Ceremonial Sitting on the Occasion of the Swearing-in of the Chief Justice the Honourable Stephen John Gageler AC [2023] HCATrans 151 (6 November 2023)

Last Updated: 7 November 2023

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

CEREMONIAL SITTING

ON THE OCCASION

OF

THE SWEARING-IN OF THE CHIEF JUSTICE

THE HONOURABLE STEPHEN JOHN GAGELER AC

AT

CANBERRA

ON

MONDAY, 6 NOVEMBER 2023, AT 10.10 AM

[2023] HCATrans 151

Coram:

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

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

The Honourable Sir Anthony Mason AC KBE CBE KC, former Chief Justice of the High Court of Australia

The Honourable Anthony Murray Gleeson AC KC, former Chief Justice of the High Court of Australia

The Honourable Susan Kiefel AC KC, former Chief Justice of the High Court of Australia

The Honourable Michael Kirby AC CMG, former Justice of the High Court of Australia

The Honourable Kenneth Hayne AC KC, former Justice of the High Court of Australia

The Honourable Virginia Bell AC SC, former Justice of the High Court of Australia

The Honourable Patrick Keane AC KC, former Justice of the High Court of Australia

The Honourable Geoffrey Nettle AC KC, former Justice of the High Court of Australia

Dignitaries seated within the Court:

His Excellency General the Honourable David Hurley AC DSC (Retd) Governor‑General of the Commonwealth of Australia

Her Excellency Mrs Linda Hurley

Senator the Honourable Michaelia Cash, Shadow Attorney‑General of the Commonwealth

Members of the Judiciary seated within the Court:

The Right Honourable Dame Helen Winkelmann GNZM, Chief Justice of New Zealand

The Honourable Debra Mortimer, Chief Justice of the Federal Court of Australia

The Honourable William Alstergren AO, Chief Justice of the Federal Circuit and Family Court of Australia

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

The Honourable Alan Blow AO, Chief Justice of the Supreme Court of Tasmania

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

The Honourable Peter Quinlan, Chief Justice of the Supreme Court of Western Australia

The Honourable Andrew Bell, Chief Justice of the Supreme Court of New South Wales

The Honourable Helen Bowskill, Chief Justice of the Supreme Court of Queensland

The Honourable Justice A. Besanko

The Honourable Justice N. Perram

The Honourable Justice A. Katzmann

The Honourable Justice M. Moshinsky

The Honourable Justice B. Markovic

The Honourable Justice K. Banks-Smith

The Honourable Justice A. Stewart

The Honourable Justice K. Downs

The Honourable Justice G. Kennett

The Honourable Justice R. McClelland AO

The Honourable Justice S. Austin

The Honourable Justice J. Ward

The Honourable Justice A. Meagher

The Honourable Justice M. Leeming

The Honourable Justice A. Payne

The Honourable Justice R. White

The Honourable Justice R. Beech-Jones

The Honourable Justice A. Mitchelmore

The Honourable Justice J. Kirk

The Honourable Justice C. Adamson

The Honourable Justice K. Stern

The Honourable Justice J. Basten

The Honourable Justice J. Griffiths

The Honourable Justice C. Simpson AO

The Honourable Justice M. Walton

The Honourable Justice S. Rothman AM

The Honourable Justice M. Slattery AM

The Honourable Justice D. Davies

The Honourable Justice P. Garling RFD

The Honourable Justice J. Stevenson

The Honourable Justice R. Wright

The Honourable Justice H. Wilson

The Honourable Justice N. Adams

The Honourable Justice J. Lonergan

The Honourable Justice K. Williams

The Honourable Justice D. Yehia

The Honourable Justice A. McGrath

The Honourable Justice M. Schmidt

The Honourable Chief Judge B. Preston

The Honourable Justice S. Pritchard

The Honourable Justice J. Blokland

The Honourable Justice C. Loukas-Karlsson

The Honourable Justice B. Baker

Dignitaries seated in the Sydney Courtroom:

Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales

His Excellency Mr Denis Wilson

Members of the Judiciary seated in the Sydney Courtroom:

The Honourable Justice R. Bromwich

The Honourable Justice S. Burley

The Honourable Justice W. Abraham

The Honourable Justice E. Cheeseman

The Honourable Justice E. Raper

The Honourable Justice S. Campbell

The Honourable Justice R. Cavanagh

The Honourable Justice M. Richmond

Members of the Judiciary seated in the Melbourne Courtroom:

The Honourable Justice S. Kenny AM

The Honourable Justice S. McElwaine

The Honourable Justice L. Hespe

The Honourable Justice C. Horan

The Honourable Justice K. Emerton

Members of the Judiciary seated in the Brisbane Courtroom:

The Honourable Justice S. Goodman

The Honourable Justice F. Meagher

The Honourable Justice D. Boddice

The Honourable Justice G. Martin AM

The Honourable Justice P. Applegarth

The Honourable Justice K. Mellifont

The Honourable Justice P. Callaghan

Former members of the Judiciary seated within the Court:

The Honourable W. Gummow AC KC

The Honourable R. Gyles AO KC

The Honourable M. Finn

The Honourable K. Lindgren AM KC

The Honourable K. Mason AC KC

The Honourable P. Jacobson KC

The Honourable R. McDougall KC

The Honourable A. Greenwood KC

The Honourable P. McClellan AM KC

The Honourable D. Cowdroy AO KC

The Honourable P. Biscoe KC

The Honourable K. Martin KC

The Honourable P. Tate AM KC

The Honourable P. Bergin AO SC

The Honourable T. Bathurst AC KC

The Honourable D. Kerr SC

Former members of the Judiciary seated in the Melbourne Courtroom:

