Ceremonial - Swearing-In of Chief Justice, the Hon R.S. French [2008] HCATrans 318 (1 September 2008)

Last Updated: 4 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 SWEARING-IN OF THE CHIEF JUSTICE

THE HONOURABLE ROBERT SHENTON FRENCH

AT

CANBERRA

ON

MONDAY, 1 SEPTEMBER 2008, AT 11.30 AM

[2008] HCATrans 318

Coram:

FRENCH 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 Anthony Mason, AC, KBE, retired Chief Justice of the High Court

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

The Honourable Murray Gleeson, AC, immediate past Chief Justice of the High Court

The Honourable John Toohey, AC, retired Justice of the High Court

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

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

The Honourable James Allsop, President of the Court of Appeal of New South Wales

Dignitaries seated within the Court:

His Excellency Major General Michael Jeffery, AC, CVO, MC (Retd)

The Honourable Stephen Smith, MP, Minister for Foreign Affairs

Members of the Judiciary seated within the Court:

The Honourable Justice J.E. Spender

The Honourable Justice P.R. Gray

The Honourable Justice M.F. Moore

The Honourable Justice C.M. Branson

The Honourable Justice K.E. Lindgren

The Honourable Justice P.D. Finn

The Honourable Justice S.C. Kenny

The Honourable Justice M.A. Stone

The Honourable Justice A.C. Bennett, AO

The Honourable Justice A.N. Siopis

The Honourable Justice S.D. Rares

The Honourable Justice A.J. Besanko

The Honourable Justice J.E. Middleton

The Honourable Justice M.M. Gordon

The Honourable Justice R.J. Buchanan

The Honourable Justice J. Faulks

The Honourable Justice M. Finn

The Honourable Justice P. McClellan

The Honourable Justice P. Cummins

The Honourable Justice D. Byrne

The Honourable Justice T. Smith

The Honourable Justice C. McLure

The Honourable Justice E. Heenan

The Honourable Justice R. Atkinson

The Honourable Justice M. Wilson

The Honourable Justice T. Gray

The Honourable Justice R. Refshauge

The Honourable Justice H. Penfold

The Honourable F. Vincent, JA

The Honourable Justice R. Gyles, AO

His Honour Judge R. Macknay

Her Honour Judge V. French

Chief Federal Magistrate J. Pascoe, AO

Chief Magistrate R.J. Cahill

Magistrate M. Doogan

The Honourable Justice Virginia Bell

At the Bar Table the following persons were present:

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

Mr J. McGinty, MHR, Attorney-General for the State of Western Australia

Mr S. Gageler, SC, Solicitor-General of the Commonwealth of Australia

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

Mr W. Sofronoff, QC, Solicitor-General for 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 D. Jackson, QC

Mr D. Bennett, AC, QC

Mr D. Williams, QC

Mr I. Viner, AO, QC

Mr D. Bloom, QC

Mr T. Bathurst, QC

Mr R. O’Connor, QC

Mr A. Robertson, SC

Mr R. Ray, QC

Mr J. Gleeson, SC

Mr M. Stewart, SC

Mr M. Blue, QC

Mr C. Colvin, SC

Mr G. Tannin, SC

Mr F. McLeod, SC

Mr D. Kerr, SC

Mr P. Tree, SC

Mr C. Shanahan, SC

Mr G. Donaldson, SC

Mr G. Brzostowski, QC

The Honourable G. Brandis, SC

Ms K. Emerton, SC, representing the Solicitor-General for the State of Victoria

Ms P. Lane

Mr S. Bhojani

Mr R. Hardcastle

The Honourable C. Ellison

Mr D. Hassall

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

Mr Craig Colvin, SC, President of the Western Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

FRENCH CJ: Your Honour Justice Gummow, I have the honour to announce that I have received a Commission from His Excellency, the Governor-General, appointing me as Chief Justice of the High Court of Australia. I now present that Commission to your Honour.

GUMMOW J: Mr Principal Registrar, please read aloud the Commission.

PRINCIPAL REGISTRAR:

Commission of Appointment of Chief 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 Justice ROBERT SHENTON FRENCH, a Judge of the Federal Court of Australia to be the Chief Justice of the High Court of Australia commencing on 1 September 2008 until he attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 30 July 2008, P.M. Jeffery, Governor-General by His Excellency’s command, Robert McClelland, Attorney-General.

GUMMOW J: Thank you, Principal Registrar. Chief Justice, I now invite you to make the Affirmation of Allegiance and of Office.

FRENCH CJ: I, Robert Shenton French, do solemnly and sincerely promise and declare that I will bear true allegiance to Her Majesty, Queen Elizabeth II, Her Heirs and Successors, according to law, that I will well and truly serve Her in the Office of Chief 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.

GUMMOW J: Chief Justice, I now invite you to subscribe the instrument of Affirmation and Allegiance of Office.

Mr Principal Registrar, please place these instruments in the records of the Court.

PRINCIPAL REGISTRAR: Yes, your Honour.

