Ceremonial - Centenary of High Court - Melbourne

[2003] HCATrans 406

[2003] HCATrans 406

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

CEREMONIAL SITTING

TO MARK THE

CENTENARY OF THE

HIGH COURT OF AUSTRALIA

AT

MELBOURNE

ON

MONDAY, 6 OCTOBER 2003 AT 10.15 AM

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

Speakers:

The Hon John Winston Howard, MP, Prime Minister of Australia

The Hon Rob Justin Hulls, MLA, Attorney-General for the State of Victoria

Mr Robert William Gotterson, QC, President of the Law Society of Australia

Mr Anthony John Glynn, SC, President of the Australian Bar Association

TRANSCRIPT OF PROCEEDINGS

GLEESON CJ:   Prime Minister.

MR HOWARD:   Your Excellency, Chief Justice, your Honours, may it please the Court.  I am very conscious of the privilege extended to me by the Court today in inviting me to address it.  It has been rare in the 100‑year history of the High Court that the serving Prime Minister in that capacity has been invited to address it.  I want to thank the Court for that privilege and in doing so, take the opportunity on behalf of a very grateful nation to record its gratitude to the 44 Justices of the High Court, over 100 years, who have collectively contributed so much to the vibrancy and the strength and the relevance of Australian democracy.

As a nation, we probably too infrequently take pause to reflect upon our many democratic achievements.  The fact that we formed a nation without strife or warfare.  The fact that amongst other things we were the first to extend complete female suffrage.  The fact that we joined the company of fewer than ten nations that have remained continuously democratic since the commencement of the 20th century.

I believe we can add to that democratic lustre the establishment 100 years ago today of a Federal Supreme Court, named the High Court of Australia, which over that 100‑year period has played an integral role in the development and the strengthening of Australian democracy.

As part of the ongoing political debate about our institutions, there is frequent debate as to whether or not this nation should endeavour, in some way, to entrench formally in its law a Bill of Rights.  I belong to that group of Australians who is resolutely opposed to such a course of action.

It is my view that this nation has three great pillars of its democratic life.  A vigorous parliamentary system, robustly Australian, responsible for the making of laws, a strong independent and incorruptible judiciary and a free and sceptical media.  Free and sceptical often to the discomfort of us, but nonetheless an important and integral part of our society. 

The High Court of Australia has made its great contribution to the strengthening of one of those three pillars.  Any nation armed with these can preserve its democratic life against all adversity.

The international reputation of the High Court of Australia, both now and in the past, is undisputed.  The great Lord Denning once remarked that its reputation overtopped that of the House of Lords, and the United States Justice Felix Frankfurter, was equally lyrical.

Elected governments of which, at a national level, I lead at present, and the Court system of Australia, are part of the democratic compact that makes up the nation of Australia.  They are both part of the whole, but they are under our doctrine of the separation of powers very separate.

A hundred years ago today, when the Court met for its first time in this very historic Banco Court here in Melbourne, our sense of nationhood was both hesitant and embryonic.  There was even much discussion about the need or relevance of a High Court.  It was thought it would not have enough work to do.  It was thought that the cost involved was prohibitive and unsustainable.

As we look back over that 100‑year period, we see not only a lively dynamic evolution of our nation, but also the role of the Court. Our sense of nationalism, our sense of identity as Australians, above everything else, is now not only profound, but absolute. And in that process of evolution, the Court itself has made an enormous contribution. Its skilful interpretation of the separation of powers ordained by the Constitution, the inevitable evolution of a significantly greater role for the national government, particularly in financial matters, and one recalls many of the landmark cases such as the Engineers’ Case and the Uniform Tax Case.

But the Court itself has undergone many changes.  It has not only been enlarged in size, but of course its role, vis a vis, other Courts, and particularly with the final abolition of appeals to the Privy Council in 1986, has been significant.  The establishment just over 25 years ago of the Federal Court of Australia has also altered the workload of the Court and allowed it to focus, as have the changes in 1984 regarding leave to appeal, on particular aspects and one might say the pinnacle of the interpretation of our law.

