Brennan, Retirement Ceremony CER

[1998] HCATrans 180

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  SIR  GERARD BRENNAN  AC,  KBE

AT

CANBERRA

ON

THURSDAY, 21 MAY 1998, AT 10.20 AM

Coram:

BRENNAN CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

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

The Rt Honourable Sir Harry Gibbs, GCMG, AC, KBE, former Chief Justice of the High Court

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

The Rt Honourable Sir Ninian Stephen, KG, AK, GCMG, GCVO. KBE, former Justice of the High Court

His Excellency Sir William Deane, AC KBE

The Honourable Sir Daryl Dawson, AC, KBE, CB

The Honourable John Toohey, AC

Seated behind the Bench were the following dignitaries:

The Rt Honourable Sir Thomas Eichelbaum, GBE, Chief Justice of New Zealand

The Honourable Michael Black, AC, Chief Justice of the Federal Court of Australia

The Honourable Alan Barblett AO, RFD, AE, Acting Chief Justice of the Family Court of Australia

The Honourable D.K. Malcolm, AC, Chief Justice of the Supreme Court of Western Australia

The Honourable A.M. Gleeson, Chief Justice of the Supreme Court of New South Wales

The Honourable J.Haber Phillips, Chief Justice of the Supreme Court of Victoria

The Honourable J.J. Doyle, Chief Justice of the Supreme Court of South Australia

The Honourable C.J. Cox, Chief Justice of the Supreme Court of Tasmania

The Honourable P. De Jersey, Chief Justice of the Supreme Court of Queensland

The Honourable J.A. Miles, AO, Chief Justice of the Supreme Court of the Australian Capital Territory

The Honourable B. Martin, AO, MBE, Chief Justice of the Supreme Court of the Northern Territory

Members of the Judiciary seated within the Court

The Honourable Justice Paul Finn

The Honourable Justice Daryl Davies

The Honourable Justice John Faulks

The Honourable Justice J.F. Gallop AM

The Honourable Justice Higgins

The Honourable Justice Cummins

The Honourable Justice K. Crispin

The Honourable Justice G.E. Fitzgerald

The Honourable Justice G. Davies

The Honourable Justice Pincus

His Honour Judge P. Shanahan

The Honourable Justice Neil Buckley

The Honourable Justice David Angel

Chief Magistrate R.J. Cahill

Magistrate P. Power

At the Bar Table the following persons were present:

Mr I. Barker, QC, President of the New South Wales Bar Association

Mr D.F. Jackson, QC

Mr D.M.J. Bennett, QC

Mr R. Castan, QC

Dr G. Griffith, QC

The Honourable D. Williams, AM, QC, Attorney‑General for the Commonwealth

Mr J. Gallagher, QC

Mr M.L. Abbott, QC, President of the South Australian Bar Association

Mr T. Pauling, QC, Solicitor-General for the Northern Territory

Mr E. Heenan, QC

Mr W. Bale, QC, Solicitor-General for the State of Tasmania

Mr K. Copley, QC

Mr D. Bloom, QC

Mr R. Buchanan, QC

Mr R. Gotterson, QC, President of the Australian Bar Association and President of the Bar Association of Queensland

Mr R. O’Connor, QC

Mr N. Young, QC, Chairman of the Victorian Bar Council

Mr R. Williams, QC, President of the Australian Capital Territory Bar Association

Mr W. Martin, QC, President of the Western Australian Bar Association

Mr P. Taylor, SC

Mr B. Walker, SC, President of the Law Council of Australia

Mr D. Grace, QC

Mr B. Selway, QC, Solicitor-General for the State of South Australia

Mr L. Katz, SC, Solicitor-General for the State of New South Wales

Mr R. Meadows, QC, Solicitor-General for the State of Western Australia

Mr B. McClintock, QC

Mr A. Cavanough, QC

Fr Frank Brennan, AO

Mrs M. O’Gorman

Mr D.O’Gorman

Mr T. Brennan

Mr J. Gleeson

Professor G. Carney

Mrs Gallagher

Ms R. Atkinson

Ms D. Mortimer

Mr J.D. Elliott

Mr R. Derrington

Ms K. Traill

Mrs M. Doogan

Mr D.O’Connor

Mr R. Refshauge

Mr D. Hassell

Mr M. Flynn

Dr R. Balkin

Mr A.R. Harris

Mr C.H. Goodall

Mr E. Willheim

Mr J. Stellios

Mr G. Williams

Ms M. Hole, President of the Law Society of New South Wales (Designate)

Mr A. Scott, President of the Law Institute of Victoria

Dr J. Mann, President of the Queensland Law Society

Mr J. Stirk

Ms A. Kneebone

Mr Thos Hodgson

Speakers:

The Honourable Daryl Williams, AM, QC, Attorney-General for the Commonwalth

Mr B. Walker, SC, President of the Law Council of Australia

Mr R. Gotterson, QC, President of the Australian Bar Association and President of the Queensland Bar Association

TRANSCRIPT OF PROCEEDINGS

BRENNAN CJ:   Mr Attorney.