GUMMOW J: Chief Justice, we congratulate you on your appointment and we invite you to enter upon your office of Chief Justice and to take your seat at the Bench.

FRENCH CJ: Thank you. Mr Attorney.

MR McCLELLAND: May it please the Court.

First, may I acknowledge the traditional owners of the land we meet on – the Ngunnawal people – and pay my respects to their elders, both past and present.

It is my great honour to be here today on behalf of the Government, both sides of Australian federal politics and, indeed, the people of Australia to offer your Honour congratulations and best wishes on your appointment to head Australia’s highest court.

Your Honour’s appointment is an historic one. You are the first West Australian Chief Justice of the Australia and only the third Western Australian to serve on the bench in its 105 year history. I found out this morning from David Bennett that, in fact, this is the first time a judge of the Cocos Keeling Islands has been appointed to this Court. I thank David for that advice and his service to the Commonwealth.

The universal praise which greeted your Honour’s appointment is testament to the esteem in which you are held.

Your Honour was educated at St Louis Jesuit School in Claremont in Perth. After completing secondary school, your Honour attended the University of Western Australia. In 1968, you completed a Bachelor of Science majoring in physics. In fact, I understand that you initially had ambitions to become a theoretical physicist. However, your decision to then complete a Bachelor of Laws has literally been an historic making decision which has benefited us all.

Your Honour was admitted to practice in Western Australia in 1972 and practised for 11 years as a barrister and solicitor. You were the founding Chairman of the Aboriginal Legal Service in 1973, and in 1975, you established the partnership of Warren McDonald and French.

During your time at the Western Australian Bar, you developed an outstanding reputation, not only for great legal skill, but also for your courtesy and good humour.

Before your appointment to the Federal Court, your Honour served on the Town Planning Appeal Tribunal, the Legal Aid Commission of Western Australia, the Trade Practices Commission and the Law Reform Commission of Western Australia.

In a further demonstration of your commitment to public service – in 1986 – you were appointed a judge of the Federal Court of Australia at just 39 years of age, and but for only a few months – and I know it is a point of controversy because your Federal Court colleague, the Honourable Peter Grey, is in the Court – you were one of the youngest ever appointed to that Court.

Your Honour brings to this Court considerable experience and an outstanding reputation as a jurist.

Your Honour has developed special expertise in constitutional, administrative, native title and competition law. You are renowned for combining your technical legal excellence with a wide interest in broader social and economic issues.

As a result of your experience at the National Native Title Tribunal, your Honour has had first-hand exposure to cultural diversity, and the particular problems facing indigenous Australians. Your career long involvement in these issues has extended much beyond mere intellectual appreciation. Significantly, your Honour served as the inaugural President of the Tribunal from 1994 to 1998, guiding it through a period of charged public and political debate.

Your Honour was also appointed an additional judge of the Supreme Court of the Australian Capital Territory in 2003 presiding over a wide range of matters. You served from 2005 as Deputy President of the Australian Competition Tribunal, and I must say, my colleague, the Assistant Treasurer, is still somewhat cranky at me for having pinched a truly excellent President from him.

You also actively participated in legal reform, including serving as a part-time Commissioner of the Australian Law Reform Commission as well as actively encouraging discussion and debate throughout your career.

I understand that despite your numerous talents, contrary to at least one media report, you unfortunately have not been gifted with the ability to predict the future. While a newspaper has reported that you once gave a keynote speech to the Institute of Psychics, I understand this was in fact a typo. However, I am confident that nonetheless you will bring a great level of foresight to your judgments.

Your Honour is also a gifted writer and has written numerous articles. These have been engaging yet instructive and acutely reasoned across a diverse range of subjects.

Certainly, your Honour has welcomed the chance to draw on practical experience to articulate your point. Your recent description of “annoying conduct” as your own conduct of “barracking for the Dockers while sitting in the middle of a bunch of Swans supporters” demonstrates your ability to make the law relevant to the broader public, and as has been pointed out to me, your support for the Dockers also demonstrates that you retain the strength of your convictions in the face of great adversity.

I have no doubt, your Honour, that your background, your fine personal characteristics, your wealth of experience in careful analysis and exposition of the law and your exceptional ability to communicate complex issues of law in an accessible form will serve you well in the discharge of your important duties in this very important of offices.

Given your passion for health and fitness, your new colleagues may have some trepidation about what changes you may bring to this Court. Your “Workplace Program” on the “Be Active” WA website, details some of your tips on keeping fit for those people whose job requires them to spend long periods sitting down. Your tips include using the stairs and not the lift and there is an excellent causeway from the public entrance up to this level. Your tips also suggest a few discreet abdominal squeezes while sitting at a desk. However, I fear that if such abdominal activities were to prove popular on the Court, it may prove a tad distracting for counsel. I would also caution that, as I noted last Friday, it has been known for nicknames to be given to members of this Court on the basis of facial expression.

