Ceremonial - Retirement of Chief Justice the Hon A.M. Gleeson, AC at Canberra [2008] HCATrans 317 (29 August 2008)

Last Updated: 16 September 2008

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 RETIREMENT OF THE CHIEF JUSTICE

THE HONOURABLE ANTHONY MURRAY GLEESON AC

AT

CANBERRA

ON

FRIDAY, 29 AUGUST 2008, AT 2.16 PM

[2008] HCATrans 317

Coram:

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

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

The Honourable Sir Gerard Brennan, AC, KBE, retired Chief Justice of the High Court

The Honourable Sir Daryl Dawson, AC, KBE, CB, retired Justice of the High Court

The Honourable Sir William Deane, AC, KBE, retired Justice of the High Court

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

The Honourable Justice Robert French, Justice of the Federal Court of Australia

Seated behind the Bench were the following dignitaries:

The Right Honourable Dame Sian Elias, GNZM, Chief Justice of New Zealand

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

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

The Honourable John Doyle, AC, Chief Justice of the Supreme Court of South Australia

The Honourable Paul De Jersey, AC, Chief Justice of the Supreme Court of Queensland

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

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

The Honourable Marilyn Warren, AC, Chief Justice of the Supreme Court of Victoria

The Honourable Brian Martin, Chief Justice of the Supreme Court of the Northern Territory

The Honourable Wayne Martin, Chief Justice of the Supreme Court of Western Australia

The Honourable Ewan Crawford, Chief Justice of the Supreme Court of Tasmania

Dignitaries seated within the Court:

The Honourable B. Debus, MP, Minister for Home Affairs of the Commonwealth of Australia

Members of the Judiciary seated within the Court:

The Honourable Justice J.M. Tamberlin

The Honourable Justice S.C. Kenny

The Honourable Justice G.K. Downes

The Honourable Justice A.C. Bennett,AO

The Honourable Justice R.J. Buchanan

The Honourable Justice M.M. Gordon

The Honourable Justice J. Faulks

The Honourable Justice M. Finn

The Honourable Justice L.W. Waddy, RFD

The Honourable Justice E.M. Heenan

His Honour Judge R. Refshauge

The Honourable Justice H. Penfold

The Honourable Justice D. Mullins

The Honourable Judge T. Wodak

The Honourable Judge M. Sidis

The Honourable Judge Hughes

Chief Magistrate S. Heath

Magistrate M.K. Doogan

The Honourable Justice V. Bell

The Honourable Justice R. McColl, AO

At the Bar Table the following persons were present:

The Honourable Mr R. McClelland, MP, Attorney-General of the Commonwealth of Australia

Mr M. Sexton, SC, Solicitor-General for the State of New South Wales

Ms P. Tate, SC, Solicitor-General for the State of Victoria

Mr W. Sofronoff, QC, Solicitor-General of the State of Queensland

Mr M. Grant, QC, Solicitor-General for the Northern Territory

Mr L. Sealy, SC, Solicitor-General of the State of Tasmania

Mr M. Hinton, QC, Solicitor-General for the State of South Australia

Mr R. Orr, QC, Acting Solicitor-General of the Commonwealth of Australia

Mr T. Hughes, AO, QC

Mr R. Ellicott, QC

Mr D. Bennett, AO, QC

Mr D. Williams, QC

Mr R. Stitt, QC

Mr I. Viner, AO, QC

Mr D. Bloom, QC

Mr T. Bathurst, QC, President of the Australian Bar Association

Mr F. Douglas, QC

Mr R. O’Connor, QC

Mr R. Ray, QC, President of the Law Council of Australia

Ms A. Katzmann, SC

Mr M. Dreyfus, QC, MP

Mr M. Stewart, SC

Mr M. Blue, QC

Mr A. Melick, SC

Mr G. Tannin, SC

Mr P. Riordan, SC

Mr P. Tree, SC

Mr G. Donaldson, SC

Mr G. Brzostowski, SC

The Honourable G. Brandis, SC

Mr N. Owens

Ms M. Hoch

Ms J. Gleeson

Mr S. Kerr

Ms K. Deards

Mr A. Dinelli

Mr J. Emmett

Mr M. Izzo

Mr P. Kulevski

Speakers:

The Honourable Robert McClelland, MP, Attorney-General of the Commonwealth of Australia

Mr Ross Ray, QC, President of the Law Council of Australia

Mr Tom Bathurst, QC, President of the Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

GLEESON CJ: Mr Attorney.

