Ceremonial - Bell J -Welcome Perth [2009] HCATrans 267 (12 October 2009)

Last Updated: 16 October 2009

[2009] HCATrans 267

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

SPECIAL SITTING

WELCOME TO

THE HONOURABLE JUSTICE VIRGINIA MARGARET BELL

AT

PERTH

ON

MONDAY, 12 OCTOBER 2009, AT 9.15 AM

BELL J

Speakers:

Mr D. Stow, President, Law Society of Western Australia

Mr G.R. Donaldson, SC, Vice-President, Western Australia Bar Association

TRANSCRIPT OF PROCEEDINGS

HER HONOUR: Mr Stow.

MR STOW: May it please the Court.

It is a great pleasure to be here this morning on behalf of the Law Society of Western Australia to welcome your Honour Justice Bell to your first sitting in Perth as a Justice of the High Court of Australia.

Your Honour will no doubt be aware we have been very proud of the appointments from Western Australia to the High Court over the years, in particular, of course, your boss, if I can use that expression, his Honour Chief Justice French. We, of course, forgive you for coming from New South Wales.

I would also take this opportunity to thank the Chief Justice speaking this morning at a charity breakfast for the Chief Justice of Western Australia’s Youth Appeal.

The vacancy you have filled, created by the retirement of his Honour Justice Kirby, was seen as a loss to us as he had been very willing to speak at many of the Society’s functions in Perth, despite the inconvenience of having to travel from the east. I would hope we can similarly persuade you, despite the distance, to accept speaking engagements, particularly with your background as being only the fourth woman appointed to the High Court, coupled with your time at Redfern Legal Service and interest in social justice issues.

I am very pleased to observe that your Honour’s appointment takes the number of current female Justices of the High Court to three. I believe role models and gender balance and representation is very important. While much has been done to remove gender bias and issues there is a long way to go. In that regard, I might add my wife and I have three daughters and role models are very important to them, as well as to the community as a whole.

Regretfully, in Western Australia, with a significantly smaller Bar, there are not as many female barristers and consequently a very small pool from which appointments may be made. Having said that, the number of female judges has increased and the Chief Judge of the District Court, her Honour Toni Kennedy, who was in my year at university, was the first female judge appointed to be Chief Judge of the District Court.

Perhaps there is a fourth female High Court Judge sitting amongst us today.

A review of your Honour’s CV makes it clear why you were selected for appointment to the High Court - your Honour’s criminal law experience, first at the Redfern Legal Centre, then as a criminal barrister and more latterly as a Court of Appeal judge in New South Wales.

On behalf of the Law Society of Western Australia and its members, I wish you well in the next stage in your career.

May it please the Court.

HER HONOUR: Thank you, Mr Stow. Yes, Mr Donaldson.

MR DONALDSON: May it please the Court.

On behalf of the Bar of Western Australia, I welcome your Honour to the west.

As is oftentimes observed – most recently by Mr Byrne on behalf of the Queensland Bar in welcoming your Honour to Queensland – there is a very great importance in the Court sitting in centres other than Canberra, Sydney and Melbourne. Some aspects of this importance are obvious; others not so evident. No useful purpose is served by again reciting the obvious and identifying the not so obvious. But be this importance as it may, the profession in Western Australia is aware of the inconvenience and disruption to the Court caused by this circuit – and we are most grateful to your Honour and other members of the Court that this important, traditional annual circuit continues.

Your Honour, I regret to say that, so far as my researches have disclosed, professional sightings of your Honour in Western Australia prior to now have been rare. That is not to say that your Honour’s work is or has been unknown in the west or that your Honour’s reputation primarily as a criminal law practitioner and judge was not well understood and appreciated here – and although I have not uncovered any judgment or paper in which your Honour has had to grapple with the gentle subtleties of the “Griffith Code” – many of us – particularly in the old Code jurisdictions – have read with profit and gratitude your Honour’s exposition of aspects of the Commonwealth Criminal Code in a number of cases – in particular R v Sengsai-Or [2004] NSWCCA 108; (2004) 61 NSWLR 135.

The criminal responsibility provisions of the Commonwealth Criminal Code bring to mind the comment attributed to William James in reference to the work of Hegel –

“it was no doubt written with a passion of irrationality; but one can not help wondering whether to the reader it has any significance save that the words are strung together with syntactical correctness”.

Your Honour’s judgment in Sengsai-Or has been widely read in the west as elsewhere and has provided to many of us a glimmer of light in a dark tunnel of seemingly bare syntactical correctness.

Your Honour, we most sincerely welcome you to Western Australia.

I hope that your Honour does not mind if I observe that this circuit represents not only the first occasion upon which your Honour sits in Perth as a member of the Court, but also the first time that the Chief Justice sits in Perth as a member of the Court. The Chief Justice has forgone a formal welcome to Western Australia, but I trust that I can prevail upon your Honour to convey to the Chief Justice that he has not yet worn out his welcome in the west.

May it please the Court.

HER HONOUR: Thank you, Mr Donaldson. Thank you, Mr Stow. Thank you both for your generous remarks and for the warmth of your welcome.

Although I lack the discrimination of the Chief Justice in not having made Perth my home, it is a very real pleasure to be present at the October sittings of the Court in Perth.

Although I lack the capacity to make quite as many speeches as my esteemed predecessor, I undertake to come to Western Australia as often as I can in fulfilment of some part of the considerable legacy that he leaves in that respect.

Mr Donaldson, may I say, I count it a good thing that Sir Alfred Deakin’s view, that the High Court should be a reality in every State and not just a name, triumphed over the opposition of the parsimonious who were troubled by the expense of the Court travelling on circuit. After the celebrated tussle in 1905 between the original Justices of the Court and Josiah Symon, the then Commonwealth Attorney-General, a man trenchantly opposed to the Court sitting anywhere but Melbourne, the circuit system has not been seriously under threat.

My only regret is that the trip for a hapless eastern Stater these days is not quite possessed of the charm of the trip for those early Justices who travelled to Adelaide by railway carriage and thence by steamer to Perth. The prospect of leafing through the Commonwealth Law Reports from a deckchair on the promenade deck is, to my mind, more pleasing than from the cabin of an airbus. And the October sittings of the Court in Perth coincided with the wildflower season and the Justices travelled by train to inspect them. Now, in these rather more utilitarian days, the Court schedule makes no provision for smelling the flowers. It remains a very great pleasure to be here.

Regrettably, my practice at the Bar was too parochial to ever give me the opportunity to work with members of the Western Australian profession. However, in my years as a judge in New South Wales I did rather make up for that deficiency. Particularly through my long association with the Australasian Institute of Judicial Administration I came to know and to admire many judges of your Supreme and District Courts, including, of course, your present Chief Justice and Justice Wheeler, who is now the President of the AIJA.

I served for a number of years on a committee, very ably steered by Judge Mary Ann Yeats. The function of the committee was the implementation of recommendation 96 of the Royal Commission into Aboriginal Deaths in Custody, which was that judges and magistrates should have the opportunity to know more about Aboriginal culture and history. Of course, judges in Western Australia have long been distinguished for their knowledge of and interest in aspects of the law as it affects Aboriginal Australians. Each of the Justices from Western Australia who have served on this Court count amongst their many distinctions that knowledge and interest.

I am conscious of the honour and of the responsibility of appointment to this Court and I look forward to the assistance of the profession of Western Australia in carrying out my task.

Once again, I thank you both for your very kind words of welcome.

The Court will adjourn.

AT 9.29 AM THE MATTER WAS CONCLUDED