Ceremonial Sitting - Swearing-in of Kiefel J [2007] HCATrans 493 (3 September 2007)

Last Updated: 18 September 2007

[2007] HCATrans 493

H I G H C O U R T O F A U S T R A L I A

CEREMONIAL SITTING

ON THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE SUSAN MARY KIEFEL

AS

A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

ON

MONDAY, 3 SEPTEMBER 2007, AT 2.15 PM

Coram:

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Honourable Sir Anthony Mason, AC, KBE, retired Chief Justice of Australia

The Honourable Mary Gaudron, retired Justice of the High Court of Australia

The Honourable Michael McHugh, AC, retired Justice of the High Court of Australia

The Honourable Ian Callinan, AC, retired Justice of the High Court of Australia

The Honourable Michael Black, AC, Chief Justice of the Federal Court of Australia

The Honourable John Doyle, AC, Chief Justice of South Australia

The Honourable Paul de Jersey, AC, Chief Justice of Queensland

The Honourable James Spigelman, AC, Chief Justice of New South Wales

The Honourable Terence Higgins, Chief Justice of the Australian Capital Territory

The Honourable Marilyn Warren, AC, Chief Justice of Victoria

The Honourable Brian Martin, Chief Justice of the Northern Territory

The Honourable Diana Bryant, Chief Justice of the Family Court of Australia

Members of the Judiciary seated within the Court:

The Honourable Justice A. Emmett, Federal Court of Australia

The Honourable Justice J. Allsop, Federal Court of Australia

The Honourable Justice A. Bennett, AO, Federal Court of Australia

The Honourable Justice A. Greenwood, Federal Court of Australia

The Honourable Justice B. Collier, Federal Court of Australia

The Honourable Justice M. Gordon, Federal Court of Australia

The Honourable Deputy Chief Justice J. Faulks, Family Court of Australia

The Honourable Justice M. Finn, Family Court of Australia

The Honourable Justice M. May, Family Court of Australia

The Honourable Justice M. McMurdo, AC, Court of Appeal, Queensland

The Honourable Justice J. Byrne, JA, Supreme Court, Queensland

The Honourable Justice P. McMurdo, Supreme Court, Queensland

The Honourable Justice V. Bell, Supreme Court, New South Wales (as President of the Australian Institute of Judicial Administration)

The Honourable Justice Bruce Debelle, Supreme Court, South Australia

The Honourable Justice D. Angel, Supreme Court, Northern

His Honour Judge C. Brabazon, QC, District Court, Queensland

His Honour Judge M. Griffin, District Court, Queensland

Chief Federal Magistrate J. Pascoe

Federal Magistrate S. Emmett

Magistrate M. Doogan, Magistrates Court, Australian Capital Territory

At the Bar Table the following persons were present:

The Honourable Philip Ruddock, MP, Attorney-General for the Commonwealth

Mr David Bennett, QC, AO, Solicitor-General for the Commonwealth

Mr William Bale, QC, Solicitor-General for the State of Tasmania

Mr Robert Meadows, QC, Solicitor-General for the State of Western Australia

Mr Michael Grant, QC, representing the Solicitor-General for the Northern Territory

Mr Michael Sexton, QC, Solicitor-General for New South Wales

Mr Chris Kourakis, QC, Solicitor-General for South Australia

Ms Pamela Tate, SC, Solicitor-General for Victoria

Mr Walter Sofronoff, QC, Solicitor-General for Queensland

Mr Stephen Estcourt, QC, President of the Australian Bar Association

Mr Tim Bugg, President of the Law Council of Australia

Mr Michael Slattery, QC, President of the New South Wales Bar Association

Mr Hugh Fraser, QC, President of the Bar Association of Queensland

Mr Kenneth Martin, QC, President of the Bar Association of Western Australia

Mr Michael Shand, QC, Chairman of the Victorian Bar

Mr Malcolm Blue, QC, representing the President of the South Australian Bar Association

Mr Bryan Meagher, SC, President of the Australian Capital Territory Bar Association

Mrs Judith Kelly, representing the President of the Bar Association of the Northern Territory

