Ceremonial - Brennan, CJ - swearing-in of Chief Justice - CER

[1995] HCATrans 96

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 SIR FRANCIS GERARD BRENNAN, AC, KBE

AT

CANBERRA

ON

FRIDAY, 21 APRIL 1995, AT 10.17 AM

Coram:

BRENNAN CJ
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

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

The Honourable Sir Anthony Mason, AC, KBE, immediate past Chief Justice of the Court

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

The Honourable Sir Ronald Wilson, AC, KBE, former Justice of the Court

Seated behind the Bench were the following dignitaries:

The Honourable M.E.J. Black, Chief Justice of the Federal Court of Australia

The Honourable Sir Guy Green, AC, KBE, Chief Justice of the Supreme Court of Tasmania

The Honourable L.J. King, AC, Chief Justice of the Supreme Court of South Australia

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

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

The Honourable J. Macrossan, AC, Chief Justice of the Supreme Court of Queensland

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

The Honourable A. Nicholson, AO, Chief Justice of the Family Court of Australia

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

The Honourable J.F. Gallop, Acting Chief Justice of the Supreme Court of the Australian Capital Territory

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

At the Bar Table the following persons were present:

The Honourable M. Lavarch, MP, Attorney-General for the Commonwealth of Australia

Dr G. Griffith, AO, QC, Solicitor-General for the Commonwealth

Mr J.J. Doyle, QC, Solicitor-General for South Australia

Mr W.C.R. Bale, QC, Solicitor-General for Tasmania

Mr K. Mason, QC, Solicitor-General for New South Wales

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

Mr P.A. Keane, QC, Solicitor-General for Queensland

Mr D. Graham, QC, Solicitor-General for Victoria

Mr P.A. Panegyres, Acting Solicitor-General for Western Australia

The Honourable R.J. Ellicott, QC

Sir Maurice Byers, CBE, QC

Mr J.D. Merralls, QC

Mr D.F. Jackson, QC

Mrs S. Crennan, QC, President of the Australian Bar Association

Mr S. Fowler, President of the Law Council of Australia

Mr W. Sofronoff, QC, President of the Bar Association of Queensland

Mr M. Tobias, QC, President of the New South Wales Bar Association

The Honourable J.W. Shaw, QC, Attorney-General for New South Wales

Mr G. Humphries, MLA, Attorney-General for the Australian Capital Territory

Mr C. Pullin, QC, President, Bar Association of Western Australia

Mr D. Habersberger, QC, President of the Victorian Bar Council

Mr J. Kable, QC, representing the President of the Bar Association of Tasmania

Mr D. Clayton, QC, President of the Law Society of South Australia

Mr G. Richardson, SC, President of the Australian Capital Territory Bar Association

Mr D. Horton, QC

Mr F. Callaway, QC

Mr W. Hodgman, QC

Mr J. Mansfield, QC

Mr K. Copley, QC

Mr J. Spigelman, QC

Mr M. Rozenes, QC

Mr J. Heydon, QC

Mr G. Zelestis, QC

Mr J. Garnsey, QC

Mr J. McKechnie, QC

Mr A. Sullivan, QC

Mr C. Barry, QC

Mr S.D. Robb, QC

Mr D. Rose, QC

Mr B. Walker, SC

Mr M. Joseph, SC

Mr M. Oakes, SC

Mr R. Clynes, President, Law Society of the Australian Capital Territory

Mr R. Smith, President, Law Institute of Victoria

Mr M. Stack, President, Law Society of New South Wales

Ms J. Schafer, representing the Queensland Law Society

Mr A. Melick, representing the Law Society of Tasmania

Speakers:

The Honourable M. Lavarch, MP, Attorney-General for the Commonwealth

Mr S. Fowler, President, Law Council of Australia

Mrs S. Crennan, QC, President, Australian Bar Association

Mr W. Sofronoff, QC, President, Bar Association of Queensland

TRANSCRIPT OF PROCEEDINGS

BRENNAN J:   Your Honour Justice Deane, I have the honour to announce that I have received a commission from His Excellency, the Governor-General, appointing me Chief Justice of the High Court of Australia.  I present you with that commission.

