Ceremonial - Retirement of French CJ [2016] HCATrans 293 (5 December 2016)

Last Updated: 7 December 2016

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

CEREMONIAL SITTING

ON THE OCCASION

OF

THE RETIREMENT OF THE CHIEF JUSTICE

THE HONOURABLE ROBERT SHENTON FRENCH AC

AT

CANBERRA

ON

MONDAY, 5 DECEMBER 2016, AT 2.15 PM

[2016] HCATrans 293

Coram:

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON 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 QC, retired Chief Justice of the High Court

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

The Honourable Kenneth Hayne AC QC, retired Justice of the High Court

Dignitaries seated within the Court:

His Excellency General the Honourable Sir Peter Cosgrove AK MC (Retd), Governor-General of the Commonwealth of Australia

Her Excellency Lady Cosgrove
Senator the Honourable Stephen Parry, President of the Senate

Major General the Honourable Michael Jeffery AC CVO MC

Mrs Marlena Jeffery
The Honourable Gabrielle Upton MP, Attorney-General for New South Wales

The Honourable Gordon Ramsay MLA, Attorney-General for the Australian Capital Territory

Members of the Judiciary seated within the Court:

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

The Honourable James Allsop, AO, Chief Justice of the Federal Court of Australia

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

The Honourable Thomas Bathurst, AC, 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 Alan Blow, OAM, Chief Justice of the Supreme Court of Tasmania

The Honourable Helen Murrell, Chief Justice of the Supreme Court of the Australian Capital Territory

The Honourable Catherine Holmes, Chief Justice of the Supreme Court of Queensland

The Honourable Michael Grant, Chief Justice of the Supreme Court of the Northern Territory

The Honourable Justice J. Dowsett AM

The Honourable Justice A. Siopis

The Honourable Justice S. Rares

The Honourable Justice N. McKerracher

The Honourable Justice M. Barker

The Honourable Justice J. Edelman

The Honourable Justice R. McClelland

The Honourable President M. McMurdo AC

The Honourable President M. Beazley AO

The Honourable Justice C. Simpson

The Honourable Justice R. Gotterson AO

The Honourable Justice A. Emmett AO

Former members of the Judiciary seated within the Court:

The Honourable M. Black AC QC

The Honourable M. Stone

The Honourable R. Nicholson AO

The Honourable P. Heerey AM QC

The Honourable M. Finn

The Honourable T. Gray

The Honourable M. Moore

The Honourable M. Lee QC

The Honourable P. Finn

The Honourable R. Simmonds

The Honourable E. Heenan QC

The Honourable J. Spender QC

At the Bar Table the following persons were present:

Senator the Honourable G. Brandis QC, Attorney-General of the Commonwealth of Australia

Mr S. Clark AM, President of the Law Council of Australia

Mr P. O’Sullivan QC, President of the Australian Bar Association

The Honourable M. Dreyfus QC MP, Shadow Attorney-General of the Commonwealth of Australia

Mr T. Howe QC, Acting Solicitor-General of the Commonwealth of Australia

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

Mr P. Garrisson SC, Solicitor-General for the Australian Capital Territory

Mr P. Dunning QC, Solicitor-General of the State of Queensland

Mr M. O’Farrell SC, Solicitor-General for the State of Tasmania

Mr R. Niall QC, Solicitor-General for the State of Victoria

Mr P. Quinlan SC, Solicitor-General for the State of Western Australia

Ms S. Brownhill SC, Solicitor-General for the Northern Territory

Mr C. Bleby SC, Solicitor-General for the State of South Australia

Mr N. Hutley SC, President of the New South Wales Bar Association

Ms J. Batrouney QC, President of the Victorian Bar Council

Mr C. Hughes QC, President of the Bar Association of Queensland

Mr M. Howard SC, President of the Western Australian Bar Association

Mr C. Gunson SC, President of the Tasmanian Bar

Mr K. Archer, President of the Australian Capital Territory Bar Association

Ms F. McLeod SC, President Elect of the Law Council of Australia

Mr D. Jackson QC

Mr R. French

Mr T. French

Speakers:

Senator The Honourable George Brandis QC, Attorney-General of the Commonwealth of Australia

Mr Stuart Clark AM, President of the Law Council of Australia

Mr Patrick O’Sullivan QC, President of the Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

FRENCH CJ: Mr Attorney.