MR McCLELLAND: May it please the Court.

It is indeed a great honour to be here today to join with so many distinguished Australians to pay tribute to the service of the Honourable Murray Gleeson, AC, Chief Justice of the High Court of Australia. May I take the time to note in particular two such Australians, my predecessor, the Honourable Daryl Williams and the Honourable John Howard, former Prime Minister of Australia, both of whom went through the difficult job that I have recently experienced with the current Prime Minister, but who, in turn, made such an excellent appointment of Chief Justice of the High Court of Australia.

Your Honour’s office is a privilege that has been bestowed on just 10 other Australians. Like them, you have served our nation with distinction. You have led Australia’s highest Court into its second 100 years. This has been a time of dramatic change, including unprecedented globalisation and emerging security threats from non-State actors. Your Court has been a bedrock of stability as we face these and other significant challenges.

You may not be aware that in addressing members of the House of Representatives and the Senate on Tuesday last to mark his own farewell, the Governor-General, Major General Michael Jeffery, took specific time to note your service to the Commonwealth of Australia and this Court and his remarks were endorsed by all.

Your Honour was born in country New South Wales, Wingham near Taree – a beautiful area of the mid north coast of NSW.

You displayed intellectual aptitude early at St Joseph’s College in Hunters Hill, before matriculating to receive first class honours in both Arts and Law from the University of Sydney.

In 1962 you worked as an articled clerk and then as a solicitor for Murphy & Moloney. However, after just one year, the draw of advocacy proved too great. I understand you borrowed £1,000 to read with Sir Laurence Street, a loan that was guaranteed by Sir William Deane, for whom you later frequently acted as junior. One might comment with mentors such as that, how could you do other than succeed.

You quickly established and maintained a successful commercial and taxation practice, often arguing important constitutional issues. In 1974 you were appointed as Queen’s Counsel.

In fact, I recall that part of your constitutional work included providing advice to the Liberal Party in 1975 on the dismissal powers of the Governor-General.

As the son of one of Gough Whitlam’s Ministers, this is one occasion that I would have preferred that your Honour’s formidable legal mind to have been put to other use.

Your Honour’s only foray into politics was in terms of his own profession, although I am told that can be quite willing in itself. You were elected by your peers to the Bar Council of the New South Wales Bar Association, serving as a member and then as President.

In 1988, Australia’s bicentennial year, you were appointed Chief Justice of the Supreme Court of New South Wales. Then in 1998, you were appointed Chief Justice of the High Court of Australia.

Over the last two decades, you have clearly made a substantial mark on Australia’s legal system and, indeed, Australia’s legal history.

In particular, as Chief Justice and head of the Council of Chief Justices, you have worked to foster and strengthen judicial institutions and the sense of a national judicial identity. You have placed a high value on judicial education and supported the establishment of the National Judicial College, which met here earlier this morning.

You are an acute observer of legal and judicial developments and their implications. I note recently at a speech to the Press Club you commented that a huge change in the work of the courts has occurred in the last 10 to 15 years and that most of the work of the courts now involves interpreting and applying Acts of Parliament. You encouraged legal educators to catch up with this development. In fact, I recently visited a university in Melbourne which had clearly recognised the legitimacy of your comments and they were taking appropriate steps to address that matter.

On the Bench you are known as “the Smiler” – one of those wonderfully ironic Australian nicknames, reflecting your Honour’s concentration and impartiality while deliberating. Your Honour’s respect for precedent, the facts before you and your skill in expressing complex ideas clearly and succinctly are all-important qualities that you have brought to this role and in many ways set some precedents for others to follow.

I know that in retirement, at least from the office of Chief Justice, your Honour will maintain a vigorous and varied lifestyle, including, no doubt, tennis.

I understand your plans involve travel and spending time with your wife, Robyn, who has been a constant supporter throughout your career, as well as your four children, Jacqueline, Rebecca, Nicholas and Gabrielle and their families, including five grandchildren.

It is inevitable that you will continue to provide great service to our nation’s legal system, a fact that will certainly be welcomed by the Government.

You leave your current office with deep respect, admiration and gratitude of the judiciary, the legal profession and the people of Australia. You leave a very valuable legacy to this Court and, indeed, to the entire Australian community.