Mr David Jackson, AM, QC

Mr Tom Bathurst, QC

Mr Bret Walker, SC

Mr John Sheahan, SC

Mr Henry Burmester, QC

Mr Richard Refshauge, SC

Mr Stephen Gageler, QC

Mr Peter Ambrose, SC

The Hon Duncan Kerr, SC

Senator George Brandis, SC

Mr Dan O’Connor

Mr Robert Mitchell

Mr David Reid

Mr Philip Selth

Speakers:

The Honourable Philip Ruddock, MP, Attorney-General for the Commonwealth

Mr Tim Bugg, President of the Law Council of Australia

Mr Stephen Estcourt, QC, President of the Australian Bar Association

Mr Hugh Fraser, QC, President of the Bar Association of Queensland

TRANSCRIPT OF PROCEEDINGS

KIEFEL J: Chief Justice, I have the honour to announce that I have received a Commission from His Excellency, the Governor-General, appointing me a Justice of the High Court of Australia. I now present the Commission.

GLEESON CJ: Mr Principal Registrar, would you please read aloud the Commission.

PRINCIPAL REGISTRAR:

Commission of Appointment of a Justice of the High Court of Australia

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and section 5 of the High Court of Australia Act 1979, appoint the Honourable Susan Mary Kiefel, a Judge of the Federal Court of Australia, to be a Justice of the High Court of Australia commencing on 3 September 2007 until she attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 13 August 2007. P.M. Jeffery, Governor-General, by His Excellency’s command, Philip Ruddock, Attorney-General.

GLEESON CJ: Justice Kiefel, I invite you to take the Oath of Allegiance and of Office.

KIEFEL J: I, Susan Mary Kiefel, do swear that I will bear 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 a Justice of the High 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.

GLEESON CJ: Justice Kiefel, I now invite you to subscribe the Oath of Allegiance and of Office.

GLEESON CJ: Mr Principal Registrar, will you please place these documents in the records of the Court.

GLEESON CJ: Justice Kiefel, I congratulate you and I invite you to take your seat on the Bench and to proceed to the discharge of the duties of office of a Justice of the High Court of Australia.

GLEESON CJ: Mr Attorney.

MR RUDDOCK: May it please the Court, on behalf of the government and the people of Australia, I congratulate your Honour Justice Kiefel on your appointment to this Court.

Much has been made of your Honour’s journey here. Your Honour was born in Cairns. Your Honour’s family later moved to north Brisbane and you attended Sandgate High School. Your Honour is said to have enjoyed music and sport and the English lessons of a Miss Bailey.

Your Honour left Sandgate to do administrative work, first for a building society, then for an architect, later an exploration company and finally in 1971 for lawyers, Fitzgerald, Moynihan and Mack. In 1973 your Honour became a clerk at Cannan & Peterson, Solicitors. Your Honour completed with Honours the three year Barristers Admission Board of Queensland course and you were called to the Bar in 1975. Your Honour was 21 years of age at the time.

Later, your Honour went to Cambridge graduating as Master of Laws. You received the C.J Hamson and Jennings Prizes, the former in comparative law, the latter being from Wolfson College. The C.J. Hamson Prize at Cambridge is now called the “Clifford Chance C.J. Hamson Prize”. It is awarded for an obligations course which includes some of the United Kingdom’s “unjust enrichment” jurisprudence. It seems to me that your Honour’s C.J. Hamson Prize in comparative law is perhaps more relevant in Australia than its modern equivalent. Comparative law is a great interest of your Honour. Your professor at Cambridge described you as “the most brilliant comparative law student I’ve ever taught”.

After returning from Cambridge your Honour took silk in 1987 at the age of 33 years. In 1991 your Honour was appointed a part-time hearing commissioner at the Human Rights and Equal Opportunity Commission. Two years after that your Honour was appointed to the Supreme Court of Queensland. In 1994 your Honour was appointed to the Federal Court of Australia.

Your Honour has given much service to the profession, particularly in ethics. You were a lecturer in ethics at the Bar Practice Centre, a board member of the National Institute for Law, Ethics and Public Affairs, and a member of the Advisory Board at Griffith University’s key centre for Law, Ethics, Justice and Governance.