SENATOR BRANDIS: May it please the Court.

May I begin by acknowledging the Ngunnawal and Ngambri people, the traditional custodians of the Canberra area, and pay my respects to all of Australia’s indigenous peoples.

Your Honours, for only the 12th time in our history we gather to farewell and celebrate the career of a Chief Justice of the High Court of Australia. In your case, your Honour, it is a double celebration because only last month you marked 30 years in the service of the federal judiciary. The very high regard in which your Honour is held is demonstrated by the very large number of distinguished judges, former judges, leaders of the profession and leaders of society who gather today.

Your Honour is joined on the Bench this afternoon by no fewer than three former Chief Justices of Australia – Sir Anthony Mason, Sir Gerard Brennan and the Honourable Murray Gleeson - as well as two other former members of this Court - the Honourable William Gummow and the Honourable Ken Hayne.

Present in the court room today to honour your Honour is the Chief Justice of the Federal Court, the Honourable James Allsop, and the Chief Justice of the Family Court, the Honourable Diana Bryant, along with the Chief Justices of the Supreme Courts of New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital and the Northern Territory. There are many current and serving judges and former judges of the Federal Court, the Family Court, State Supreme Courts gathered today.

Parliament is represented by the President of the Senate, the Honourable Stephen Parry.

Leaders of the Australian Bar, led by Mr Patrick O’Sullivan, QC, the President of the Australian Bar Association and the State and Territory Presidents of the Bars, the President of the Law Council of Australia, Mr Stuart Clark, and, of course, you meet in the distinguished presence of His Excellency the Governor-General, the Honourable Sir Peter Cosgrove.

Your Honour is joined as well by your wife of 40 years, Valerie, and two of your sons, Robert and Thomas.

Your Honour was educated at St Louis Jesuit School in Claremont in Perth. After completing your secondary school education your Honour attended the University of Western Australia where you indulged your first love, physics, by completing a Bachelor of Science degree in 1968, followed by a Bachelor of Laws in 1971.

It was in those years that you made your first emergence in public life, not in the legal profession, but as a parliamentary candidate when you stood against the father of Kim Beazley, your great friend, for the House of Representatives seat of Fremantle at the 1969 election. In the years since your Honour has not regretted the outcome of that electoral contest.

Your Honour was admitted to practice in Western Australia in 1972 and practised for 11 years as a barrister and solicitor. Over the course of your time at the Western Australian Bar you developed an outstanding reputation not only for your great legal skills but also for your courtesy and good humour, qualities that you have retained throughout your long career.

In 1986 your Honour was appointed a judge of the Federal Court of Australia. At just 39 years of age you were one of the youngest people ever appointed to that court. I understand that as a judge of the Federal Court in Perth your Honour brought an innovative and lateral approach to case management, encouraging collegial approaches which focused on the real issues of a case and avoided unnecessary procedural issues and expense. Your Honour’s approach was highly regarded and has been emulated in the docket lists now used in the Supreme Court of Western Australia.

During your time as a judge of the Federal Court your zest for the law and your strong work ethic was embodied by the number of additional positions you held, as an additional judge of the Supreme Court of the Australian Capital Territory, as a member of the Supreme Court of Fiji, as President of the National Native Title Tribunal, as a Presidential Member of the Australian Competition Tribunal and as a part-time Member of the Australian Law Reform Commission.

With your appointment as the Chief Justice of this Court in 2008 your Honour brought to the Court a wealth of experience in careful analysis and exposition of the law and an exceptional ability to communicate complex issues in an accessible manner. It has been remarked with admiration that over the course of your Honour’s 30 years on the Bench your pleasant and polite approach in court and genuine interest in the cases coming before you has never wavered.

Over your time as Chief Justice of this Court you have presided over numerous landmark decisions across a variety of areas of the law, including, of course, constitutional law, arbitration, negligence and indigenous land rights, to name but a few.

In recognition of your Honour’s eminent service to the law, the judiciary, law reform and legal education, particularly in the fields of constitutional, administrative, native title and competition law, your Honour was appointed a Companion of the General Division of the Order of Australia in 2010.

