Ceremonial Sitting - Swearing-in of Gageler J [2012] HCATrans 258 (9 October 2012)

Last Updated: 23 January 2013

[2012] HCATrans 258

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

CEREMONIAL SITTING

TO MARK THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE STEPHEN JOHN GAGELER

AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

ON

TUESDAY, 9 OCTOBER 2012, AT 2.16 PM

Coram:

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL 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 of Australia

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

The Honourable Murray Gleeson, AC, retired Chief Justice of the High Court of Australia

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

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

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

The Honourable William Gummow, AC, retired Justice of the High Court of Australia

Members of the Judiciary seated within the Court:

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

The Honourable Patrick Keane, Chief Justice of the Federal Court of Australia

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

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 Trevor Riley, Chief Justice of the Supreme Court of the Northern Territory

The Honourable Thomas Bathurst, Chief Justice of the Supreme Court of New South Wales

The Honourable Christopher Kourakis, Chief Justice of the Supreme Court of South Australia

The Honourable Justice M. Gordon, Federal Court of Australia

The Honourable Justice A. Robertson, Federal Court of Australia

The Honourable Justice J. Griffiths, Federal Court of Australia

The Honourable Justice D. Kerr, Federal Court of Australia

The Honourable Justice A. Katzmann, Federal Court of Australia

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

The Honourable Justice M. Finn, Family Court of Australia

The Honourable Justice M. Beazley, AO, Court of Appeal, Supreme Court, New South Wales

The Honourable Justice J. Basten, Court of Appeal, Supreme Court, New South Wales

The Honourable Justice P. Bergin, Chief Judge in Equity, Supreme Court, New South Wales

The Honourable Justice J. Stevenson, Supreme Court, New South Wales

The Honourable Justice P. Biscoe, Land and Environment Court, New South Wales

The Honourable Justice P. Tate, Court of Appeal, Supreme Court, Victoria

The Honourable Justice T. Gray, Supreme Court, South Australia

The Honourable Justice R. Refshauge, Supreme Court, Australian Capital Territory

The Honourable Justice H. Penfold, PSM, Supreme Court, Australian Capital Territory

The Honourable Justice J. Burns, Supreme Court, Australian Capital Territory

His Honour Judge B. Knox, SC, District Court of New South Wales

Magistrate K. Fryar, Magistrates Court, Australian Capital Territory

The Honourable F. Callaway, RFD

The Honourable K. Mason, AC

The Honourable K. Lindgren

The Honourable P. Finn

The Honourable R. Giles

At the Bar Table the following persons were present:

The Honourable Nicola Roxon, MP, Attorney-General for the Commonwealth

Mr Robert Orr, SC, Acting/Solicitor-General for the Commonwealth of Australia

The Honourable Greg Smith, SC, MP, Attorney-General for the State of New South Wales

The Honourable George Brandis, Shadow Attorney-General for the Commonwealth

Mr Leigh Sealy, QC, Solicitor-General for the State of Tasmania

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

Mr Stephen McLeish, SC, Solicitor-General for the State of Victoria

Mr Grant Donaldson, SC, Solicitor-General for the State of Western Australia

Mr Peter Garrisson, Solicitor-General for the Australian Capital Territory

Mr Joseph Catanzariti, representing the President, The Law Council of Australia

Mr Craig Colvin, SC, President, Australian Bar Association

Mr Bernie Coles, QC, President, New South Wales Bar Association

Ms Melanie Sloss, SC, Chairman, Victorian Bar

Mr Roger Traves, SC, President, Bar Association of Queensland

Ms Raelene Webb, QC, President, Northern Territory Bar Association

Mr Theo Lampropoulos, SC, President, Bar Association of Western Australia

Mr Patrick O’Sullivan, QC, President, South Australian Bar Association

Mr Michael O’Farrell, SC, President, Tasmanian Independent Bar

Speakers:

The Honourable Nicola Roxon, MP, Attorney-General for the Commonwealth

Mr Joseph Catanzariti, on behalf of the President of the Law Council of Australia

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

Mr Bernie Coles, QC, President of the New South Wales Bar Association

TRANSCRIPT OF PROCEEDINGS

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

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

PRINCIPAL REGISTRAR:

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

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and section 5 of the High Court of Australia Act 1979, appoint Stephen John Gageler, SC, learned in the law, to be a Justice of the High Court of Australia commencing on 9 October 2012 until he attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 21 August 2012. Quentin Bryce, Governor-General, By Her Excellency’s Command, Nicola Roxon, Attorney-General.

FRENCH CJ: I now invite you to take the Oath of Allegiance and of Office.

GAGELER J: I, Stephen John Gageler, do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to law, that I will well and truly serve Her in the Office of Justice of the High Court of Australia and that I will do right to all manner of people, according to law without fear or favour, affection or ill-will. So help me God.

FRENCH CJ: I now invite you to subscribe the Oath of Allegiance and of Office.

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

PRINCIPAL REGISTRAR: Yes, your Honour.

FRENCH CJ: Justice Gageler, I invite you to take your seat at the Bench and to proceed to the discharge of your duties of the office of a Justice of the High Court of Australia.

FRENCH CJ: Attorney-General for the Commonwealth.

MS ROXON: Thank you very much. May it please the Court.

