Ceremonial - On the occasion of the First Sitting of the High Court of Australia at Darwin [2018] HCATrans 173 (4 September 2018)

Last Updated: 18 September 2018

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 FIRST SITTING

OF

THE HIGH COURT OF AUSTRALIA

AT

DARWIN

ON

TUESDAY, 4 SEPTEMBER 2018, AT 9.02 AM

[2018] HCATrans 173

Coram:

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

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

Her Honour the Honourable Vicki O’Halloran AM, Administrator of the Northern Territory

The Honourable Natasha Fyles MLA, Attorney-General and Minister for Justice for the Northern Territory

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

The Honourable Justice Stephen Southwood, Supreme Court of the Northern Territory

The Honourable Justice Jenny Blokland, Supreme Court of the Northern Territory

The Honourable Justice Peter Barr, Supreme Court of the Northern Territory

The Honourable Associate Justice Vince Luppino, Supreme Court of the Northern Territory

Chief Judge Dr John Lowndes, Local Court of the Northern Territory

Deputy Chief Judge Elizabeth Morris, Local Court of the Northern Territory

Judge John Neill, Local Court of the Northern Territory

Judge Tanya Fong-Lim, Local Court of the Northern Territory

Judge Elisabeth Armitage, Local Court of the Northern Territory

Judge Greg Macdonald, Local Court of the Northern Territory

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

Dr Christopher Bleby SC, Solicitor-General for the State of South Australia

Ms Meredith Day, Acting Chief Executive Officer, Department of Attorney-General and Justice

Mr Craig Smyth, Acting Deputy Chief Executive Officer, Department of Attorney-General and Justice

The following were seated at the Bar table:

Ms Maria Savvas, President of the Law Society Northern Territory

Mr Miles Crawley, SC, President of the Northern Territory Bar Association

Ms Sonia Brownhill, SC, Solicitor-General for the Northern Territory

KIEFEL CJ: Ms Savvas, President of the Law Society Northern Territory.

MS M. SAVVAS: I would like to acknowledge the Larrakia people as the traditional owners of the land on which this Court sits. I pay my respects to elders past and present and to emerging community leaders.

It is my very great privilege to be here on behalf of the Law Society Northern Territory and our local profession to welcome the Full Court of the High Court to its first sittings in the Northern Territory. Unlike our colleagues on the eastern seaboard, we do not have the proximity to the High Court in Canberra, so this visit to the Territory is welcomed by the local profession who will now have the opportunity to see the High Court in action.

This is a historic occasion for the Territory, and the High Court should be congratulated for now having travelled to every capital city in Australia. The size of our legal profession is small in comparison to our southern colleagues; indeed, we make up less than 1 per cent of Australia’s legal profession. However, the High Court has heard more than 50 appeals from the Supreme Court of the Northern Territory and several Federal Court appeals and original jurisdiction matters. Despite the Territory’s small population, some of the more interesting cases heard by the High Court have emanated from the Territory and we are proud to say that our local profession have the skill and fortitude to argue cases before the High Court.

The timing of this event coincides with the celebration of the Territory’s 40 years of self-government and the Law Society’s 50th anniversary. These milestones are a recognition of the strength of the Territory’s population and the achievements of the legal profession. Even within our borders, our practitioners are separated from each other by the tyranny of distance, but despite this, the profession, through its own efforts has maintained its collegiality and, like the Territory, has thrived over the years.

The Territory is known for its diversity and vibrant environment and I hope your Honours will have time to indulge in what the Territory has to offer with a desire to return in the future. Again, the profession welcomes you to the Territory.

May it please the Court.

KIEFEL CJ: Thank you, Ms Savvas. Mr Crawley, President of the Northern Territory Bar Association.

MR M. CRAWLEY, SC: If the Court pleases. On behalf of the Northern Territory Bar Association, as its President I welcome your Honours to the inaugural sitting of the High Court in Darwin.

While the Bar Association is small and relatively young in a national context, the history of the Northern Territory Bar Association is surprisingly long in comparison with its parent, the Law Society of the Northern Territory. The Law Society was not even a teenager when the Bar Association was born. The concept of independent barristers in the Northern Territory has its origin in 1974, with Michael Maurice and Tom Pauling setting themselves up under the inspired title “Barristers Chambers”, where shortly thereafter they were joined by Ian Barker QC. As Michael Maurice subsequently described them:

We projected ourselves as confident and brash – people who wanted to be advocates.

In some ways, not much has changed in the Territory. The Bar Association formally was created in 1980, with Michael Maurice as President, Tom Pauling as Secretary and Graham Hiley as Treasurer. However, it was not felt necessary to adopt a set of Bar rules until 1985, until which time discipline was maintained through, at times, robust meetings of members.

The status of barrister was officially recognised by amendments to the Legal Practitioners Act in 1982, which amendments also provided for visiting counsel from interstate. Visiting counsel were welcomed. There was more than enough work to go around. It provided a valuable learning opportunity for the local Bar, as well as a chance to pit their skills against some of the best counsel in Australia.

The independent Bar since its inception has played a significant role in the practice of law in the Territory. It has produced approximately half of the presidents of the Law Society of the Northern Territory and, perhaps not surprisingly, the majority of our Supreme Court judges. It is yet to provide a member of this honourable Court.

As with the legal profession generally, the Bar in its early days was something of a men’s club. It was not until 1990 that the first female member of the Bar, Sally Gearin, joined. Other early female members included Jenny Blokland and Judith Kelly, both members of our Supreme Court today. Today, by my reckoning, the active independent Bar has 37 members, of whom nine are women.