Advocacy for the recognition of the rights of indigenous Australians has always been a cause close to your Honour’s heart. I understand that as a young lawyer your Honour chaired the New Era Aboriginal Fellowship. The Justice Committee of the New Era Aboriginal Fellowship made representations to government about indigenous people in the justice system, including their underrepresentation in courts and their overrepresentation in prisons.

Your Honour also served as the Chairman of the Aboriginal Legal Service of Western Australia and later, as I have said, as the inaugural President of the National Native Title Tribunal.

I understand that away from the Bench your Honour applies the same energy and zest to your personal pursuits. You enjoy swimming, cycling, tennis and long distance running. And while on the topic of extra-judicial activities and interests, it is only appropriate to pay proper respect to your Honour’s firm commitment to science fiction. I understand your Honour shared your passion for Star Trek with your colleagues at the National Native Title Tribunal and donated your life sized poster of Captain Jean-Luc Picard to the Tribunal when you left where it is proudly on display still today.

It is hardly surprising that one with your vast intellectual capacity and inquiring mind should choose to spend time outside work reading scientific magazines and listening to lectures on mathematics.

What may be more surprising to some here today is your Honour’s great enthusiasm for keeping up with popular culture. I have been informed that your Honour in particular enjoys studying new fashions and picking up new phrases and has been known on occasion – indeed, I have heard it myself – to quote The Simpsons and Harry Potter.

I commented earlier that your Honour enjoys long distance running. Your colleagues have suggested that the marathon provides a good metaphor for your Honour’s career. I venture to guess that your Honour will wish to continue the work in which you have been actively engaged and seek to share your vast knowledge and enthusiasm for the law with a wider audience after your retirement from the Bench. Perhaps while you will shortly leave the High Court, the finish line of your career is in fact still a long way in the distance.

Your Honour, on behalf of the government and the people of Australia, I offer my thanks for the extraordinary contribution that you have made to the administration of justice in Australia, in so many ways that I have mentioned, as a member of the federal judiciary for three decades and as the Chief Justice of this Court since 2008.

It has been remarked that in whatever you have done you have commanded enormous respect and I add my sincere support to the suggestion that it is a mark of the sort of person you are.

As your time as the Chief Justice of this Court draws to a close, you leave with the deep respect, admiration and gratitude of your fellow judges, of the legal profession and of the Australian people.

May it please the Court.

FRENCH CJ: Mr Attorney. Mr Clark.

MR CLARK: May it please the Court.

It is a great honour to speak today on behalf of the Law Council of Australia and some 65,000 members of its constituent bodies - the Australian Bars, law societies and Law Firms Australia.

Your Honour, I too wish to acknowledge the traditional custodians of the land on which we meet and pay my respects to their elders, past and present. It is indeed appropriate that I do so before your Honour. Your swearing-in ceremony nine years ago was the first time that the traditional owners of this land had been so recognised in this Court.

The Attorney has offered fitting praise for your Honour’s long career which has culminated in more than eight years of exemplary leadership of this Court as Chief Justice, but your whole career has been marked by a spirit of public service. You have truly been - in the words of the founders of the Jesuits who educated you in Perth – a man for others.

Your foray into politics in 1969 confirmed your interest in indigenous affairs. The Attorney has referred to your chairmanship of the New Era Aboriginal Fellowship which aimed to work with the Aboriginal people to establish health, legal and other services for Aboriginals and Torres Strait Islanders.

Your Honour established a justice committee, as the Attorney noted, and provided pro bono advice. It was an extraordinary group of people that you assembled. Other members included a future federal Minister, the Honourable Fred Chaney, AO, a future member of this Court, the late Sir Ronald Wilson, two professors of law, the late George Winterton and Philip Clarke, and a future State Premier, Peter Dowding, SC.

You became the first chairman of the Australian Legal Service of Western Australia which soon expanded across the State and the first regional office was in Port Hedland and the first volunteer was the late John Toohey, AC – yet another who was destined to become a member of this Court.

By 1975 you had established a law firm with three other young solicitors whom you promised to stay for three years but you stayed until 1983 by which time your Honour was recognised as one of Perth’s leading lawyers.

You served on the Council of the Law Society of Western Australia and took on numerous other roles with legal and regulatory bodies.

You spent just three years at the Bar before you were appointed to the Federal Court in 1986.