First, might I acknowledge the traditional owners of the land that we are meeting on - and pay my respects to the elders, both past and present.

Your Honours and distinguished guests, particularly former Chief Justices and Justices of the High Court, we are of course thrilled that your Honour on this occasion is joined not just by all of your new colleagues, but indeed an entire additional Full Bench of the High Court - former Chief Justices, the Honourable Sir Anthony Mason, the Honourable Sir Gerard Brennan, and the Honourable Murray Gleeson, former Justices of the High Court, the Honourable Sir Daryl Dawson, the Honourable Michael McHugh, the Honourable Ian Callinan and the Honourable William Gummow.

Can I also acknowledge members of the federal and State courts that are present today, representatives of the legal profession and the Federal Opposition.

It is a great honour indeed and a privilege to be here today, and on behalf of the government and the people of Australia, I offer your Honour my congratulations and best wishes on your appointment to Australia’s highest Court. As Attorney-General, it is one of the greatest pleasures I have to welcome a new Judge to the Court.

As one former High Court associate to another, I personally congratulate you on working very hard for the length of your career, to now find yourself back where you began. For many professions, this is not a sign of success - but in this instance this is the highest achievement possible.

It does seem that the ultimate destination for High Court associate alumni is either the Bar, the Bench or politics. If I may say, your Honour, you have chosen very wisely.

I understand that many of those who are close to your Honour are here today to share this special occasion with you, including, of course, your wife, Carla; your daughter, Elizabeth; and your two sons, Francis and Benjamin. I am sure it is with great pride that they are here - but I also know that your Honour appreciates their love and support for the work that you do.

I do need to tell the Court that in the Sydney office that we occasionally shared, I once made a cup of tea and looked rather longingly at the biscuits on the counter, but they had attached to them a stern post-it note on top from your daughter saying, “For Daddy only”. I do trust that this was to protect them from hungry brothers rather than any passing attorney, but I nevertheless resisted the temptation.

Your Honour must be delighted that your appointment to this Court has been greeted with national acclaim, as well as some examination of your influences and formative years.

As others are here today who will speak of your formative years in more detail, I mention briefly that the media’s description of “a sawmiller’s son from the Hunter Valley with a black belt in taekwondo” does not do justice to the remarkable journey that has led your Honour to Australia’s highest Court. Country boy, public schooling, no lawyers in the family – it may have seemed like an unlikely choice and an unlikely course.

I will pick up where your Honour’s legal career began, and I first note its curious and fitting symmetry. Your appointments to the office of Solicitor-General and now the High Court come after extensive involvement in both the institutions of this Court and government much earlier in your career.

Between 1983 and 1985, you served as associate to the High Court Justice, Sir Anthony Mason. Sir Anthony later commented that he instantly knew he had recruited an “outstanding legal mind”.

It must be wonderful that Sir Anthony is able to be here with you today to see the fulfilment of that early promise and dedication. Perhaps, in 30 years’ time, you will be in Sir Anthony’s position to welcome to the Bench one of those sitting behind your Honours right now.

In 1985, you joined the Commonwealth Attorney-General’s Department, an organisation that now assists me ably and with distinction. You worked your way quickly through the ranks from legal officer to principal legal officer. It was there that your Honour was exposed to the work of the then Solicitor-General, Dr Gavan Griffith, AO, QC, serving as his assistant from 1987 to 1989.

During this period, your Honour also worked as a part-time tutor at the ANU Law School in constitutional law. Even at this early stage of your Honour’s career, your expertise in this area was widely recognised. I understand your tutorials needed to be moved to the Moot Court to accommodate the large number of students wishing to attend.

In 1989, your Honour was admitted as a barrister to the Supreme Court of New South Wales and appointed Senior Counsel in the year 2000. During your time at the Bar, your Honour provided great support to your many readers, exposing them to a variety of cases and solicitors, often helping them to develop their own businesses and niches of expertise. One of your previous readers, Stephen Lloyd SC, has described you as a well-prepared and versatile legal thinker of spectacular clarity.

I understand that this is reflected in the structure of your Honour’s speaking notes in courts. I am told that your Honour often writes only one sentence per page, broken into individual segments. Your approach has been described, I am sure in a complimentary manner, as “an intellectual discipline intended to reduce all propositions to their simplest form”.

I am not sure if this method will seamlessly translate to judgment writing, although I am sure that one-page judgments may have a certain appeal to law students.

I am also advised that you set yourself an additional challenge by making your writing so small as to be barely legible. I did think, your Honour, that perhaps on this ground you may have missed your calling as a doctor.

More seriously, I am sure your Honour’s ability to decipher the smallest detail will be a valuable skill as you take your place on the Bench.

I first met your Honour during your time working at the Bar - and was immediately impressed by a prodigious work ethic, a quiet but purposeful demeanour, and a steely resolve.

It was during this period that your Honour also served as a member of the Administrative Review Council, and undertook the role of editor of the Australian Law Reports - yet another example of finding time to give back to the profession. More recently, you have also been the Chairman of the Constitutional Law section of the New South Wales Bar Association.

Your Honour is recognised as an excellent speaker, and the Australian Government has often been the beneficiary of your talent in Court and in the delivery of speeches on the government’s behalf, often at ceremonial sittings like this one. Despite your superior skills, your Honour, I did feel on this occasion it might be preferable that I did it myself.

