiction. Throughout your career you have always given
back to the law. You have served as Deputy Chairman of the Queensland Law Reform Commission, and you have maintained membership
of both the American Law Institute and the Australian Association of Constitutional Law. You recently took up the role of President
of the Australian Institute of Judicial Administration after serving as a member of the Council since 2006. As Chair of the Projects
and Research Committee your Honour has been responsible for significant projects, including the Bench Book for Children Giving
Evidence in Australia, and also the Solution Focused Judging Bench Book. I must say that I have been greatly impressed by the colleagic
culture of the Federal Court. That is most certainly a real strength, and your Honour undoubtedly will add to that culture.
Your former colleagues of the Supreme Court of Queensland describe your Honour as witty and good humoured. Your warm and considerate
manner is welcomed by colleagues and friends. These are attributes that will serve your Honour, as well as the Court, as you communicate
your vision for the future to the Court. I have observed that your Honour has already turned your mind to the future developments
of the law, and the role of the Court in those developments, and I’m sure your Honour will find willing partners among the
judges of this Court. They have been real innovators in ensuring the law, even at this high level, remains accessible. I am confident
that with the skills and attributes that your Honour brings to the Court, including your intellect, passion for justice and the
law and, importantly, your vision, you will join your predecessors as great leaders of this Court and build on its proud history.
On behalf of the government and the people of Australia I extend to you my warmest congratulations on your appointment as Chief
Justice of the Federal Court of Australia. May it please the Court.
KEANE CJ: Thank you, Mr Attorney. Mr Glen Ferguson, President of the Law Council of Australia; do you move, Mr Ferguson?
MR FERGUSON: May it please the Court, I do so move. It gives me great pleasure to appear on behalf of the Law Council of Australia
on the occasion of your Honour’s appointment as Chief Justice of the Federal Court of Australia. The Law Council represents
more than 55,000 Australian lawyers through its constituent bodies, the bar associations and law societies of every State and Territory,
together with the Large Law Firm Group. I am certain I speak on behalf of each and every one of them when I congratulate your Honour
on this wonderful achievement. Your appointment as Chief Justice of this honourable Court is richly deserved and caps a distinguished
career in the law. It also recognises the fact that you are widely regarded as one of Australia’s finest legal minds, and
equally as important, a very decent person.
As a fellow Queenslander I am especially honoured to be here today to welcome you to be the first from this State to assume the role
of Chief Justice. You are highly respected as a lawyer and a judge throughout Queensland and around the country, and bring to the
position of Chief Justice of the Federal Court a wealth of experience with your contribution to the law spanning more than 30 years.
Your Honour was marked for high office at an early stage. You graduated from the University of Queensland in 1976 with a Bachelor
of Arts and a Bachelor of Laws, achieving, as the Attorney acknowledged, first class honours, a university medal and three major
academic prizes. Prior to being admitted to the Bar in 1977 you gained a Bachelor of Civil Law from Oxford. Again, you attained
first class honours and two more sought-after academic prizes.
Your successful practice led to your appointment as Queens Counsel in 1988 after just 11 years at the Bar, an extraordinary feat
by any measure. In 1992 you were appointed to the role of Queensland Solicitor-General, a position you held with distinction until
your appointment as a judge of the Court of Appeal in 2005. Throughout your career you have always demonstrated your wide expertise
in many areas of the law, including constitutional law. Your Honour has earned a reputation as an astute lawyer, compelling advocate,
and a highly respected judge. Whilst at the Bar your Honour said a career goal was to be regarded as a mean and cerebral medium-paced
bowler. Many agreed that, metaphorically speaking, you did, in fact, achieve this aim, sending numerous baffled batsmen back to
the pavilion, wondering what had happened. Your Honour’s appeals were very frequently upheld by the umpire.