Then to stay busy your Honour also served as Chairman of the Council of the Western Australia College of Advanced Education from 1988 to 1990, during which time it became Edith Cowan University. You were the foundation chancellor, a role which you retained until 1997.

The Attorney has also referred to your Honour’s role as the inaugural President of the Native Title Tribunal from 1994 to 1998. That role confirmed your Honour’s leadership skills, as you not only established a framework for claims but explained the work of the Tribunal to a wider audience. You also persuaded the Federal Government to undertake important reforms in 2009 which expedited and simplified the process.

You became one of the Federal Court’s most respected judges and were widely admired in the broader community. Your Honour continued to take on extra judicial roles and confirmed your status as a thoughtful contributor on legal issues, sometimes agitating for change but always offering a reminder of the importance of the rule of law and the role of the judiciary.

That contribution in Western Australia was recognised in 1998 when you were named as the State Citizen of the Year for the Professions.

When you were appointed our 12th Chief Justice in 2008 it was an appointment that was warmly greeted by the profession. Since then your Honour has not only helped confirm this Court as one of the finest in the western world but proven yourself a magnificent leader of the profession.

During your time as Chief Justice you have given 161 speeches, visited every capital of every State and Territory in our Federation on more than one occasion, in some cases on many occasions.

You have drawn on your wide body of knowledge outside the law to challenge our thinking as lawyers.

Your Honour has also been a generous friend to professional bodies, including the Law Council. You celebrated the Council’s 75th anniversary with us in 2008 and in April of this year helped revive an important tradition when you delivered the State of the Judicature address in Hobart.

In that speech, your Honour rejected mandatory sentencing, lamented the “national tragedy” of indigenous incarceration and urged more advocacy on the erosion of common law rights. You also voiced support for the developing national profession project, observing that “All Australian jurisdictions will eventually see their way clear to join it”.

That address coincided with a meeting of the Council of Chief Justices of Australia and New Zealand. As chairman of that body, you have taken up the opportunity to influence the culture and development of the judiciary by way of protocols on issues ranging from translation services and admission rules to engaging with government.

At this Court, you have been a gracious host to judges, ambassadors and other visitors. You have led delegations to China and been a constant advocate for Australian lawyers to become more engaged with Asia. You have enthusiastically supported LawAsia, the peak legal body for our region.

During your time as Chief Justice you have also embraced the digital age and the public has come to enjoy this building through lectures, concerts and exhibitions.

There has been a constant improvement when it comes to the delivery of judgments and special leave applications also move much more quickly through the system.

Your Honour has been a fierce defender of the Court’s independence and its important place in the governance of this nation. When the Prime Minister of the day said after the Malaysia solution case in 2011 that the Court had “missed an opportunity to send a message to people smugglers”, you offered an important public reminder that this Court – and the rule of law – is above politics.

In a number of your judgments your Honour has emphasised the importance of the separation of powers and the rule of law.

You have also been a strong proponent of legality, which requires legislatures to state their intentions in very clear terms when abrogating fundamental legal and human rights.

Decisions involving the legislative response to organised crime stressed the importance of separating executive and judicial functions and of the Executive and the Parliament adhering to the limits imposed by the Constitution.

Your Honour has also been a very popular figure inside the Court. You are known as a very charming man with a most agreeable disposition. This explains why your staff – in particular, your personal assistants, Judy Sulcs and Julie Riley – have been with you for so long.

Now, you mentioned at your swearing-in that your predecessor, the Honourable Murray Gleeson, had given you a bottle of very good whiskey, no doubt to tide you over the difficult moments. We sincerely hope that that bottle enjoyed some longevity.

Chief Justice, the nation owes you a great debt. You have served this office with great distinction and provided real leadership to the legal profession. We look forward to the contributions you will continue to make to the law and public life in the future along with your most trusted adviser – and a very fine lawyer in her own right – your wife, Mrs French.

May it please the Court.

FRENCH CJ: Thank you, Mr Clark. Mr O’Sullivan.

MR O’SULLIVAN: May it please the Court.

I, too, acknowledge the traditional owners of the land on which we meet and pay my respects to their elders, past and present.

On behalf of all the Australian Bars, I rise to congratulate your Honour on an outstanding career and to offer the Australian Bar’s deepest thanks for all your Honour has done for the law and for the community over many years, both in practice and on the Bench.