On the night of 13 August this year, I had the privilege of attending on the Governor-General with my ministerial colleague, Julie Bishop. We communicated the Government’s recommendation to his Excellency that you be appointed to this Court.

His Excellency decided to act on that recommendation, as you have all heard.

At that exact time your Honour was in Norway - on a walking holiday. I am unsure whether anyone else has become a High Court Justice while in Norway. In any event, I should pay tribute to the mobile phones and, in particular, to those people such as your Honour who actually answer their mobile phone while on recreation leave.

Your Honour is now a Justice of the High Court of Australia.

This Court is a source of pride for all Australians. When the Parliament created it, the then Attorney-General said the Court would be “charged with the highest responsibilities to the people of this continent”.

Alfred Deakin is one I have greatly admired. He said that the Court’s “first and highest functions [would] be exercised in unfolding the Constitution itself”. He said that the Court would do this “under circumstances probably differing most widely from the expectations now cherished by any of us”.

Australia is a nation. Since Federation, to paraphrase a former member of this Court, Sir Victor Windeyer, Australia has been consolidated in war, is economically and commercially integrated and is no longer dependent upon British naval and military power and has her own external interests and obligations.

Australia is recognised as sovereign and her Constitution is supreme.

Through all of this, the High Court has heard its “matters”, and has defined the nature of the Australian federation and in doing so the Court itself has developed.

Each Justice makes a contribution to the Court. When Justices change, the institution changes as well.

I have every confidence that your Honour will make a worthy contribution to the standing of this Court. It is a formidable institution and I hope it will continue as such.

I would also like to take this opportunity to record, on behalf of the Government and the people of Australia, our sincere thanks to Justice Callinan, for his Honour’s service. He has served this Court with steadfast and principled independence. His Honour will be missed.

May it please the Court.

GLEESON CJ: Mr Bugg, President of the Law Council of Australia.

MR BUGG: If it please the Court.
On behalf of the Law Council of Australia, and of the Australian legal profession as a whole, it is my privilege to welcome Justice Susan Kiefel to the High Court of Australia and to congratulate your Honour on your appointment.

Exciting times await your Honour.

These days the High Court is an institution about which many Australian citizens feel a sense of ownership. In the very best way they are right to do so of course, although some at times appear to feel ownership of more than their fair share, and the opinions of individual Justices of this Court are subject to ever-increasing scrutiny, but not always in a good way.

However, the Law Council is confident that your honour’s carapace will be sufficiently strong to deflect the share of unwarranted criticism, or unwanted praise for that matter, which comes your way.

No doubt, to take a liberty with Kipling, you will treat those two impostors just the same.

I promised your Honour exciting times. I readily concede that the prospect of submitting one’s self to the mercies of public debate about you, without a right of reply, is not exciting, but some public discussion about the Court’s opinions and about the qualities of individual Justices can be more high-minded. Professor Williams will come calling.

Your Honour will certainly find you will be caught up in debates about what sort of judge you are. In this respect I remember a time when the term “masonite” was universally recognised as a reference to a particularly adaptable and hardy form of building material (that’s hardy with a “Y”, I hasten to add). Apparently this is no longer the case.

So your Honour will be measured to see if you fall into that category of judge said to be “activist”. Apparently this is a virulent form of power-hungry judge given to usurping the role of the Executive by legislating from the Bench. You can see the problem, or, perhaps, the opportunity. However the Attorney-General, a member of the Executive, assures us that judicial activism is dead, or soon will be. Presumably only judicial passivity will soon remain and peace will reign over the land again. This is most concerning.

The debate about judicial activism has provided many of us onlookers with endless hours of fun. After all, the passion that beats in the breasts of those who like to stick labels on others seems harmless enough, and, as is well known, there are fundamentally only two types of person – those who like to divide people into two types of person, and those who do not.

I suspect your colleague, Justice Heydon, who, in the 2007 Sir Maurice Byers’ lecture, provided a taxonomy of the theories of constitutional interpretation, belongs to the latter. Taxonomy is, of course, the science of the classification of living and extinct organisms, so a taxonomy of judicial activism, even if it should indeed prove to be dead, is still not out of the question.