Over the course of your career, your Honour has also been a gifted writer, authoring many articles ranging in topics from the republic to preventative detention to the scope of judicial review.

Your Honour may also recall authoring some time ago an article in the Sydney Law Review about the four “essential attributes of a judge”. You proposed these attributes to be technical competence, practical judgment, courtesy and industry.

All of those who have worked with you know that your Honour far exceeds these self-described standards, courtesy and modesty being remarked upon most often by all of those close to you and emphasised I think by the fact that your longstanding assistant, Jan Cutelle, will continue in your employ at the Court.

The number and significance of cases argued by your Honour in the High Court and other superior courts over the last couple of decades is impressive from any perspective.

Your Honour has appeared before this Court as a senior counsel on more than 100 occasions. These appearances cover a wide range of constitutional issues, including freedom of interstate trade and commerce, judicial power, federal relationships and the role of executive governments.

It could be said that the frequency of your appearances has made you somewhat a fixture of the Court. Your Honour’s status as a “regular” was acknowledged publicly in 2003, with your image appearing as part of the painting commissioned to mark the centenary of this Court. I am advised that it is a decent likeness.

There has been a tendency in recent times to pigeonhole your Honour as “merely” a constitutional lawyer, however, your career has seen you appear in a very diverse range of matters including commercial law, revenue law, administrative law and medical negligence.

Your Honour’s exceptional record and standing made you a strong and well-supported choice for appointment as Solicitor-General in 2008.

Your Honour brings that special experience from being Solicitor-General to the High Court.

Of course, although this is rare, you are not, your Honour, the first to do so. Your Honour was preceded by Sir Anthony Mason, who also served as the Commonwealth Solicitor-General. Sir William Webb, Sir Ronald Wilson, Sir Daryl Dawson and the Honourable Mary Gaudron also all served as State Solicitors-General prior to appointment to this Court.

This latest appointment from among those who have served as Solicitor-General continues a great tradition which allows Australia’s Court of final appeal to reap the benefit, not only of technical strength, but also of experience in government at Commonwealth and State levels.

As Solicitor-General, a person must exercise that independence of legal judgement required of the principal legal counsel to Executive Government, all the while conscious that particular advice may determine governmental practice in many areas which never may come to be judicially considered.

This involves an application of deep legal principle in relation to the full spectrum of government practice. Few in the legal profession are called upon to perform this onerous, but hopefully rewarding, task.

At a personal level, may I thank you for the professionalism you took to that role and the seriousness with which you undertook such service to the public.

It is an excellent thing that in Australia someone born into a sawmiller’s family in a small New South Wales town can reach this high office.

It is an excellent thing that someone of your Honour’s integrity, legal expertise, constitutional law experience, passion for public service and the time already spent representing parties before this Court, is now able to take this step further and contribute more closely and directly to the work of the High Court of Australia, and through it, the Australian community.

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

May it please the Court.

FRENCH CJ: Thank you, Attorney. Mr Catanzariti.

MR CATANZARITI: May it please the Court.

I appear on behalf of the Law Council of Australia to express the pride felt by all members of the Australian legal profession in your Honour Justice Gageler’s appointment as a Justice of the High Court of Australia.

It is a great honour to be addressing the Court on the occasion of your swearing in as the 49th Justice of the High Court of Australia. I do so on behalf of each constituent body of the Law Council and their respective members. The constituent bodies include the Australian Bars and every Australian Law Society.

On several occasions I have been on this side of the Bar table with your Honour at swearing-in ceremonies; we have both made welcome speeches and talked before the ceremony about the judge to be shortly sworn in. I cannot say how great a privilege and joy it is for me to be here today to make these comments on the occasion of your most well-deserved appointment.

I note that Craig Colvin SC, President of the Australian Bar Association, and Bernard Coles QC, the President of the New South Wales Bar Association, are present this morning. It is well known that your Honour had a highly successful barristers’ practice for some 18 years from 1990 until 2008, taking silk in 2000. In 2008 you left the Bar to accept the appointment as Solicitor-General of the Commonwealth of Australia.

My colleagues from the Bar will speak of your Honour’s distinguished practice at the Bar, specialising in constitutional and administrative law, revenue law and commercial law.

I am informed that one of the most downloaded items on the New South Wales Bar Association’s website is your Sir Maurice Byers Memorial Lecture delivered on 7 April, 2009. Your speech is entitled “Beyond The Text: A Vision Of The Structure And Function Of The Constitution”. In that speech you described yourself in the following way:

“Law is what I do and law is all I do. Law is my field of expertise and my zone of comfort.”

Instructors who briefed you in your time at the Bar concur. Your Honour is greatly admired and deeply respected. This admiration and respect is not only for your skills and expertise, but also for your conduct. Those who briefed you describe you as “unfailingly considerate” and always ready and well prepared. You have been described as “a calm and fair counsel and a good listener”.

Your Honour found the appeal of the law early, through meeting practitioners in the Upper Hunter region of New South Wales, where you lived with your family on a four hectare property, which also housed your family’s sawmill business.

I am informed that it was during your teens, while you were at Muswellbrook High School, that you considered being a barrister, even before you had actually met one. I suspect we owe some gratitude to an early source of inspiration, the barrister who bought property near Giants Creek Primary, which you attended.