When your Honour was appointed as Chief Justice of this Court, it was met with universal praise. Your appointment to the High Court was a fitting development in an already distinguished legal and judicial career.

Not only did your Honour bring to this Court considerable experience and an outstanding reputation as a jurist, you also brought a strong commitment to social justice.

As we have heard, it was the Justice Committee of the New Era Aboriginal Fellowship that established the Aboriginal Legal Service in 1973. You were keenly aware of the need for such a service and you wrote letters to the Ministers for Police and Justice, suggesting special training for those whose work brought them frequently into contact with indigenous people.

It was in 1983 that your Honour joined the Bar and enjoyed a career as a barrister in what has been described as “short but spectacular”.

Your commitment to public service continued with your appointment to the Federal Court in 1986.

On the occasion of your swearing-in as Chief Justice on 1 September 2008, the Honourable Robert McClelland, MP, then Attorney-General for the Commonwealth, and now Justice McClelland of the Family Court, noted that your background, fine personal characteristics, wealth of experience and careful analysis of the law, together with your exceptional ability to communicate complex issues of law in an accessible form, would serve you well in the discharge of your important duties in the office of Chief Justice. So it is that the passage of time has revealed the accuracy of that prediction.

The then Attorney also noted that you would have a unique opportunity to influence the culture and development of the Australian judiciary.

You have presided with distinction over an era in which the judiciary has been beset with challenges from various areas, including an ever increasing workload, a high degree of public scrutiny, seemingly driven by personal and political agendas and rapidly changing social norms and technology.

When your Honour was sworn in as the Chief Justice you became the 12th Chief Justice of the High Court and the first Western Australian to take on this most important constitutional office.

Your Honour was appointed from outside the High Court, a testament to your reputation as an esteemed constitutional law expert and a reflection of the high regard for your record as a Federal Court justice of nearly 22 years.

Your Honour’s judicial temperament has been influenced by what you call a “culture of courtesy” in the Western Australian judicial system which developed during your time as a legal practitioner there. You admired the Chief Justice of Western Australia, the late Sir Lawrence Jackson, KCMG, who was firm and authoritative but never impatient or ill-tempered.

Your Honour has described your own judicial approach as simply identifying the law in each case – and the facts of each case – and then applying the law to the facts. That sounds simple enough but, as we all know, it isn’t.

In Evans v New South Wales, a matter in the Federal Court, your Honour considered the so-called “anti-annoyance laws” that were introduced ahead of World Youth Day. When contemplating possible interpretations of annoyance you asked “How about barracking for the Dockers while you are sitting in the middle of a bunch of Swans supporters? I’ve done that”.

Your decision was that “annoyance” was – and I quote – “may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive”.

Echoing the judicial oath, your Honour has remarked that our justice system requires an independent judge to have the capacity and the determination to make a decision without fear or affection, favour or ill will.

It was during your presidency of the Native Title Tribunal that you guided the Tribunal during what has been described as a “period of charged public and political debate”. You have commented on the differences you encountered during this time between public administration and judicial decision-making.

Your Honour has written and lectured about native title law and your judicial scholarship has contributed to knowledge and awareness of indigenous land rights in Australia. You have been commended for your strong commitment to justice in the native title process.

As Chief Justice of this Court, your Honour has, of course, presided over matters which have the potential to polarise views. Your Honour has met those challenges with the distinction we have come to expect. By way of example, in Pape v Commissioner of Taxation your Honour considered a challenge to the Commonwealth’s fiscal stimulus payments where a challenge to the Commonwealth spending was dismissed, and in Williams v Commonwealth it was a question of funding for the provision of chaplaincy services in schools where a challenge to Commonwealth funding was upheld.

A notable feature of your Honour’s Court has been your collegial approach to judicial administration. As Chief Justice you have considered yourself to be “one amongst equals” rather than “first amongst equals” and judicial decisions are preceded and followed by regular conferences with your fellow Justices.

In addition to your judicial responsibilities you have had a representational role as Chief Justice. You are a member of the Board of Governors of the Asia Business Law Institute which was launched in January this year.

Despite your workload and your substantial other commitments, you found time to present the keynote address at the Australian Bar Association’s national conference in October.

You have attended and addressed countless events, written scholarly articles and given dozens of lectures and interviews explaining Australia’s constitutional law to local and international audiences.