But Justice Heydon’s scholarly lecture demonstrated for me how shallow is the debate about judicial activism, at least insofar as the Constitution is concerned. He identified no less than seven originalist theories of constitutional interpretation, four non-originalist ones, and two of a hybrid character. He concludes persuasively that historical background and context are matters that have always informed interpretation of the Constitution by this Court’s Justices.

Theories of literalism or strict textualism - akin to the black-letter law approach so favoured by those media commentators incensed by judicial activism - hark back therefore to a time that never existed. This is not unambiguously good news for your Honour.

Faced with writing 70 or 80 major opinions every year, your Honour could be forgiven for the occasional lapse into some strict textualism – historical research and context can be so time-consuming. The Law Council wishes you well in coping with these new demands.

Your Honour will also undoubtedly be in demand as a speaker and you might like some pointers about how to decline convincingly, at least in the short term, the torrent of speaking invitations you will receive. Your Honour could indicate that, in anticipation of large constitutional matters that might be heading your way, you are tied up in research into things like the Murray-Darling basin.

Let me immediately relieve any anxiety about the term “Murray-Darling” itself. It has absolutely nothing to do with the Chief Justice.

When I first heard the term I assumed it had something to do with the sort of porcelain affair found in most bathrooms. This proved to be remarkably close to the mark. But apparently it is a bit more like a very large bath.

The basin crosses State boundaries, some of which take the form of rivers, or, these days, rivulets. When one measures the amount of water needed to fill it up and then compares that with the water gathered when draining it, there is a significant disparity. No one can satisfactorily explain it, so clearly the High Court will be asked for its opinion. My view, for what it is worth, is that one of the hybrid theories of constitutional interpretation will eventually prevail.

Your Honour’s long judicial career will have prepared you for your new assignment. But the High Court is different from any other Australian court and a different set of judicial tools may be needed for the task.

Following the recent publication of a studious book of interviews with a large number of Australian judges and former judges, your Honour will be pleased to learn that it is apparently no longer necessary to look to British courts for guidance about general principles. As one interviewee put it, the English have not for many decades attempted a principled response to legal problems. The judge said “In large measure their decisions were, well, a chap knows what a chap should do, and a chap shouldn’t do this”. As splendid as it is, your Honour can see at a glance why this Court would not want to follow reasoning like that.

The founding fathers are of no use either. Earlier this year the Chief Justice conclusively demonstrated that, from the beginning, there were major differences in the approach of the founding fathers to their understanding of the Constitution. Your Honour might think that if they did not know what the Constitution meant, what hope is there for the rest of us? The Chief Justice said that the answer to that question is that “we do the best we can”. This should be of great assistance to your Honour.

If one looks to the Executive for a principled response, your Honour will no doubt want to bear in mind this statement from another judicial interviewee, “one thing I have long since come to respect is the sheer cowardice of politicians. For all the time sit-on-your hands do nothing cowardice they cannot be faulted”. Plenty of implied guidance there.

All of this should make it clear to your Honour that a degree of activism will be needed on your part simply to stay out of trouble.

I cannot imagine a place where participation in the contest of ideas could be more thrilling than in the High Court. When one has an opportunity to help decide with finality a social, legal or moral issue of great importance to many Australians, or even only to one Australian, or even, for that matter, to an unlawful non-citizen, one is helping to stitch up the very fabric of the community.

Even though your Honour will often be running the risk of being stitched up yourself, I hope I can reassure you that the rewards should outweigh the downside.

Since the announcement of your Honour’s appointment, which met with unequivocal approval from the Australian legal profession, and from the general community as well, the profession has been looking forward to your Honour taking your place on the Bench as the 46th Justice of the nation’s highest court. The feeling in this courtroom of goodwill towards you, and to your family, is palpable.

The Law Council of Australia and the practising legal profession of the country wish you well in this new role and look forward with anticipation to the legal history you will help make in the years to come.

May it please the Court.

GLEESON CJ: Mr Estcourt, President of the Australian Bar Association.

MR ESTCOURT: If it please the Court.

On behalf of the eight independent referral Bars of Australia it is my privilege to welcome your Honour Justice Kiefel to the Bench of the High Court and to extend the Australian Bar’s warmest congratulations to your Honour.