At the Bar your Honour was noted for your thorough preparation of your cases. You have always been meticulous and displayed a remarkable
ability to go to the very heart of any case. And to use another sporting analogy, you earned a reputation for being merciless in
detecting and exploiting the slightest weakness in your opponent’s game and taking full advantage. Your Honour is a proud
Queenslander. As Solicitor-General you appeared for the State many times in the High Court, and in many cases in which all jurisdictions
were represented. One such year coincided with the State of Origin match. Everyone had finished their submissions and you issued
a general invitation for anyone who wanted to see New South Wales cop a hiding to watch the game within your room. Sadly the Maroons
suffered a rare defeat, and as the beer went flat and the conversation stopped, you were philosophical in defeat. Well, “It
wasn’t as bad as the Battle of the Boyne”, you said, “but only just”.
Before your elevation to the Court of Appeal you were described as the State’s premier barrister and justifiably so. In 2003
the High Court marked its hundredth birthday with a conference. Speakers included the Chief Justices of Canada and New Zealand,
the Senior Law Lord, and a number of internationally renowned academics. As we heard from the Attorney, it speaks volumes of your
Honour’s reputation that of the 5000 barristers in this country, you were the only one asked to speak. In 2003 you were awarded
the Centenary Medal for your contribution to the legal profession. There is no doubt your Honour has been an outstanding judge
of the Court of Appeal. I was president of the Queensland Law Society when your Honour was sworn in. I recall it was one of the
occasions when the entire profession wholeheartedly welcomed the appointment.
Your appointment as Chief Justice of the Federal Court is an occasion of enormous significance for yourself, your family and for
the nation. Your Honour has made immeasurable contributions to the law, the legal profession, the courts and the State of Queensland,
and now your Honour’s many talents has taken you to one of the highest judicial positions in the nation. On behalf of the
Law Council I would like to, once again, congratulate your Honour on this great achievement. On a personal note, as stated earlier,
it is a great honour for me to be president of the Law Council on this historic occasion.
The legal profession of this country welcomes your appointment, and I speak on behalf of the whole profession in wishing you a long
and distinguished career on this honourable Court. The Law Council is certain you will excel in your new position and looks forward
to working with you in your new role. Last Friday, along with the Attorney-General and the President of the Australian Bar Association,
I had the pleasure of speaking at the farewell of former Chief Justice Black in Melbourne. I stated on that occasion that Chief
Justice Black will be remembered as a great Chief Justice of this Court. I have no doubt the same will be said about your Honour.
May it please the Court.
KEANE CJ: Thank you very much, Mr Ferguson. Mr Peter Riordan, President of the Australian Bar Association, do you move?
MR RIORDAN: Indeed I do, if the Court pleases. I appear on behalf of the Australian Bar Association and all barristers of Australian
States and Territories to say how delighted we are on this, the occasion of your Honour’s appointed as Chief Justice of this
court. It’s been said of your Honour that your Honour is, “a first rate traditional legal technician”; a high
compliment, not only because similar terms were used to described Sir Owen Dixon, but also it echoes the similar qualities identified
in the citation that was read on Saturday at the conferral of the Doctorate of Laws on Chief Justice Black, where it was said of
your predecessor:
Michael Black is the quintessential common lawyer for the 21st century. He believes in and uses to high effect the high technique
of the common law adapted to an age of statute. The Chief Justice’s capacity to marry the two has been a seminal contribution.
Your Honour’s intellectual excellence is rooted in your broad practical experience, which is in the highest tradition of the
common law. From 1973 to ‘75, while studying your law degree at the University of Queensland, your Honour served articles
in a small firm, known as Roberts & Kane. On completion of your law degree you were admitted to practice as a solicitor in
February 1976, and from that time you were employed by Feez Ruthning for some two years, until ultimately you signed the bar roll
in December 1977. However, during your time with Feez Ruthning you took the opportunity to spend the nine month northern hemisphere
academic year at Oxford where, in fact, your son Patrick was born in December of 1976.