On behalf of the Government and the people of Australia, I extend my very best wishes to your Honour, to Mrs Gleeson and to your family. I wish you great happiness and every fulfilment in the many years to come.

May it please the Court.

GLEESON CJ: Thank you, Mr Attorney. Mr Ray, President of the Law Council of Australia.

MR RAY: May it please the Court.

I appear on behalf of the Law Council of Australia and its constituent bodies – every Australian Law Society and independent Bar Association – and, most recently, a sign of the times, the Large Law Firm Group.

The Australian legal profession pays tribute to your Honour, Chief Justice Gleeson, on the occasion of your retirement from this Court.

In 2000, your Honour delivered the 2000 ABC Boyer Lectures on The Rule of Law and the Constitution. The last of the six lectures was on the judiciary. You concluded that lecture, and the whole series, with a powerful quotation from what the first Chief Justice of New South Wales, Sir Francis Forbes, wrote to the Colonial Office in his titanic struggle with the Governor, Lieutenant-General Ralph Darling. The essence of that quotation is, and I quote:

The notion of control is inconsistent with the nature of a Supreme Court . . . His Majesty may remove the judges . . . But the judicial office itself stands uncontrolled and independent, and bowing to no power but the supremacy of law.^[1]

You said in a recent interview, “No Australian Chief Justice has ever written anything better than that.”^[2]

Australia was a penal colony under military domination when Darling demanded obedience from Forbes, and Forbes stood up for judicial independence.

The 1823 Charter of Justice required that New South Wales laws promulgated by the Governor be certified by the Chief Justice as not inconsistent with the laws of England. Governor Darling regarded this as ministerial, and that the Chief Justice owed obedience to his superior officer to so certify.

Forbes refused to certify, for example, a law to impose punitive and crippling stamp duty on newspapers that had been critical of Darling.

When Darling wrote in fury to the Colonial Office, he also waged vicious ongoing war against Forbes in the Government Gazette, branding him a friend of convicts. Forbes paid a heavy price in serious decline in health and as a result of Darling’s severe and unrelenting criticism.

Judicial independence and the supremacy of law are central to your philosophy of law – and shine through all you have done and written.

Threats against the courts in your Honour’s terms as Chief Justice have been masked in the neutral business terminology of “key performance indicators”, “accountability” and “transparent review”. Such attacks can be no less real than the authoritarianism of a military Governor.

In the tradition of Forbes’ courage and eloquence in his letter to the Colonial Office some 170 years ago, your Honour met these issues head-on. You did so in very powerful public speeches and statements; and in public engagements and conversations.

In September 2006, you were named in the Australian Financial Review magazine as Australia’s seventh most overtly powerful person.

The article defined “overt power” as, and I quote, “the ability to directly enact one’s will”. That sounds more like Governor Darling than Chief Justice Forbes. Then Prime Minister, John Howard, won the top spot.

Your Honour placed seventh because, the article explained, WorkChoices was then before the Court.

Neither you, nor any of your predecessors, made the list because, according to this panel, nothing else the Court has had before it measures up in significance. I quote: “The High Court had not previously had an issue of sufficient scope on its books [for the Chief Justice] to make the list”.

Somewhat drily, you said in a 2003 interview, that: “If what a court needs is constant attention, critical comment, and constant suggestions for improvement from the profession and law teachers, then, in that respect, the High Court is freakishly fortunate!”^[3]

Judicial independence includes the independence of each individual Justice. You have been quoted as ranking this aspect of judicial independence very high: “The independence of the judiciary means, above all, independence from one another”.

“Freakishly fortunate” in the constant comment and criticism it receives, the Court has been, you said, in the independence of its members, “also very lucky!”^[4]

In launching The Oxford Companion to the High Court, you observed that: “Of the present Justices of the High Court, none comes from a family background in the law. In fact no present member of the Court has a parent who attended University. The six out of seven of us who attended universities all did so with the assistance of Commonwealth Scholarships, without having to pay any tuition fees.”

You spoke of “the far-reaching changes in Australian society during the 1950s and 1960s” that flowed from the opportunities your generation had that had not been available to your parents.

Yours is a classic story. Your father, Leo, ran the service station in Wingham – the small, northern New South Wales town in which you grew up.
At the Catholic primary school in Wingham, the teachers were Black Josephites – the Sisters of St Joseph – the order co-founded in Australia by Blessed Mary McKillop. At the funeral of the sister who taught you in 6th Grade, it was said that “She taught the Chief Justice what “justice” really means”.