It is a particular pleasure because, after more than 14 years as a primary and appellate judge your Honour continues to value the camaraderie of the Bar and the close friendships your Honour developed with those with whom you worked for almost 20 years.

Equally your Honour is well remembered and highly regarded by the Queensland Bar as a talented barrister and a popular and extremely generous mentor.

Many members of the Queensland Bar remain ever grateful to your Honour for your tutelage as pupil master. Among them present today is the Chief Executive of the Queensland Bar and the Secretary of the Australian Bar Association, Dan O’Connor.

In July 1999, your Honour presented a paper to the Australian Press Council in which you remarked that you thought there was too little commentary on judicial appointments and the appropriateness of them.

Some of those who were addressed by your Honour at that conference obviously took your Honour’s advice to heart, because following the Attorney’s announcement of your appointment on 13 August, there was an unprecedented level of media attention focused upon your Honour. Even your Honour’s favourite poems “Dover Beach” and “The Forest Path” were noted in the press.

But I am pleased to say to your Honour that a distillation of the many thousands of words written and spoken about you over several days, bear out entirely the Australian Bar’s immediate response to media requests for comment on your elevation.

That was, your Honour, that your appointment was expected, was welcomed and was both popular and universally regarded as a most deserved and fitting recognition of your Honour’s outstanding career achievements.

In another of your Honour’s many papers, the 2004 Martin Kriewaldt Address, your Honour noted that: “It will be a matter of choice for the High Court as to whether it will look to developments in European standard laws or the solutions provided by other systems,” or whether it ought to remain a custodian of the common law tradition. Your Honour, of course, will now have an opportunity to play a part in that decision.

In saying that, your Honour was not, “as on a darkling plain”, to borrow from Matthew Arnold. Indeed your Honour had a great knowledge and has a great knowledge and considerable enthusiasm for Comparative Law. As noted by the Attorney, your Honour won the Cambridge University prize for that subject as part of your Masters degree in law gained in 1985, which was a mere two years prior to your Honour’s appointment as one of Her Majesty’s Counsel at the age of 33.

Justice Kiefel, may I join with the Attorney and Mr Bugg in their comments and may I add the Australian Bar’s admiration and gratitude for your contribution to the profession, to the law and to our nation.

The Bars of Australia congratulate your Honour on your appointment and we welcome you to your most deserved seat on the Court.

GLEESON CJ: Mr Fraser, President of the Bar Association of Queensland.

MR FRASER: May it please the Court.

It is my privilege to appear today on behalf of the Queensland Bar to welcome and to congratulate your Honour Justice Kiefel on the occasion of your Honour’s appointment to the High Court.

Before even your Honour entered the legal profession, your Honour made an impression at the Queensland Bar. At the recent valedictory ceremony in the Supreme Court of Queensland for his Honour Justice Moynihan, his Honour referred to his time at the Bar in the chambers where you worked as a legal secretary from the age of 17. According to his Honour, when it was you that typed up the first draft of an opinion, it seemed unnecessary for the barrister to spend any more time on it.

Others have noted your Honour’s remarkable determination in your rapid transformation from legal secretary to barrister. It is particularly noteworthy that you qualified for admission through the Barrister’s Board examinations, with Honours and in the minimum possible time, an early manifestation of your Honour’s innate academic ability and energy.

The same qualities were evident in your Honour’s early years at the Bar.

One of your earliest briefs was to settle a brief for Senior Counsel. Your instructions were to identify the relevant material and to provide concise observations to Senior Counsel. This may seem a curious brief for junior counsel to receive, but not to those who knew the Senior Counsel involved, Mr Peter Connolly, QC, later, Mr Justice Connolly. Apparently the instructing solicitors were apprehensive – and, it has to be said, not without some justification – that Mr Connolly would throw the brief away if it were not done very well. The brief survived that ignominious fate and you prospered - including appearing as Mr Connolly, QC’s junior.

Your talents were very quickly recognised, and you became a fashionable junior barrister, regularly working with the leading silks of the time, notably including Callinan QC, McPherson QC, Pincus QC, Hampson QC, and Jackson QC.