The decisions of the Court have not and are not in their nature of a partisan political character.  It is integral to our system that that should not be the case, but I am very conscious that the many decisions of the Court over the years have had profound influence on the political and national life of our country. 

The decision during World War II in the Uniform Tax Case has had lasting significance in relation to the distribution of financial power within our national.  Since World War II, I believe four decisions of the Court have stood out as having very profound and far-reaching significance.  The Bank Nationalisation Case of course had enormous political and other implications, as well as constitutional ramifications.  The Communist Party Dissolution Case raised very important considerations and in subsequent debate about the role of free speech and the attitudes of different sections of Australian society to it and had a profound influence on the political disposition of the nation.  The Tasmanian Dam Case in the early 1980s of course represented a very significant adoption and extension of the role of the external affairs power under our Constitution. The Mabo decision of the early 1990s had enormous ramifications and had a very great and lasting influence on debates about the rights of indigenous people within our community and the role that they should play in the future development of our nation.  Each of these, your Honours, have had a great effect on the public life and the political life of our nation.

I think we all recognise that we live in an intensely sceptical period in our history.  All institutions are subjected to scrutiny and criticism in a way in which was unthinkable 20 or 30 years ago, and certainly quite unthinkable 100 years ago.  There will be ongoing debate about the role of the Court in our society.  There will be superficial attempts to stereotype members of the Court, and I notice that you, Mr Chief Justice, have had some remarks to make about that.  I think those debates will come and go but what will not go will be the central role and the central respect held by the High Court of Australia in the life of our nation.

I greet this centenary with a sense of optimism.  I think in the broad sweep of the last 100 years the Court’s role has been profoundly beneficial and has made an enormous contribution to the strengthening of Australian democracy.  I do not share the view of some that debate on certain issues has damaged or diminished the role of the Court; I think quite the contrary, it strengthened it.

This is an opportunity which brings together rarely in our public life the Executive in the person that is personified by the Sovereign’s representative, the Governor-General, the political life as represented by myself and others, and of course the judiciary represented by your Honours and the leaders of the Benches and of the Bar from all around our nation.  It is an opportunity for all of us to reaffirm the essential covenant which underpins the Commonwealth of Australia, and that is a nation united in a commitment to the rule of law, a nation respecting the role of the Courts, a nation encouraging a respect for the role of Parliament and of the people who elect that Parliament in the making of our laws.

We look back over the last 100 years.  We thank the 44 Justices for what they have done.  We congratulate the current occupants of the Bench.  We wish them well in a continuation of their very important and sacred trust on behalf of the people of Australia to preserve the rule of law, to continue to contribute to the remarkable success of the Australian Federal compact, and in that they carry the good wishes on behalf of all of the Australian people, and as Prime Minister I am honoured to have the opportunity of conveying those good wishes on this very important occasion.

GLEESON CJ:   Thank you, Prime Minister.  Mr Attorney.

MR HULLS:   His Excellency Major‑General Michael Jeffrey, Governor‑General of the Commonwealth of Australia, The Honourable Prime Minister, Chief Justice Gleeson and Justices of the High Court, the peoples of the Kulin Nation, traditional owners of the land on which we now stand, distinguished guests, ladies and gentlemen, may it please the Court.

The story of the High Court is more than the account of a respected institution.  Yes, it is a tale of intellectual rigour, of towering personalities and of assiduous interrogation of the law.  But it is also a story of our development, and success, as a nation:  of how our values were crystallised, our federation tested and how the rule of law and this unique forum helped a young entity reach maturity.

I am proud to be here today as representative of all State and Territory Attorneys-General.  As such, the question of the federation balance, or the symmetry between States’ rights and Commonwealth authority, of course carries particular meaning.  In my view, this Court has played an indispensable role in the viability of the States and therefore in protecting a fundamental aspect of our democratic system.