The sisters urged that you go on to St Joseph’s Marist Brothers College in Hunters Hill, Sydney.

Asked some 50 years later what it was like being packed off to boarding school in Sydney at the age of 11, you simply replied: “I didn’t send my children to boarding school”. However, boarding school did enable you to obtain a first class education at St Joseph’s in Sydney.

On completion of your Arts degree, you began serving articles with Murphy & Moloney.

This was long before the mega-firms of today. It had three partners, three employee solicitors, and one managing clerk, who rode strongly on the four articled clerks – in the famous “blue room” at the rear of the premises in Temple Court.

Murphy & Moloney was an old and well-established firm with major clients. It was, for those days, a medium-sized firm. As New South Wales Chief Justice, you attended celebrations of that firm’s 1988 centenary.

You made your way into the law by showing your quality – at school – at the university – in articles – and as an employee solicitor. After only your time in the back room under articles, and a year or so as an employee solicitor, you made such an impression at Murphy & Moloney that your successor employee solicitor, Neville Moses, was warned of the big shoes he had to fill.

You so impressed the barrister, Laurence Street, when you instructed him for Murphy & Moloney, that he welcomed you as a pupil at the Bar.

Another barrister, William Deane, knew you as a fellow Old Boy of St Joseph’s. He guaranteed the £1,000 advance for you to be able to start at the Bar. You later appeared as Deane’s junior, and he gave you a red bag.

Bret Walker, SC, spoke on behalf of the Law Council at your welcome to this Court. He noted that, 10 years earlier, when you were appointed directly from the Bar to be Chief Justice of New South Wales, there had been, and I quote, “real pangs of regret at losing . . . the pre-eminent advocate in Australia.”

Your Honour’s pre-eminence as a barrister and your achievements as Chief Justice of New South Wales are detailed in the excellent biography of you by Mr Walker in the Oxford Companion.

In 1988, when your Honour began as Chief Justice of New South Wales, there were some 10,800 cases waiting for hearing. You have described this as your introduction to judicial management.

There had, you said, been a virtually continuous delay-reduction program since 1824!^[5] In that context, you described your time as Chief Justice in the late 1980s and early 1990s as, and I quote, “a time of unique intensity”.^[6]

Justice Keith Mason, then President of the New South Wales Court of Appeal, spoke at your farewell from the New South Wales Court.

In addition to the massive work on administration and appeals, and I quote Justice Mason, “You are also recognised amongst your judicial brethren for shouldering more of your fair share in so-called ordinary cases”.

His Honour also praised Mrs Gleeson, who accompanied you on many judicial and vice-regal functions. “She is a most accomplished speaker. Her encouragement, friendship and support of the wives of the Judges is greatly appreciated.”

Your Honour’s father was very involved in local government and served as Mayor of Wingham – all without pay. You did the same thing – with the Law Council of Australia, and with the Bar Association of New South Wales.

In April 1968, when you had been at the Bar scarcely five years, you became Honorary Assistant Secretary of the Law Council of Australia.

The Law Council then ran on a shoestring. The secretariat alternated five-yearly between Melbourne and Sydney. The only employee was a secretarial assistant – provided first to Ivor Greenwood and Leigh Masel^[7] in Melbourne. Everyone else was a volunteer.

Solicitor, Bob McComas, and you took the reins as Honorary Secretary and Assistant when it was Sydney’s turn. Recognising the increasing demands on its Assistant, the Law Council paid an honorarium of $20 a week.

Contrast now, the building in Canberra where we received your Honour and other members of the Court a few months ago – and some 32 salaried staff to do all the Council now does.

After your year as Assistant Secretary, you remained on the Law Council Committees, including LawAsia and Taxation.

Service on the Bar Council is, of course, wholly unpaid. You served six years on the New South Wales Council – including two as President.

As an office-bearer of the New South Wales Bar, you represented that Bar on the Law Council. You were actively involved in the work and the development of the Law Council towards what it is today.

In the 1986 Queen’s Birthday honours, years before your appointment to judicial office, your major contributions to law were recognised in your being made an Officer of the Order of Australia.

Your dry sense of humour is legendary – I offer the following exchange:

Your Honour: What do you mean by “free choice”?

Tehan QC: What we mean by “free choice”, your Honour, is a choice unconstrained by any pressure, hope of advantage or benefit or force or coercion or compulsion, a true free choice.