The Honourable M. Black AC KC

At the Bar Table the following persons were present:

Mr T. McAvoy SC, National Aboriginal and Torres Strait Islander Legal Services

Dr S. Donaghue KC, Solicitor‑General of the Commonwealth of Australia

Mr G. McIntyre SC, President-Elect of the Law Council of Australia

Mr P. Dunning KC, President of the Australian Bar Association

Dr R. Higgins SC, President of the New South Wales Bar Association

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

Mr J. Thomson SC, Solicitor‑General for the State of Western Australia

Mr M. Wait SC, Solicitor‑General for the State of South Australia

Mr N. Christrup SC, Solicitor‑General for the Northern Territory

Ms R. Orr KC, Solicitor‑General for the State of Victoria

Ms S. Kay SC, Solicitor‑General for the State of Tasmania

Mr G. Del Villar KC, Solicitor‑General of the State of Queensland

Mr B. Dharmananda SC, President of the Western Australia Bar Association

Mr D. O’Brien KC, President of the Bar Association of Queensland

Mr S. Hay KC, President of the Victorian Bar Association

Ms J. Abbey KC, Vice‑President of the South Australian Bar Association

Mr D. McConnel SC, President of the Northern Territory Bar Association

Mr M. Hassall, President of the Australian Capital Territory Bar Association

Mr G. Griffith AO KC

Mr A. Sullivan KC

Mr D. Bloom KC

Mr B. Coles KC

Mr B. Walker AO SC

Mr N. Hutley SC

Mr P. Greenwood SC

Mr T. Howe KC

Mr S. Lloyd SC

Mr I. Davidson SC

Mr R. Lancaster SC

Ms K. Nomchong SC

Mr R. Wilson SC

Mr J. Clarke SC

Mr M. Henry SC

Mr M. Hall SC

Mr D. Toomey SC

Ms G. Bashir SC

Dr C. Ward SC

Ms K. Richardson SC

Mr N. Owens SC

Mr M. Izzo SC

Mr C. Lenehan SC

Mr P. Herzfeld SC

Mr T. Begbie KC

Ms H. Roberts SC

Mr D O’Leary SC

Ms F. Gordon KC

Mr A. Butler SC

Mr A. Gotting

Mr P. Bolster

Mr E. Cowpe

Prof J. Stellios

Mr T. Wood

Mr B. Lim

Mr N. Wood

Ms J. Watson

Mr R. Chaile

Ms S. Zeleznikow

Mr G. Ayres

Ms H. Canham

Mr A. Petridis

Ms M. Aguinaldo

Ms C. Middleton

Barristers appearing in the Sydney Courtroom:

Ms K. Eastman AM SC

Mr M. Green SC

Ms D. Forrester

Mr A. Hall

Ms A. Sapienza

Speakers:

Mr Tony McAvoy SC, National Aboriginal and Torres Strait Islander Legal Services

Dr Stephen Donaghue KC, Solicitor‑General of the Commonwealth of Australia

Mr Greg McIntyre SC, President-Elect of the Law Council of Australia

Mr Peter Dunning KC, President of the Australian Bar Association

Dr Ruth Higgins SC, President of the New South Wales Bar Association

TRANSCRIPT OF PROCEEDINGS

GAGELER CJ: Justice Gordon, I have the honour to announce that I have received from His Excellency the Governor‑General a Commission appointing me Chief Justice of the High Court of Australia. I present that Commission.

GORDON J: Principal Registrar, please read aloud the Commission.

PRINCIPAL REGISTRAR:

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

I, His Excellency General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and section 5 of the High Court of Australia Act 1979, appoint the Honourable Stephen John Gageler, a Justice of the High Court of Australia and Companion of the Order of Australia, to be the Chief Justice of the High Court of Australia commencing on 6 November 2023 until he attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 22 August 2023, David Hurley, Governor‑General by His Excellency’s command, Mark Dreyfus KC, Attorney‑General, Cabinet Secretary.

GORDON J: Chief Justice Gageler, I invite you to take the Oath of Allegiance and of Office.

GAGELER CJ: I, Stephen John Gageler, do swear that I will bear true allegiance to His Majesty, King Charles III, His Heirs and Successors, according to law, that I will well and truly serve Him in the Office of Chief Justice of the High Court of Australia and that I will do right to all manner of people, according to law, without fear or favour, affection or ill‑will. So help me God.

GORDON J: Chief Justice, I now invite you to subscribe the Oath of Allegiance and of Office.

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

Chief Justice Gageler, I invite you to take your seat at the Bench and to proceed to the discharge of the duties of the office of Chief Justice of the High Court of Australia. On behalf of the Justices, congratulations.

GAGELER CJ: Thank you, Justice Gordon. Mr McAvoy, representing National Aboriginal and Torres Strait Islander Legal Services.

MR McAVOY: May it please the Court.

It is an extraordinary honour to speak on behalf of the National Aboriginal and Torres Strait Islander Legal Services to acknowledge and welcome your Honour’s appointment as Chief Justice of this Court. Your Honour, in doing so, I also acknowledge the traditional owners of the land on which this Court and our nation’s capital sits. I acknowledge the Ngunnawal people and the Ngambri people. I also acknowledge their neighbours, the Wiradjuri, the Yuin, the Dharawal, from this region of the continent.