However, as the century unfolded, the Court’s evolving appraisal of matters such as the Bank Nationalisation Case, the Communist Party Case, the First Pharmaceutical Benefits Case, Mabo and Wik mirrored the progression of a society grappling with its identity as a whole, its beliefs and the darker aspects of its history.  It is therefore vital that this integral chapter in Australia’s history is not confined to the Banco Court.  In the words of the Chief Justice, a court’s authority is held “on trust” for the people, meaning that this Court exercises the will of the populace.  This centenary is therefore a measure of our realisation as a community and our resolve to uphold those principles with which we set out on our journey as a nation.

One of those principles, of course, is the centrality of the rule of law, and our particular expression of the separation of powers doctrine.  Increasingly we find ourselves in a climate in which people are losing faith in public institutions, in which political expediency plays to the population’s less compassionate angels.  We also operate amidst heightened public scrutiny and the perception, rightly or wrongly, of an overly litigious society.  How, then, should we strike the right balance and ensure that the relevance and authority of the law is sustained?

Clearly, it is more important than ever to provide leadership in the defence of the law.  We must cement the community’s confidence in judicial authority, confidence that has, by and large, weathered the winds of wedge politics and talkback radio.

In my view, our first, and last, strategy in this process must be the defence of judicial autonomy.  Before we can move forward, we must condemn attacks on the judiciary, whether they be on the integrity of individual judges or criticism of valid exercises of judicial power.  We should also be wary of such criticism being pitched as a contest between so‑called judicial “restraint” and “activism”, concepts which have meant different things at different times and which can be employed by partisan agendas to rob a decision of its legitimacy.

Ultimately, we must also ensure that, as leaders, we do not deliberately cast doubt on specific rulings or abdicate our duty to this and other courts.  I believe it is the role of Attorneys-General to defend courts, a role that transpires precisely because our obligations straddle the legal and political spheres.  Rather than shy away from the complexity of this role, it is incumbent upon those occupying these positions to transcend the so‑called “hurly‑burly of political debate” and protect the less tangible interests of the law.

When Attorneys-General are silent in the event of unreasonable criticism of the courts, judges may be compelled to mount their own defence in the political arena.  If they do, they may be accused of transgressing the separation of powers.  If they do not, they are left minus a champion, quarry for those seeking a home for their political hatchets.

In our defence of the rule of the law, we must also be alert to, and alarmed by, attempts to bypass judicial scrutiny, whether it be via privative clauses or the more insidious trend towards unenforceable guidelines.  In my view, any suggestion that an Executive’s “non-binding guidelines” be accepted as authoritative is dangerous terrain.  Yet it is increasingly the case that we are asked the accept the legitimacy of such guidelines, whether it be in Industrial Relations, decisions concerning grants of Legal Aid, or more poignantly in the immigration area.

Finally, we can strengthen the judiciary with a breadth of skills and experience to meet the challenges of public scrutiny and attempts to erode its authority.  We can harness the passion of the judiciary for the law as an evolving organism, by providing professional development mechanisms, and ensure that we do not mistake the value of the law’s objectivity for an indifference to change.

As most of us have come to realise, we must also appoint the best and brightest to the Bench on the basis of merit, not homogeneity, and facilitate opportunities, such as equal opportunity briefing practices, to enable a wider pool of candidates to shine and gain experience.  A court that can lay claim to understanding the diversity of the population will, in my view, be better equipped both to withstand the onslaught of Executive zealotry and inspire the confidence of the community.

Most importantly, however, we must remember the law’s capacity to remedy injustice and that, while it has often been used to maintain the status quo, it can transform society if we get the basics right.  To this end, I do not subscribe to the trickle-down theory but instead believe in working from the ground up.  Although we are here to celebrate the centenary of this superior Court as ultimate custodian of Australian justice, we should not ignore the quiet revolution taking place in other jurisdictions.  All around the nation, courts are adopting a problem-solving approach to the challenges of disadvantage, addressing the causes of crime, identifying rehabilitation paths and making innovative use of judicial authority. 