Significantly, though, the role of Chief Justice is not only to be one of seven decision-makers in the most important legal challenges facing our nation. As head of the Council of Chief Justices of Australia and New Zealand and of the Australian judiciary, you will have a unique opportunity to influence the culture and development of the Australian judiciary.

In concluding my remarks, your Honour, might I refer to a speech that you recently gave on the federal system at a recent conference where you said,
“Federalism is a solution to the problem of combining different political communities in a national polity while allowing them to retain their identities. There are different ways of distributing power between the components of a federation. Any such distribution will set limits to the legislative competencies. When a national policy is necessary to meet a need, perhaps not foreseen as such when the Constitution was created, the legislative and other powers necessary to implement such a policy may cross those boundaries.” Your Honour, may I wish you well in determining those boundaries.

Once again, on behalf of the Government and people of Australia, I extend to your Honour congratulations, best wishes and a very warm welcome on your appointment as Chief Justice of the High Court of Australia.

May it please the Court.

FRENCH CJ: Thank you, Mr Attorney. Mr Ray, representing the Law Council of Australia.

MR RAY: May it please the Court.

I appear on behalf of the Law Council of Australia to express the pride of the entire Australian profession in your Honour Chief Justice French’s appointment as the twelfth Chief Justice of the High Court of Australia.

I do so on behalf of each constituent body of the Law Council and their members. The constituent bodies include the Australian Bars and every Australian Law Society.

I note that Mr Dudley Stow, the President of the Law Society of Western Australia, is present this morning, although he will not be addressing the Court. Your Honour was, of course, a member of the Western Australian Law Society for more than 10 years, and you served on the Council of the Society.

Your Honour brings to the office of Chief Justice a record of creative dedication to good causes and of extraordinary achievement – for example, the Aboriginal Legal Service, the Native Title Tribunal, and the Edith Cowan University.

Only admitted to practice in December 1972, you played a central role in establishing the Aboriginal Legal Service in Western Australia from 1973 to 1975.

As a lawyer, you chaired the New Era Aboriginal Fellowship. That was a vehicle for many non-Aboriginals to work with Aboriginal people to establish health, legal and other services for Aboriginals and Torres Strait Islanders.

The Justice Committee of the New Era Aboriginal Fellowship established the Aboriginal Legal Service in Perth in 1973; and expanded it to serve Aboriginal and Torres Strait Islander peoples in the north and south of Western Australia.

The Aboriginal Legal Service of Western Australia continued to expand, and is now the largest community-based Aboriginal and Torres Strait Islander legal organisation in Australia. It provides such legal services throughout Western Australia and is now governed by an Aboriginal Executive Committee.

As a judge, your Honour was the inaugural President of the Native Title Tribunal from 1994 to 1998.

As the Attorney has said, you “guided the Tribunal through a period of charged public and political debate”.

In those difficult, early days of the Tribunal, your Honour not only established the framework of processes within the Tribunal, but also wrote and spoke widely outside the Tribunal, explaining the Tribunal and its work.

Outside your office as a judge, your Honour chaired the Council of the Western Australian College of Advanced Education from 1988 to 1990. In that time, the CAE attained university status.

So, in 1991, you continued, then as foundation Chancellor of Edith Cowan University – as the former CAE became.

You continued to serve as Chancellor until 1997.

Edith Cowan University awarded your Honour the highest honour it is in the power of the University to bestow – the honorary degree of Doctor of Laws.

Looking back with the wisdom of hindsight, we can see that the 9 December 1986 ceremonial sitting of the Federal Court in Perth was highly propitious. That sitting was to welcome your Honour to the Federal Court. It was propitious because all three Western Australian Justices of this Court – all three to date, that is – the three generations of Western Australian Justices – were on the Bench for that ceremonial sitting – the other two generations to welcome you.

Sir Ronald Wilson had then been on this Court for some years. He and the Western Australian Chief Justice, Sir Francis Burt, were sitting with the Federal Court that day to honour your appointment to the Court.

Justice Toohey was still on the Federal Court. However, his appointment to this Court, although not to begin until February, had been announced the previous day.

Your Honour was about to begin the nearly 22 years of distinguished service on the Federal Court that have brought you to this day on which you have taken the oath as the twelfth Chief Justice.

Like your Honour, Justice Toohey had been educated by the Jesuit Fathers at St Louis, Claremont. Your Honour’s childhood family home is across the road from that of John Toohey – and he remembers knowing you from about the age of seven.

There is also the connection that John Toohey, QC, was the first lawyer to take a position with the Aboriginal Legal Service in the North of Western Australia – pioneering legal representation for Aboriginal and Torres Strait Islander people in remote areas. This was in the time that you were the Chairman of New Era Aboriginal Fellowship and were establishing and building the Aboriginal Legal Service.

I have spoken about your Honour’s creative dedication to good causes and extraordinary achievement in establishing the Aboriginal Legal Service from 1973 to 1975.

In 1975, you set about establishing a private law firm – first with Rod Warren and Graeme McDonald – and then adding Ross Harrison. The firm, therefore, was Warren, McDonald, French & Co; and then added the name Harrison.