Your Honour brings to this Court the breadth of experience as an articled clerk in a small firm, a solicitor in a large firm, followed,
of course, by 25 years in private practice, during which time concurrently you had some 13 years in government service as the
Solicitor-General. It is, I believe, only in Queensland that the Solicitor-General has a private right of practice, a right which
I am told that your Honour exercised vigorously. You maintained your substantial private practice over the 13 years as Solicitor-General,
and to cope with those work pressures, your Honour’s day in chambers routinely began at about 6.30 in the morning. It must
have been a rude shock to some who wanted to conference with the Solicitor-General to find that their morning conference had been
scheduled at such ungodly hours.
All this serves to underline your Honour’s quite extraordinary capacity and commitment. At your welcome to the Court of Appeal
in 2005 your Honour quipped to your three sons that they must have thought, “On those occasions when I was not at work I
was in heavy training for the Australian Olympic sleeping and recumbency team”. In your time on the Court of Appeal you have
made many significant contributions. I intend only to refer to a couple of examples. Chief Justice de Jersey, writing as acting
editor for the Australian Law Journal described the decision in R v Ku, the Aurukun rape appeals, as one of the most significant decisions of the Queensland Court of Appeal in the criminal jurisdiction
in recent decades. The case had attracted national and international attention, and his Honour described the court, as it was constituted
by the three most senior Queensland judges available.
The panel was the Chief Justice, the Court of Appeal President McMurdo, and your Honour. Last year your Honour wrote the principal
judgment in the controversial decision which was in R v Stafford. On petition of mercy the court quashed a 1992 murder conviction and ordered a retrial. As recently as the last few weeks the case
of the Aurukun Shire Council v CEO of the Office of Liquor, Gaming and Racing raised the issue of human rights; the balance between the claimed right of opportunity to buy alcohol from a licensed authority,
and the right to live in a community free of alcohol fuelled violence. One does not have to read much of your Honour’s writing
to get a further glimpse of the breadth of your Honour’s scholarship through the scatterings of literary allusions. In a
2007 judgment you quoted Aristotle as famously saying:
It is the mark of an educated man to seek no greater certainty in his conclusions than the nature of the subject matter will allow.
And as recently as, I think, last Tuesday at your valedictory you quoted Saint Augustine saying, rather aptly:
In relation to great questions, unanimity of opinion is the privilege only of angels.
That valedictory ceremonial sitting in the Supreme Court last Tuesday, your Honour having served only five years on the court, was
a tribute to the high regard and affection in which your Honour was held on the court. You accepted the invitation of a valedictory
sitting because, as you put it, “It was timely to say something about this institution, the Supreme Court of Queensland,
which I have come to love, and some of the individuals associated with it”, which you then went on to do.
I know from discussions with members of the Queensland Bar that you will be sorely missed as a member of the Court of Appeal, but
undoubtedly Queensland’s loss in that regard is Australia’s gain. Sir Nigel Bowen was the Chief Judge of this Court,
the original form of the title, for its first 14 years and he was based, of course, in Sydney. The Honourable Dr Michael Black,
as his Honour now is, having received the distinction of a doctor of laws degree honoris causa from Melbourne University last Saturday
was, for his term of nearly 20 years as Chief Justice, based in Melbourne. Your Honour Chief Justice Keane has announced that you
propose to remain in Queensland. Although undoubtedly Victoria will miss not having the Chief Justice of the Federal Court in its
State, I have no doubt that during the time that you are Chief Justice, you will not only enhance the standing of this Court in
Queensland, but you will carry on the work of Chief Justices Bowen and Black in establishing this Court as the truly national court
as it has always been intended to be.
Your Honour’s intellect, industry, passion for justice, not to mention your record of standing achievement augurs well for
the next some 20 years, hopefully, with your Honour at the helm. On behalf of the Australian Bar Association and the independent
bars of Australia, I wish your Honour a distinguished and satisfying service as a Chief Justice of this Court.
KEANE CJ: Thank you very much, Mr Riordan. Mr Rogers Traves, Vice President of the Bar Association of Queensland, do you move.