Whether they be the various models of Drug Court already established in five States, or specialised divisions to address the crisis of family violence, Australian courts are working in collaboration with offenders, victims and support networks to lend a greater meaning to the law for those struggling with disadvantage.

Of course one of the greatest challenges that every jurisdiction, including this one, must face is the appalling incarceration rate of our indigenous population.  This year the Human Rights and Equal Opportunity Commission revealed that, in the decade since the Royal Commission into Aboriginal Deaths in Custody, the number of indigenous women in custody tripled.  With indigenous men in general 12 times, and women 15 times, more likely to be imprisoned than other Australians, clearly, our justice system is failing an entire sector of the community.  Clearly it has not translated itself, a failure compounded by the dispossession and denial which have set a people at odds with the processes that they need to understand.

To fulfil the true promise of our legal system, I believe we should return to our fundamental values.  We should respond with heart to these tragic incarceration figures.  We must be innovative and use mechanisms, such as indigenous court divisions, which engage the assistance of Aboriginal respected persons to inform magistrates and lend gravitas to proceedings for offenders.

We must also empower people, where appropriate, to resolve their disputes in ways which are relevant to them and regulate systems of dispute resolution to secure their accountability.  In recognising that traditional mechanisms are not always useful, we signal that the law is not static, but a reflection of our desire to live co‑operatively with each other.  I believe that when we demonstrate that the law is not remote, but concerned at every level with the human experience, then the profundity of the decisions of superior forums such as this one will resonate more deeply with a population that feels understood.

The administration of justice is indeed a continuing journey and the law now has the opportunity to redress disadvantages that it once reinforced.  The law does not operate in a vacuum and what was once an appropriate outcome may no longer bear scrutiny in the 21st century.

Increasingly, the unique role that this Court has forged for itself will propel it into unchartered territory, sometimes with very little guidance from the Parliament or from our limited constitutional framework.  Nevertheless, the authority of the Court’s voice can be secured by its refusal to atrophy and by its willingness to evolve with the population over whom it adjudicates.

We must remember, however, that this evolution will not occur if the judiciary is under siege.  The evolution of a strong court will only occur where the rule of law is vigilantly protected, and while leaders must offer this protection, ultimately the Australian people should also be guardians of the judiciary.  In doing so, they need to feel confident in the authority which is held on trust for them, protecting their interests and preserving their values.  With this assured, the parallel stories of this Court and the nation it serves can only be rich and rewarding, unfurling in the harmony of a strong and vibrant democracy.

GLEESON CJ:   Thank you, Mr Attorney.  Mr Gotterson, President of the Law Council of Australia.

MR GOTTERSON:   May it please the Court.  Chief Justice Gleeson, your Honours, I am privileged to represent the Law Council of Australia at this morning’s ceremonial sitting. 

A Melbourne newspaper column of 6 October 1903 reported this:  “It was proposed at first that the leaders of the Bars in the different States should supplement their official speeches, but this idea was abandoned yesterday as it is desired to compress the proceedings within an hour.”  My colleague Mr Glynn and I are pleased and a little relieved, I should say, that there have not been any last minute changes for today.

One hundred years ago those assembled in this courtroom witnessed the inauguration of the High Court of Australia.  To some the signal importance of that event was eclipsed by another aspect of the morning’s ceremonies.  So contemporary records reveal.  Those on this side of the Bar table concentrated their speeches on the three newly sworn Justices, offering them congratulations on their appointments.

Today our minds our differently focused.  We are not distracted by welcomings to new Justices.  We do not share the unease that some must have felt then for a new Federal Supreme Court with a guaranteed, yet unexplored, constitutional jurisdiction.  We have a century in retrospect to inform us, to inspire us and to reassure us.  We sense the significance of the Court’s inauguration more keenly now than did our predecessors on that day.