MR WILLIAMS:   May it please the Court. 

This important occasion marks the official end of the judicial career of your Honour the Chief Justice, a career spanning a period of some 22 years.  It also marks the end of a distinguished career in the law, which saw you rise to the pinnacle of your profession and culminated in your appointment to the highest judicial office in Australia.  On behalf of the Government, it gives me very great pleasure to salute your Honour as a distinguished Australian jurist and as Chief Justice of the High Court of Australia.

As the Court’s tenth Chief Justice, you have led the Court to the brink of the twenty‑first century.  During the period of your leadership the Court faced a number of challenging issues, issues of vital important to all strata of Australian society and to the shaping of the nation.  Your Honour has carried out the duties of Chief Justice with great distinction - with intellectual rigour, diligence and integrity.  Your unfailing humility, courtesy and patience have made an indelible impression on all who have been fortunate to meet, or deal with you, whether in a professional or personal capacity.

Your Honour’s family links are with Ireland and Maryborough in Queensland.  Between the 1860s and the 1900s, Maryborough was a significant port of entry into Australia for immigrants from Ireland.  Your Honour’s widowed great-grandmother brought her five children (2 boys and 3 girls) from Ireland to Australia, disembarking at Maryborough.  One of the girls, Catherine, subsequently married Martin Geraghty.  Martin Geraghty, together with Catherine’s brother, Patrick Brennan, opened a store trading in grocery provisions and known as Brennan and Geraghty’s store. 

One of Catherine’s older brothers, also called Martin, your Honour’s grandfather, worked for Brennan and Geraghty from 1871 until 1875 when he opened his own store and engaged in the grocery business.  Today, Brennan and Geraghty’s store in Maryborough is a significant museum of commercial and social history in Australia.  It is preserved by the National Trust which purchased the store in 1975 and opened it as a museum in 1991.

Your Honour apparently never sought to pursue a career as a grocer.  Instead, your career followed that of your father, Mr Justice Frank Brennan, a Queensland Supreme Court judge.  Your were, for a time, his associate.  After his death in 1949, you came to Canberra to work for a short time as an assistant registrar at the Australian National University before returning to Queensland to become associate to the Honourable Mr Justice Kenneth Townley, a judge of the Supreme Court of Queensland. 

As a consequence of your position as associate to Justice Townley, you had an early introduction to international legal issues.  Justice Townley was commissioned to preside over an Australian military court established under the War Crimes Act 1945. The then well-known “Manus Island war crimes trials” were held on Los Negros Island in the Admiralty Group in 1950. Your Honour’s involvement with the trials could not but have had a tremendous impact on the young 23‑year old associate you then were.

Your Honour was admitted to the Queensland Bar in December 1951.  You were now ready to pursue a diverse career in private practice as a barrister - to “tread the boards” as, I understand, you have been wont to advise others to do. 

From the time of your admission as a barrister, your Honour excelled in advocacy and you quickly built up a comprehensive knowledge of the common law and constitutional law, and a specialist knowledge of administrative law.  Your Honour took silk in 1965, and later became a Queen’s Counsel in New South Wales, the Northern Territory, Papua New Guinea and Fiji.  Your membership and association with the Queensland Bar led ultimately to your election to the presidency of the Queensland Bar Association from 1974 until 1976, and as President of the Australian Bar Association from 1975 to 1976.

As a practising barrister in Queensland, your Honour became one of that State’s most sought after advocates.  Your Honour successfully represented the Fijian Sugar Farmers’ Alliance Party in Lord Denning’s arbitration in the Fiji sugar industry in 1969.  This representation was singled out for special praise by Lord Denning.

Your Honour was one of the first lawyers to argue the case for Aboriginal land rights.  As senior counsel, you represented the Northern Land Council before the Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory in 1974. 