Your Honour: You would be surprised to know that there are places I would rather be than here at the moment and the psychiatrists might explain my presence at the moment by reference to a number of influences or pressures that produce that consequence, but I thought I was here as a result of a free choice. How is that consistent with your explanation?

Justice Hayne: Good luck, Mr Tehan.

Tehan QC: It is always a matter of degree, your Honour.

At that point, one of your Honour’s other judicial colleagues interjected, “I could not think of a better place to be than here”. Your instant response to Justice Kirby was, “I am sure that is probably right”.

It has been said of your tennis playing that you attack a tennis ball with the same single-mindedness you apply to stripping away irrelevancies in the court room – that is, quick and deadly.

In Canberra, you used often to play with Justice Callinan at the Commonwealth Club – and to invite judicial associates to join you.

Associates were, perhaps understandably, unsure whether they should play their hardest. They might, from the following exchange in Court, have wondered whether perhaps Justice Callinan had been more successful than was entirely prudent.

In another criminal appeal, Gillard v The Queen in 2003, counsel produced the weapon, a Luger pistol, and asked to give a brief demonstration of the cocking procedure.

Again, I read from the transcript: “Gleeson CJ: If you are going to point it at us, would you mind pointing it in the direction of Justice Callinan?”

Your Honour’s conduct of hearings has been exceptional. You asked few questions – and those you did ask were direct and deadly - exposing and identifying the essence of what was in issue. You also had a knack of bringing ranging arguments back on track.

A significant measure of anyone is how they are seen by those who work most closely with them in day-to-day unguarded moments – personal staff and judges’ Associates.

Jill Kelly and Marie Halliday have been your Honour’s personal assistants for virtually the whole of your 10 years on the Court.

The measure of the high regard and affection in which your Honour is held is reflected in the surprise dinner last May they organised to celebrate your 10-year anniversary at the High Court.

It is hard to “surprise” the seventh most overtly powerful person in Australia. They went to considerable pains to do so.

All your former Associates who could do so came. For that dinner, and for the dinner tomorrow night – the actual day of your birthday – former Associates came, and have come, from as far as the United Kingdom and the United States.

As it happened, the Saturday of the May dinner was the very last night of the Pello restaurant. After that triumphant event, it never opened again.

The proprietors of the Ottoman restaurant are reportedly uneasy as to whether they might be expected to close down after what will surely be another triumphant party.

Your Honour says that no Australian Chief Justice has written anything better than the passage from Sir Francis Forbes.

May I say that no one has better summed up your work than Sir William Deane. With those words I conclude – namely, that your Honour has been, and I quote, “an absolutely outstanding Chief Justice”.

May it please the Court.

GLEESON CJ: Thank you, Mr Ray. Mr Bathurst, President of the Australian Bar Association.

MR BATHURST: May it please the Court.

It gives me great pleasure on behalf of all members of the Bar of Australia to express the deepest appreciation for all your Honour has done for the law and for the community over the past decades and wish you all the best for the future.

Your Honour grew up in the Manning Valley at Wingham. Wingham is allegedly the pride of the Manning Valley. I believe that allegation to be true, because your Honour has repeatedly said it is.

You were educated at St Joseph’s, where you excelled academically and performed more than satisfactorily at cricket.

It would scarcely surprise any of your Honour’s erstwhile courtroom opponents to learn that you excelled at debating and oratory at high school. Your triumphs included winning the Lawrence Campbell Oratory competition and the New South Wales Junior Singles Debating Championship. You were also a member of St Joseph’s senior debating team, which for the first time won the GPS debating competition and also the New South Wales Junior Teams Debating Championship.

With that background, it was no surprise that you went on to study Arts and Law, graduating in March 1962 with first class Honours from Sydney University.

After a year at Murphy & Moloney, your Honour was admitted to the Bar in March 1963, coming to Seven Wentworth and sharing Chambers at that stage with Sir Anthony Mason, a previous Chief Justice of this Court, and of course, Sir Laurence Street, with whom you read.

You gained rapidly a formidable reputation as an advocate, taking silk in 1974. Although probably best known amongst your colleagues for your expertise in tax and commercial law, your Honour appeared in a wide variety of what have been described in the tabloid press as “some of the most famous courtroom dramas in New South Wales”. Some of them, of course, were not even courtroom dramas.