From its first years, the High Court proved worthy of an unassailed and unassailable position as the ultimate constitutional and appellate court for Australia.  Its pre-eminence amongst domestic courts was rapidly established, a pre-eminence that would have legitimated the complete termination of the Privy Council’s appellate jurisdiction much earlier than the ninth decade of the 20th century.  We can now characterise that jurisdiction as but a transitional feature in our constitutional development. 

Over the years many observers have chronicled milestones in the Court’s history, traced the development in the court of particular legal doctrines and principles and sketched the lives and times of each of the Justices.  Those tasks are well beyond the scope of a short address.

Today I venture this observation.  The Court is held in the highest esteem by the citizens of Australia.  From the Murray Islands to Bruny Island, from Byron Bay to Shark Bay, regardless of social, occupational, racial or religious groupings.  We have an unquestioning confidence in the integrity of the Court.  Its fair, just and expert dispensation of justice is undoubted.

This, I suggest, is founded in the Court’s unwavering independence of other seats of power, an independence openly displayed in its collegiate work and in the conduct of individual Justices.  In this we, as a nation, have been richly served.

Foremost above all things, let us continue to revere and respect the independence of the Court and its Judges.

This morning I am proud to speak on behalf of the nation’s practising lawyers.  We take a pardonable pride in the contribution of the legal profession to the Court’s work.  The solicitors who take on cases, prepare them and propose arguments for consideration, the advocates who refine the arguments, present them and ultimately defend them.  Many a time counsel and solicitor have underwritten the legal costs of a case all the way to the High Court because of a conviction that the client’s cause is right; and many a time that conviction has been vindicated.

We recognise that the Court’s time is limited, as are the resources made available to it.  Nowadays individual cases can require more attention because the statutory contexts in which they arise, have become more complex, indeed convoluted at times; because the range of laws and principles that might apply has broadened, or because the factual settings that beget them are very complicated.  At the least, the Court deserves to have cases presented to it expertly and thoroughly.  It is timely to submit that attention needs to be given once again to rights of representation and of audience in this Court, particularly at the special leave level.  Neither the resources nor the time of the Court and its officers ought be wasted in excursions into impenetrable thickets where misconceived propositions and ill‑reasoned arguments abound.

It is also timely to note that this year, the Law Council celebrates its 70th anniversary.  In April 1933, the Right Honourable John Latham, KC, then Commonwealth Attorney‑General, presided at the first conference of Australian Legal Societies.  A significant item of business of the conference was the adoption of a draft constitution for a Law Council of Australia.  Sir John served as President of the Law Council, before his appointment as Chief Justice of this Court in 1935.

Sir Garfield Barwick and Sir Douglas Menzies also served as President before their appointments as Chief Justice and Justice respectively.

Other past and present Justices, including your Honours the Chief Justice and Justices McHugh and Callinan, have represented Bar Associations on the governing body of the Law Council.

We treasure our connections with the High Court.  Over seven decades now, the Court has engaged in consultation with the legal profession through the Law Council.  We value greatly the opportunity to put our point of view on matters of common interest to the Court and the profession.

It remains for me to offer to the Court the congratulations of the practising lawyers of Australia on its first century, to express our very good wishes for the future, and to affirm our unqualified support.

If it please the Court.

GLEESON CJ:   Thank you, Mr Gotterson.  Mr Glynn, President of the Australian Bar Association.

MR GLYNN:   May it please the Court.  May I, on behalf of every member of each of the Australian Bars, congratulate the Court on the achievement of the significant milestone marked by today’s ceremony.  Of course, people and institutions may achieve milestones merely by the passage of time, but in its first 100 years this Court has established, most importantly, its independence of Executive Government and the legislature.  It has also achieved a reputation for excellence in the decision making, and the quality of judgments which it delivers, such that most counsel and most members of other courts, in moments of deep honesty, would say, or admit, they secretly harbour a desire such that they would wish to be at least thought to be a prospect for appointment, no matter how dim that prospect may be in reality.  The Court’s reputation is such that its judgments are not infrequently referred to with real respect by the superior courts of many other countries.