In 1976, your Honour became the first President of the Administrative Appeals Tribunal, and Chairman of the Administrative Review Council.  The Tribunal distinguished itself as an arbiter of the rights of citizens in the review of administrative decisions, while the Council provided advice to Government on strategic and operational matters relating to our system of administrative law.  The success of both bodies in those early years was in no short measure due to your Honour’s wise counsel and fine leadership.

From 1975 until 1977, you were a part‑time member of the Australian Law Reform Commission.  In 1976, you were also appointed a judge of the Australian Industrial Court and an additional judge of the Australian Capital Territory Supreme Court, followed by an appointment, in February 1977, as a judge of the newly established Federal Court of Australia.  You contributed significantly, with your fellow inaugural judges, in developing the fine reputation the Federal Court enjoys.

Your Honour was appointed to the High Court in 1981 and you served as a Justice of the Court until 1995 when you were appointed as Chief Justice on the retirement of Sir Anthony Mason.  Your Honour’s appointments as a Justice and as Chief Justice of the High Court were universally welcomed within the legal fraternity and the wider community. 

In the approximately 17 years that your Honour has been a member of this Court, there have been many changes affecting it.  When you were sworn in in 1981, there was a significant volume of trial work and the High Court was, to some extent, in competition with the Privy Council.  Trials have now all but gone, and Privy Council appeals have definitely disappeared.

That appeals to the Court should only be by special leave was not approved by the profession when introduced in 1984.  It is to the credit of the Court that no suggestion of the Court using special leave to set an agenda could be sustained.  The Court has, for some 10 years now, had administrative independence with collegiate responsibility and a single line budget.  This has given the Court independence as to its expenditure, even if discussions with the Executive arm of government as to what figures feature in this single line cannot be avoided.

The nature of cases heard by the Court has changed.  Constitutional cases continue.  Otherwise, the Court has increasingly been dealing with public law issues; matters involving governments, rather than issues between private citizens.  The Court has, during your time as a member, continued to make landmark decisions - some contentious, but many not.  The increased proportion of public law cases heard by the Court suggests that the Court will be dealing in the future with a significant number of cases which will be germane to contemporary political debate.

It is encouraging that under your Honour as Chief Justice the Court has continued to be visibly a national Court.  The Court sits in Melbourne and Sydney to hear special leave applications, and recently has sat in Brisbane also for that purpose.  Video link hearings of special leave applications are heard from Adelaide, Brisbane, Darwin, Hobart and Perth.  Importantly, the Court has continued to travel to hear appeals in Adelaide, Brisbane, Hobart and Perth when business justifies it.  Exposing the Court’s human face to the judiciary and the legal profession in these cities is, as your Honour well knows, very much appreciated in those places.  This is particularly the case if there is no member of the Court normally resident in the relevant State.

Your Honour’s predecessor as Chief Justice, Sir Anthony Mason, who I am pleased to see here today, was concerned to increase public understanding of the role of the Court and its relationship with other arms of government.  I suspect your Honour’s natural inclinations were to avoid a personal profile but you have ably shouldered this responsibility.  You have consistently presented to the public an objective picture of the Court and its role and vigorously defended its independence.  In doing so you have been careful to articulate the limitations on judicial powers and to respect the functions of the other arms of government.

As Attorney-General I have, for more than two years, had the privilege of dealing with your Honour on matters relating to the relationship of the Court and the Executive.  There have been occasions when the Court and the Government have not been in agreement.  In all discussions you have put the Court’s view firmly and fairly with the utmost courtesy and civility.  I am personally very grateful for having had such cordial contact with your Honour.              There were,
of course, matters on which there was agreement and I am pleased, as I am sure you and the other Justices of the Court are, that fixing a leaking roof of the Court was one of them.

There has been much attention in the media over the differing views you and I have had on one or two issues.  While differences of opinion between arms of government are probably inevitable in a healthy democracy, I am pleased that they have not in any way inhibited the maintenance of the co‑operative relationship.

In retirement, I know that your Honour will maintain a busy lifestyle.  You have a keen interest in fostering international human rights, greater regional co‑operation on judicial matters and the sharing of information on methods of administering the law in the respective jurisdictions.  Over the years you have built up strong and lasting friendships with judges around the world, particularly in New Zealand and Canada and lately in the Asian region. 

Your Honour has accepted appointment as Foundations Scientia Professor at the University of New South Wales and will join that University’s Faculty of Law in the middle of the year.  I wish you every success in that new and distinguished role.