Your Honour knew from the outset that you wanted to practise as a barrister. You were characteristically frank with Warren and McDonald. You said you would give them two to three years, but that you would then be leaving to go to the independent Bar.

Equally characteristically, once you engaged on a task – in this case, establishing a law firm – you stuck with it to substantial completion. Your “two or three years” flew by and you ended up staying eight years.

The firm thrived and was highly regarded in Perth. Eventually, it merged to become part of Deacons, which has more than 900 lawyers in Australia and Asia.

Your law firm practice was extraordinarily diverse, and you did a substantial amount of work without fee. You found it hard to say no.

It is said that your Honour took to a new level the tradition in the Australian legal profession of putting back into the profession, and into the administration of justice, significant voluntary and informal pro bono work.

One always has the satisfaction of what one does and the individual client is usually grateful. But this sort of work is largely unnoticed in the general scheme of things. It is something in which we in the profession take great pride.

You attracted bright young lawyers to the firm. Not all could be nominally articled to you, but all sought to work with you.

You put off and put off going to the independent Bar – and remained with the firm for eight years, not going to the Bar until 1983.

Your Honour also made a substantial contribution to the activities of the Law Council of Australia.

You were a member of the Law Council of Australia Courts Committee, then based in Perth – now the Federal Court Committee – from its establishment. You were also a member of the Privacy Law Committee, and chaired that Committee, which made important submissions to the Commonwealth Government.

Your Honour’s intellectual curiosity and enthusiasm to do whatever legal work came your way has not diminished over the years.

Even after more than 21 years on the Federal Court, you were always happy, when sitting on the Full Court, to have the first go at drafting a judgment.

Sitting, as you have since 2003, as a judge of the Supreme Court of Fiji, you found yourself thrown into criminal law, because very many of the appeals were indeed in that field – which is really certainly not the mainstream work of a Federal Court judge, although, as a judge of the ACT Supreme Court, you also took on the long and complex murder retrial in the case of Hillier.

In 2004, your high-level mathematical skills were immensely valuable in the President’s reference to the Court in Qarase v Chaudhry. The Fiji Constitution has complex provisions for proportionate representation in the Cabinet.

Your Australian brother judges on that panel – Justice Keith Mason, then President of the New South Wales Court of Appeal, and Justice Mark Weinberg, now of the Victorian Court of Appeal – were very glad that you were on the panel and were able to master the mathematics.

Your Honour’s contributions to the profession have been recognised in your being made an honorary life member of the Law Society of Western Australia.

More on the intellectual and scholarly aspects of law in practice and as a judge, you are a member of the Australian Association of Constitutional Law and served as President of that Association from 2001 to 2005.

You were also named as one of 36 Foundation Fellows of the Australian Academy of Law established and launched at Government House, Brisbane in July 2007 – the newest, and very exclusive, Australian learned society – of which your predecessor, former Chief Justice Gleeson, is the patron.

Your Honour also runs the marathon. This is a particular strength in one who has already shown remarkable staying power in coming on for 22 years on the Federal Court, and is now taking on the new challenge of leading this Court.

You have the distinction of having run the Rome Marathon around the remarkable sights of the Eternal City, and along, in some cases, cobbled streets. It is said you ran that marathon in a wholly respectable time – and that there is a splendid photograph of you running that marathon which was on view in the Federal Court Perth chambers.

Your Honour, it is my very great pleasure, on behalf of the Law Council of Australia, and of the Australian legal profession that makes up the constituent bodies, to wish your Honour a distinguished, satisfying service as the twelfth Chief Justice of this Honourable Court.

May it please the Court.

FRENCH CJ: Thank you, Mr Ray. Mr Bathurst, representing the Australian Bar Association.

MR BATHURST: May it please the Court.

It gives me great pleasure, on behalf of all members of the Bar in this country, to congratulate your Honour on this occasion which marks the culmination of an already distinguished judicial career.

Your Honour was dux and school captain at St Louis School in Claremont. The fierce intellectual independence and commitment to social justice of the Jesuits plainly had a strong formative influence upon you.

One of your early, and enduring, passions, however, was for science and physics. You won the very impressive sounding Nuclear Research Foundation Scholarship to attend the Summer School of Science at the University of Sydney in 1964.

After that, you attended the University of Western Australia where you graduated in Science and Law. Despite your early dreams of becoming a great physicist, your Honour admitted that your decision to choose the law over science as a career became fairly clear-cut once you were informed by your science dean that “You express yourself magnificently, but I am not sure you know what you are talking about.”

That would surely be the last time that your Honour has been accused of a lack of clarity.

In your own words after that, you “became a lawyer, the kind of person who is the boring imaginary friend of some really interesting people”. In that context, it is fairly clear that your Honour was referring to the range of interesting clients you came across, not other legal professionals.