Your Honour earned two degrees from the Australian National University. First, you completed your Bachelor of Economics in 1980, then a Bachelor of Laws with First Class Honours in 1982. You then completed your Master of Laws degree in 1987 at Harvard University.

Your Honour has maintained a strong connection with the Australian National University throughout your career, including tutoring in constitutional law in 1989. The students you tutored will, no doubt, feel a special connection to you and now to the High Court of Australia because of their experience of being taught by you.

Last year your Honour returned again to the Australian National University, to address the graduates of the College of Law. In that address, you articulated your belief that independence of mind and clarity of reason are fundamental to the operation of the legal system and all within it. You then eloquently made your case that in the legal profession, as in life, there is one constant – and that is “integrity”. Your Honour said:

“The point about integrity is that it depends on how individuals act, especially in times of adversity. Integrity is an intensely human quality fundamental to the operation of the legal system. Without integrity in the administration of the law, the rule of law self-destructs from within.”

Your Honour, there are some recurring themes in remarks made by those who know you. Whether it is in your approach to the law or in your day-to-day dealings with people, reference is made to your exceptional legal mind and to your decent and down-to-earth approach to everything and everyone. You are described as “impeccably fair” and “decent”; it is said that you have “enormous integrity”.

On completion of your undergraduate studies at the Australian National University, where you met your wife Carla, and after a period with Canberra law firm Elringtons, Solicitors, you became an associate to the former Chief Justice of the High Court, Sir Anthony Mason, from 1983 to 1985, while he was a Justice of the High Court.

In your time as Sir Anthony’s associate, the High Court decided the landmark constitutional law Tasmanian Dams Case.

You and Sir Anthony have both served as Solicitor-General of the Commonwealth of Australia, and you have both been appointed to the High Court of Australia. Sir Anthony remains your mentor.

As I said earlier, I will leave the detail of your time at the Bar to my colleagues; however, I am informed that your Honour is distinguished not only by your intellectual acuity and depth of legal expertise, but also by your unique approach to the making of submissions. This approach has not escaped the notice of those who have sat in your vicinity in one of your many appearances.

Your Honour has the ability to make your submission on the basis of a few spare words, placed around a page, on a single sheet of paper. From this most economical use of words, you deliver your trademark submissions: incisive, exceptionally reasoned and clear.

Your written submissions are finely drawn, clear, relentlessly logical and direct. Your Honour uses words with maximum efficiency. You are prepared to think radically about any case and then quickly and effortlessly bring fundamental legal principle to bear.

Your Honour’s capacity for clarity of exposition was well demonstrated in the Betfair Case, when your Honour was required to explain the finer points of online betting to the Full Bench of the High Court.

You served as editor of the Australian Law Reports between 2006 and 2008, and as a member of the Administrative Review Council between 1999 and 2005 where your Honour made a particular contribution to the Council’s 47th Report, The Scope of Judicial Review (April 2006).

As Solicitor-General of the Commonwealth of Australia, a position you have held since 2008, your Honour has served our nation with grace and integrity, navigating a series of significant and high profile cases for the governments you have served as Solicitor-General. The Attorney-General’s address clearly supports this.

Many mentions, of course, have been made in the media of your black belt in taekwondo. I venture that the discipline and agility required of training in martial arts must have stood you in good stead in the occasionally tumultuous times of being the nation’s second law officer.

Your Honour, it is my very great pleasure on behalf of the Law Council of Australia, and of the Australian legal profession that make up its constituent bodies, to wish your Honour a distinguished and fulfilling term as the 49th Justice of this Honourable Court.

May it please the Court.

FRENCH CJ: Thank you, Mr Catanzariti. Mr Colvin.

MR COLVIN: May it please the Court.

It is with great pleasure that I appear on behalf of the Australian Bar Association and its members throughout Australia at this special sitting to welcome your Honour Justice Gageler as a member of this Court.

As we have heard on the announcement of your Honour’s appointment it was your black belt in taekwondo that captured the interest of the Australia populace. Indeed, I could not find a single report that did not feature this achievement prominently. However, further analysis of the media reports revealed the presence of another more significant theme. It was to be found in the many references to your Honour’s humility. For a former member of the Sydney Bar where lamps are rarely to be found under bushels, this I suggest was much more newsworthy.

In an adversarial system where the breastplate of supreme confidence and the helmet of hyperbole may be considered to be essential armour for the advocate, your Honour is an exception to the general rule. This may be due to your formative years. We have heard, of course, that you were a country boy first educated in a one-teacher school at Giants Creek and then at Muswellbrook High School in New South Wales, or it may be due to your daily habits; you are reputed to be a man who gets his own coffee. Or it may be due to your family life; there is nothing in my experience like the admonishments of three growing children to keep a man humble.

However, I suggest it is more likely to be due to your approach to the life of the law and the task of advocacy. You are known, as we have heard, to prefer careful arguments and principled persuasion over the blood sport of debate or the spectacle of derisive oratory. Humility is a virtue most starkly practised by those worthy of great praise. It is best attested to by those with whom you have lived and worked closely. Both those statements are true of your Honour.