DEANE J:   Mr Principal Registrar, please read the commission.

PRINCIPAL REGISTRAR:

I, WILLIAM GEORGE HAYDEN, Companion of the Order of Australia and Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution, hereby appoint the Honourable SIR FRANCIS GERARD BRENNAN, Companion of the Order of Australia, Knight Commander of the Order of the British Empire, a Justice of the High Court of Australia, to be the Chief Justice of the High Court of Australia for the term commencing on 21 April 1995 and expiring on his attaining the age of 70 years.

Signed and sealed with the Great Seal of Australia on 29 March 1995, Bill Hayden, Governor-General by His Excellency’s command, Michael Lavarch, Attorney-General.

DEANE J:   I ask you to take and then to subscribe the Oath of Allegiance and of Office.

BRENNAN J:   I, Francis Gerard Brennan, do swear that I will bear true allegiance to Her Majesty, Queen Elizabeth II, Her Heirs and Successors, according to law, that I will well and truly serve Her 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.

DEANE J:   Mr Principal Registrar, I direct you to enter the commission and the subscribed oath in the records of the Court.

PRINCIPAL REGISTRAR:   Yes, your Honour.

DEANE J:   Chief Justice, I now invite you to proceed to discharge the duties of your office.  You do so with the unqualified goodwill, the continuing friendship and the complete support of myself and every other Justice.

BRENNAN CJ:   Mr Attorney.

MR LAVARCH:   May it please the Court.  It is my very great privilege to welcome your Honour as you assume today your office as the tenth Chief Justice of the High Court of Australia.  It is, of course, no doubt a matter of enormous pride to your Honour to assume such a high office and can I say that it is also a matter of enormous pride, I think, to the entire Australian community that you also assume this office.

Your appointment comes at an important time, of course, in Australia’s history.  We are, as we reach the last years of this century, grappling with a number of very major issues about Australian identity, about where Australia’s future is in the world.  We deal continually with basic questions of our economic direction and a range of important social issues.  Inevitably these issues will come in some form or another to this Court.  Some version of all these great debates will be played out, to some extent, before this Court, and it is a very great responsibility you now assume in terms of the leadership which you must give to the Court, in terms of the Court’s handling of these great and sensitive matters.

Like myself, your Honour hails from the State of Queensland and you are, indeed, now the third Queenslander to assume the office of Chief Justice.  You follow in the footsteps of Sir Samuel Griffith and Sir Harry Gibbs and I can relate to your Honour it is a matter of great pride to the people of my State that you have assumed this office.

Your early education began in what is now known as the Cathedral College in Rockhampton.  It was St. Josephs Christian Brothers School when you attended the college.  As I was able to relate recently to your Honour, I had the good fortune to actually visit your old primary school about one month ago.  At the time I was not aware that your Honour had attended the school until I entered the main assembly hall and noticed there a large honour board which listed all the former school principles and, alongside it, two photographs of the two most prominent old boys of St. Josephs.  One was of a rugby league footballer and the second one was of your Honour.  Now, this immediately impressed me that you had made such an impression on your old school that they ranked you alongside a rugby league footballer.

Can I say that not only is the pride of my State shared, I think, throughout the nation, but the school in particular did wish to have me pass on their kind regards.  In fact, I will present to your Honour at morning tea some mementos which the school have forwarded down to me.

Your Honour’s interest in education has been a long standing one.  After completing your primary schooling at Rockhampton, you continued on at Downlands College in Toowoomba.  You then studied at the University of Queensland and graduated in Arts and Law.  Your interest in student affairs was recognised in 1949 when you were elected President of the National Union of Australian University Students.  You began your legal career as an associate to the Honourable Justice Townley who presided over the War Crimes trial held off Manus Island off Papua New Guinea.  In 1951, your Honour was admitted to the Queensland Bar and built up a practice in Brisbane.  You were appointed a Queens Counsel in Queensland in 1965.  Subsequently you became Queens Counsel in New South Wales, the Northern Territory, Papua New Guinea and Fiji.  During 1965 you also became a member of the Committee of the Queensland Bar Association and ten years later became the Association’s President.  You were also President of the Australian Bar Association and a member of the executive of the Law Council of Australia in 1975.