You developed a broad court and advisory practice, particularly in local government, defamation, probate and commercial cases.

After some 10 years at the junior bar, you took leave from your busy practice to study for your Masters degree at Cambridge, with the distinction noted by previous speakers.

Whilst you were in Cambridge, your honour was introduced to the sport of rowing and to your coach and now husband Michael Albrecht. Rowing is generally not regarded as a contact sport, but I am told that the Bumps on the River Cam brought out your Honour’s competitive spirit.

Two years after your return from Cambridge to Australia, you took silk, in 1987, at the very young age of 33, a public recognition of your success at the Bar and the respect in which you were held by the Supreme Court.

As a barrister, you had a marked ability to make clear seemingly complicated legal issues. Your career was also characterised by sheer hard work and determination. Your broad knowledge of the law, and your energy and thoroughness, were well known, as were your considerable skills as an advocate.

Previous speakers have mentioned your involvement in community matters outside the law, including music and the arts. Within the law, apart from your work as a part-time hearing commissioner with the Human Rights and Equal Opportunity Commission, you also found time to participate in professional affairs, including as a member of the committee of our association. You also served for a short time as Honorary Secretary, but this aspect of your professional life was cut short by your early appointment as a judge of the Supreme Court of Queensland in June 1993.

At your swearing-in as a judge of the Supreme Court of Queensland in 1993 the then President of the Bar Association of Queensland, Mr Douglas, QC, remarked that your appointment as a Supreme Court judge had been well received and was very popular. The same was true of your appointment as a Federal Court judge in late 1994.

The Bar’s confidence in your Honour’s ability and capacity to carry out the demanding work of a judge of the Supreme Court, expressed on our behalf in 1993, has since been amply justified by your Honour’s work, both on that court and in the Federal Court of Australia.

Your appointment today to the Court at the apex of our judicial system of course brings with it very onerous responsibilities. The Queensland Bar endorses those remarks by the other speakers today detailing your significant academic and practical abilities that qualify you for this important office. In addition, I would particularly mention your Honour’s reputation as a judge who combined efficiency in the disposition of cases with courtesy to those appearing in your Court.

The judgments of this Court can have a profound influence on the law and the Australian community. There have even been occasions on which a powerful dissenting judgment of the Court ultimately has proved to be influential in the Court’s development of legal doctrine.

If your Honour does feel obliged to dissent, your dissenting judgments will doubtless carry conviction: you have a track record, extending back to a time even before you became a judge.

An instance concerns your chambers in the then new Inns of Court in Brisbane. The group’s chambers had just been furnished. The final art work was hung on the feature wall for the approval of the group. All of your chamber colleagues were admiring and expressing their enthusiasm for the work. Your Honour then delivered judgment in your typical down-to-earth and to-the-point style, “It’s too pink.” It was never seen again.

Your Honour’s appointment follows the retirement from this Court of one of your former colleagues at the Bar, Justice Callinan. We endorse the Attorney-General’s comments about his Honour and wholeheartedly congratulate and thank Justice Callinan for his distinguished service on this Court.

Your Honour Justice Kiefel, on this occasion it is my privilege on behalf of the Queensland Bar to repeat our former President’s remarks on the occasion of your first swearing-in as judge 14 years ago: your Honour’s appointment has been very well received and is very popular.

The Queensland Bar takes great pride in your Honour’s appointment. We wish your Honour a distinguished and fulfilling career as a Justice of the Court.

May it please the Court.

GLEESON CJ: Justice Kiefel.

KIEFEL J: Chief Justice, your Honours, ladies and gentlemen. The Court is honoured today, as I am, by the presence of the former Chief Justice, Sir Anthony Mason, and Justices of this Court, the Honourable Mary Gaudron, the Honourable Michael McHugh and the Honourable Ian Callinan; the Chief Justices of the Federal Court, the Family Court and the Supreme Courts of the States and of the Territories; the Attorney-General for the Commonwealth and the Shadow Attorney; the Attorney-General for Queensland; Senator Brandis, SC, Minister for the Arts and Sport; the Solicitors-General for the Commonwealth, the States and the Northern Territory; the Presidents and representatives of the Bar Associations and Law Societies.