I understand your Honour intends to move to Sydney in retirement rather than remain in Canberra or return to Queensland.  One of the benefits of this particular move will be to allow you closer contact with many of your seven children and twenty-one grandchildren. 

As your retirement has approached, the analysis has begun of the role of the Brennan Court of 1995 to 1998.  I do not want to contribute to that.  What should be said is that your many scholarly judgments will stand as a monument of your dedication, your industry and your integrity.  It is not a criticism to recognise that glimpses of your Honour’s personality can be discerned in your writings.  Your profound respect for the law, your social conscience and belief in human dignity, your support of individual rights and responsibilities and your faith and your humility are there.  And, of course, your exceptional legal ability is also reflected in what you leave behind.

It is not without reason that when your Honour was sworn in as Chief Justice you made special mention of the oath of judicial office you had just taken:  “To do right to all manner of people according to law without fear or favour, affection or ill will”.  For any person appointed to judicial office you will be a model of one for whom commitment to that oath was a touchstone of your judicial life. 

Your Honour leaves the Court as you came to it, with the support and love of your wife Lady Brennan and your family, your colleagues and your staff.  You leave with the deep respect, admiration and gratitude of the Government, the judiciary, the legal profession and the people of Australia. 

On behalf of the Government and myself, I extend very best wishes to your Honour, to Lady Brennan and to your family.  I trust your transition to retirement will be a pleasant one and that you will continue to enjoy good health and happiness for many years to come. 

May it please the Court.

BRENNAN CJ:   Thank you very much, Mr Attorney.  Mr Walker.

MR WALKER:   May it please the Court.  On behalf of the Law Council of Australia, and thus on behalf of the professional associations and societies representing the practising lawyers of this country, I am honoured in this gathering to offer to your Honour our thanks, our congratulations and our best wishes upon your retirement.  As the learned Attorney has pointed out, this is the end of a phase, not the end of a career, but it is, of course, at the end of a climactic phase that we are gathered to honour you.

The Law Council of Australia, in its role as a federal combination of the lawyers of this country, has also benefited directly from your Honour’s contribution to the profession and to this country.  In 1974 and 1976, by dint of your leadership role with the Queensland Bar, about which the Attorney has made mention, your Honour served on the Law Council of Australia Executive.  That was a time, the mid-seventies, which became for your Honour and for the country, and perhaps not coincidentally, a great time of legal change.  It was not long after your Honour’s service on the Australian Law Reform Commission and as President of the Administrative Appeals Tribunal, that the golden age of the modern developed administrative law of this country, in statutory form, commenced, and commenced at a pace which leaves those who had to read it as law students, those who had to keep up with it as young practitioners and those who now look back on it for an historical sweep, bedazzled by the energy which those who worked in it displayed.  Your Honour was foremost in those efforts.

After your Honour was appointed to this Court in 1981, your administrative law skills, your attachment to principle and your insistence that administrative law and public law generally was the way in which the legal profession could contribute its peculiar role and benefit to a society which valued the rule of law, came to the fore in a series of judgments which do not need my exposition.  They are, and will remain, for the foreseeable future, constant resources for those who wish to learn and argue administrative law in this country.

Of course, your Honour was no narrow specialist, and in reflecting the broad sweep of your practice at the Queensland Bar, your Honour’s judgments in the Federal Court and in the High Court have reflected a breadth of learning and a breadth of human understanding which has stood all those who have been litigants before your Honour and all those who have been counsel before your Honour in great stead.

During your three years as Chief Justice, of course, that is, leading a collegiate court, what the Law Council in particular would like to single out for recognition is the way in which you continued the work of your immediate predecessor to cope with the mounting, the inexorably mounting, workload of this Bench.  It is, of course, a reflection - but, like a reverse food‑chain, a magnified reflection - of the increased workloads of all the other courts and tribunals in the pyramid at the apex of which sits this Court.

The learned Attorney has referred to the recourse which must be had to special leave to appeal as some kind of filtering control so as to prevent this Court from having all its time and energy absorbed by interlocutory or administrative matters rather than by the important matter of deciding substantive disputes.  Mr Gotterson and I have had personal experience of just one example of the way in which your Honour sought to match the apparently impossible tensions between this Court’s splendid record of care devoted to every single case which was sought to be brought to this Court, and the efficiency which, of course, must be served if not more than 25 per cent of this Court’s sitting time is to be devoted to hearing special leaves.