Very importantly the Court and its members are held in high esteem, not only by the profession, but also by the general public, despite the occasional attack upon it by the popular press after decisions, particularly on contemporary social issues.

As I have submitted, the Court has established a separate identity and its independence despite, or perhaps because of, the constitutional inevitability of tension between the Court on the one hand, and the Parliament and Executive Government on the other.

In an article he wrote about Andrew Inglis Clark and the Australian Federation, the Honourable Frank Neasy said:

“The Lucinda Committee took the High Court out of its entrenchment in the constitution itself which was Clark’s cherished plan, following the American pattern, and which he rightly regarded as fundamental, and they had made that court merely authorized to be established in the constitution, which of course would have made its establishment dependent on political whim.  The later convention restored the High Court to its proper place in the constitution, as Clark considered.”

The Court has taken steps over many years, through many decisions, to delineate the boundaries of authority of each arm of constitutional government in such a way as to allow for the fullest operation of the authority of each, without intrusion into the sphere of operation of others.  In Barton’s Case, for example, the Court refused to intrude upon the right of the Attorney to present an indictment, but also affirmed the authority of the courts to refuse to lend their authority to an abuse of process which would result in an unjust trial.  Then Acting Chief Justice Gibbs and then Justice Mason said: 

“The courts exercise no control over the Attorney-General’s decision to commence criminal proceedings, but once he does, the courts will control those proceedings to ensure the accused receives a fair trial.”

It has fallen to the Court, which has never shirked the task, to develop guidelines which indicate the appropriate delineation of authority and jurisdiction.  The Court has developed a clearly separate identity by insisting that any court which exercises federal jurisdiction must be perceived to be free from legislative or Executive direction.  No Chapter III court, State or federal, may be conferred with non-judicial functions so extensive or of such a nature as to lose its identity as a court.

At last year’s ABA conference, Justice McHugh, in a highly acclaimed speech on the inevitability of the existence of tension between Executive Government and the courts, demonstrated, in my respectful view, how the struggle to maintain a proper separation of powers maintains and strengthens a healthy democratic society.  This, of course, implies no necessary impropriety on the part of Parliament or the Executive. 

This is of particular significance in the area of individual rights, especially in an era when governments of all persuasion are often tempted by the outpourings of the popular press to act to the detriment of an individual, or small groups of individuals.  Such was the situation which was dealt with in Kable’s Case.  The Court has identified and developed discretions for courts in cases such as Bunning v Cross and Ridgeway, which protect citizens from high-handed behaviour by officialdom, not on the basis of the right of an individual to be treated fairly, but on the basis of public policy inherently favouring the proper administration of justice.

The current citizenry has much for which to thank this Court for its maintenance of its independence and its insistence on the proper separation of powers under the Constitution as leading to the maintenance of our democratic system. Unfortunately the mass media often fails or refuses to understand this attribute, as when discussing prospective candidates for appointment. They are often categorised as liberal or conservative or given other tags such as being centralist, or States rightists, without regard to the fact that, almost without exception, upon appointment their independence asserts itself, such that any fair summary of their judgments over time shows that whatever personal views they may hold are left behind when carrying out their duties.

The Court has evolved with the passing of the last 100 years.  When sworn in as Chief Justice of the High Court, Sir Owen Dixon said: 

“The authority of courts of law administering justice according to law is a product of British tradition and it is for us to maintain it.” 

Yet in 2002, the present Chief Justice of Queensland was moved to say, when addressing the international academy of comparative law: 

“The contemporary Australian focus is sharply fixed on the maintenance, and further refinement, of a distinctly Australian jurisprudence.” 