In doing so, your Honour has at times used humour and popular culture references to engage your audiences. Your Honour has said that popular culture can sometimes help you to make a point in a pungent and succinct way. You have previously quoted Homer Simpson when explaining declaratory relief and used Sylvester Stallone’s character in the film Judge Dredd to illustrate the importance of the separation of powers.

Your Honour has compared intellectual property rights with biblical original sin, and demonstrated various other ideas making reference to Douglas Adams’ book The Hitchhiker’s Guide to the Galaxy, the Webber and Rice musical, Joseph and the Amazing Technicolour Dreamcoat, and the Greek myth of Proteus, the “Old Man of the Sea”.

Your Honour has openly shared personal and family experiences in public communications and you have been generous and encouraging with your advice to students of law.

Your Honour has held many other offices and positions over the course of your career, and we have heard some of them. You have also been a Council Member of the Australian Institute of Judicial Administration and President of the Australian Association of Constitutional Law. You have also been honoured with an Honorary Doctor of Laws at Edith Cowan University.

Your Honour is a Life Fellow of the Australian Academy of Law, an Honorary Life Member of the Australasian Law Teachers Association, an Honorary Life Member of the Law Society of Western Australia and, on behalf of the Australian Bar Association, we are honoured that you have accepted life membership of the ABA.

Given all of these achievements and your leadership over many years, the Australian legal profession is grateful that your Honour abandoned the idea of becoming a theoretical physicist to instead forge an impressive legal and judicial career. Although perhaps the most significant moment was when your science dean remarked to you that “you express yourself magnificently but I am not sure you know what you are talking about”.

In your opening address at the Judicial Conference of Australian Colloquium in October, your Honour said of retirement, “The soft pink tones of the constitutional sunset are deepening and the dusk of impending judicial irrelevance is advancing upon me”.

Your Honour, may I suggest, with the greatest respect, that after the constitutional sunset comes the dawn of continuing relevance and leadership in your post-judicial life.

Your Honour, once again, thank you, congratulations on an outstanding career and we wish you and Mrs French all the best in your retirement.

May it please the Court.

FRENCH CJ: Mr O’Sullivan.

Thank you, Mr Attorney, Mr Clark and Mr O’Sullivan for your remarks. I suppose if I were to treat them as submissions I would respond, as I have sometimes been tempted to respond, counsel said everything in support of the point that it was possible to say and a little more.

I begin by acknowledging His Excellency the Governor-General Sir Peter Cosgrove and Lady Cosgrove and thank them for the honour they do the Court by their attendance. I acknowledge also the President of the Senate, the Honourable Senator Stephen Parry.

One of His Excellency’s distinguished predecessors, Major General the Honourable Michael Jeffery is also present. Major General Jeffery and Mrs Jeffery attended my swearing-in on 1 September 2008, just four days before the expiry of his term and the swearing-in of Dame Quentin Bryce as Governor-General.

With us on the Bench, as has already been observed, are former Chief Justices Sir Anthony Mason, Sir Gerard Brennan and the Honourable Murray Gleeson, together with former Justices William Gummow and Kenneth Hayne.

The Chief Justices of the Federal Court, the Family Court and the Supreme Courts of the States and Territories are also in attendance, other than the Chief Justice of Western Australia who could not be with us today.

I have had the privilege in the past eight years of working with them as Chairman of the Council of Chief Justices. We meet as members of a national judiciary committed to its efficient and effective working and to its proper relationship with the other branches of government.

I also acknowledge the Honourable Michael Black, a former Chief Justice of the Federal Court and Chair of the National Legal Services Council, and may I express the hope that within the framework established under that Council the vision of a uniform regulatory regime for the legal profession within Australia will ultimately be realised. We managed a standard gauge railway, we should be able to manage a standard regime for the legal professionals.

In addition to the Attorney-General of the Commonwealth we are joined today by former Attorneys-General Justice Robert McClelland, now a judge of the Family Court of Australia, the Honourable Daryl Williams, Nicola Roxon and Mark Dreyfus, who is currently shadow Attorney-General in the Commonwealth Parliament.

At the Bar table are the Solicitors-General of the States and Territories and the acting Solicitor-General for the Commonwealth. They join Presidents of the Bar Associations, many of whom, like the Solicitors-General, have been familiar faces in this Court over the last eight years or so.