The way in which your Honour consulted; the tenderness which your Honour, with your other colleagues, showed for the peculiar difficulty of litigants in person; and the importance which your Honour insisted ought to be given to the right of litigants to be heard, albeit only in a special leave application, is one which will continue, we hope, a theme of this Court’s procedural reforms and continuous re‑examination of its procedures after your Honour’s retirement.

Technically, of course, your Honour has continued the trend of this Court with the latest contribution being the so‑called media‑neutral form of releasing judgments, which together with Internet publication, has both revolutionised access to this Court’s work and will, in the view of the Law Council, show this Court to be an example for the common law world generally.

Above all, those who have appeared before you, those who have prepared cases in which your Honour has presided will recall this of your Honour’s Chief Justiceship:  that there was never any doubt which personage controlled the procedures in the Court during the hearing.  There was a firmness which is valued by everyone, particularly the course of the contest.  But, there was a humanity, a courtesy, a gentleness, and a sparing of those who needed help, which will be remembered by all of us who both benefited from that and witnessed others benefiting from it.

A memory shared with me very recently by a very senior practitioner, who recalls your Honours last days at the Queensland Bar, included the image of your Honour graciously agreeing to be photographed, as it were for a souvenir, with your client, a dreadfully injured young woman whose case you had managed to win, and to win well.  There was, even in those days before your elevation to your great offices, a feeling among those litigants and that litigant’s family, that it was perhaps an impertinence to seek a photograph of your Honour in that fashion.  But this senior solicitor recalls the graciousness, the friendliness and the warmth with which all those inhibitions were put to rest by your Honour’s style which, if your Honour will forgive me, was described by the solicitor as more a social worker than a Queen’s Counsel.  The law, I think, suffers by that comparison.

The abiding impression one has after all those years of great offices following that anecdote is that albeit on the national stage and on the international stage, your Honour has continued that same humility, that same warmth, and that same willingness to mix with all manner of men and women.  May it please the Court.

BRENNAN CJ:   Thank you very much, Mr Walker.  Mr Gotterson.

MR GOTTERSON:   May it please the Court.  It is my privilege to speak this morning on behalf of the Australian Bar Association and of the Bar Association of Queensland in farewelling your Honour as Chief Justice of Australia.  Your appointment to this office had unique significance for both organisations.  You are the first Chief Justice of Australia to have been a President of the Australian Bar Association and the first to have been President of the Bar Association of Queensland.  In the mid-1970s, your years as National President, independent bars were very well established in some States.  In others, of course, they did not exist at all or were just beginning to emerge.  Now there are independent bars in every State and Territory.  All are affiliated with our national organisation.

I can truly claim that what I say today I say on behalf of the members of all of the bars throughout the Commonwealth.  At midnight tonight your Honour retires from a great office of leadership in this nation.  At the Bar you led in an energetic and a principled way, and so it has been as Chief Justice.  Your Honour brought to this office an outstanding legal intellect complemented by an astonishing capacity for toil and an apparently inexhaustible enthusiasm for it.  By combining these talents you set the fine example which has been a hallmark of your leadership of this Court. 

Your Honour’s energy was never spent in an undisciplined or an inefficient way and, not unexpectedly, the economical use of the Court’s time and the Court’s resources has been a major concern for you and to this end your Honour initiated a number of measures which have streamlined the disposal of the Court’s business.  Procedurally, there have been the allocation of fixed times for counsel, especially the large cases in the original jurisdiction and the new arrangements for hearing of special leave applications.  Your Honour is computer skilled and you have overseen the adaptation of Court facilities and processes to the age of electronic transmission and storage of information.

But it is to the principles that have guided your Honour’s leadership that the observer is irresistibly drawn.  They are readily recognised and I wish to mention several of them this morning.  Your Honour has a profound respect for the dignity and worth of each individual.  For you it is very much the business of the law that these essential ingredients of human kind be properly recognised and adequately protected.  No more clearly do we see this principle stated and applied than in your reasons for judgment in Marion’s Case.

Your Honour has an extraordinary sense of fairness.  Those who have come within your field of authority, be they litigants, other judges, legal practitioners, associates or registry staff, will confirm that your Honour respects the principle of fair play and applies it with scrupulous care.  No favourites of counsel or of causes were played in your Honour’s Court.  With your judicial colleagues you ranked first but dealt with them all as equals.  No doubt this sense of fairness has prompted your Honour’s recent public statements on the virtue of independent merits review of executive action.