It is also important to acknowledge the national reach of this Court, and I acknowledge the many First Nations that continue to exist as distinct peoples, including the Arawkal people at Byron Bay, the Meriam people at Mer in the Torres Strait, the Larrakia people in Darwin, the Yawuru in Broome, the mighty Noongar nations in the south-west of the continent, the Kaurna people at Adelaide, the Kulin nation in Melbourne, the Palawa peoples on the island state of Tasmania, the Arrernte in central Australia, and many others that individually and collectively hold spirituality and law which is embedded in these lands and waters and connects them to those lands and maintains their cultures, which are so ancient as to be beyond modern‑day comprehension.

Your Honour, it is fitting that I make these acknowledgments on behalf of the National Aboriginal and Torres Strait Islander Legal Services, the peak body for the front line of representation for its clients, a front line that they have defended for over 50 years. Those legal services are a series of community organisations that are without peer and have employed or instructed many of the judicial officers and members of the legal profession here today, myself included. Those legal services are an essential institution in the fabric of the Australian legal system.

Your Honour, your role at the pinnacle of the Australian legal system is, of course, something to be celebrated. We know from your very distinguished career as a lawyer and jurist – a topic about which others will speak in more detail – that your Honour brings legal acumen of the highest calibre. The role of Chief Justice of this Court also requires great care and consideration, and very often great courage. It is these qualities that your Honour has consistently displayed, and has been and is a hallmark of your predecessors and colleagues which gives First Nations confidence in this Court. It gives confidence that those First Nations and the First Nations people that come here will obtain a fair hearing, and that confidence permits hope of a just outcome.

There are many decisions of this honourable Court that, in the process of delivering justice, have made this country a better place to live for all. Those cases include Koowarta v Bjelke‑Peterson, Neal v The Queen, Gerhardy v Brown, Mabo (No 1) and Mabo (No 2), Wik Peoples v The State of Queensland, Bugmy v The Queen, Akiba v Commonwealth, and the recent Timber Creek compensation decision. There are many more, and indeed, many others in which the decision went the other way. Your Honour, the First Nations will continue to come to this place for a fair hearing because there is a proper basis to hope for just outcomes.

May it please the Court.

GAGELER CJ: Thank you, Mr McAvoy. Mr Donaghue, Solicitor‑General of the Commonwealth of Australia.

MR DONAGHUE: May it please the Court. First, may I, too, acknowledge the traditional custodians of the land we are meeting on, and recognise and pay my respects to any Aboriginal and Torres Strait Islander people here today.

It is a great privilege on behalf of the Attorney‑General, the Honourable Mark Dreyfus KC MP, and the Australian Government, to be here to congratulate your Honour on your appointment as the 14th Chief Justice of the High Court of Australia, and to thank you for your willingness to serve in that role.

The news of your Honour’s elevation has been warmly welcomed by the Australian legal community and the public, much like the acclaim with which your Honour’s initial appointment to this Court was met over a decade ago. That so many of your colleagues in the judiciary and the legal profession are here today is a testament to the very high regard in which your colleagues hold your Honour.

May I particularly acknowledge his Excellency General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia and Her Excellency Mrs Hurley; the Honourable Sir Anthony Mason AC KBE CBE KC, former Chief Justice of the High Court of Australia, the Honourable Murray Gleeson AC KC, former Chief Justice of the High Court of Australia; the Honourable Susan Kiefel AC KC, former Chief Justice of the High Court of Australia; her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales; the Right Honourable Dame Helen Winkelmann GNZM, Chief Justice of New Zealand; the Honourable Chief Justice Debra Mortimer, Chief Justice of the Federal Court of Australia; the Honourable Chief Justice William Alstergren AO, Chief Justice of the Federal Circuit and Family Court of Australia; Chief Justices of the State and Territory Supreme Courts; State and Territory Solicitors‑General; Senator the Honourable Michaelia Cash, Shadow Attorney‑General; other current and former members of the judiciary; members of the legal profession and distinguished guests.

May I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you, in particular your father John, your wife Carla, your daughter Elizabeth and your sons Francis and Benjamin. I also acknowledge other members of your extended family and your close friends who join us today.

Your Honour was raised in a small country town in New South Wales and lived on a family property that housed the family’s sawmill business, C. Gageler and Son, named for your grandfather and father. Your Honour undertook your schooling in a country primary school with just one classroom, and then at Muswellbrook State High School. Your family placed a high value on education and hard work, and in your Honour’s career you have lived those values. Although your Honour had limited exposure to the legal profession or an understanding of what a career in the law might entail, you professed an interest in becoming a lawyer in your teenage years. In a happy circumstance, a barrister would soon move into the farm across the road, the late the Honourable Bryan Beaumont AO QC, who later became a judge of the Federal Court of Australia.

In your Honour’s swearing‑in in this Court over a decade ago, you recalled Mr Beaumont’s advice to, quote, “finish high school, get a law degree with Honours, get a few years’ experience and then, ideally, get a master’s degree”. Your Honour set about following this advice. Like many young people from country New South Wales, you chose to pursue your higher education here, at Canberra, at the Australian National University. In 1980 you graduated with a Bachelor of Economics and in 1982 you graduated with a Bachelor of Laws with First Class Honours. Your Honour was admitted in the ACT in 1982. From 1983 to 1985, you served as an associate to the Honourable Sir Anthony Mason, then a Justice of the High Court. You have maintained a close bond with Sir Anthony ever since. There is an obvious symmetry between your paths within the law: like Sir Anthony, your Honour served as Commonwealth Solicitor‑General before being appointed as a Justice of this Court and now as Chief Justice of this Court.

Following your associateship, your Honour continued your legal career at the Commonwealth Attorney‑General’s Department, practicing in what would now be the Office of General Counsel at the Australian Government Solicitor. Many years later, you continued to speak in glowing terms of how much you learned from the government lawyers with whom you worked during that period.