When practicing at the Queensland Bar you accepted a number of notable briefs.  For example, you represented the Fijian Sugar Farmers’ Alliance Party in Lord Denning’s arbitration in the Fiji sugar industry.  You represented the Northern Land Council before the Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory.  You also appeared as senior counsel for the respondents before the Privy Council in the case of Cudgen Rutile v Chalk on appeal from the Full Court of the Supreme Court of Queensland and your Honour was successful before the Privy Council.

As a member of the executive of the Law Council of Australia you acted as Chairman of the Law Council’s co-ordinating committee for the drafting of the Criminal Code for the Commonwealth Territories. In 1976 your Honour was appointed as the first President of the Administrative Appeals Tribunal and as a Judge of the Australian Industrial Court. The enactment of the Administrative Appeals Tribunal Act of 1975 and the establishment of the Tribunal represented the very important step in providing quicker, easier and more accessible access to a review of Commonwealth decision making. You were instrumental in setting a path for the Tribunal and much of its success today is due to your early work. On the formation of the Administrative Review Council in 1976, you became its first President. That same year you were also appointed as an additional Judge of the Supreme Court of the Australian Capital Territory and of the Supreme Court of the Northern Territory. In February of 1977 you were amongst the first judges to be appointed to the Federal Court of Australia.

Your appointment to the High Court was made in February of 1981.  You were knighted later that year.  The then Prime Minister, Malcolm Fraser, paid tribute to you on that occasion of your appointment to the High Court, saying that you will bring to the Court a comprehensive knowledge of the common law, of Constitutional law and a specialised knowledge of administrative law.  Your appointment then, as now, was greeted with great support and pleasure by the legal profession which holds you in the highest esteem.  In 1988 you received the Order of Australia.  In mid-1988 your Honour renewed your links with your Irish ancestry and visited Ireland and received an honorary Doctorate of Laws conferred by Trinity College in Dublin.

Your Honour, as we remarked yesterday, the Court does face very important challenges in the next number or years.  You will be asked to continue the work which Sir Anthony Mason, I think, undertook in a ground-breaking way in terms of explaining the role of the Court and its processes to the Australian people.  As very much now, I suppose, the most public face of the Australian judiciary, you will become extremely well known to the Australian people but as, I think, your history and your experience very readily indicates, these are responsibilities which I do not think anyone has any doubt that you will shoulder very well.  Indeed, you will bring great credit to the role of this Court and I look forward, on a personal basis, to working with you on matters of interest to the Court.  I wish you well in your position.

May it please the Court.

BRENNAN CJ:   Thank you, Mr Attorney.  Mr Fowler.

MR FOWLER:   May it please the Court.  It is with much pleasure on behalf of the lawyers throughout Australia that I join in welcoming your Honour as Chief Justice of the High Court of Australia.

Your appointment has been universally warmly welcomed by the legal profession but especially by those of its members who know of your Honour’s long involvement in professional affairs through the Queensland Bar, the Australian Bar Association and the Law Council of Australia.  However, it is not just those associations that have prompted our pleasure at your appointment but the knowledge that your appointment is one that is entirely merited.  It is with special pleasure that I recall your Honour’s associations with the Law Council and I am pleased to acknowledge the presence of two former presidents of the council, Mr Mansfield and Mr Meadows, who have come to join me in paying tribute to your Honour.

Those who were involved with you in Law Council affairs recall that the personal qualities that are so essential in holders of judicial office were very apparent in you then.  Obviously, those qualities were being recognised in much wider fields because your Honour’s judicial appointments began at about that time and, as we know, took you further and further up the ladder, so to speak, until today we have the pleasure of welcoming you to the highest judicial office in this country.