You successfully defended the former National Party leader, Ian Sinclair, against forgery charges and appeared before the Hope Royal Commission representing the former Special Minister of State, the late Mick Young.

Other of your more notorious briefs included advising the Fraser Government on the prosecution of the “bottom of the harbour” tax avoidance schemes, leading the New South Wales Rugby League’s appeal against the decision of the Equity Division to reinstate Western Suburbs Rugby League Club, representing Tasmania in the High Court in the Franklin Dam Case and assisting the Australian Jockey Club in the Fine Cotton ring-in inquiry.

Your Honour somehow found time also to appear before the Privy Council, broadening the scope of your reputation as an advocate well beyond our shores, and frequently led other experienced Senior Counsel or Queen’s Counsel in this Court.

Your time at the Bar was characterised by your ability to take and master a brief in any area of law at appellate or trial level. Your Honour was renowned for your proficiency in identifying the core issue in cases in which you appeared, and directing the evidence and argument to these issues. You were the leader of the New South Wales Bar at the time when there was a superabundance of talent, including people such as Tom Hughes, Roddy Meagher, Michael McHugh, Doug Staff and Bob Ellicott, some of whom are here today.

Being your Honour’s junior in cases was an occasion likely to induce shock and awe. Your Honour used conferences to refine your Honour’s knowledge of the case by an extensive cross-examination of the junior who had the misfortune to sit on the opposite side of the desk. Many of those who survived the experience themselves forged distinguished careers in the legal profession. Among them, of course, are Justices Gummow and Heydon, who are sitting with your Honour today; Chief Justice Spigelman, your successor as Chief Justice of New South Wales; and the late Justice Peter Hely of the Federal Court. Lesser lights rapidly came to the conclusion that the best way they could assist your Honour was by not turning up at the conferences.

Notwithstanding the extent of your practice, you participated fully in the life of the Bar. The Bar had the great fortune of having you serve as President of the New South Wales Bar Association between late 1983 and late 1985, a task which you have said to be one of the most enjoyable in your career.

In 1988, your Honour was appointed direct from the ranks of the Bar to the office of Chief Justice of New South Wales, the first Chief Justice to be appointed directly since Sir Frederick Jordan in 1934. That appointment met with universal acclamation and proved immensely successful. Your track record on appeal to this Court could be described in cricketing terms as “Bradmanesque”. It was truly exceptional for your judgments to be reversed.

In 1988, some familiar themes concerning the relationship between the judiciary, the Executive and the community were emerging. The emergence of the law and order debate in State politics saw a greater willingness on the part of the media and the community to question judicial authority. There was increasing scrutiny of court efficiency and judicial accountability generally.

Your Honour faced those difficulties commenting that “accountability and independence were not always easy to reconcile”, but recognising “the public and their representatives are entitled to question the techniques by which judges go about their business” and that the “judiciary needs to develop, and is gradually developing, better techniques of explaining itself to the community”. Your Honour was at the forefront of developing those techniques.

The year after you took office in New South Wales, all courts in New South Wales began to publish annual reviews of their operations, a process reflecting the acceptance of proper community concern with judicial efficiency. You also caused the introduction of specific reforms which were innovative in their day, such as the introduction of a delay reduction program, which unlike the original one to which your Honour referred, did have teeth, streamlining the court’s criminal jurisdiction and adopting differential case management systems.

The court also appointed its first public information officer to assist the court in responding to the unprecedented level of interest in its workings.

During your 10 years as Chief Justice of New South Wales, you developed an interest on ongoing judicial education, something that you have promoted from that time until this day.

Notwithstanding the difficulty inherent in presiding over a court of the size of the Supreme Court of New South Wales in a period of growth and increasing public scrutiny, your Honour took time to sit in every jurisdiction. This gave a wider range of barristers an insight into the technique that your Honour had used with your juniors.

I cannot say there was not a sigh of relief at the Newcastle Bar when your Honour said you were not going to do the next Newcastle sittings, but went back to resume normal duties in the Court of Appeal and the Court of Criminal Appeal.

Your Honour’s leadership and judicial qualities were recognised by your appointment to the position from which you retire today. That appointment was met, of course, with universal acclaim. Nobody doubted the nation would profit from having such an eminently qualified jurist, judicial administrator and fine person in the highest judicial office in the land.

You presided over this Court in times of change, high level of public scrutiny and, again, enormous increase in the judicial workload. Once again, you have responded to those by introducing new procedures, including procedures to deal with special leave applications, the assessment and determination of which, of course, is a significant part of the Court’s work and a significant burden on all the Justices of the Court.