In 1986, your Honour travelled to the United States to complete a Masters of Law degree at Harvard University, which included a thesis on judicial review and federalism, a topic of mutual interest of Australian and American constitutional lawyers. In various areas, influences of United States constitutional law continued to be evident in your Honour’s thinking and judgments.

In 1987, you returned to Australia and your Honour served as counsel assisting the then‑Commonwealth Solicitor‑General Dr Gavan Griffith AO KC, who you also credit as a significant influence on your development as a constitutional lawyer. During the same period, your Honour also returned to ANU to work as a part‑time tutor in constitutional law.

In 1989, your Honour went to the New South Wales Bar, reading with Bret Walker and Alan Robertson, later Justice Robertson of the Federal Court. Your Honour’s years at the Bar were spent primarily at 11 Wentworth chambers. You specialised in public and constitutional law, but also did much commercial work. Amongst many significant matters as a junior, I recall you recounting being in chambers with Sir Maurice Byers assisting to develop the argument for the implied freedom of political communication which was ultimately accepted in ACTV.

In Residual Assco you led the Commonwealth legal team in a matter before the Full Court of this Court while you were still a junior, which is an extremely rare event. I recall it, because it was the first time I had seen your Honour on your feet in Court. Early in your submissions, Justice McHugh suggested that your submission was “circular”. Having never made a circular argument in your life, your Honour paused. You said, “Not at all”. Undeterred, Justice McHugh pressed on, saying, “Your conclusion is inherent in your premise.” You replied, “Your Honour, I was letting you into the conclusion so you could see where the linear argument is going”.

Later the same year, in 2000, you were appointed Senior Counsel. As a silk, you established yourself as a pre‑eminent barrister before the High Court. Notable moments include Betfair (No. 1), where you educated this Court about online gambling by projecting the Betfair website on the wall up there. In Forge v ASIC you started your oral submissions only 10 minutes before the end of the day, and in those few minutes of your submissions – on, I should add, the riveting and technical topic of the transitional provisions of the Corporations Act 2001 – your submissions were so clear and compelling that they are still recalled today as some of the finest advocacy ever seen in this Court. That you are able to do this using speaking notes of your unique style, largely comprising completely blank white pages with only a few lines of tiny, handwritten script on seemingly random parts of the page, is remarkable.

In 2008, your Honour returned to Commonwealth service when you were appointed Solicitor‑General. You served in that capacity with your trademark intellectual rigour and integrity, and you appeared in many influential constitutional matters. Some of those cases, no doubt, provoke fonder memories than others. After a particular bracing outing for the Commonwealth in one matter, your Honour likened the experience to that of Monty Python’s Black Knight.

Your Honour made reforms to the functioning of the role of Solicitor‑General that continue to this day. One of the more minor reforms was the numbering of advices, which you commenced, designating SG No 1 of 2008, et cetera. You so personified the office that, upon your departure, there was debate about whether your intention was to signify “Stephen Gageler” or “Solicitor‑General”. Your objective intention was thought to be the latter, so the SGs remain. I know from my own experience, from speaking to many colleagues at the Bar, to your Honour’s former associates and to law students that your Honour has been a role model and source of inspiration for a generation of Australian public lawyers. The profession is stronger for your influence.

In 2012, whilst you were still Solicitor‑General, your Honour’s exceptional abilities were recognised by your appointment as a Justice of this Court. At your Honour’s welcome it was estimated that you had appeared in this Court on more than a hundred occasions. In reply, your Honour remarked that “There is no institution with which I have had a longer continuous association than the High Court of Australia.”

In the decade that has elapsed since, your Honour’s contribution to this Court has been second to none. Your judgments speak for themselves. They are clear and learned, revealing a lifetime of thinking about and grappling with the issues that come before this Court. There are many examples of judgments you have written alone that, over time, have become the settled position of the Court. Your Honour has also participated in many influential joint judgments that have clarified or developed the law across the breadth of Australian law.

In Court, your Honour is unfailingly calm and even‑tempered, and your questions are incisive. As one example amongst very many, I recall your Honour asking counsel in one case if they had any authority for a particular proposition. They said they were unable to find any, but that their argument was correct at the level of principle. A few moments later, your Honour’s associate left the Court, returned with a volume of the CLRs, which your Honour then perused. You then politely inquired again, how central the earlier proposition was to counsel’s argument. Sensing the wind, counsel responded, “It is feeling like it is becoming more peripheral, your Honour.” That was wise, for your Honour had pulled, from memory, an authority directly on point decided about 35 years previously.

Courtesy and humility have been hallmarks of your Honour’s career, treating everyone equally, regardless of their background. These characteristics, together with your intellect and sense of justice and your Honour’s unparalleled familiarity with this Court will be invaluable to you as you embark on the next chapter of your continued service to the Court. Your Honour takes the position of Chief Justice of this Court with the best wishes of the Australian legal profession. We trust that you will discharge this role with the same exceptional dedication to the law that you have shown throughout your career. On behalf of the Attorney‑General and the Australian Government, I extend to you my sincere congratulations and welcome you as Chief Justice to the High Court of Australia.

May it please the Court.

GAGELER CJ: Thank you, Mr Donaghue. Mr McIntyre, President‑Elect of the Law Council of Australia.

MR McINTYRE: May it please the Court. I adopt the acknowledgment of the traditional owners by my learned friend, Mr McAvoy.

Your Honour recently reflected on the concept of judicial legitimacy in the Australian Law Journal. You stated:

“Judicial legitimacy” I take to mean that level of public confidence which needs to exist for a competent and impartial judiciary to do its job of deciding controversies according to law without fear or favour. Judicial legitimacy depends on the public maintaining a level of confidence that controversies will in fact be so decided. It depends on the public understanding, and respecting, the distinctiveness of the judicial function.