Fiona McLeod, the President elect of the Law Council of Australia is also present.

Among Senior Counsel at the Bar table is David Jackson QC, who was a judicial colleague of mine for a few short months before he left the Federal Court in May 1987. His is another familiar face in this Court.

At the junior end are two of my sons, Robert and Thomas.

In the body of the Court are three people with whom I joined in 1975 in establishing a law firm in Perth, then euphoniously named Warren, McDonald, French and Harrison which, by a process of evolution not uncommon in Australia over the last three decades, has become the Perth office of Norton Rose Fulbright.

To all of those whom I have mentioned and to the many Federal and State judges and other friends, former associates and present and past staff of the Court I extend a warm welcome and, on behalf of the Court, express our appreciation for the trouble you have taken to be here.

A number of the judges with whom I have worked over the last 30 years are no longer with us but remain in the memory of many as exemplars of legal excellence and high commitment to public interest. There is a photograph in my chambers of my official welcome to the Federal Court in December 1986. On the Bench to welcome me then were the Chief Judge of the Federal Court, Sir Nigel Bowen, Justice John Toohey of that Court who a few weeks later took up office as a Justice of this Court, Sir Ronald Wilson who was then a Justice of this Court and Sir Francis Burt then Chief Justice of Western Australia. Each of them set a formidable standard for a young newly appointed judge.

Among many fine colleagues with whom I served on the Federal Court were the late John Lockhart, Bryan Beaumont, Ian Sheppard and Bill Pincus, and I am pleased that Jeanette Beaumont is able to be present for this ceremonial sitting. Each of those judges played a substantial part in shaping the Federal Court into the important national court that it is today.

We meet, of course, in a place which is part of an ancient land. It has borne the history of tens of millennia of human occupation that preceded the arrival of British laws and institutions that informed the formation of the Constitution under which this Court was created. To recognise that history and, as is now customary, the first people of Australia and their modern descendants, is to acknowledge an essential part of our national identity.

We do that with an awareness of how different Australia has become since the arrival of British laws and institutions. Australians today come from 180 different countries. Nearly half of our population was either born overseas or have at least one parent born overseas.

The interaction of our justice system with indigenous Australians and with Australians who have come recently from other cultural traditions is a continuing challenge for our courts. It reflects difficult social realities which confront law makers, policy makers, public administrators, indigenous and other community leaders. The need for courts to be able to provide equal justice in the way they treat indigenous people has been a particular concern of bodies such as the Australian Institute of Judicial Administration and the National Judicial College of Australia which have devised and delivered cultural awareness programs for the judiciary over many years.

Recently the Judicial Council on Cultural Diversity, chaired by Chief Justice Wayne Martin, was established. It reports to the Council of Chief Justices. It seeks to ensure that people from culturally and linguistically diverse groups are not prejudiced by ignorance or mutual misunderstanding in their interactions with the court system, whether as parties to proceedings or as witnesses or otherwise. That is not a matter of preferential treatment. It is simply a matter of trying, so far as practicable, to deliver fairness and equality of treatment for all Australians in their dealings with our courts.

Eight years is not a long time in the history of this Court. However, since 1 September 2008 there have been five retirements from the Court and five new appointments. Each is a change which has necessarily altered its composition and dynamic as a working institution. It is a tribute to the Justices that they have nevertheless maintained an essentially collegial culture during that time. That kind of culture cannot be imposed. It depends upon a recognition by each member of the Court of the importance of the Court as a national institution of government serving the people of Australia which transcends the individual contributions and judicial reputations of its members.

There are, of course, different views about how far collegiality should go. There has been criticism by some of separate judgment writing as a confusing self-indulgence and of joint judgment writing as a submergence of independence in compromise. You cannot please all of the people all of the time.

There is no gold standard of collegiality to be measured by the number of joint judgments versus individual judgments in any given period in the Court’s history. The balance will necessarily vary from time to time. I can say without qualification that in this respect my time on the Court has been a profoundly satisfying one.

Although there are, inevitably, different approaches by individual Justices to particular cases and to their tasks generally, all have recognised that what they are doing in deciding cases, in stating the law and in developing the law, is done for the Australian people.