A third principle is that the independence of the judiciary is critical in the administration of justice.  Public confidence in the courts is based on faithful adherence to the law by an independent judiciary.  By its decisions the High Court has rigorously maintained the separation of judicial from legislative and executive powers and the separation of judges from political activity.  In your term as Chief Justice your Honour has spoken both inside and outside the courtroom to remind the nation that judicial independence is indispensable in the modern democratic State.  But none of these principles are just for judicial office.  You take your respect for them with you just as you brought it here. 

You also take your ready sense of humour and your noted talent for mimicry, especially of an Irish accent, that has illustrated many of your impressions of the legal personalities of your early days in Rockhampton and then in Brisbane.  Your Honour will be remembered for all of these attributes and you will be remembered too for your unbecoming humility, the kind of humility that allowed you to deflect the inevitable question from strangers with this answer, “Oh, I work in the Public Service.”

Well, in one sense your Honour certainly did.  The people of Australia are much the richer for your great service to them.  To you, Chief Justice Brennan, and to Lady Brennan, may I extend the very warmest wishes for a long and happy retirement.  If it please the Court.

BRENNAN CJ:   Thank you all for the extremely generous remarks you have made.  Your submissions are usually much more accurate but, enjoying the extravagant spirit of the occasion, I propose to accept them in their entirety, though I would act upon them at my peril.

I must say in the first place that I am delighted that we are sitting here today, Mr Attorney, in a courtroom, the roof of which does not leak.  It was not ever so and, indeed, on the last occasion when I presided in this Court, counsel, and I fear sometimes the Justices, were distracted by the signs of slithers of silver coming down from the roof and landing somewhere between the Bar table and this Bench.  That has now happily come to pass.  As to the products that this grocery shop may produce from time to time, I hope they are to the likings of the customers.

I accept the submissions that you have made because they are offered as an expression of respect by Government, by the legal profession and by the Australian Bar for the holder of the office of Chief Justice.  Respect for that office and for the Court in which the Chief Justice presides is a condition of the Court’s ability to discharge effectively its constitutional duty to quell disputes by the application of the law.  Occasions of this kind, though they tend to focus on the incumbent of the office, have a wider significance when they are seen as a public declaration of respect for the institution.

On behalf of the Court, I welcome the large and distinguished gathering in attendance here this morning.  First, I welcome his Excellency, the Governor General and Lady Deane.  I was privileged to sit with His Excellency on this Court and on the Federal Court of Australia for many years.  They were years of intense legal interest and, I venture to believe, they fostered an abiding friendship.  I thank him and Lady Deane for choosing to be with us today in the character of beloved colleagues, recapturing for the moment the common period of judicial service.

I welcome the President of the Senate and the Speaker of the House of Representatives who, by their presence, affirm on behalf of the parliament as I affirm on behalf of the Court, the mutual respect which the branches of Government must have and demonstrate for the powers and functions of each.  Mutual respect is the necessary acknowledgment of the constitutional distribution of powers and the manifesting of mutual respect accords with the expectation of the Australian people.

No decision of this Court refuses to follow an expression of the Parliament's legislative will, properly construed and within power. But it must be remembered that the construction of the Parliament's statutory expression of its will, the scope of its powers and the scope of the powers which Parliament confers on the Executive Government are firmly within the jurisdiction of the courts - including, of course, this Court. That jurisdiction is basic to the constitutional separation of powers. The rules of construction and constitutional doctrine are applied by the courts for the purpose of accurately perceiving the will of the Parliament as the Parliament has expressed it and ensuring that the Constitution - the charter of the political power of the people - is faithfully observed.

I welcome his Excellency, the Dean of the Diplomatic Corps.  The links between this Court and the courts of other nations have grown in recent years.  As the courts administer the laws embodying the ethos of each nation, the better the understanding of the actual workings of a nation’s courts, the deeper the understanding of its values, its laws, its government and the relationships of its people.  In recent years, some Justices have visited overseas courts and universities to examine concepts that are current in the legal systems of other countries.  Thus the tyranny of distance and the risk of intellectual isolation has been lessened.

I welcome the retired Chief Justices and Justices of this Court.  I have been privileged to sit with each of those distinguished judges.  By their learning, integrity and intellect I have been instructed.  It is a pleasure to sit again with them at this Bench, however briefly, and to recall the friendship which accompanied the performance of our curial duties.  With them, I welcome Lady Stephen, Mrs Murphy, Lady Dawson and Mrs Toohey who have graced us in the past.