Your Honour is also known, as we have heard, as a lawyer of great integrity. Integrity is, of course, a very close friend of humility. We have heard reference to the speech your Honour gave at a graduation ceremony at ANU principally for young law graduates. In doing so, there was no hint of your own successful career. You made no reference to your own achievements as a first class Honours graduate from the same university and as a Masters graduate from Harvard University. There were no anecdotes in which you were the central character. Instead, there was a carefully crafted 10-minute inspirational message about one thing: integrity in the practice of the law. Here is what your Honour said about integrity in legal reasoning:

An opinion is only a legal opinion if it is an honest opinion arrived at for reasons that would not embarrass the author were they ever to be published and for reasons that the author would be prepared to apply again and again. You must be prepared to give the same answer to the same questions for the same reasons, no matter who asks the question or for what purpose or in what context the asking may occur. Whatever your technical competence or experience and however noble your motive, if you are not prepared to do that, then you will not be practising law.

Those succinct and profound remarks reveal much about your Honour. To the extent that a Judge of this Court may have a manifesto, those remarks express a very fine one. As an advocate you have been known for your calm and measured approach. You are self-assured without being self-important. Your Honour is never discourteous, intemperate or ill considered. You eschew the distractions of florid metaphor, choosing close and careful analysis over broad generality.

Your excellence as an advocate meant that upon commencing at the Bar you soon had a substantial practice in intellectually challenging areas. You were often briefed on appeal. Excellence in appellate advocacy is a topic on which you spoke memorably and with great authority at the ABA’s advanced advocacy training course earlier this year. You were, therefore, an obvious choice for appointment as Commonwealth Solicitor-General. You have also been an exemplar of independence on occasion in very difficult circumstances.

Returning though to taekwondo, I trust that others will now see what those close to you have always known: as a lawyer your Honour is more Bruce Lee than Bruce Willis. I give you three quotes from the great Bruce Lee himself which could have been spoken by your Honour. First, “Knowing is not enough, we must apply”; second, “Absorb what is useful, discard what is not, add what is uniquely your own”; third, “Knowledge will give you power, but character respect”.

I remember discovering what I consider to be your Bruce Lee ways when being led by your Honour in a case on the other side of the country. After my cross-examination of an economist, I hoped for some complimentary words from your Honour. Instead you asked me why I had started the cross-examination the way I had. It was not an idle inquiry. You were interested to see whether my rather obscure beginning had any point to it at all. It was a revealing inquiry. I suspect that it has been rare for your Honour to take any step in court that has not been carefully tested and refined, well thought through and then supported by thorough reasoning and analysis.

This is where strength and power lies for your Honour. Obscurity in expression has no place in such a world. It takes equal measures of legal skill, experience and personal character to best undertake the judicial task and, as I have explained, your Honour is recognised as having all three.

Your Honour has had an interesting life as an advocate, following many of the topical issues of the day. In Avon Products you appeared for the Avon lady in a sales tax case that required you to explain the finer points of door-to-door sales of cosmetics. You have become, as we have heard, an online betting specialist in this Court. In Humane Society International you obtained injunctive relief against whaling activities. You have published articles on the impact of migration law on the development of Australian administrative law and you have been at the pointy end of that issue in this Court. You intervened for the Commonwealth in Hogan v Hinch, a case about the alleged political free speech of the “Human Headline”. You appeared as amicus in the significant case of Attorney-General v Marquet which concerned fundamental changes to electoral boundaries in Western Australia. You have argued recently in support of the funding of chaplains in public schools, and very recently appearing for the Commonwealth you were successful in opposing the challenge to the new cigarette plain packaging laws.

Along the way though, your Honour has not been without nerdy interests in the law. Mostly they are associated with your Honour’s interest in the sometimes mathematical field of economic regulation. In PT Garuda Indonesia, Justice Heydon remarked upon the “deathless prose” of the former section 52 of the Trade Practices Act. You responded by indicating how you always enjoyed reading the provision and then joined with his Honour in a lament at its passing, through amendment.

In Betfair your Honour informed the Court that you were going to undertake a little demonstration of online betting. Justice Kirby interjected saying that the Court had a Play Station shown to it in Sony and it was very exciting. Your Honour responded by saying that the online betting demonstration was more fun than Play Station. Perhaps your Honour needs to get out a little more.

Your Honour is well acquainted with the high priesthood of economics and has undertaken many cases that cross the boundary between the disciplines of law and economics. This understanding will be invaluable for your work as a member of this Court where modern legislative agenda is often informed by economic principles.

The appointment of a Justice to this Court is a most significant event for our civil society and the rule of law. Members of this Court are often called upon to answer questions at the boundaries of the law and sometimes across that frontier beyond the bedrock of established principle. It is a place that requires a deep understanding of the role that the courts play and a commitment to judicial method, analysis and reasoning so that decisions are afforded respect by winner and loser alike. Your Honour is well qualified for this most difficult and challenging task. In a nation that includes abuse of umpires as an essential ingredient of many of its most loved sporting spectacles, your characteristic humility will not go astray either.

It is a great testament to our systems of government as well as to your Honour that your appointment to this, our highest Court, has received broad support across the political spectrum as well as across the legal profession. It is an appointment that reinforces the longstanding reputation of this Court internationally. Barring unforeseen circumstances, you will be one of its umpires for a long time. We trust that your Honour will have a long, significant and enjoyable career as a Judge of this Court.

May it please the Court.