You were admitted as a solicitor in 1972 and undertook articles at Hammond Partners, after which you established a prominent criminal practice. Even whilst your legal career was in an early stage, you gained a reputation for your intellectual prowess and commitment to social justice and equality.

When barely past your mid-twenties, you founded the Aboriginal Legal Service of Western Australia and served as its Chairmain from 1973 to 1975. Your interest in legal issues affecting the Aboriginal people has, of course, been a deep and abiding one.

By 1975 you had established your own firm, Warren McDonald French and Harrison. The firm was immensely successful, not least because all of its members’ commitment to excellence and to integrity.

Around this time, your Honour dipped your toe into the political waters. I am, I think, reliably informed that your Honour campaigned for the seat of Fremantle on the back of a truck accompanied by a rock band. Luckily for the legal profession you were unsuccessful, notwithstanding the novel method of campaign.

Over the next few years, your reputation grew and your practice expanded and diversified into administrative, competition and constitutional law. You were generally regarded as having an incisive legal mind, and being a deep thinker on the law and its social context. You found the time to tutor in Constitutional Law at the University of Western Australia and had a reputation from your students as being approachable, generous with your time, respectful of others and with a gentle sense of humour.

Then, in 1983, you finally saw the light and came to the Bar.

Your career at the Bar can only be described as short, but spectacular.

You quickly became known as a leading Federal Court counsel in Western Australia, and appeared before the High Court on a number of matters.

One of your early High Court appearances as a very junior counsel was in Western Australia v Wilsmore, a case concerning voting rights for a prisoner who was detained, having been found not guilty by reason of unsound mind.

Your Honour also appeared before this Court for the successful respondents in
Fencott v Muller, one of the early crucial cases on the interpretation of the Trade Practices Act. Your Honour’s advocacy in that case was highly regarded by Sir Anthony Mason. In that case, as in all other occasions at the Bar, your Honour was persuasive, learned and always immaculately prepared.

While at the Bar you were also Chairman of the Town Planning Appeal Tribunal of Western Australia, a member of the Law Reform and Legal Aid Commissions of Western Australia and an Associate Member of the Trade Practices Commission.

To the relief of opposing counsel, you accepted an appointment as a judge of the Federal Court in 1986. It says a great deal for your Honour’s sense of civic duty that you were prepared to take the appointment at the tender age of 39 years.

In your time on the Bench, you have justly acquired an enviable reputation for your formidable intellect and legal acuity, and your judgments and reasoning have consistently received approval from this Court on appeal.

Your Honour has the ability to keep even the most complex litigation moving, to identify and get to the heart of the issues of the case and you are renowned for your insightful and lucid judgments. Your polite, reasonable and patient demeanour on the Bench is respected and appreciated by practitioners and clients alike.

Your Honour has been rightly described as a fair, even-handed and excellent case manager. Your ability in that regard can be shown by two examples. In Australian Gas Light Company v Australia Competition and Consumer Commission your Honour succeeded in disposing of a difficult case involving the merger of two power-generating companies in the space of three months from the institution of proceedings until judgment. Those cases generally take years. Your Honour achieved this, not by draconian directions, but by enlisting the co-operation of the parties towards a common end.

An example of an even more hands-on approach to case management occurred at a mediation at Broome when you were President of the Native Title Tribunal. Emotions between the protagonists were very high and the mediation got off to a disastrous start when a punch-up began. Your Honour, in the tradition of a boxing or rugby referee, got between the parties, calmed them down and the mediation, I am told, proceeded to a successful conclusion.

Over the years you have sat on Federal Court appeals in every State and Territory and have been involved in many significant appeals in that court in the last decade.

Your expertise in competition, intellectual property, administrative, constitutional and native title law has been a great asset to the Federal Court.

You brought your precise intellect to bear on many cases with significant social and political, as well as legal, implications. To mention two of them, there is, of course, SZFDE v Minister for Immigration, a case involving a Lebanese family fearing persecution in their homeland. In that case, your judgment set an important precedent for course and tribunals facing difficult administrative decisions. You were part of the high-profile judgments in cases such as Haneef and more recently, in Evans v State of New South Wales, which was mentioned by the Attorney.

Your Honour’s dispassionate approach can be seen by your Honour’s decision in that case, notwithstanding your Honour’s fear for the safety of the Fremantle Dockers in the wild town of Sydney.

In 1994, you were appointed as the first President of the Native Title Tribunal. You served in that position from May of that year until December 1998, where your compassion and deep understanding of the issues facing Aboriginal communities set the tone for the development of that body of law over subsequent years. Again, your fairness, insight and ability to listen were feature of your tenure.

Throughout the years your Honour has made a prolific contribution to public debate by producing a succession of papers and articles on topics ranging from co-operative federalism and judicial exchange, judicial awareness of cultural diversity, and judicial morality to ethics and the context of biomedical issues at the beginning and end of life, and of course native title.

In relation to the latter matter, your Honour recognised the need for public education through the media. Your Honour commented in 2003 that although the results of the interviews, which you described as a verbal tailings dump with a licence to treat, were never entirely predictable or controllable, such contact was essential. You also noted that most interviews were genuine attempts by the interviewers to obtain information.