MR TRAVES: May it please the Court, it is a privilege to speak at your Honour’s swearing in as the Chief Justice of the Federal
Court of Australia. Your Honour was always a shining light of the Queensland Bar, preeminent amongst us. You were not long admitted
before you developed a large practice in commercial and constitutional law. You were much sought after by our busiest and most
successful silks, and you appeared many times in the High Court, led by the likes of Jackson QC, Davies and Thomas of Queens Counsel
and, often for the Attorney-General for the State of Queensland, by de Jersey QC. In the important trade practices case of Queensland
Wire Industries v BHP your Honour appeared as junior to former Chief Justice Murray Gleeson and Byrne QC, now the Senior Judge Administrator of the Supreme
Court.
Locally your Honour had a wide ranging practice in and out of court. Of note was your enviable retainer for the Proprietary Sugar
Millers’ Association for whom you appeared each winter, led by Hanson QC before the Central Sugarcane Prices Board sitting
in sunny regional Queensland. As Queens Counsel your Honour was one of those to whom juniors always looked. But you gained a reputation
for being one of the few to engage when an appeal looked particularly tough. “Perhaps we should get Keane” was often
said by the junior Bar, resigned as they were to the meagre realities of the case, but ever hopeful your Honour could find a way
to rescue it. It never occurred to us at the time that your Honour might not necessarily have wanted these most difficult of appeals,
but you took your instructions manfully and found challenge in the contest, and you did so in a way which inspired confidence in
your team. You’ve had that ability, characteristic of truly able leaders, to absorb the uncertainties and pressures of the
case, rather than to deflect them.
Your Honour was a natural force at the Bar. Not only did your Honour possess outstanding scholastic ability, but you had the force
of personality, the skill in advocacy, and the capacity for devotion to duty truly to distinguish you among your peers. Your Honour,
if I may say, is unpretentious and modest, notwithstanding your singular talent. You have never been one overtly to seek advancement
or promotion, yet your appointments to the Court of Appeal and now to the Federal Court have seemed the most natural of progressions.
From the perspective of those who worked with you, your advancement was always assured. That that should be so is a consequence
of much more than your ability as a lawyer. Your Honour has, it seemed to me, an acute intuition into the character and the strengths
and the nuances of those around you. No one here who knows you can have any doubt that your Honour will be a strong, effective
and popular leader of this Court. The Queensland Bar takes great pride in your Honour’s appointment. You are one of our very
best, and we wish you well. May it please the Court.
KEANE CJ: Thank you very much, Mr Traves. Mr Peter Eardley, President of the Queensland Law Society; do you move, Mr Eardley.
MR EARDLEY: Thank you, your Honour. Chief Justice Keane, members of the Federal Court, distinguished guests. The legendary member
of the New South Wales Supreme Court, the late Harold Glass, was very fond of ceremonial occasions, such as this, your Honour.
He was of the firm view that on these occasions too much praise is never enough. That advice is certainly true for your Honour.
I am, however, conscious of the advocacy rule that mere repetition of a proposition, however compelling, is not a tactic likely
to meet with approval from the Bench. I will content myself, therefore, your Honour, with the very pleasant task, on behalf of
all of the solicitors of Queensland, in adopting with great acclamation all of the tributes that have been rightly expressed by
the other speakers today, and on earlier occasions in the Supreme Court and in the media since the announcement of your appointment.
Every accolade, your Honour, is well deserved and well earned, reflecting not only the great admiration we all have for your legal
talents, but also the great personal affection we all have for you. It is also right that I congratulate the Attorney for his very
wise choice. Your Honour, you have the responsibility to lead one of the great traditional institutions of our legal system. Your
outstanding capacity for hard work is legendary. We are very confident that your learning, your diligence, your humanity will enable
you to be a beacon in judicial decision making throughout Australia. Your Honour has rightly stated that judgment writing is not
a popularity contest. Hard decisions are necessarily made. The prominent standing your Honour holds in the profession throughout
Australia is evident by the universal willingness to accept your learned reasoning.
Your Honour, we solicitors have a common lament from your time at the Bar. Your name was foremost on our list of preferred counsel.
Many a solicitor regrets the delayed phone call to engage you for the hard case. Many were disappointed to be told you had applied
the cab rank rule; the other side had got in first. The legal profession throughout Australia is undergoing fundamental reform.