The Court in your period as Chief Justice has had brought before it, perhaps more than any other time, many of the more prominent issues of the last decade. The immigration and detention cases are of course one; the Work Choices legislation; Re Wakim and significant public liability issues in cases such as Brodie and Ghantous.

The Court dealt with all those matters in such a way, under your guidance, that maintained its reputation for fearless independence and intellectual rigour.

Your Honour has steadfastly maintained the Court’s independence, while at the same time avoiding any perception of entering into the field of political debate.

You have provided leadership to the legal profession generally over a whole range of areas, advocating the need for ongoing judicial education, the importance of the rule of law and the need for lawyers to be sensitive to public concerns about the profession. In a speech to the Australian Legal Convention last year, you pointed out to practitioners the pitfalls of employing disproportionate litigation procedures leading to unnecessary costs and complexity by succinctly noting “litigation is a perfect example of Parkinson’s law; work expands to fill the available time.” Perhaps it could have been put slightly less tactfully, “the available billable hours”.

Your Honour’s succinct approach to writing judgments is well known, and many counsel have had the benefit of your firm views on presentation of submissions. Can I merely give one transcript extract? In a case called Libke v The Queen where counsel for the appellant made submissions in these somewhat convoluted terms:

Counsel: If I may move straight to the cross-examination ground. The appellant, Mr Libke, was giving evidence in his defence at his trial in the District Court in Brisbane on some serious charges of sexual offences. He was subjected, in our submission, to questions that were likely to be confusing, that contained statements against him, that he was not given a proper opportunity to answer and that pitted the prosecutor against him in a personal way. He was interrupted when answering and his answers were criticised. Some questions contained statements that were...

At that stage it got too much for your Honour and your Honour interjected:

It sounds like an argument in this Court.

It is a matter of great regret that the so-called “statutory senility” has terminated your outstanding contribution to the jurisprudence of this Court.

Your Honour has suggested that you do not have particular plans for the next phase of your life, and that in fact you are “looking forward to being surprised”. Whatever direction or directions you take, the best wishes of the Bar go with you. Yours has been an outstanding career, both as an advocate and jurist and servant of the community.

May it please the Court.

GLEESON CJ: Thank you, Mr Bathurst.

Mr Attorney, Mr Ray, Mr Bathurst, thank you for your generous remarks and your expressions of goodwill. I am grateful to everybody who has taken the trouble to attend this afternoon. Many of you have travelled a considerable distance to be here and the Court welcomes you all.

With us on the Bench are my distinguished predecessors, Sir Gerard Brennan; the former Governor-General and Justice of the Court, Sir William Deane, whose friendship I have enjoyed over the whole of my professional life; Sir Daryl Dawson; and my former colleague and opponent, the Honourable Ian Callinan. We are also joined by the Chief Justice of New Zealand and the other members of the Council of Chief Justices.

Justice Robert French, who will be sworn in as the next Chief Justice on Monday, is here. I congratulate him on his appointment and extend to him my warmest wishes for a happy and successful term of office.

I welcome the Minister for Home Affairs and the representative of the Dean of the Diplomatic Corps.

I am delighted by the presence of so many of my friends and colleagues. Above all, my wife, whose unfailing support has been so important to me, is here with all our children and grandchildren.

All the Justices of this Court receive strong support from its officers and staff in Canberra and in other Registries. The members of my personal staff have been of immense assistance to me and I express my warm appreciation to them. The gifted young men and women who have been my Associates have been a source of inspiration. I am especially glad, Mr Ray, that you have made particular mention of this matter.

The participation in these proceedings of the Presidents of the Law Council of Australia and the Australian Bar Association signifies the role of the legal profession in the work of the Australian judiciary. A strong legal profession, imbued with a spirit of independence, is vital to the work of the judicial branch of Government.

We administer justice upon an assumption that a fair outcome is most likely to be achieved by hearing strong arguments on both sides of the case. That assumption is sometimes contestable and it may break down entirely when parties to litigation are inadequately represented or, for some other reason, unable to put their cases to their best advantage.

I am afraid that institutionally the distance between the profession and the judiciary may be increasing. Courts no longer retain the direct control over legal education and admission to the profession that they had in former times. The mercantilisation of some aspects of professional practice has altered the context in which Bench and Bar relate. Even so, in this country, we have maintained a strong association between the profession and the judiciary and I hope that this will remain so.