Your Honour’s appointment as Chief Justice contributes to the confidence which the public, including the legal profession, hold in this Court, making it very easy for those whom we at the Bar table represent to play our part in maintaining that legitimacy by assisting in ensuring that there is a public understanding of the judicial function, whenever the need arises to reinforce that.

It is to be noted that your Honour is also on record as expressing a view that the common law, by its very nature, must evolve as civil society evolves, and so must be modified by the decisions of judges and statute law; it can never be entirely prescriptive, and requires the interpretation of judge as specific cases arise. In that regard, your Honour has expressed the view that a cautious, incremental approach to the law is appropriate. These sentiments provide reassurance, if any was needed, that with your Honour’s appointment, the Court remains significantly above the threshold to retain its public legitimacy.

Speaking at the ceremony to mark the retirement of the former Chief Justice, the Honourable Susan Mary Kiefel AC KC, the President of the Law Council, Mr Luke Murphy, noted that the High Court is the protector of Australia’s supreme law, the Constitution. I read with interest an article your Honour penned for the Australian Bar Review. In this article, you spoke about a 1,200‑year‑old Tang Dynasty camel you bought 20 years ago. Your Honour said that you do not see yourself as owning this antiquity, but rather as having the privilege of looking after it. Your Honour, we are privileged to have you looking after the highest court in the Australian judicial system and having it in its vitally important work as a protector of our supreme law.

“A safe pair of hands” is a description sometimes used pejoratively to imply a lack of creativity. However, your time in this Court has established you as a goldilocks mix of those qualities – that is, a mix which is just right, which is a most desirable characteristic for the leader of a final appellate and constitutional court. On behalf of the Australian legal profession, I congratulate your Honour on your appointment. Thank you for your ongoing and outstanding service to our nation.

May it please the Court.

GAGELER CJ: Thank you, Mr McIntyre. Mr Dunning, President of the Australian Bar Association.

MR DUNNING: Chief Justice Gageler; Justices of the High Court; retired Chief Justices and Justices of the High Court; His Excellency, the Governor‑General; distinguished guests all, it is my privilege and pleasure in equal measure to offer the congratulations of the National Bar, Chief Justice Gageler, on your well‑deserved appointment to this Court. It is, indeed, a rare privilege to get to speak at the appointment of the 14th – and only the 14th – Chief Justice of this Court; your Honour having become its 49th Justice in 2012.

The appointment of a new Chief Justice – and, indeed, a new Justice – to the High Court is a big day in our national history. The third arm of government plays a vital role in our modern democracy. The large crowd here today and the widespread publicity, Chief Justice, in respect of your appointment demonstrates the appointment enjoys the confidence of the community. That, in a practical sense, is every bit as important as the legislative authority that underpins this Court. That public confidence is a reflection of your Honour’s contribution over a decade on this Court, the contribution of your colleagues, past and present.

Your Honour brings to the role of Chief Justice a remarkable intellectual leadership. Although constitutional law will immediately come to the lips of every lawyer in that regard, your Honour’s intellectual leadership transcends that law. Your Honour brings leadership in the areas of common law, crime, commercial law, public law and in native title. And your Honour’s important contribution to the law in Australia, both at Bench and Bar, in respect of native title work is an important part of the process the law plays in us finding peace with those people who have anciently inhabited our land.

Your Honour’s lucid, concise exposition of principle, followed by its clear application to the case presently before you, is not only a durable legacy to your Honour’s ability as a lawyer, but to the jurisprudence of this Court and, of course, to jurisprudence Australia‑wide. Equally important, the care with which your Honour distils principle in your judgments is important to my members. It allows us to advise our clients with clarity and certainty as best we can, in respect of the circumstances they come to see us. That is important for all people, including, indeed, especially, for those who want to stay out of court than go into it.

It is for all of these reasons that your Honour’s appointment as Chief Justice received widespread professional and public acclaim. Chief Justice, you were simply the unbackable favourite for the position you have just been appointed to.

Prior to your Honour’s distinguished service as a Justice of this Court, your Honour served as the Commonwealth Solicitor‑General, a role your Honour discharged with distinction. Many members of the Bar interacted with your Honour in the course of that role. Your Honour was involved in all of the major constitutional cases of the day. I remember Justice Callinan, the last direct appointment from the Bar to the Court before your Honour, commenting to me and explaining what a powerful and incisive advocate you were to have appear before the Court.

Prior to your time as Commonwealth Solicitor‑General, your Honour spent two decades of distinguished practice at the Sydney Bar, particularly in commercial, constitutional and public law matters, but beyond that, my learned friend Dr Higgins SC, on behalf of the New South Wales Bar, will speak of that in more detail. Might I only note in passing that at the valedictory for Justice Beech‑Jones recently, Chief Justice Bell of the New South Wales Supreme Court referenced – and I quote – “the robust tradition of the New South Wales Bar”, unquote.

Now, true, it is, the said “tradition” is a facet of advocacy in New South Wales that is referenced by New South Wales barristers almost as frequently as it is referenced by barristers outside New South Wales. Your Honour’s calm, measured style undoubtedly provided its own contrast within the tapestry of that tradition. Your Honour’s vast legal knowledge and deep understanding of the fabric of the law and its interplays is buttressed by your Honour being a person of humility, character, fairness, compassion and dignity. Your Honour is a pleasure to appear before. We are all better barristers for having the privilege to either appear before your Honour or, at a minimum, read so many of your Honour’s judgments.