In the same article your Honour concluded that inner calm, careful reflection and a relaxed mien were indispensable to the management of media interviews. Your Honour will no doubt be able to put those principles to the test in the years to come.

Your Honour’s breadth of interest, and not least sense of humour, shines through in much of your extrajudicial writing. By their titles alone, works such as “Legal Retail Therapy – Is Forum Shopping a Necessary Evil”, “A Hitchhiker’s Guide to the Native Title Act” and “Making Your Own Fun in Intellectual Property Law” belie popular perceptions of the cloistered, one-dimensional judicial officer.

Even more strangely, your Honour appears to have more than a passing acquaintance with aspects of popular culture, if references to the “Incredible Shrinking State” and quotes from such diverse higher authorities as Judge Dredd and Homer Simpson in some of your recent works are any guide.

I am told your Honour’s hobbies include scuba diving, sky diving and marathon running. I do not know if Canberra is the best place for the former two activities, but there seems to be plenty of space for the third.

Your Honour is not a man to shirk a challenge. As part of the Western Australia Government’s “Be Active WA” program, you have a web page devoted to workplace fitness. I look forward to seeing the direct effect of suggestions such as riding a bike to work, taking the stairs where possible and undertaking abdominal exercise while deskbound has on members of the Western Australia profession. I regret to say I do not know it would do much good to the New South Wales profession.

Your Honour’s ascension to this office is a deserved recognition of your outstanding contribution to the affairs of this nation.

The appointment of a new Chief Justice or, indeed, any Judge of this Court, often, of course, promotes great interest and speculation, both informed and less so. The fact that the media have been unable to fit you into any particular box, variously describing you as a traditionalist, an activist, a black letter lawyer, a progressive, a scientist turned jurist with a bent for science fiction, and a small-“l” liberal, demonstrates that throughout your career you have tried each case on its merits and applied the law to the facts in a careful and, where possible, compassionate manner. One cannot ask more from a judge.

The depth of your learning and the breadth of your experience eminently qualify you for the job and the challenges which lie ahead.

Once again, on behalf of the Bar, we warmly welcome you and wish you a fulfilling time ahead in this great office.

May it please the Court.

FRENCH CJ: Thank you, Mr Bathurst. Mr Colvin, representing the Western Australia Bar Association.

MR COLVIN: May it please the Court.

It is my great privilege to appear on behalf of the Western Australian Bar Association to congratulate your Honour on your appointment as Chief Justice.

It is almost 20 years since your Honour was first sworn in as a judge. On that occasion the theme was your Honour’s youth. Indeed, the then Solicitor-General for the Commonwealth referred to your Honour’s “precocious maturity”. Fortunately for us, your Honour has proven to be long flowering.

Your Honour has many personal attributes that make you well suited to the office that you take up today.

First and foremost, as we have heard, your Honour is an outstanding judge and jurist held in the highest regard by your judicial colleagues and by the profession.

Secondly, your Honour has a great enthusiasm for the law and a phenomenal capacity for work. You have served the public of Western Australia and Australia in a vast number of different capacities, many of which have been recounted already.

To illustrate your Honour’s enthusiasm, in December 2005 just prior to the Christmas break, your Honour heard the first in a series of applications in the Westpoint litigation to take control of companies and assets. On my count, in the course of the litigation, your Honour has delivered over 30 written judgments on contested applications, many raising important and novel issues concerning the extent of the court’s powers that had to be decided quickly.

At no point did your Honour flag under the burden. Indeed, each new twist was greeted with your Honour’s characteristically careful attention to the real points that had to be decided, no matter how new or difficult.

Thirdly, your Honour has always been a keen participant in broader social issues – whether being, as we have heard, an ambassador for fitness in Western Australia, or giving public lectures on topical issues or serving in capacities such as Chairman of the Aboriginal Legal Service of Western Australia.

Fourthly, as we have heard, your Honour has a keen sense of humour. In my experience, it is not the kind of wit that is sarcastic or superior. Indeed, it is often self-deprecating. It is frequently seen as a counterpoint when your Honour is dealing with complex ideas. Used in this way, it helps communicate a key idea that is at risk of being lost in semantics or legal jargon.

To illustrate, recently, in the Australian Law Journal your Honour wrote on the question of the extent to which a judicial view as to the policy of a law, particularly a statute, might be used to guide its application. The topic itself is prone to excite agitation.

On this serious and legally charged topic your Honour chose the title “Dolores Umbridge and Policy as Legal Magic”. For the benefit of those here who are uninitiated, Dolores Umbridge is not a legal scholar. Rather, she is a villain conjured by J.K. Rowling who takes over Hogwarts School of Witchcraft and Wizardry. Only your Honour would invoke an extended metaphor from Harry Potter to introduce a serious piece of legal scholarship.

The title also reveals your Honour’s diverse reading interests. As a balance to legal reality, your Honour enjoys science fiction.