FRENCH CJ: Thank you, Mr Colvin. Mr Coles.

MR COLES: May it please the Court.

On behalf of the barristers of New South Wales, it gives me very great pleasure to welcome your Honour’s appointment to the High Court of Australia and to wish you every success in the challenging times ahead.

As we have heard from distinguished speakers who precede me, your Honour is undoubtedly justifiably proud of your not entirely “log cabin” origins but I would hasten to add that your Honour joins a very distinguished list of highly accomplished lawyers who hail from the Hunter Valley region of New South Wales.

Your Honour, apart from your Honour’s other academic attainments to which some reference has been made, in fact, as we understand it, acquired in the first instance a Bachelor of Economics Degree in 1980. Indeed, we understand that your Honour’s abiding interest in the rigor and empiricism of what Thomas Carlyle once described as the “dismal science” has not only enabled your Honour to engage in learned discourse with economists but has been to some apparent advantage in many competition, anti-dumping and commercial cases.

Mention of the Betfair Case, for example, reminds one of your Honour’s astute deployment of the economist’s tool of choice, the slide projector, in being able to demonstrate the doubtless highly attractive features of your client’s website. That perhaps is a relatively rare occurrence in the presentation of cases in this Court and your Honour was heard to acknowledge that one of the besetting concerns that attended your Honour on that occasion was appreciation of the risk of an IT failure which might have brought to your Honour, although not noticeably so, the presence of some grey hairs.

Your Honour has been credited with, amongst other things, helping to save the Australian economy from plunging into another great depression by defending the government’s Fiscal Stimulus Package on constitutional grounds and, indeed, it is believed that in economics faculties the besieged adherence of Keynesianism have employed people, or at least thought about doing it, to carve idols in your Honour’s image. They will, of course, be instantly recognisable by those who, as all good barristers in New South Wales regularly do, resort to this Court’s website where on about the fourth moving picture as one opens that site what must assuredly be a picture of your Honour almost side on confronts the happy observer.

Your Honour has, as has been said, attained a Bachelor of Laws in 1982 and worked for a time as a solicitor in Canberra. It must have been for your Honour, as has been noted already, really an opportunity of a lifetime to become associate to Sir Anthony Mason, later Chief Justice of this Court and, as indeed I think has already been noted, the timing was particularly propitious having regard to the types of cases with which this Court was concerned in the year in which your Honour commenced associateship, including, of course, the important Franklin Dams Case.

Your Honour in 1985 joined the Commonwealth Attorney-General’s Department and in 1987 you rose to the rank of Principal Legal Officer and Assistant to the Commonwealth Crown Solicitor, Gavan Griffith. Indeed, in that period your Honour became I think, the first legal officer to argue a matter before the High Court, a matter involving a disputed return from a Senate election.

Your Honour in 1987 attained the Degree of Master of Laws from Harvard University, partly through a dissertation on the foundations of Australian federalism.

Your Honour began practising at the New South Wales Bar in February 1990 taking up a room initially on Ground Floor, Wentworth Chambers. You read with Bret Walker and Alan Robertson and clearly your Honour made a lasting impression on your tutors. One of your tutor’s pupillage reports in response to a standard question, I think question 3 - “Knowledge of the law”, Mr Walker, as one of your tutors, took offence at the rather restrictive choice between “Unsatisfactory” and “Satisfactory” as a response to “Knowledge of the law” and after putting his tick beside “Satisfactory” he appended the observation, “This assessment is a gross understatement”, as indeed it must have been.

In a very short time your Honour was appearing before this Court led by Gavan Griffith, QC and I think by Alan Robertson in significant cases, including New South Wales v The Commonwealth. During those early years, although you appeared frequently unled, you had the privilege of working with or being opposed to other great constitutional and administrative lawyers at the New South Wales Bar, including David Jackson, QC, Bret Walker, SC and many others but there was, surely, none for whom you could have had greater fondness or respect than Sir Maurice Byers, one of your distinguished predecessors as Solicitor-General of the Commonwealth. With him you appeared in a number of cases in federal jurisdiction and most notably before this Court in Australian Capital Television v The Commonwealth after Sir Maurice had returned to the private Bar.

In 1992, your Honour moved to the 11th Floor where you remained until your appointment as Solicitor-General on 1 September 2008, having taken silk as has been noted, in the year 2000. During your 18 years at the private Bar, your Honour built up a thriving constitutional and commercial law practice and indeed appearances before this court became your stock in trade. Many cases have been mentioned already and I will not burden the record with still further citations, but through all of these cases your Honour became renowned, and here I do not pass over my notes in the interests of avoiding repetition, for your calm, measured but ruthlessly precise style of advocacy which was and will serve to remain as a model of clarity and tact in the practice of the advocate’s art.

Less remarked upon are a number of your Honour’s cases in other interesting areas, including litigation funding, native title, anti-dumping and the like. Your Honour indeed appeared once in public interest litigation directed towards highlighting the killing and interference with whales in the Australian Antarctic Territory in contravention of Commonwealth environmental protection legislation. Nevertheless, and despite its attractions to numerous other recently appointed federal judicial officeholders in New South Wales, your Honour has apparently never done a case about elephants.