To invert an aphorism of Winston Churchill, Chief Justice, you are a modest man, but you have nothing to be modest about. You were the barrister’s barrister; you are the judge’s judge. That is apparent not only from the way in which you write your judgments, but the manner in which you conduct the cases before you. That reflects – as my learned friend, the Commonwealth Solicitor‑General himself noted in his speech – the vital role that courtesy and respect plays not only in the efficient dispatch of litigation before courts, but also in the isolation and explication of the issues in controversy so that the litigants, losers and winners, depart the process with the sense they have been heard. It is an indispensable aspect of justice being done and being seen to be done, and it finds no greater pillar in that regard than your Honour.

Nobody achieves as your Honour has achieved without the love and the support of family and friends. And in that particular regard, your wife, Carla, your children, Elizabeth, Frankie and Ben, and your father, John, would be justifiably proud in your achievements today and those that have led to today. They should feel likewise proud for the important involvement they have no doubt had in giving you the life that has led to such success.

Your Honour, on behalf of the Australian Bar, we wish you every happiness in leading our apex court. Your Honour comes to the Court with the respect, admiration and affection of Australia’s more than 6,000 barristers. We look forward to appearing before your Honour and wish you happy years as Chief Justice.

May it please the Court.

GAGELER CJ: Thank you, Mr Dunning. Ms Higgins, President of the New South Wales Bar Association.

MS HIGGINS: May it please the Court. I, too, acknowledge the traditional owners. Chief Justice Gageler, it is an honour to speak today on behalf of the New South Wales Bar Association, whose members offer you their delighted congratulations on your appointment as Chief Justice of the High Court of Australia. Sir Anthony Mason, who, in a singular instance of tradition, sits alongside your Honour today, has observed that the role of the Chief Justice varies with time, circumstance and personality. That elusive notion of “personality”, the essential human element in law, assumes particular significance in connection with the leader of the Australian judiciary. Law works through the institutional organs of a legal system, but it is the product of the activities and purposes of a continuous tradition of individuals. It inevitably expresses the personality of those who occupy judicial office.

Many thinkers have ventured lists of the necessary qualities of the judicial personality. None is as directly wrought from experience as the resolutions of Sir Matthew Hale, Chief Justice of the King’s Bench between 1671 and 1676. Hale’s resolution 2 was that the administration of justice be done uprightly, deliberately, resolutely. In Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380, this Court considered whether to revisit the common law doctrine of extended joint enterprise shortly after the decision of the United Kingdom Supreme Court in R v Jogee had concluded that it was the product of a wrong turn in the law. At paragraph 129, your Honour said this:

The doctrine of extended joint criminal enterprise is anomalous and unjust. The occasion for its reconsideration having been squarely presented, I cannot countenance its perpetuation. Dissenting from the view of the majority, I would reopen and overrule McAuliffe.

The deliberate and resolute nature of that conclusion is rivalled only by its institutional significance. Law’s authority rests, in large part, on its capacity to supply its subjects with better reasons for action than they might contrive themselves, and law’s legitimacy in part rests on its capacity frankly to acknowledge when it has misstepped. This can be understood as an institutional analogue of a practitioner’s duty of candour. Such episodes of institutional candour, rare though they will be, strengthen the institutions of law by reaffirming the transparency of the administration of justice.

Hale’s resolution 5 was “That I be wholly intent upon the business that I am about, remitting all other cares and thoughts as unseasonable and interruptions.” As counsel, your Honour appeared in this Court many hundreds of times. In any appeal, you characteristically proposed a single, clear argument uncluttered by alternatives, grasping that economy is often victory’s clearest path. That style is present now in your Honour’s approach on the Bench, asking questions that matter and only those.

I was fortunate to be led by your Honour when I started at the Bar. We met in chambers in January 2008 to prepare a matter being heard in February. Your Honour was uncharacteristically preoccupied, picking up folders, reading their spines, turning them over. When I remarked on this, you replied, “well, of course, it is January, I am checking whether anyone is briefing me this year”. That was but one manifestation of your Honour’s genuine and quite remarkable lack of presumption. No other member of the New South Wales Bar could have doubted that you would be occupied every day of that year, and of course your Honour was appointed Solicitor‑General of the Commonwealth eight months later, but your Honour presumed none of that. This lack of presumption is a characteristic uncommonly well‑fitted to an occupant of high office, but in your Honour it is accompanied by a quality of deep confidence that allows you to be kind to all those people less capable than you are and helps lift them towards whatever excellence they may be able to achieve.

Hale’s resolution 6 was “That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard.” It has been a characteristic of your Honour at the Bar and on the Bench to work methodically from beginning to end before reaching any conclusion. When your Honour was a barrister practicing, amongst other things, in economic regulatory matters, an expert witness retained to give evidence about electricity transmission systems said that your Honour thinks like an engineer. It was an astute observation. Your Honour approached such matters by tracking the movement of an electron from the moment of precise production to the final moment of use, while synthesising that physical analysis with each relevant economic fact and legal consequence along the way. It reflected the way in which your Honour’s legal thinking has long been leavened by economics and a desire to understand how things fit together. So too, in judicial chambers, your Honour lines up all of the relevant cases in chronological hard‑copy CLR form on your desk, and works methodically through them before beginning to write reasons. It is perhaps this almost meditative technique that has produced in your Honour a constitutional sensibility.