I thank the many judicial colleagues, former professional colleagues, family and friends for their attendance today. Some have travelled a considerable distance to be here and I am deeply appreciative of that.

Thank you, Mr Attorney, Mr Bugg, Mr Estcourt and Mr Fraser for your kind, if not over-generous, words. They will serve to allay my concerns about the gravity of my present situation, at least for today.

I have been somewhat surprised about the level of interest in my story, which I do not consider to be so very different from that of many others. The histories of my husband and of my friend, Helen Lynch, are examples. Helen left school at 15 years of age and worked as a clerk in what became the Westpac Bank at Charleville. Last year she retired as a director of its board. In each case we have made our way but we have also been given opportunities. I have been given the rare opportunity to serve on this Court and to take part in judicial decision-making at its highest level. I feel deeply honoured to have been appointed to this office and conscious of its responsibilities and burdens. I shall endeavour in every way to fulfil the confidence which has been reposed in me.

I am fortunate to have served on three courts and to have benefited from the fellowship of many judges. I enjoyed my earlier career as a barrister – a very different life from that of a judge. The Queensland Bar, of which I am proud to be a life member, was very kind to me. Like most young barristers my practice developed largely as a result of the recommendation of others, mostly more senior barristers and solicitors. The outstanding characteristic of the Bar was as a society, in the support and assistance members gave to each other despite the fact that tomorrow they may be adversaries. This may seem confusing to outsiders.

Since my departure from the Bar, I have been learning the craft of judging. The difference in the roles is not always appreciated. The work of a barrister of course provides training in all aspects of litigation and the role of the judge in court is well understood by them. It should not however be assumed that the greater part of the work of a judge, the preparation for and writing of judgments, is so well understood. Lawyers may think that they are familiar with the process, because they read the final judgment, but the complete method would be unfamiliar to many.

Most of my judicial career to date has been as a judge of the Federal Court, although I am proud to count amongst my friends former colleagues of the Supreme Court of Queensland and other courts in Australia. There are particular rewards for a judge of a national court in having colleagues in each State and the opportunity to hear advocates from all over the country. I have also been privileged to serve on the Supreme Court of Norfolk Island.

Much is said these days about continuing judicial education. It takes many forms. Whilst on the Federal Court I had the opportunity to observe hearings in some European courts and to participate in discussions with the judges of those courts. Through the auspices of that eminent legal educator, Professor Horst Lücke, latterly of the University of Adelaide, I had the opportunity to attend the Max Planck Institute for Comparative Law in Hamburg. There I observed the differences in approaches to judgment writing. We might consider many European courts to obscure their reasoning in brevity; they might think ours too long and absent a clearly stated governing principle. An interest in other systems does not suggest acceptance of the relevance of the laws and procedures of them to our system. The process of comparison is however valuable. It is sometimes, I think, possible to learn more about one’s own legal system by that method than by mere reflection.

Involvement with law reformers can only widen a lawyer’s perspective. I have both enjoyed and gained much from working with the erudite Professor David Weisbrot and the Commissioners of the Australian Law Reform Commission.

I shall miss my colleagues on the Federal Court and their counsel. It is only a few years ago that, in a short period of time, the court lost a number of its talented judges: Justices Beaumont, Cooper, Hely, Selway and Hill. It is difficult to explain how deeply their loss impacted upon the judges of the court.

That the Federal Court is an outstanding example of collegiality has much to do with its Chief Justice, Michael Black. The Chief Justice has always encouraged a spirit of co-operation and shown the utmost consideration for the welfare of the judges of the court. I have been the recipient of his kindness on more than one occasion.

There are of course some judges with whom I have worked more often and with whom I have developed a closer working and personal relationship. I do not need to mention them by name. My husband and I will continue to enjoy their friendships.

It is with some sadness that I leave a fine court. I thank the registry and court staff for their assistance over the years.

I move to a different court and a different role as a judge. I look forward to working with the judges of this Court, for whom I have had great admiration, despite their reluctance, on occasions, to agree with me.