The welcome concept of being an Australian lawyer is close to reality. Its rules of governance are under immediate review. Just
as you spoke eloquently on public policy issues as important as the bill of rights, the profession looks to your leadership and
wise counsel in ensuring that the reforms of the profession are dealt with in the true tradition of the rule of law. Chief Justice
Keane, we Queenslanders say farewell to one of our finest. We readily accept your elevation to your new office. It is for the greater
good of the legal community of Australia. Your close involvement in our local community will, of course, continue, by administering
the Court from Brisbane. All is not lost. We wish you every success and enjoyment in your new role. May it please the court.
KEANE CJ: Thank you very much, Mr Eardley. Mr Attorney, Mr Ferguson, Mr Riordan, Mr Traves, Mr Eardley, colleagues, ladies and gentlemen.
I acknowledge, first of all, the presence of the Honourable Robert French, Chief Justice of the High Court of Australia, and the
Honourable Susan Kiefel, Justice of the High Court of Australia, the Honourable Paul de Jersey, Chief Justice of Queensland, the
Honourable James Spigelman, Chief Justice of New South Wales, the Honourable Justice Bernard Bongiorno representing the Chief Justice
of Victoria, Deputy Chief Justice Faulks representing the Family Court of Australia, Mr John Pascoe, the Chief Federal Magistrate,
Mr Graeme Neate, the President of the National Native Title Tribunal, her Honour Judge Wolfe for the District Court of Queensland,
the Honourable Cameron Dick MP, Attorney-General for Queensland and Minister for Industrial Relations, and Michael Colbran QC,
Chairman of the Victorian Bar Council. It is also a particular pleasure to welcome the Honourable Chief Justice, Sir Salamo Injia,
Chief Justice of the Supreme and National Court of Papua New Guinea, a court with which this Court has a special relationship.
I thank all these distinguished guests for making the time and taking the considerable trouble to be here today, and for honouring
this Court by their presence. It would be remiss of me if I did not, at the outset, record my thanks to Justice Spender and to
the Registrar, Mr Soden, and the Acting District Registrars, Ms Baldwin and Mr Belcher, who literally caused heaven and earth to
be moved to ensure that this court would be refurbished in time to be ready for today’s ceremony. It was a Herculean task.
I must also record my gratitude to Mr Graham Healey, whose organisation of today’s proceedings has brought order out of chaos,
at least so far.
Mr Attorney for the Commonwealth, thank you for the honour you bring to the Court and to me with your very kind words. Mr Attorney,
in your case, and in the case of each of Mr Ferguson, Mr Riordan, Mr Traves and Mr Eardley, I thank you for what you have said.
And as my first act in my judicial role, I decline to record a conviction against any of you for outrageous flattery in a public
place. But in truth, I do appreciate your words of support more than words of mine can say.
I acknowledge on behalf of all the judges of this Court the work of my two predecessors in this office, Sir Nigel Bowen and today
particularly, a man who is now officially the Honourable Dr Michael Black, AC QC, but who has been, for the last 19 years, the
Chief Justice of this Court. He does us the honour of joining us on the Bench for today’s sitting.
If I may claim the indulgence of addressing some remarks directly to his Honour; it is, after all, his birthday. At the ceremonial
sitting held in Sydney on 1 February 1991 to welcome you as Chief Justice, you said of the Court whose stewardship you inherited
from Sir Nigel Bowen:
It is a court of innovation. It is an outward looking court … Despite the difficulties inevitably imposed by the dispersal
of its members and by its workload, this is a court whose members work together in harmony and friendship.
Those statements were true then; after 19 years of your stewardship, they are even more true today. Under your leadership the Court’s
jurisdiction has developed, and its establishment has grown. More importantly, however, there can now be no doubt that this Court
is an institution indispensible to the guarantee of the rule of law throughout the Commonwealth.