You were welcomed to the Executive of the Law Council on 17 May 1974 at a meeting in Sydney, held at that time in the council room of the Law Society of New South Wales.  I hope your Honour will not become too nostalgic if I mention some of the others who were present on that day, and they were Brinsden, O’Leary, Turner, McGregor, McGarvie, Douglas, Matheson, Bennett, and there were apologies from Molomby and Cain.  That year was a very significant one.  You may recall that it was the year in which the Australian Institute of Judicial Administration was being formed with the Law Council’s support.  It was the year in which the Commonwealth Government brought forward its proposals for a legal aid scheme and I know that you took a leading role in guiding the legal profession in its response to the Government’s proposals and in its participation in legal aid.

You were also responsible, in a large measure, for the detailed proposal which the Law Council put to the Government in respect of the establishment of the Legal Aid Commission.  In 1974 there was a vigorous debate over the National Compensation Bill which was of great concern to the profession.  You will recall that there was a debate on the controversial proposal to establish a Federal Court and perhaps you will also recall that your own Bar Association, the Victorian Bar and the Law Society of New South Wales vigorously opposed the establishment of the new court saying that the jurisdiction of the State Supreme Courts should be enlarged instead.  They predicted that serious problems would be created by establishing a Federal Court and the New South Wales Law Society went so far as to say that its establishment would damage the administration of justice.

Again, in 1974 was the year in which the Law Council appointed, from a field of 27 applicants, its first permanent Secretary-General, a youngish Perth lawyer named Bob Nicholson, now Mr Justice Nicholson of the Federal Court.

I note from the minutes of the August meeting that year that you proposed that a forum on legal education in Papua New Guinea, Tonga and  Fiji be held in conjunction with the 18th Australian Legal Convention.  No doubt your experience as counsel in the inquiry into the Fiji sugar industry in 1969 and as senior prosecutor in the 1972 trial arising from the murder of the District Commission at Rabaul and the contacts you made during that period stimulated your concern and your wish to offer help to the profession in the South West Pacific area.

In 1974 the Family Law Bill was being debated.  It still is.  There was also continuing discussion on the topic of reciprocity of rights of practice throughout Australia.  I say “continuing discussion” because 38 years earlier in 1936, three years after it was established, the Law Council had unanimously supported the concept of reciprocal admission to legal practice throughout Australia.  Perhaps the minefield which the profession has had to pass in dealing with this matter will be better understood if I say that just a week before Easter this year, almost 60 years after it first supported the concept, the Law Council presented to the Council of Australian Governments a detailed plan designed to achieve and surpass the objectives it had committed itself to so long ago.

Your Honour, a strong attachment to principle has been a guiding start of your judicial life.  I am told that in your Law Council days when any matter of substance was under discussion you always sought to find the basis of principle on which the Law Council should make a decision.  That approach has also guided and informed your consideration of the matters that have come before you for decision as a judge.  No more so, I suggest, than in the judgment for which you are perhaps best known in the Australian community, Mabo.

Your Honour, the legal profession welcomes you to your high office.  It is confident that you will meet the demands of the office with the same distinction and with the same strong attachment to principle that have marked your long service as a lawyer and as a judge and we look forward to your continuing service to the law and, through it, to the community.  May it please the Court.

BRENNAN CJ:   Thank you, Mr Fowler.  Mrs Crennan.

MRS CRENNAN:   May it please the Court, it is my privilege to appear today on behalf of the Australian Bar Association representing members of all Bars throughout the Commonwealth to welcome and congratulate your Honour on attaining the office of Chief Justice of the High Court of Australia.  This appointment has been universally acclaimed by both the profession and the wider public.

Your Honour’s distinguished services to the law already, including your time as a Justice of this Court, means that your Honour’s exemplary and meticulous approach to the law is well known and widely appreciated.  Details of your long and distinguished services to the law so far have been outlined by the Attorney.  Your Honour was a member of the Queensland Bar for 25 years and a Vice-President and President of the Bar Association.  Then, in 1975 to 1976 you were President of the Australian Bar Association.  To this day, your Honour regularly attends Bar dinners in each State.  This is greatly appreciated by all the Bars and we hope it will continue.