The role of an appellate judge is very different from that of a trial judge. I have been fortunate to sit as both whilst on the Supreme and Federal Courts. The importance of a trial judge is sometimes lost sight of. Criticism is easily levelled at a trial judge after the conclusion of a trial, which may have been very complex or badly presented and difficult to manage. On appeal the issues are more clearly defined and the facts ordered. Tribute is not often paid to what can be a most difficult and demanding role, one requiring considerable powers of analysis. Complex or multi-party litigation can require an almost inhuman effort on the part of a trial judge in mastering enormous amounts of information, some of it confused or contradictory. The trial judge must sift, order and appraise the facts whilst at the same time keeping in mind the issues sought to be raised by the parties to which the facts are said to be relevant. It may be that the time has come to reassess whether one person can continue to undertake some of the cases which have been litigated in recent times. I refer not only to complex commercial cases, but to the demands imposed by native title determinations. The point I wish to make is that without skilled trial judges the work of appellate courts would be intolerable.

It is not possible to thank all of those to whom thanks are due by me. My legal career would not have commenced without the guidance of the then sole examiner of the Barristers Board, Mr Glen Williams, QC, now about to retire as a judge of the Queensland Court of Appeal, and his wife, who thankfully was able to decipher my handwriting. The senior barristers with whom I more regularly worked, and who were influential in my early career, have been identified on a number of occasions. Ian Callinan, QC, whose place I now take, was one of them. Peter Connolly, QC, gave me an early instruction in terror, so necessary in the development of a novice barrister. In the middle of a trial he informed me that he had decided that we should take the witnesses turn about. The next witness, for me, was an expert in plant genetics.

I could have no excuse for overlooking how much I learned from judges in my early career. Their teaching methods varied, but many were tolerant and instructive. On reflection they taught me much about the conduct necessary of a judge. I am aware that mention was made on the occasions of the swearing-in of Justices Callinan and Heydon of the high standing in which Sir Harry Gibbs was held. I recall him also for his kindness, and for the interest he showed in a young barrister – regularly inquiring about my progress from Gerald Patterson, his good friend and one of my solicitor mentors. I was pleased to be able to see something of Sir Harry after I became a judge, when I was in Sydney. Our topics of conversation did not, however, extend to the need for the creation of the Federal Court.

I continue to be the beneficiary of the friendship, support and good humour of colleagues from my old chambers on Level 18 of the Inns of Court in Brisbane. Philip McMurdo, QC, now a justice of the Supreme Court of Queensland, Peter Ambrose, SC, and David Reid are here today. This means much to me. Sadly, Bob Douglas, QC, later a Supreme Court judge, passed away a few years ago.

I wish again to acknowledge my gratitude to Professor Sir David Williams, who in 1984, as President of Wolfson College, Cambridge, gave someone with a non-traditional legal education the chance to undertake a Masters degree in law. He was influential in having the faculty overlook, for the first time, the absence of a first degree. I shall be forever grateful for my year in Cambridge, which I count amongst my best. It marked a turning point in my understanding and love of the law. I was there introduced to comparative law by Professors Tony Jolowicz and Basil Markesinis, both eminent in this field and gifted teachers.

I am pleased to see many of my former associates here today. They have been of great assistance to me and I have enjoyed observing the development in their professional and family lives. Special mention must be made of my personal assistant, Ingrid Schodel. In all we have worked together for almost 20 years and I am grateful for her continued loyalty and support.

I have been fortunate in having the support of family and, in particular, my brother, Russell, and sister, Jennifer, actor and painter respectively. It is of considerable regret to me that the artistic gene, which they have in abundance, was denied me. I am delighted that Russell and his wife, Katrina, and Jennifer and her husband, Brian, are able to be here today. They have also given me the experience of my nieces and nephews – Eleanor and Nicole, Hamish, Max and Leo. I am sad that my mother did not live to see my appointment to this Court, but grateful that my father could.

My year in Cambridge also introduced me to my husband, Michael Albrecht, an exceptional man. I am privileged to have enjoyed our partnership in life, the “support account” of which I know I have overdrawn.

I look forward to the coming years and to the work of this Court.

GLEESON CJ: The Court will adjourn until 10.15 am tomorrow.

AT 3.02 PM THE COURT ADJOURNED