Your Honour has made many learned contributions to constitutional law and our understanding of Australian federalism. As has been mentioned, you delivered the Sir Maurice Byers address in 2009 and your Honour has been readily willing to state what many would assert and what your Honour would assert to be the obvious, namely, that judges under our common law system do in reality make law.

In 2008 the editors of the Sydney Law Review thought it appropriate to publish remarks of your Honour’s regarding the essential attributes of a judge. Your Honour said, “Any judge appointed to any level of the judicial hierarchy must have a level of technical competence and practical judgment commensurate with the jurisdiction he or she will be called upon to exercise”. The other necessary attributes identified by your Honour were courtesy and industry.

That these same qualities are able to be recognised so immediately with respect to your Honour, is testimony to the suitability of your appointment and to the sound judgment of the Attorney-General in her selection. Your Honour is one of the most learned and accomplished practitioners to have come from the New South Wales Bar. Few could be better equipped to discharge the enormous responsibility which accompanies appointment to the highest Court in the land. You embody the very class of persons contemplated in your Maurice Byers lecture in 2009 as, if I may quote, “one of the custodians for the present of a constitutional tradition”.

There could be no doubt that your Honour’s appointment is an excellent one and your home Bar congratulates you upon taking it up.

May it please the Court.

FRENCH CJ: Thank you, Mr Coles. Justice Gageler.

GAGELER J: Attorney-General, Mr Catanzariti, Mr Colvin, Mr Coles. You are all skilled advocates selective in your use of history and strategic in your use of hyperbole. Thank you for your generous remarks.

I find myself dressed in unfamiliar robes, seated in an unfamiliar position, in a setting that has otherwise long been familiar to me, if never entirely comfortable. There is no institution with which I have had a longer continuous association than the High Court of Australia. There is no building, indeed no room, in which I have experienced the highs and the lows of legal practice more intensely than the one in which we now sit. There have been few significant events in the last quarter of the history of the High Court and few significant events in the entire history of this building in which I have not, in some way, shared.

As a student, then in my fourth year of law at the Australian National University, I stood outside in the mud as the building was officially opened by Her Majesty the Queen in 1980. As an associate to Sir Anthony Mason, I started work in the building during the first week of the argument in the Tasmanian Dam Case in this room in 1983. As assistant to then Solicitor-General of the Commonwealth, Gavan Griffith, QC, and appearing as his junior, I stood at the lectern in this room to present my first argument before a Court of seven Justices in 1989.

Again, as a junior counsel, but by then at the New South Wales Bar, I sat in the position now occupied by the Attorney-General as my leader, Sir Maurice Byers, QC, stood at the same lectern to present his magisterial, but largely unscripted, argument in the political advertising case in 1992. The left arm of Sir Maurice unfurled repeatedly without warning during the course of that argument. It was my job to determine, at each unfurling of the arm, precisely which of the 25 volumes of the Commonwealth Law Reports arranged in front of me was expected to be placed in his hand. When the inevitable mistake occurred, Sir Maurice interrupted the argument with a good humoured chuckle. “My learned friend”, he said, “has given me a rare wrong reference”.

In the two decades that have elapsed since then, I have stood at the same lectern to present oral argument, on my calculation, on close to 100 occasions. I have appeared before four Chief Justices and before 17 of the High Court’s previous total of 48 Justices. Never were those appearances easy. More than occasionally, they were gruelling. Once, now some years ago, after a particularly testing day on my feet and in anticipation of backing up for another case the next day, I was quietly taken aside by a court attendant for a sympathetic, but frank, assessment of my performance. “If you were a boxer”, he said “you wouldn’t come back”.

The rigorous, if sometimes vigorous, testing of competing legal propositions in oral argument in open court has been an enduring feature of the practice of the High Court. I believe it to have contributed directly to the quality of decision-making by the High Court and indirectly to the strength and independence of the Australian legal profession. I expect, for those reasons, that it will long continue.

I am honoured by the presence on the Bench of each of the four Chief Justices of the High Court to whom I have referred. They are Sir Anthony Mason, Sir Gerard Brennan, the Honourable Murray Gleeson and Chief Justice French.

The profound influence that the first within that distinguished group has had on my professional formation will be apparent from what has already been said today. From the beginning of the two years that I spent apprenticed as his associate, Sir Anthony Mason was, and has remained, for me the exemplar of legal method and the master of judicial technique. I am to this day unable to think of him as anything other than “the Judge”.

I am also honoured by the presence on the Bench of former Justices of the High Court, Sir Daryl Dawson, the Honourable Michael McHugh and the Honourable Ian Callinan, as well as the Honourable William Gummow, in whose recently vacated chair I now sit, but whose judicial shoes any mortal could, at best, aspire to fill. I am a better lawyer, and I hope that I will be a better Judge, for having gone more than a few rounds before each of them.

Symbolic of the integration of the Australian judicial system, and reflective of the mutual respect traditionally afforded amongst its various manifestations, I am also honoured by the presence in Court today of Chief Justice Keane of the Federal Court of Australia, Chief Justice Bryant of the Family Court of Australia, Chief Justice Bathurst of the Supreme Court of New South Wales, Chief Justice Warren of the Supreme Court of Victoria, Chief Justice de Jersey of the Supreme Court of Queensland, Chief Justice Kourakis of the Supreme Court of South Australia, Chief Justice Higgins of the Supreme Court of the Australian Capital Territory and Chief Justice Riley of the Supreme Court of the Northern Territory.