It is an interest that explains how, as Chairman of the Native Title Tribunal as we have heard; your Honour was able to channel Douglas Adams to write what your Honour described as “A Hitchhiker’s Guide to the Native Title Act”.

Which leads me imperfectly to your Honour’s reputation as something of a judicial diplomat.

We have heard already that there was an occasion when your Honour chaired a large mediation when your Honour did not hesitate in putting your body on the line by physically interposing yourself in the small middle ground between the parties. By your action calm was restored.

Drawing no connection at all, I note that as a result of your new office, your Honour will always be in the middle, and, as your Honour knows from your physics studies, in the midst of any vortex there is always calm.

Lastly, as to your Honour’s attributes, may I be permitted to say that your Honour is a federal person. By that I mean that you have always had a keen interest in our nation’s character as a federation. You are in every sense both a West Australian and an Australian. Over many years you have served both in federal and State capacities. Outside of football, your Honour is not parochial in any sense. As a constitutional lawyer your Honour has the experience, skills and insight to undertake the particular responsibilities of this Court.

This attribute is important because ours is a vast country. The constitutional jurisdiction of this Court stretches from sea to shining sea and holds together a great diversity in land and people. This Court has an important role in discerning and upholding the federal vision for this country and your Honour is well suited to that task.

It can be seen that in every attribute your Honour is perfectly suited to the important role that your Honour commences today. Your appointment reinforces the long recognised eminence of this Court in the common law jurisdictions.

On behalf of the Western Australian Bar Association and in particular its members represented here today – and by video link from Perth – I wish you well in the task that lies before you. We are grateful that a person of your character and qualification has been asked to accept and has accepted the responsibility.
May it please the court.

FRENCH CJ: Thank you, Mr Colvin.

Your Excellency, Mr Attorney, your Honours, ladies and gentlemen.

The seat I have taken today is one of great honour. That honour owes nothing to my efforts. It comes from the place of the Court under the Constitution. It comes also from the labours of the 11 Chief Justices who have preceded me and the Judges, including those now present on the Bench, with whom they have worked.

The place of the High Court under the Constitution was explained in 1902 by the first Attorney-General of the Commonwealth, Alfred Deakin, giving the second reading speech in support of the Judiciary Bill:

The Constitution is to be the supreme law, but it is the High Court which is to determine how far and between what boundaries it is supreme.

The Court was, he said, “the competent tribunal which is able to protect the Constitution and to oversee its agencies”. He called it “the keystone of the federal arch”.

In its very first judgment delivered on 11 November 1903, the first Chief Justice, Sir Samuel Griffith, with Justices Barton and O’Connor, spoke of the Court as “the embodiment of the judicial power inherent in every sovereign State ... an essential part of the structure of the Commonwealth”.

In announcing my appointment the Prime Minister described this office as “the most important constitutional office in the land”. Taken as a reference to the Court as a whole, it is entirely consistent with the vision of those who drew our Constitution and created this body.

The honour that comes with a seat on this Court is therefore historical and institutional. With it comes a great sense of responsibility and for me that harsh modesty which follows from a realistic appraisal of my own capacities.

Mr Attorney, Mr Ray, Mr Bathurst and Mr Colvin – you have done your best with your generous remarks to undermine that realistic appraisal. I thank you for them. You will not think me ungracious if I keep them in a proper perspective.

A proper perspective reminds all of us who occupy public office, be it parliamentary, executive or judicial, to see ourselves as other Australians see us. This will often be at best with a kind of sceptical respect.

It requires us to examine and re-examine the way in which we do things and to look for ways of doing them better. The courts are human institutions. There is always room for improvement. In the 22 years I have been a judge, I can say the effort to improve has been relentless. It will continue across all Australian courts. In the end, however, the fundamentals of our system of justice require decision making that is lawful, fair and rational. It requires each case to be decided carefully according to its merits under the law. It requires it to be decided by an independent judge with the capacity and the determination to make a decision without fear or affection, favour or ill will. Those are the fundamentals which apply equally to this Court and to the busiest Magistrates Court.

The responsibility which I accept with this appointment is made lighter by the fact that I share it equally with the other Justices of the Court, each of whom has welcomed me warmly to their company.

It was a particular pleasure to have been sworn in by Justice Gummow. We were both appointed to the Federal Court within a day of each other in 1986. His Honour was appointed on 24 November, and I was appointed on 25 November. I could have been appointed on the same day but my commission would have been endorsed with his seniority. Much as I admired his Honour, even then, I preferred my commission not to be so encumbered. We were friends on the Federal Court and have continued that friendship since his appointment in 1995 to this Court. It is good to be working with him again.