Mention in particular has been made today of the fact that your Honour wrote the leading judgment in the Mabo case.  Res ipsa loquitur.  It should also be remembered that your Honour has reflected publicly on the judicial process.  You have recognised that “the judicial method is rigorous and with the acknowledgment that the courts make law”, you have ventured to suggest that “it has become even more patently rigorous”.  You have explained that “the reasons for judgment in the higher appellate courts increasingly look behind the legal rule to discover the informing legal principle and look behind the informing legal principle to discover the basic value.  Legal development then proceeds in the reverse order: provided the basic value is consistent with the enduring values of the contemporary community, the informing legal principle is stated in terms which are consistent with other legal principles and the legal rule is stated in terms interlocking with related legal rules”.

Such reflections by your Honour show a profound understanding of the effect of the High Court’s decisions on Australian society.  Values of personal dignity, fairness and civility inform your Honour’s judgments.  Your Honour has asserted their primacy in certain rare but critical cases even against what had been the law.  This demonstrates your Honour’s conscientious capacity to meet difficult challenges and your Honour is more than equal to the difficult challenge of leading the High Court into the 21st century.

There are two related proverbs:  “to receive the instruction of wisdom, justice and judgment and equity...a wise man will hear and will increase learning; and a man of understanding shall attain unto wise counsels”. 

Your Honour’s published reflections on the law show your Honour’s understanding of the interrelations between wisdom, justice and judgment and equity, and your Honour’s published judgments equally show your Honour’s learned understanding of the law’s precedents, that is the “wise counsels” of the past coupled with a willingness to hear, that is, to attend to contemporary values.  We have every confidence therefore that your Honour’s efforts as the Chief Justice will increase learning. 

However, your Honour’s devotion to learning has not been uniformly productive.  You, together with Lady Brennan, a medical doctor, appropriately enough were responsible for founding the Medico-Legal Society of Queensland in 1953.  It was noted at the welcome of your Honour as a Justice of this Court that after some 28 years of existence it could boast a membership of only 13.  On a more successful note, it should be said that you and Lady Brennan can boast 21 grandchildren which as medical-legal societies go appears to be well above the State average.

On behalf of those I represent may I indicate to you that the Australian Bars share your family’s great pleasure and pride in your Honour’s attaining the office of Chief Justice and we wish you a most successful and rewarding term in it.  If the Court pleases.

BRENNAN CJ:   Thank you, Mrs Crennan.  Mr Sofronoff.

MR SOFRONOFF:   On behalf of every member of the Queensland Bar and of the solicitors of the State, may I convey the warmest congratulations to your Honour on your Honour’s appointment as Chief Justice.

We have already heard that your Honour’s appointment has been warmly welcomed.  Indeed, on the day that your Honour’s appointment was announced, Queensland lawyers rejoiced although, to be perfectly candid with the Court, I should also add that that was the day Queensland won the Sheffield Shield.

After your Honour’s admission just before Christmas in 1951, your Honour’s practice as a barrister was diverse.  You handled everything from company law to criminal law.  Your success was never in doubt.  In 1967, as we have heard, your Honour prosecuted a murder case in Rabaul.  It was a notorious case, the murder of the District Commissioner.  The trial judge was Sir John Minogue.  After the case, he was heard to remark - and your Honour might not know this - “That Brennan is going to be a Judge of the High Court one day.”

Those who have known you well have been unanimous in one thing:  you have set yourself the highest personal and professional standards and have strived to exceed them.  Your old friends at the Queensland Bar remember you well.  Mr Colin Bennett, who has been in practice as a barrister now for 50 years, said of you just the other day, “He is a bright young fellow.”  He is right, you are. 

When you were a barrister in Queensland you contributed much as a leader of the Bar and, indeed, a leader of the profession and to the community of that State.  For the last 19 years you have, through your public service in the nation’s courts, continued to give much that will endure.  Now, as you take your position at the pinnacle of the Australian legal system, your old admirers and your new ones wish you well.  May it please the Court.

BRENNAN CJ:   Thank you, Mr Sofronoff.

Mr Attorney, Mr Fowler, Mrs Crennan, Mr Sofronoff, members of the Bar, Solicitors and Attornies, my dear wife and family and friends, ladies and gentlemen. 