Since your master’s thesis at Harvard, your Honour has had a vision of the function and structure of the Constitution. It has been articulated since the beginning of your time at the Bar. As junior counsel in Australian Capital Television, you conceived an argument, developed and delivered by Sir Maurice Byers QC, and accepted by this Court concerning the implied freedom of political communication. The articulation of that vision continued throughout your Honour’s time as Senior Counsel and then as Solicitor‑General of the Commonwealth. The judgments that your Honour has and will author and join in this Court, both as Justice and now as Chief Justice, will extend your significant contribution to federation as a process.

Your Honour’s contribution has not, of course, been confined to the constitutional. Appearing as Senior Counsel in Toll v Alphapharm, a contract case, leading A.S. Bell of junior counsel, attention was drawn in argument to a chapter you had contributed to a volume edited by the Honourable Paul Finn which, it was suggested, worked against your argument in that case. Having carefully explained why it did not have that effect, this exchange occurred, Mr Gageler concluding:

In any event, your Honours, that was my romantic period.

GUMMOW J: We are in a classical period now.

MR GAGELER: Yes.

Sir Matthew Hale’s final resolution, number 18, was “To be short and sparing at meals, that I may be the fitter for business.” History does not record whether Sir Matthew Hale practiced taekwondo or yoga, but the means of achieving judicial balance have evolved across the centuries. Your Honours, the New South Wales Bar is confident that you will be an exemplary Chief Justice, and still more that you will enjoy rightfully being in that role.

May it please the Court.

GAGELER CJ: Thank you, Ms Higgins.

Together with Mr McAvoy and other speakers from the Bar table, I begin by acknowledging the traditional owners and custodians of the land on which we are gathered. I acknowledge the Ngunnawal people and the Ngambri people who hold deep and abiding ties to this part of Australia. This being a ceremonial sitting at the seat of national government of a court having nationwide jurisdiction, I also acknowledge traditional owners and custodians of lands in all parts of the continent of Australia, of Tasmania, of the Torres Strait Islands, and of other coastal islands. I do so in the place – in the very court room – where traditional laws and customs of Aboriginal and Torres Strait Islander peoples were first recognised by the common law of Australia in the decision of this Court in Mabo v State of Queensland (No 2).

I acknowledge the presence in this court room of His Excellency the Governor‑General, former Chief Justices and former Justices of this Court, the Chief Justice of New Zealand, the Chief Judge of the United States Court of Appeals for the Sixth Circuit, the Chief Justice of the Supreme Court of each State and of the Northern Territory, the Chief Justice of the Federal Court of Australia, the Chief Justice and Deputy Chief Justice of the Federal Circuit Court and Family Court of Australia, sitting and retired judges of each of those courts and other Australian courts, the Shadow Attorney‑General of the Commonwealth, the Solicitors‑General of the Commonwealth and of each State and Territory, representatives and members of the Australian legal profession and of the Australian legal academy, members of my family – including, in particular, my father, John; two of my three siblings; my wife, Carla; our children, Elizabeth, Francis, and Benjamin – friends, other invited guests, and members of the public.

I also acknowledge the many people who are joining this ceremony remotely in other court rooms in this building as well as in other locations throughout Australia and elsewhere. They include Her Excellency the Governor of New South Wales in Sydney and, most importantly, my mother, Patricia, in Newcastle. I speak on behalf of the entire Court when I say we are honoured by the participation of all of you in this ceremonial sitting.

Mr McAvoy, Mr Donaghue, Mr McIntyre, Mr Dunning, Ms Higgins. Thank you each for your carefully crafted remarks. And, yes, Ms Higgins, I have read Sir Matthew Hale’s rules many times and I do try to abide by them.

My family’s previous most momentous engagement with the legal system was in 1814, at the Old Bailey. It did not go so well. The family journey from there and then to here and now is, I believe – and I hope will remain – a quintessentially Australian story. No one is self‑made, least of all me.

I am the product of decent, hardworking parents who raised me happily in a small rural community. I am a product of a long‑established system of local state school education. The one‑teacher primary school in the one‑room weatherboard building where my father was educated before me and where I started and completed most of my primary school education was established in 1877, barely a decade after Sir Henry Parkes’ Public Schools Act of 1866 and barely two decades after the introduction of responsible government in New South Wales. My attendance at the same local high school that both of my parents had attended, some 40 kilometres away, was facilitated by a one‑and‑a‑half‑hour each way trek most days for six years across partially‑sealed roads in a government‑funded school bus.

I am the product of a tertiary education here in Canberra at the Australian National University, established under the Chifley Government and expanded under the Menzies Government. My attendance as the first in my family and the first in my local community ever to have attended any university was made possible by the Tertiary Education Assistance Scheme introduced under the Whitlam Government. The education I was empowered to receive here was supplemented but not surpassed by my subsequent postgraduate study in the United States.

I am the product of a professional, apolitical, and efficient public service, in which I was fortunate to work at an early stage of my legal career and with which I was again fortunate to interact during the four years I spent as Commonwealth Solicitor‑General. My professional identity has been moulded by nearly two decades spent in private practice in the interim as a junior and then senior member of a skilled, ethical, independent, and increasingly national Bar.

As much as anything else, I am the product of this institution. I am steeped in its history. I recognise that I have now become absorbed into that history. My first full‑time job was in this building. So now too will be my last.

At every step that has led to this point, I have benefited from accessible structures and transparent processes which have created pathways and presented opportunities to learn and to serve. And at every step, I have benefited from the encouragement and example of individuals: some extraordinary, most delightfully ordinary, all considerate and generous. Many I thanked by name in this court room when I was sworn in as a Justice 11 years ago. The focus of the swearing‑in of a Chief Justice is properly more institutional than personal. I will therefore not repeat my earlier statements of appreciation. I will only amplify them in one respect and update them in another.