There are many of you, family and friends, judicial, professional and academic colleagues, who have come from all parts of Australia to be present at this ceremony. I thank you and, on behalf of the Court, welcome you. May I particularly acknowledge the presence of the Minister for Foreign Affairs and the Attorneys-General for Western Australia and the Australian Capital Territory. Among you also are representatives of the Ngunnawal people, who are the traditional people of this area. Recognition of their presence is no mere platitude. The history of Australia’s indigenous people dwarfs, in its temporal sweep, the history that gave rise to the Constitution under which this Court was created. Our awareness and recognition of that history is becoming, if it has not already become, part of our national identity.

His Excellency, the Governor-General, has paid the Court the compliment of his attendance here today. It is, I understand, his last official function. It may be a matter of concern to some that for a few brief days before I swear in his Excellency’s successor on Friday, there will be a West Australian Governor-General, reflecting both the legislative and executive power of the Commonwealth, and a West Australian as Chief Justice of the High Court. West Australians will have no such concern. I take the opportunity to acknowledge your Excellency’s great service to the nation and, before that, to the State of Western Australia, and to wish you and your wife well in the years ahead.

I referred in opening to the 11 Chief Justices who preceded me. Three of them are on the Bench with us: Sir Anthony Mason, Sir Gerard Brennan and the Honourable Murray Gleeson. Each of them has made his own great and distinctive contribution to the work of the Court. I wish to express my particular thanks to Murray Gleeson for his wise counsel and the trouble he has taken to make me feel at ease and to ensure a smooth succession. His trouble has included the gift of a bottle of very good whisky, no doubt to tide me over the difficult moments. I wish to add my congratulations and good wishes to those which were offered to the former Chief Justice on Friday.

In addition to the former Chief Justices of the Court, the Honourable John Toohey and Michael McHugh, retired Judges of this Court, are present on the Bench. I thank them both for their attendance. John Toohey I have known since I was a schoolboy. He and his wife, Loma, were neighbours and friends of my parents in the 1950s. It is a matter of sadness that my parents are not alive to share this occasion. They gave much of themselves to the upbringing and success of their children and to the wider community. Along with my brothers and my sister, Rebecca, who are here today, John Toohey provides a link to that past. Our lives have intersected in other important ways through the Aboriginal Legal Service of Western Australia and later, when for an all too brief period, we were both resident judges of the Federal Court in Perth before his appointment to this Court.

It is a great pleasure to be joined on the Bench also by the Chief Justices of the Federal and Family Courts and of the States and Territories. They are all colleagues in what has become a national judiciary. We are also joined by the Chief Justice of New Zealand, Dame Sian Elias. I cannot refer to her as part of our national judiciary for New Zealand has seemed a little reluctant to join the Federation since its three delegates ceased attending the National Australasian Convention after its 1891 session. However, her wisdom and experience are greatly respected in meetings of the Australian Chief Justices and by myself, and I thank her for her past and ongoing contribution.

Each of us who comes to the Bench of this Court has come by a somewhat different career path. Mine has been dominated by 22 years as a member of the Federal Court, although I spent five years of that time as President of the National Native Title Tribunal. The decision to accept appointment to the Federal Court at the age of 39 was more instinctive than rational. The offer came from Patrick Brazil, then secretary of the Attorney-General’s Department, who is present today. Had I thought about it at any length, the logical arguments against the move would have been overwhelming. Sometimes, however, instinct is a good guide and it was in that case. The time on that court as both trial and appellate judge has been full of interest, variety and challenge and the company of a great collegial body of judges. The court has been fortunate to have had two Chief Justices of the highest quality in Sir Nigel Bowen and Chief Justice Michael Black. It has been a privilege working with each of them. I have every reason to believe that, but for my present appointment, I would have continued as a judge of that court until mandatory retirement at age 70.

Let me now move to conclusion by way of confession. I was taught by the Jesuits and one of them, Father Davern Day who became a family friend of long standing, has travelled to Canberra for this occasion. He has joined our family on occasions of joy and sorrow in weddings, baptisms and family funerals. Although I declare myself in all humility, and no doubt to his disappointment, an agnostic with a sense of wonder, the Catholic confessional tradition runs strongly in my blood. So before commencing my duties, I confess to diverse personal relationships over the years. They have included the first woman at the Independent Bar in Western Australia, a stipendiary magistrate, a District Court judge, a president of the Children’s Court of Western Australia and, most recently, the Chairman of the Prisoners’ Review Board. Unfortunately, the entertainment value of this confession is significantly qualified by the fact that they are all one person – Valerie, my wife and partner for the past 32 years and mother to the three fine young men who are our sons.

Our marriage has taught me many of the best things I know. Her successive roles as magistrate and District Court judge have entirely eliminated any temptation I might have to speak of hierarchy in relations between the courts of this country. What is important are their functions. There is no place for judicial snobbery in a marriage or anywhere else for that matter.

The judicial task at all levels is relentless and carried on, as Jeremy Bentham observed, “in the face of the public”. We have paused, on Friday and today, to pass the baton. The judicial task continues. The time has now come to set about that task anew. Thank you on behalf of the whole Court for your attendance.

The Court will adjourn until 10.15 tomorrow morning.

AT 12.21 PM THE COURT ADJOURNED