I welcome the Chief Justices of the superior Courts of the Commonwealth and of the States and Territories, whose presence here is a tangible reminder of the integration of the judicial system of this nation and of the solidarity of a national judiciary who are at one in their commitment to independence and impartiality in the administration of justice according to law.

I welcome especially the Chief Justice of New Zealand, Sir Thomas Eichelbaum who, as a member of the Council of Chief Justices of Australia and New Zealand, contributes not only the wisdom of his advice but the experience of the Courts in that country whose judicial method most closely accords with our own.

I welcome the Bar and the Solicitors of this Court on whose knowledge, insights and industry this Court heavily depends.  It is right that, as I leave this Bench, I should express my profound appreciation of the assistance I have derived from the careful preparation of cases by solicitors; from the incisive, fearless and courteous advocacy of counsel and from the illumination of problems that emerges from the joint efforts of both.  It will not be taken amiss if I note with regret the absence from the Bar table of Sir Maurice Byers, a friend of many years, who is presently indisposed.  His participation in the work of this Court was perhaps no less on that side of the Bar table than it would have been on this.

I welcome the many judicial and personal friends, including my Associates, past and present, for whose company on this day I am especially grateful.  There are many with whom I practised at the Queensland Bar, including Sir Dormer Andrews, latterly Chief Justice of Queensland.  He admitted me to his chambers and his advice 46 years ago.  It is a pleasure to see these friends here today.

I will be pardoned for not expressing publicly sentiments about my family ‑ my wife, my children and their spouses, my grandchildren and my sisters.  Those sentiments belong to the deep intimacies of family life and they cannot be shared without depreciation of the gratitude I owe and the love I bear them.

Finally, I welcome the members of the public who come to this Court, as they do to every court in the Commonwealth, as of right.  It is for the service of the people that the courts are created and perform their functions.  The courts sit in public, think and write in private, then publishes to all the world their decisions and their reasons.  No other branch of government responds so unfailingly to every application within its jurisdiction nor gives so adequate an explanation of the reasons for its decisions.  The courts must be available to serve the litigants by quelling their disputes, else raw power prevails untrammelled by the rule of law.

The agenda of the courts are defined by the litigants.  The courts decide the controversies that the people bring to the courts for decision.  They are the people's problems.  The Court has no agenda of its own.  But, as the issues that arise for decision are contemporary issues arising in contemporary circumstances, the work of the Court in each generation reflects that generation's concerns.

Patterns of litigation are not hard to perceive, especially in the area of public law.  In the years between the two World Wars, when the sense of Australian nationhood was gaining firm ground, there were controversies about the extent of Commonwealth legislative power; in times of war, the focus of litigation was often on the scope of Commonwealth power in respect of defence; in the period since the Second World War, which has seen a massive growth in governmental regulation and governmental benefits, the law of judicial review of administrative action has been greatly developed; then the growing community and international concerns with human rights and with the environment have evoked major judicial examination of the relevant laws.  It is foreseeable that the growth of international law, the negotiation of treaties on a wide diversity of subjects and the legislative incorporation of international instruments in domestic statutes will give rise to an expanded jurisprudence affecting the relationship between international and domestic law.  Thus the cases that are brought forward for determination can be related to the social issues of the time.

They are brought forward by litigants seeking a resolution of their  disputes; and so it is with every case.  The Court's role is responsive to the invocation of its jurisdiction.  One of the advantages of the Court's responsiveness is that it is kept abreast of contemporary issues - not by formulating an agenda but by the demands of the litigants.  Then the Court must find and apply the relevant legal rule to resolve the dispute - not a rule to fit a particular case on the day of judgment but a general rule in terms which can be applied in contemporary litigation to resolve all contemporary controversies of the same kind.

The courts do not have a free hand in formulating the rules to be applied. The courts are bound by the text of the Constitution, by the terms of a valid statute and by the history and precedents that constitute what I once called "the skeleton of principle which gives the body of our law its shape and internal consistency.

In construing the Constitution, this Court has had to construe the spare text in order to answer contemporary problems. It was always intended that it would be so. 96 years ago, when Attorney-General Deakin spoke on the second reading of the Judiciary Bill for the constitution of this Court, he observed that:

"the nation lives, grows, and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. The organ of the national life which, preserving the union, is yet able from time to time to transfuse into it the fresh blood of the living present, is the Judiciary. ... It is as one of the organs of Government which enables the Constitution to grow and to be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates."