I am, as you were 19 years ago, acutely aware of the high responsibility of keeping the Court on course. But, like you, I am able
to count on the support and assistance of each and every member of the Court. I have been greatly encouraged by the warm welcome
I have received from my new colleagues. I am very much looking forward to working with them, and working together we shall certainly
do our utmost to stay on course.
Days like today provide an occasion to reflect upon the role of the Court as an institution which is part of a bigger picture. In
the broad sweep of history we should not lose sight of the fact that the birth of this Court was attended by some controversy.
There were those who viewed with suspicion the idea of a specialist Federal judiciary dedicated to applying the laws of the Commonwealth.
One aspect of that suspicion was that the Commonwealth Government might expect to be preferred over other litigants in courts of
its own creation. That was always a curious suspicion given that the Constitution itself expressly contemplated the creation of federal courts in addition to the High Court.
But the truth, as events have unfolded, is that such preferment never occurred, and that what has been achieved is the development
of a dedicated and undeniably independent and impartial judiciary with special expertise in the most important fields of Commonwealth
legislative activity.
Another concern was that so many areas of our national life would be affected by judges, and federal judges at that. But the level
of involvement of federal judges in the life of the nation is no more than a consequence of the expansion of federal law integral
to the development of Australian identity since the Great Depression and the Second World War.
In that time, there was an expansion in the laws of the Commonwealth Parliament relating to income tax, human rights, workplace relations,
corporations, business practices and competition, trade marks, patents, copyright and designs, admiralty, maritime law, migration
and lastly, and perhaps most importantly native title.
The laws of the Commonwealth have come to permeate the economical and social life of the nation. And with the expansion of legislative
activity has grown an enormous administrative apparatus of the Commonwealth executive government. These are all the necessary sinews
of the life we share on this continent. These changes in the life of the nation were of a kind and extent without precedent in
history. It was in response to these changes that this Court was called into existence to uphold the rule of law, and to give remedies
and to enforce rights to ensure the social and economic development and wellbeing of all Australians.
When the laws of the realm are as complex and far reaching as the laws of Australia have become since the Second World War, only
a court with special expertise can sensibly be expected to guarantee that the laws of the Commonwealth are applied vigorously and
fairly across the continent.
We are speaking here of the rule of law as something rather different from the gradual evolution of the common law by the judges
over the millennium after the Norman Conquest. Under the common law, the organs of the executive government were held by the judges
to be subject to the ordinary laws of the land: government officials enjoyed no special privileges over their fellow subjects.
The development by the judges of the common law, as a system in which the power of the executive government to interfere with individual
liberty was constrained by the ordinary law of the land, was a very great achievement. And it was a peculiarly British achievement.
It was the French philosopher, De Lolme, however, who first used the phrase “rule of law” in the sense with which we
are familiar. He used the phrase to describe that peculiarly British way of looking at the legal relationship between the government
and citizen. Writing in the mid 18th century, De Lolme said:
…to such a degree of impartiality has the administration of justice been brought in England that it is saying nothing beyond
the exact truth to affirm that any violation of the laws, though perpetrated by men of the most extensive influence, may, though
committed by the special direction of the first servants of the Crown, will be publicly and completely redressed. And the very lowest
subject will obtain such redress, if he has but spirit enough to stand forth and appeal to the laws of his country - most extraordinary
circumstances these!
Extraordinary they were indeed. The common law still provides protection for the rights of the individual, and continues to shed
light on the conceptual foundations of our legal arrangements. But the rules of the common law aren’t sufficient to explain
the modern relationship between government and governed. For a start, the rules of the common law aren’t of much help to
those who don’t have common law rights to protect to begin with.
And as important as the rules of the common law have been, and remain to all of us, they did not lead to the building of a single
hospital or school or road. They didn’t create a single national park or take a step to protect our environmental or cultural
heritage. Nor did they raise a penny for the social security of aged or disabled citizens, or for the unemployed or for the veterans
of our nation’s wars.
The rules of the common law did not prevent child labour or wage slavery; rather, they were used as the instruments of oppression
of working men and women. In all these areas, justice was not done by the common law, but by the Australian people in the parliaments
which they elected, and the more active the people in their parliaments, the better was justice served.