Having been fortunate to start legal practice towards the beginning of the emergence of what has now become, for most practical purposes, a national legal profession, I have benefitted from the experience of having appeared more than once and, in some cases, very many times in each of the courts over which they respectively preside.

Along with other distinguished guests, and along with members of my family, I am honoured, indeed overwhelmed, by the presence in Court of many existing and former members of the legal profession and of the judiciary and by the presence in Court of many friends. It is a legacy of a life lived in the law that those latter categories substantially overlap.

Convention constrains me from mentioning by name existing members of the legal profession and existing members of the judiciary from whose example, wise counsel and fellowship I have benefitted. I will strain that convention only in two minor respects. One is to refer collectively to the 11th Floor of Selborne Chambers in Sydney, where I happily and productively spent most of my 18 years in private practice as a barrister under the consummate guidance of its clerk, for now 51 years, Paul Daley.

The other is to refer again to Gavan Griffith, whose assistant I was for two years when he was Solicitor-General of the Commonwealth, whose encouragement propelled me to practise at the Bar and whose example led me, after many years, myself to take up the position of public service that he once occupied.

From amongst former members of the legal profession and the judiciary, I mention two in particular. They are the Honourable Keith Mason, formerly Solicitor-General of New South Wales and later President of the New South Wales Court of Appeal, who was responsible, indirectly, for securing my first brief in private practice - you do not forget things like that – and the Honourable Paul Finn, formerly Professor of Law at ANU and later a judge of the Federal Court, whose red pen managed to glide effortlessly from marking my exam papers to ruling on my submissions.

Much has been said today of the journey that has brought me to this point from a small country town in New South Wales. I will touch on that journey only to thank some of the many who made it possible and some of the few who shared it closest with me.

I start with my parents. Their early example of honesty and hard work gave me moral compass. Their sacrifice and encouragement gave me opportunities denied to themselves by social and economic circumstances. It is a matter of pride to me that, despite ill health, they are both present in Court today, together with my two brothers and sister.

I acknowledge next my teachers. There was effectively just one teacher, a Glen Whelan, now deceased, who taught the basics and taught them well, to me and my two brothers and to generations of local students from kindergarten to sixth class in a single classroom at Giants Creek Public School. He retired not long after I finished my primary schooling. The old school building and the school master’s residence were decommissioned and sold off to a group of Sydney barristers who had also bought the farm across the road. One of those barristers was the late Bryan Beaumont, later to become a distinguished and much-loved judge of the Federal Court. He graciously agreed to talk one day to a callow youth from Sandy Hollow about what it might take to become a barrister. He said, “Finish high school, get a law degree with honours, get some legal experience and preferably get a Master’s degree”. Ten years or so later I called him up. I said “I’ve done all that”.

I was fortunate to attend Muswellbrook State High School for the whole of my secondary schooling. The education it provided empowered critical analysis. I am delighted that a number of its dedicated and inspirational teachers are present in Court today - Ivan Kinney (my former headmaster), John Colvin, Bruce James and Tony Neat.

At the ANU in Faculty of Economics and in the Law School I was exposed to scholarship and teaching of a quality at its highest unsurpassed even by anything I later experienced at Harvard. It was at the ANU Law School in small classes, taught mainly by the Socratic Method, that I formed what has remained my essential conception of the law, not as a mere collection of rules but as a reasoned approached to the resolution of contemporary controversies informed by principled analysis of collective experience.

Along with Paul Finn there were two individuals on the faculty of the ANU Law School whose contribution to my legal education was particular and significant. One is Emeritus Professor Leslie Zines who brought trusts and constitutional law to life as developing themes in a broad historical context. The other is Professor Geoff Lindell who repeatedly demonstrated by his example that intellectual honesty, attention to detail and intellectual creativity are compatible virtues. Current and former faculty and alumni of what has become the ANU College of Law are well represented today and I thank them all for their presence.

To my wife, Carla, my life partner for almost 30 years and the mother of our three grown-up and almost independent children, your emotional and spiritual input has brought us this far intact as a family. I hope that I will never take your support for granted. Thank you in advance for sharing this next 16 year phase of our lives together. To my children, Elizabeth, Francis and Benjamin, each of you has grown and continues to grow in wisdom and strength in spite of having a father too often absent and too often preoccupied.

Just over 110 years ago proposing legislation to implement the constitutional design for the establishment of the High Court, Alfred Deakin, then Attorney-General of the Commonwealth, described its constitutional role in terms of “moving by gradual, cautious, well-considered steps to join the past with the future without undue collision and strife in the present”. That was at the turn of the 20th century a fair description of the traditional role of a court applying common law methodology to the common law itself and to statutory and constitutional adjudication. It is a description that has been endorsed by other members of the High Court, most recently by Justice Crennan on the occasion of her own swearing-in. It remains in the second decade of the 21st century an appropriate description of the role the High Court has actually played in the life of the nation.

I join the Court today with no agenda and with no ambition other than to continue to walk that same walk. For now, I have done the talk. Thank you.

FRENCH CJ: Thank you. The Court will now adjourn until 10.15 tomorrow, Wednesday, 10 October.

AT 3.12 PM THE COURT WAS ADJOURNED