I am grateful for the excess of generosity in the remarks you have made this morning.  It comforts me to think that I must have learnt to conceal my shortcomings in the 50 years since I first entered my father’s court to arraign a prisoner at the commencement of a criminal trial.  Picking up the indictment and misreading the name of the prosecutor for the name of the accused, I charged one of the dearest and most upright of men with the crime of rape.  Such is the camaraderie of the Bar that counsel for the accused leapt to his feet and pleaded not guilty on behalf of his learned friend.

Although your compliments sit uneasily with the truth as I know it, your words and the presence of this large gathering reveal the respect in which you, the legal professional generally and the public hold this Court and the Office which I now assume.  At a personal level, your good wishes, coupled with the loving support of my family, the valued encouragement of my judicial colleagues and the loyal devotion of my staff go far to dispel the inevitable diffidence with which I enter on the duties of Chief Justice.

My first duty is to welcome those who have honoured the Court by their attendance here this morning, especially those who have come from long distances.  The Court appreciates your participation in today’s ceremonies.  Particularly do we welcome the Right Honourable Sir Harry Gibbs and the Honourable Sir Ronald Wilson, the Chief Justices of the Federal Court of Australia and the Family Court of Australia, the Chief Justices of the Supreme Courts of the several States and Territories and the Right Honourable Sir Thomas Eichelbaum, Chief Justice of New Zealand, who sit with us today.  Strictly speaking, I should welcome also Sir Anthony Mason, but insufficient time has passed to separate him from the Court which he so lately led and which he leaves with our unfeigned respect and affection.  We welcome His Excellency Mr Martin Burke, Dean of the Diplomatic Corps, Judges of the Federal Court and of the Supreme Courts of the States and of the Australian Capital Territory, you Mr Attorney, the Attorneys-General of New South Wales and the Australian Capital Territory and the Solicitors-General of the several States and of the Northern Territory.

Today’s ceremonies are not empty rituals.  This Court’s practice is to administer the Oath of Allegiance and Office in public.  That is not a matter of formal procedure.  It is a public witnessing of the making of two solemn promises for the performance of which the oath taker will be responsible not only to this Court and this country but also to his Creator.  Statute requires that the Oath or a like affirmation be taken before a Chief Justice or Justice enters upon the duties of his or her office. 

The first promise is a commitment of loyalty to Her Majesty the Queen her heirs and successors according to law. It is a commitment to the head of State under the Constitution. It is from the Constitution that the Oath of Allegiance, which has its origins in feudal England, takes its significance in the present day. As the Constitution can now be abrogated or amended only by the Australian people in whom, therefore, the ultimate sovereignty of the nation resides, the Oath of Allegiance and the undertaking to serve the head of State as Chief Justice are a promise of fidelity and service to the Australian people. The duties which the oath imposes sit lightly on a citizen of the nation which the Constitution summoned into being and which it sustains. Allegiance to a young, free and confident nation, governed by the rule of law, is not a burden but a privilege.

The second promise is to “do right to all manner of people according to law without fear or favour, affection or ill-will”.  The form can be traced back to a statute of Edward III, but its substance is of enduring relevance.  In substantially that form the oath or affirmation is taken by every judge.  It is rich in meaning.  It precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be.  It forbids any judge to regard himself or herself as a representative of a section of society.  It forbids partiality and, most importantly, it commands independence from any influence that might improperly tilt the scales of justice.  When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with law.  That is the way in which right is done without fear or favour, affection or ill-will.  Judges sometimes appear to be remote, belonging to what have been described as “the chill and distant heights”.  In the doing of justice that must be so.  Justice is not done in public rallies.  Nor can it be done by opinion polls or in the comment or correspondence columns of the journals.

The oath requires justice to be done according to law.  The content of the duty thus accepted depends upon the jurisdiction to be exercised.  In the trial courts of this country the rules of law prevail.  And so they must, for it would do no justice to give judgment according to an abstract notion of what is right in the knowledge that the judgment would be overruled on appeal.  In appellate courts, the law may authorize a tension between abstract justice and a rule of law to be resolved by an alteration of the rule.  In either case, the jurisdiction of the court is fixed by law and judgment must be rendered in accordance with the judicial method.    The security which each of us has is the law.  Sir Thomas More of the “Man for All Seasons” is surely right to put to Roper: “This country’s planted thick with laws from coast to coast...and if you cut them down...d’you really think you could stand upright in the winds that would blow then?” 