A collegial approach with mutual respect demonstrated in the way that judgments are written, even in dissent, helps to maintain public confidence in the authority of the Court and the legitimacy of its decisions. Generally speaking, dissenting Justices in this Court do not try to delegitimise the majority view by asserting that it presages the end of civilization as we know it.

A culture of collegiality and the traditional avoidance by governments of overtly ideological appointments means that changes in the composition of the Court, whether of Justices or Chief Justices, attract only transient interest. Despite our surroundings in the vaulting spaces of this No 1 Court in this great national building, what we are doing today acknowledges that change in the composition of the Court, including the office of Chief Justice, is important but not an event of great national drama. That is as it should be.

The transition from one Chief Justice to another can be described as a passing of the baton. Metaphorically I received the baton from the Honourable Murray Gleeson, together with a non-metaphorical bottle of fine whisky to help tide me over troubled times. The whisky is long gone.

And now it is my turn to pass on the baton. I am delighted, as are the other members of the Court, that I need reach no further than to my friend and colleague on my immediate right, the Honourable Justice Susan Kiefel, whose appointment to this office has been so warmly welcomed around the country. More will be said about her when she is sworn in as Chief Justice on 30 January next year. I wish her every success in the discharge of the high responsibilities of this office.

She and my colleagues also look forward to welcoming as a new member of the Court the Honourable Justice James Edelman at that time and who, despite his present residence in the State of Queensland, is being claimed by all relevant authorities as a West Australian. We welcome his presence in the Court today.

There are many people I would want to thank for the support and friendship that Valerie and I have enjoyed over the last eight years on this Court. There are too many to list individually. I mention in that respect the people who work for the Court. The Court has a small but dedicated and efficient staff who provide a friendly and supportive working atmosphere. I acknowledge the commitment of all of them, and particularly the Court guides whose interaction with the public has attracted so many positive reviews that the Court has received a certificate of excellence from TripAdvisor. I have resisted the temptation to affix it to the front doors.

The Chief Executive and Principal Registrar, Andrew Phelan, has had a transformative effect upon the administration of the Court, as well as on the work of the Council of Chief Justices of which he acts as secretary. He and his wife, Monica, have become friends and I am pleased that he will continue to serve the Court after my retirement.

I express my gratitude to the personal staff who have worked in my chambers since I joined the Court. Jill Kelly, who had served as personal assistant to Chief Justice Murray Gleeson, Jennifer Braid and for the last few years, Julie Riley. Julie has been my Canberra-based personal assistant, the front of house for my Canberra chambers and it has been a great pleasure working with her.

Judy Sulcs, my executive assistant who has been based in Perth, began working with me when I joined the Western Australian Bar in 1983 and she has worked with me continuously since that time. She is a friend and has been in effect a kind of business partner in the business of my chambers. Her work ethic, interpersonal skills and common sense have been indispensable to my judicial career. The association is not over as she will continue to work with me following my retirement from the Court.

I do not know what I have done to deserve such long lasting commitment, nor do I know what I did to deserve the good fortune of marrying Valerie 40 years ago. She had her own career as a lawyer and judge in Western Australia while managing our young family when I was periodically absent, particularly during the native title years. In fact, our eldest son was once heard to remark to one of his friends when I was at home “I think that’s my father, he takes my mother out sometimes.” Her love and strength and clear-eyed and unsentimental support have been an essential element of such success as I have enjoyed.

I turn 70 in March next year. My retirement is mandated upon attaining that age by section 72 of the Constitution. As is apparent, I have decided to jump shortly before being pushed and have tendered my resignation with effect from 29 January 2017. My successor will therefore be able to begin her term of office on the first sitting day of the new year.

I have also decided to have this special sitting now rather than closer to my retirement date and there are two reasons for that. One is the selfless desire to give Justice Kiefel and Justice Edelman clear air for their swearings-in and welcomes as the new Chief Justice and Justice of this Court respectively.

The other is selfish - to enable me to recapture for a moment the memory from my school days of the December speech night at the end of the school year with the long summer holiday ahead and beyond that the promise of new learning and new experiences.

On behalf of all of the Justices of the Court, I thank you again for attending today. We invite you to join us for afternoon tea outside the court room.

The Court will now adjourn until 10.15 tomorrow morning.

AT 2.58 PM THE COURT ADJOURNED