The establishment of a national legal profession, through arrangements of reciprocity and uniform standards of admission and regulation, has been beneficial. Ultimately, however, legal practitioners are officers of the courts. The historical role of the courts in setting the standards for admission, and in professional regulation, reflected a defining aspect of the professional status of lawyers. The ethical obligations and the privileges of lawyers are directly linked to their participation in the administration of justice.

One of the most significant changes since I became Chief Justice of New South Wales in 1988 has been the development of Australian judicial institutions. The independence of the judiciary from the political branches of Government is essential to the legitimacy of the exercise of judicial power.

I am convinced that the capacity of the judiciary to develop its own organisational resources is essential to its independence. Twenty years ago, those resources were limited. The Australian judiciary was highly decentralised, with little institutional expression except the courts themselves. Every two years there was a meeting of State Chief Justices that was also attended by the Chief Justice of the Federal Court. That gathering had no permanent secretariat and its meetings were chaired by the host of the occasion. It disclaimed any formal representative role.

The Australasian Institute of Judicial Administration, whose current president, Justice Virginia Bell, is here today, had only recently been formed. There were annual conferences at which topics of interest to judges were discussed, but beyond that judicial organisation was inchoate.

Now we have a council of Chief Justices of Australia and New Zealand, all of whose members are present today. It meets twice a year. It met here yesterday. It assumed its present form in 1993. Its permanent Chairman is the Chief Justice of Australia. Since 1998 it has a permanent secretary, who is the Chief Executive of the High Court. Its members, in addition to the Chief Justice of New Zealand, are the heads of jurisdiction of the superior courts of the Federation.

The Judicial Conference of Australia, a self-funded organisation of judges and magistrates, was established in 1993 with the object of maintaining a strong and independent judiciary. Its Chair, Justice Ruth McColl, is here today.

In 2002, a National Judicial College was established. Its formation was supported by the Council of Chief Justices and resulted from the recommendations of a working group set up by the Standing Committee of Attorneys-General. Its work is the formation and professional development of judges and magistrates.

There is now a strong sense of national identity at all levels of the judiciary. Unlike the United States counterparts, all Australian judges, State and federal, are appointed. They come from substantially the same professional backgrounds. Movement of judges between State or Territory and Federal Courts is not unusual. I came to this Court from a State Supreme Court. My successor comes from the Federal Court.

Proposals are being developed to formalise arrangements for judicial exchange, which in the past has occurred, but on an ad hoc basis. All Australian Governments now recognise the necessity of judicial education and continuing professional development. Inevitably, there has also been recognition of the importance of dealing with those issues on a national basis.

This sense of national identity, breaking down the earlier decentralisation, has both fostered, and been strengthened by, the development of the institutions I have mentioned. Since a primary object of that development has been to support and sustain judicial independence, it is self-evident that it should not be permitted to undermine that independence.

The bodies to which I have referred were not created for the bureaucratisation of the judiciary. Judicial independence is both institutional and personal. Ultimately, it is not merely an attribute of judicial authority, it is a constitutional imperative. The challenge is to foster the judiciary’s organisational resources without sacrificing the qualities they are designed to protect and I am confident that this challenge will be met.

It has been a great privilege to serve as Chief Justice of this Court, and of Australia. It remains only for me to express my warm good wishes to my colleagues of this Court, and to my wider group of judicial colleagues, the judges and magistrates of all Australian courts.

The Court will adjourn until 11.30 am on Monday, 1 September.

AT 2.58 PM THE COURT ADJOURNED

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^[1] ABC Boyer Lectures 2000 The Rule of Law and the Constitution The Hon. Murray Gleeson, AC, Lecture 6 The Judiciary 24 December 2000.
^[2] Inspire: Murray Gleeson: With trademark succinctness, the retiring Chief Justice of Australia sums up a distinguished career Michael Pelly The Australian 2 August 2008.
^[3] [2003/2004] (Summer) Bar News 58-64 Chief Justice Murray Gleeson: An Interview Rena Sofoniou.
^[4] Ibid
^[5] Martin Kriewald Memorial Addressing Darwin on 12 August 2008, The Purpose of Litigation, Murray Gleeson.
^[6] Ibid.
^[7] Honorary Secretary and Assistant Honorary Secretary respectively.