At first, the founding Justices, whose portraits hang above us in this Courtroom today, read the text of the Constitution through the prism of their experience in securing the approval of six self-governing colonies to bring the Commonwealth into being. It was understandable that they should do so. Reading the text through those eyes, they espoused the doctrine of State reserved powers and implied immunities.

In time, with the First World War, the economic and commercial integration of the States and the growing sense of national identity, the doctrine of reserved powers was discarded in the Engineers' Case. Changing conditions exposed the true meaning of the text. Sir Victor Windeyer, in the Payroll Tax Case, explained that the discarding of the doctrine of the implied immunity of the States occurred “because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs”.

In recent times, this Court has looked to the history of the constitutional text to identify the subject to which the language is directed and the nature and objectives of the federal movement. It has looked to the purpose of a provision so far as that can be elicited from the text. It has sought to examine the Constitution with that strict logic and high technique of which Sir Owen Dixon spoke. That is the judicial method that keeps the law in a state of good repair.

When the courts are dealing with the common law - the law created and developed at first by English judges and, in more recent times, chiefly by Australian judges - the rules of law have been changed in response to changing circumstances.  It must be so, else the law would moulder into irrelevancy or, worse, produce or perpetuate injustice.  Sometimes the argument is advanced that the renewal of the common law in the hands of the judges is a new departure - an attempt at social engineering that is at odds with Sir Owen Dixon's rigorous insistence on “strict and complete legalism”.  It should be remembered that the strict and complete legalism of which Sir Owen spoke pre-supposed - to use his own words - the existence of “a definite system of accepted knowledge or thought and that judgments and other legal writings are evidence of its content”.  But the law is not an ever-expanding cosmos containing rules for the solution of the problems of every generation and awaiting only a judicial telescope to capture their text.  As each generation faces new problems, the rules must be crafted by the judges of the time.

This is pre-eminently the work of the High Court.  If the law already provided a full panoply of appropriate and applicable rules, the occasions for this Court's interventions would be few indeed.  But the Court cannot refrain from determining matters within its jurisdiction simply because a new rule has to be devised for the purpose.  To perform this function the Justices must master the existing authorities and from them elicit the underlying principle.  In some cases it is necessary to perceive, if not to articulate, the community value which gives vitality to the law in question.  Then, provided the value is consistent with enduring community values, the principle must be re-examined and, if need be, it must be restated in contemporary terms that can be integrated with other legal principles and a new rule, appropriate to the case in hand and expressed to apply to the instant and future similar cases, is formulated.  This work, though conceptual in nature, requires more than intellectual rigour.  It requires the wisdom which each Justice must bring to the task.

It has been my privilege to engage with and to be stimulated by the colleagues, past and present, who sit with me this morning.  It has been a privilege impossible to convey in words for it is based in the acknowledged integrity and industry of colleagues whose work is done in the privacy of their chambers and in the isolation of each judicial conscience.  The increasing burden of work places great strains on the judicial resources.  The devotion of my colleagues to their duties has been a continuing encouragement in the performance of my own.

For the years of intellectual stimulation and personal friendship which I have enjoyed on this Court I give my thanks to my judicial colleagues past and present.

I thank the Chief Executive and Principal Registrar, Mr Christopher Doogan, whose efficiency and advice have steered the administration of this Court during my term as Chief Justice.  I thank the Registrars and their staffs who keep the machinery of the Court in efficient working order.  I thank the administrative staff and the attendants who introduce the visiting public to this building.  I thank my personal staff including the Associates who have worked so constructively with me on judgments in this Court, in the Federal Court and in the Administrative Appeals Tribunal.  I thank especially for her loyalty and devotion Ms Nessie Birchley, who has been with me all the years on this Court, and I thank Mr Luigi Cartolano, not only for transport but for friendship.  And most of all I thank the people of Australia for the opportunity of being a member of, and presiding over, a Court which exercises its authority not to control but to serve; not to achieve a policy objective but to maintain a society where peace, order and good government are based on the rule of law. To have contributed to that endeavour has been a high honour and if, to some extent, that contribution has been beneficial, I am fortunate indeed.  And if it be found that, unremarked by the generous comments from the Bar table, I have committed errors or made omissions, my only explanation can be:  I did it my way.

I extend my warm congratulations to Chief Justice Gleeson as he assumes this office on the morrow.  He will find it a challenge but, I doubt not, like me he will find it a privilege.

The Court will now adjourn.

AT 11.08 AM THE COURT ADJOURNED