The amplification is in respect of Sir Anthony Mason, a towering figure in Australian law who has been a friend and wise counsellor for 40 years. I spoke of him 11 years ago as the exemplar of legal method and the master of judicial technique. I should then have added – and I do now add – that he was and remains the personification of sagacity. By his presence with us on the Bench today at the age of 98, he does me, my current judicial colleagues, and the institution he once led, great honour.

The updating of my earlier statements of appreciation is in respect of four successors to Sir Anthony in the office that I now hold, two of whom are also present on the Bench today. Those who are present are: the Honourable Murray Gleeson, to whose brevity and acuity I still aspire, and the Honourable Susan Kiefel, under whose dignified and courageous leadership of the Court I was privileged to serve for the past six years. I regret the unavoidable absence from the bench today of the Honourable Robert French, who welcomed me to the Court as a Justice 11 years ago and who shepherded me through the transition from legal practitioner to judicial officer. In my thoughts on this occasion is also the late Sir Gerard Brennan, whose warm personal advice I appreciated during my early years on the Court and whose well‑articulated conception of the judicial vocation has profoundly influenced my own.

The Australian Constitution establishes an integrated system of Australian courts. The constitutionally‑established system of Australian courts comprises State and Territory courts just as it comprises this Court and other federal courts created by the Commonwealth Parliament. The Constitution places this Court at the apex of that system and specifically describes it as “a federal Supreme Court”.

Having relinquished my former office as a Justice of this constitutionally‑designated federal Supreme Court, I have today assumed the distinct and unique constitutional office constitutionally designated simply as that of “Chief Justice”. I have done so conscious of the unique systemic responsibility which comes with that unique constitutional office. Sir Owen Dixon, on being sworn into the office in 1952, noted that it was Sir William Cullen, then Chief Justice of New South Wales, when addressing Sir Adrian Knox on his appointment in 1919, who first referred to the office as that of Chief Justice of Australia.

Sir Owen said in 1952 that he thought it then apparent that the judicial system within Australia was an “integral whole” and should be recognised as a “unit in judicial administration”. Delivering the first “State of the Australian Judicature” address as Chief Justice of Australia 25 years later, Sir Garfield Barwick said that it seemed to him that Australia was then slowly developing a sense of unity in the administration of the law.

The trend towards practical integration so tentatively observed by Sir Owen and Sir Garfield was to accelerate under subsequent Chief Justices. Especially after the Australia Act of 1986, the unity long perceived in constitutional theory became increasingly reflected in institutional practice. An occasion of immense symbolic significance at the time and potentially of even greater practical significance in retrospect occurred in 1993, when the Conference of Chief Justices of State Supreme Courts – which had been formed in 1962 – reconstituted itself as the Council of Chief Justices and invited the Chief Justice of this Court by virtue of that office to become its permanent chair. The membership of the Council has expanded now to include the Chief Justices of the Territories, of the Federal Court, the Federal Circuit Court and Family Court, as well as the Chief Justice of New Zealand.

The upshot is that I find myself assuming the office of Chief Justice of Australia at a time of maturation of the process of practical integration of the Australian court system.

It is also a time of emergent challenges and opportunities. Recent events across a range of comparable jurisdictions have underscored the criticality to democratic order and individual liberty of the existence of a judicial branch of government that is, and that is trusted by other branches of government and by the people to be, at once competent, impartial, and independent. Those same global events have demonstrated that those qualities are susceptible to erosion from within the judicial branch just as they can be vulnerable to external assault.

The lesson for us nationally in an increasingly interconnected world is that the time is past when the actuality and the perception of competence, impartiality, and independence on the part of the Australian judiciary can be taken for granted or can be treated as the sole concern of the political branches of government. The essential qualities of the Australian judiciary must be promoted and projected from within the Australian judiciary itself.

To that end, and to the related end of continuing to foster cohesiveness and efficiency in the administration of justice, I look forward to participating in the ongoing work of the Council of Chief Justices of Australia and New Zealand. To those same ends, I hope to work in collaboration with other national and sub‑national organisations including those which may yet come to exist.

Looking outwards from Australia, as both my predecessor the Honourable Susan Kiefel and the Chief Justice of New Zealand, Dame Helen Winkelmann, have impressed upon me, opportunities are increasingly emerging for the Australian judiciary to cooperate in a range of mutually beneficial ways with the judiciaries of other countries especially in the Asia-Pacific region. I hope to explore and, where practicable, make good on those opportunities.

My focus on the unique systemic responsibilities associated with my new office should not be thought to be at the expense of the role I have performed as a Justice and will continue to perform as Chief Justice in the discharge of the core collective responsibility of this Court for overseeing the maintenance and development of legal principle within Australia. The system‑wide perspective I bring to my new office nevertheless affects my perception of how that core responsibility is appropriately discharged.

Within our integrated system, State, Territory, and federal trial courts and State, Territory, and federal courts constituted as intermediate courts of appeal each perform distinct and complementary roles. The role of this Court as the ultimate appellate court is distinct from and complementary to both of those roles. A strength of our legal tradition is that the maintenance and development of legal principle within it depends less on legal theory than on accumulated experience. It is incumbent on an ultimate appellate court operating within such a tradition to respect and to seek to learn from the contemporary experience of the practical outworking of legal principle in other courts. And it is appropriate that such a court ordinarily confine its discretionary intervention to those cases in which some systemic benefit can be added by that intervention.

The need, in short, is to listen more than to speak, to speak only when and insofar as there is something that needs to be said, and to speak always with a consciousness of the systemic impact of what is said.

The Court will now adjourn until 2.15 pm.

AT 11.03 AM THE COURT ADJOURNED