This change of view, no doubt, reflects in part the removal of an avenue of further appeal from this country to the Privy Council, which was a significant step in the evolution of this Court and its jurisprudence.

The Australian Bars would like to think that we have contributed to the work and the development of the Court over the last century, and that we will be able to do so over the next.  Whilst it would not be true to say that the Court could not function without a committed and competent Bar recognising its overriding duty to the Court, the work of the Court would undoubtedly be rendered more difficult without it.  All of the members of the Court had at various parts of their career made significant contributions to the work of the Court whilst at the Bar.  We offer our congratulations to the Court, not only for the excellence of its work to date, but a continuing commitment to excellence as advocates, who regard our overriding duty as one owed to the Court.

May it please the Court.

GLEESON CJ:   Thank you, Mr President.  Your Excellencies, Prime Minister, Mr Attorney, President of the Law Council of Australia, President of the Australian Bar Association, and all who have joined us to mark this anniversary of the first sitting of the High Court of Australia.

My colleagues and I are honoured by your presence.  We value the expressions of confidence and goodwill that we have heard.  The role of the Court is sustained, not by force, but by public confidence.  The statements of the Prime Minister on behalf of the Commonwealth of Australia, the Attorney‑General on behalf of the States and Territories, and leaders of the legal profession, reflect the confidence which this Court has earned by its work over the past 100 years.

One of the most important speeches in Australian parliamentary history was made in March 1902 by the Attorney-General, Alfred Deakin, in support of a Bill for the establishment of this Court. He pointed out that the Constitution required Parliament to create “a Federal Supreme Court, to be called the High Court of Australia”, and explained why that was so. The Court, he said, was “the necessary and essential complement of a federal Constitution”. It's highest function would be “exercised in unfolding the Constitution itself”. He said that its task would be to lay down, for all to see, the boundary lines of governmental power so that “citizens may transact their business in security, without the hazard of finding themselves within the domain of some power upon whose ... authority they did not calculate”. The founders understood that a federal constitution would necessarily give rise to disputes between citizens and governments, and between governments, as to the boundaries of authority. Following the model of the United States, they drafted a Constitution upon the premise that the ultimate resolution of those disputes would be committed to a Federal Supreme Court. They departed from the United States model by also giving the Federal Supreme Court a general jurisdiction to hear appeals from State Supreme Courts and such other federal courts as Parliament may create. These were the two primary functions of the new Court: to act as a constitutional court, and as a court of appeal. At the time, Australia was a part of the British Empire, and those functions were subject to the role of the Privy Council. A century later, that qualification is no longer relevant. The High Court is now the nation’s court of final appeal. It maintains the Constitution, declares the common law of Australia, and interprets and applies the statutes of the Federal, State and Territory Parliaments.

At the time of Federation, much emphasis was placed upon the need for a constitutional court to be independent of the legislative and executive branches of government, and to conduct itself in a manner detached from political partisanship.  At the Adelaide Convention in 1897, Edmund Barton described the proposed court as:

“[A] body which shall decide in the peaceful and calm atmosphere of a court, not under surrounding of perturbed imagination or of infuriated party politics, those questions of dispute which arise, and which must arise, under a Federal Constitution.”

Lawyers will have their own ideas about the peaceful and calm atmosphere that prevails in the Court; and judges may think they see at the Bar table some occasional examples of perturbed imagination.  Even so, the Court has generally succeeded in leaving infuriated party politics to others.  As a member of this Court, Justice Barton returned to his theme of judicial detachment.  In paying tribute to Justice O’Connor on his death in 1912, he referred to “his ripe judgment, his keen discrimination, his deep learning, his resolute adherence to the principles of law and the ethics of judicial decision, and his calm disregard of the political point of view”.