All of us here today are the beneficiaries of the extraordinary flowering of democracy in this country for which we are in the debt
of our parents and grandparents. Many of those on this Court who are over 50 years of age have been the first generation in their
families to attend university. All of us have enjoyed opportunities, in terms of security and prosperity and quality of life, of
which our parents and grandparents would not even have dreamed. And we have enjoyed these opportunities only because of the sacrifices
of these two generations and their determination that all of us - all of us together - should share an equal opportunity to enjoy
this nation’s bounty. In the sweep of human history, these are truly extraordinary circumstances. In the history of the world,
these are extraordinary circumstances.
These extraordinary circumstances, among other things, led to the creation of this Court as an organ of government charged by the
Australian people, through the Parliament of the Commonwealth, with the special task of ensuring that the laws of the Commonwealth
are applied equally and fairly for the protection and welfare of all our citizens, to ensure not merely that the power of the State
does not unlawfully interfere with the liberty of the individual, but to develop a jurisprudence in which all our citizens enjoy,
in equal full measure, the beneficent effect of the laws passed by the Parliament; to ensure, for example, that the taxes with
which we buy our civilisation are borne fairly and equally according to law; to ensure that the laws by which our corporations
are organised and operate, and the laws which regulate the exercise of rights of intellectual property, and the laws which ensure
competition and integrity in business are enforced so that the aggregation of economic power in private hands is not allowed to
menace our common welfare and institutions. Similarly, this Court enforces the irreducible standards of conduct in business prescribed
by the Trade Practices Act.
And more fundamentally, this Court ensures, throughout the Commonwealth, equality before the law. Importantly in this latter regard,
in relation to native title, it is the special responsibility of this court to ensure that the Native Title Act, governing the belated recognition of Indigenous rights, is administered fairly and with decency and respect to all parties. Because
of the importance of the recognition, albeit belated, of native title to the life of the nation, the just determination of claims
to native title must continue to have the highest call on this Court’s resources.
It is correct to say, I think, that the nature and extent of the role of the Federal judiciary in the life of this nation was unthinkable
until the bloodless revolution wrought by our parents and grandparents made it essential. The fact that the Court has come to exercise
such a role is not, I would suggest, a matter for regret or dismay; rather, it is simply to recognise two things: that the Australian
people have come into their own, and that the Australian people continue to have a passionate regard for the rule of law.
This generation of Australians has come into a great inheritance: the bequest of the brave, idealistic, generous and self-sacrificing
generations who preceded them. It is the high responsibility of this generation to honour that bequest and to preserve and advance,
if we can, their achievement. We cannot be complacent, of course; but the achievement of this Court, since its inception, does
mean, I think, that we can be confident with a duly modest regard for our own wisdom, and of course for our place in the judicial
hierarchy, as we rededicate ourselves to the task of ensuring the inheritance of the rule of law for the next generation of Australians.
Well, so much for the big picture. Occasions like today also afford an occasion for recognition of more personal things. In my case
there is great personal pleasure in joining mentors and lifelong friends on this Court in what, for me, is a new professional endeavour
full of challenge. It is also an occasion to recognise my family, many of whom are here today, and some of whom have come a long
way to be here. It’s very important to me and I greatly appreciate what they have done. I must, above all, recognise the
great good fortune bestowed on me through the loving and unstinting sacrifices of my own parents, and the constant and unflagging
support of my wife, Shelley. Without them, quite simply, I would not be here.
As to the other members of my family who are here today, you may have already noticed that some of them are more than happy to speak
for themselves. And Mr Ferguson, I congratulate you on managing to deal with the cheer squad that you had behind you in making
your submissions. I am sure that you will all find them as delightful as I do, and they are certainly worth meeting. And so may
I ask you now to join Rehan and Ishaan and Afiyah, and Zebediah and Solomon and Shaun and Jennifer, Christopher and William, and
Patrick and Lucinda for a cup of tea. Adjourn the Court please.
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