Insistence on the rule of law has a corollary which is implicit in the terms of the judicial oath. If right is to be done according to law, right will be done only if the law be just. Such tension as there is between justice and the rules of law surfaces most acutely in litigation before the High Court, partly because of history, partly because of procedure. With the abolition of the last appeals from Australian courts to the Privy Council, this Court was charged with the ultimate responsibility of declaring the law for this country. This did not mean that we were free to cast aside the priceless heritage of the common law of England, but it did mean that this Court had to examine critically those rules of the common law including the rules of statutory interpretation in the light of our own history, culture and social conditions. Long-standing rules of tort and contract, of land law, equity and administrative law, have been revisited in recent years. The same factors and the ever-changing problems of government have evoked renewed examination of the spare text of our Constitution.

Then, with the increasing volume of appeals to this Court, it became necessary to introduce the procedural filter of a grant of special leave.  The result is that a considerable proportion of the cases to be decided by this Court involve rules of law that have already proved to be questionable, or at least productive of uncertainty, in the courts below.  In cases in both its original and appellate jurisdictions, the Court has had to grapple with issues on which two or more views can reasonably be held.  Decisions have not always been reached by more than a narrow majority, but that is not to be wondered at.  Where the review of existing rules is in question, the judicial oath to do right according to law sometimes places emphasis on abstract justice, sometimes on the existing rule.  And when Constitutional doctrine is to be re-examined, the frustration of powerful interests frequently follows.  It is inevitable in these circumstances that the decisions of this Court would be seen by some to have a legislative flavour. 

But this Court is not a parliament of policy; it is a court of law.  Judicial method is not concerned with the ephemeral opinions of the community.  The law is most needed when it stands against popular attitudes, sometimes engendered by those with power, and when it protects the unpopular against the clamour of the multitude.  But judicial method is concerned with the equal dignity of every person, his or her capacity to participate in the life of the community, to contribute to society and to share in its benefits; it is concerned with the powers entrusted to governments and the manner in which those powers are exercised.  Judicial method starts with an understanding of the existing rules; it seeks to perceive the principle that underlies them and, at a deeper level, the values that underlie the principle.  At the appellate level, analogy and experience, as well as logic, have a part to play.  Judgments must be principled, reasoned and objective, as Sir Anthony Mason said yesterday.  And, most significantly, each step in the reasoning must be exposed for public examination and criticism. 

Herein lies a difficulty.  The work of this Court is rightly a subject of considerable public interest.  Though the arguments heard here are often at a high level of abstraction, the emerging principles have a concrete effect on the liberties, relationships and property of individual persons, both natural and artificial.  Therefore the work of this Court should be subject to informed public scrutiny.  But how is it possible for the public to be informed?  It is unrealistic to expect the arid fields of law to be tilled in the popular press, much less in the brief and adversarial encounters of the television screen.  Of course, there are some few highly competent legal journalists, but an adequate analysis of legal principle and its significance may be precluded by limited space or may give way to a story of more gripping, if ephemeral, interest.  The problem of fostering informed public appreciation of the laws by which we are governed and protected is, I venture to suggest, a problem far from satisfactory solution.  It will not be resolved by superficial comment or by an expression of pleasure or disappointment in advancing policy or interest.

Nevertheless, the public interest in the judgments of this and other courts is a clear and gratifying indication that, in this country, we are governed by the rule of law.  The courts have earned and maintained public confidence by their unfailing response to every reasonable application, by their impartiality and the fearless administration of the law.  Today’s focus is on the work of the High Court, but it must be remembered that the face of justice is more often the face of the magistrate and the judge at trial. 

To accept the office of Chief Justice in the judicial branch of government is a signal honour.  To share in the rigorous debates in this Court with colleagues who bear mutual respect for the intellectual integrity and fierce independence of one another is a continuing satisfaction.  I assume this office with gratitude for their friendship and support.  I thank you for your attendance here today.