That is not to say that the Court, or its members, have ever been free from controversy or political criticism. In this courtroom 100 years ago, when he was sworn in as the first Chief Justice, Sir Samuel Griffith felt obliged to mention, and deflect, attacks that had been made upon him in Parliament when his appointment was announced. His fitness for office was challenged by Mr Kingston, a former Premier of South Australia, and by Senator Keating, a protege of Andrew Inglis Clark of Tasmania, who was one of the original architects of Federation, and who himself had been regarded as a leading candidate for appointment to the Court. The animosity probably resulted from Sir Samuel’s involvement, when Chief Justice of Queensland, in the difficulties with the Imperial Parliament over s 74 of the proposed Constitution, and the continuing role of the Privy Council. In the early years of Federation some observers noted that the first three members of the Court, and, when its size was increased to five, the next two, had all been prominent politicians. Chief Justice Griffith had been Premier of Queensland; Justice Barton had been Australia’s first Prime Minister; and Justice O’Connor had been a Senator. People wondered whether this would set the pattern for the future. As things turned out, it did not; although a career in politics has never been regarded as a disqualifying factor.

The constitutional work of the Court continues as it was from the beginning, although the nature of the disputes varies from time to time.  In the early years, the work of industrial tribunals occupied much of the Court’s attention.  In the middle years of the 20th century, s 92 was a fruitful source of litigation.  Now, relatively few industrial cases reach the Court, and the only s 92 case to come before the Court in the last five years had nothing to do with trade or commerce.  Refugee cases are now a major area of constitutional litigation, especially in the application of s 75(v).  Judicial review of the lawfulness of action by officers of the Commonwealth was regarded, at Federation, as an essential protection of the rights of citizens and of the States.  In the Convention debates, Mr Barton referred to the necessity of providing for the issue of constitutional writs to public officers “so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution”.

The capacity of citizens to challenge, and of courts to judge, the validity of legislation, and the lawfulness of administrative action, means that the judiciary must remain at arm’s length from the legislative and executive branches of government.  In Alfred Deakin’s speech to Parliament in support of the Judiciary Bill, he quoted Edmund Burke, who said:

“Whatever is supreme in the State ... ought to give a security to its justice against its power.  It ought to make its judicature, as it were, something exterior to the State”.

Burke made that statement in criticising the lack of independence of tribunals set up by the revolutionaries in France. The idea that power and justice are distinct, and separate, aspects of sovereignty still struggles for acceptance in many places. It came early to Australia. It is embedded in our Constitution. It goes to the essence of the role of this Court.

Independence of government, and of all forms of external power and influence, is as important to the appellate, as to the constitutional, work of the Court.  Modern governments and their agencies are regular litigants in civil cases.  Most criminal cases are conducted as contests between a government and a citizen.  Both the appearance and the reality of impartiality in the administration of civil and criminal justice depend upon manifest judicial independence.  This Court ought to be a model of independence for the whole of the Australian judiciary.

The Court depends greatly upon the assistance of the legal profession.  In all Australian jurisdictions there is a vigorous, skilful and independent profession.  In our common law tradition, the relationship between Bench and Bar is vital.  The conduct of litigation is the defining service provided by the legal profession.  That service is provided to courts as well as clients, and is subject to the authority and discipline of the courts.  The role of the courts both as consumers and as regulators of legal professional services is sometimes overlooked.  We welcome the presence today of so many members of the profession.

I should make particular acknowledgment of the presence today of former Justices of the Court, including all of the living former Chief Justices, and of my colleagues of the Council of Chief Justices of Australia and New Zealand.  The Court is honoured and delighted by their attendance.

In conclusion, I should express the Court’s thanks to the Chief Justice and judges of the Supreme Court of Victoria for making this courtroom available to us, as they made it available to our predecessors a century ago.  There were only three of them then, and now we are seven.  That brings us together in circumstances of unaccustomed intimacy; but for a brief time only.  The hospitality extended to us has made it possible to mark, in a suitable fashion, this important occasion in the life of the Court.

The Court will adjourn until 10.15 tomorrow in Canberra.

AT 11.05 AM THE COURT ADJOURNED