At first blush, this appears to remain an unimpressive indictment of gender inequality. However, in reality it is not that simple. It is not representative of the gender representation in the profession as a whole within the Territory where women now outnumber men; nor is it representative of the current Supreme Court. We at the Bar have a long way to go which no doubt will be encouraged by our female Attorney-General and Solicitor-General. Rather than simply a gender issue, it is a family issue. Of the nine female members of the independent Bar, only three have children. Survival at the Bar frequently requires one partner to sacrifice their career to be the primary carer. The discriminatory element is that so often that partner is expected to be female.

But times they are a changing. The current composition of this honourable Court is a testament to that. The adoption last year of a progressive parental leave policy in our largest chambers is certainly a significant step in the right direction. The 19 members of the chambers between them have 39 children, 20 of whom are under 10, two of whom are under one, with one more expected in the New Year.

Darwin itself provides a personal incentive to strive for a work/life balance. It provides the opportunity to work hard but still arrive home in daylight. That is perhaps unique amongst the capital cities in Australia. All year round it is then still warm enough to engage in what to me is the best form of unwinding – a swim with the family.

I am delighted that a number of your Honours have travelled to Darwin with your partners. On behalf of the members of the Bar and their families, I extend the warmest welcome to your Honours and your families.

May it please the Court.

KIEFEL CJ: Thank you, Mr Crawley.

This ceremonial sitting marks a historic occasion. This is the first time that the Court has sat to hear cases in the Northern Territory. The Court is grateful to the Supreme Court of the Northern Territory for accommodating us.

The Court acknowledges the presence of Her Honour the Administrator of the Northern Territory, the Chief Justice of the Northern Territory, the Attorney-General of the Northern Territory, Judges of the Supreme Court, the Chief Judge of the Local Court and Judges of that Court, the Solicitors-General for Queensland, the Northern Territory and South Australia, and the Presidents of the Northern Territory Bar Association and the Law Society Northern Territory.

It was not long after Federation that the High Court began undertaking circuits around Australia. After the transfer of the Northern Territory to the Commonwealth on 1 January 1911 and the establishment of a Supreme Court in the Territory, the circuits did not extend to Darwin even though the Court sat in the capital city of each State in 1911 and 1912.

There may be a number of factors which explain this important omission. One might have been the perception of Darwin as remote and, to an extent, inaccessible. The fateful first and only circuit of the Supreme Court of South Australia to Palmerston in February 1875 may have been recalled. The circuit Judge, his Associate and the Crown Prosecutor all perished on the return journey when their ship struck a reef during a cyclone.

The limited facilities of the Supreme Court in Darwin, and for a period in World War II when it was relocated to Alice Springs, may have been a factor. This might not explain the period after the present building was opened in 1991.

Other factors might include the limited number of appeals brought from courts of the Northern Territory in those early days and the fact that there may have been some uncertainty as to the High Court’s jurisdiction to entertain appeals from those courts. Mitchell v Barker, which was heard in Melbourne in March 1918, involved the question whether a Special Magistrate lacked jurisdiction to enter a conviction for an offence against the War Precautions Regulations 1915 (Cth). Griffith CJ, delivering the opinion of the Court, expressed doubt as to whether the Special Magistrate’s Court was a “federal court” such that the matter fell within the appellate jurisdiction of the High Court. His Honour observed that the Court had earlier held that Chapter III of the Constitution did not apply to the Territory of Papua although he suggested that “a distinction may some day be drawn between Territories which have and those which have not formed part of the Commonwealth”.

It was not until 1926, in Porter v The King; Ex Parte Yee, which was also heard in Melbourne, that the Court, by a majority, conclusively determined that it had jurisdiction to entertain appeals from the Supreme Court of the Northern Territory. In the years following 1926 the High Court heard a small number of appeals from the Northern Territory. One of the most notable of the time was no doubt Tuckiar v The King.

Over the years the Court heard matters from the Northern Territory brought in its original jurisdiction, although at an early point some hurdles were also encountered. In Waters v The Commonwealth, which involved the detention of Mr Waters, an Aboriginal man, under the Aboriginals Ordinance 1918 (NT) after allegedly organising a strike, an application for a declaration that his detention was unlawful, habeas corpus and other orders was refused on the basis that the Court did not have original jurisdiction under s 75 because Chapter III did not extend to the Northern Territory. The decision was later overruled in Spratt v Hermes.

It was to be expected that in subsequent years, the Court would consider a number of matters concerning the scope of s 122 in connection with laws made for the government of the Territory such as Lamshed v Lake or laws affecting the Territory such as the Territory Senators cases.

In the 1980s the Court heard a number of matters relating to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). They included R v Toohey; Ex Parte Northern Land Council and Minister for Aboriginal Affairs v Peko-Wallsend Ltd. After the enactment of the Native Title Act 1993 (Cth) the Court heard a number of appeals concerning native title with respect to land in the Northern Territory including Fejo v Northern Territory and The Commonwealth v Yarmirr. The matter to be heard in this first sitting is one relating to native title.

This brief summary shows that there have been important cases emanating from the Northern Territory over the years. It cannot be denied that their resolution has added to the jurisprudence of the Court in constitutional and other areas of Australian law. This raises the question why, at least in more recent times, cases have not been heard in Darwin. A search of the records of the Court provides no insight.

The Justices of the Court appreciate the importance of circuits not only to the profession but to the public more generally. It is sometimes suggested that we should undertake them more often, but it needs to be understood that the considerable cost associated with circuits must be weighed against the matters available to be heard at a given time. That said, any opportunity to undertake a circuit is given careful consideration.

Whatever be the omissions of the past, the Court is now here and no doubt will be again in the future. The Justices and I look forward to meeting members of the judiciary and of the legal profession and enjoying the hospitality of Territorians.

The Court will now adjourn.

AT 9.15 AM THE MATTER WAS CONCLUDED