Ceremonial - Farewell to French CJ - Sydney

[2016] HCATrans 314

[2016] HCATrans 314

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

SPECIAL SITTING

FAREWELL TO

THE HONOURABLE CHIEF JUSTICE ROBERT FRENCH

AT

SYDNEY

ON

FRIDAY, 16 DECEMBER 2016, AT 9.28 AM

FRENCH CJ
BELL J
KEANE J

FRENCH CJ:   Yes, Mr Hutley.

MR N.C. HUTLEY, SC, President of the New South Wales Bar Council:   May it please the Court.

Your Honour, whereas the Australian Bar Association spoke on behalf of the State and Territory Bars at the ceremonial farewell in Canberra just two weeks ago, I rise to speak briefly on behalf of the New South Wales Bar at your final sitting at the Sydney Registry.

It is a privilege to acknowledge separately your enormous contribution to the work of this Court and your service to the nation.

Your Honour’s first sitting in Sydney as Chief Justice of the High Court was 30 September 2008, a fraction over eight years ago.  The Solicitor‑General of the Commonwealth, as Justice Gageler then was, welcomed you to a place where your Honour is certainly no stranger, as he put it.  He noted that your Honour was a frequent visitor to Sydney.  What was true then, is certainly no less true now nor has been over the last eight‑odd years.

Indeed, the Solicitor‑General pointed out that weeks before your appointment as Chief Justice of Australia you presided over the Full Federal Court at short notice in determining a case of what he described as a distinctly New South Wales case, Evans v New South Wales, regarding the validity of regulations made in connection with World Youth Day.

Furthermore, in the ensuing years, your Honour has returned to Sydney on many occasions.

Nor has your presence been limited to work on the Bench.  Your Honour is a gifted writer and public speaker and you have delivered many notable speeches here.  In May 2009, you were the guest of honour at the annual Bench and Bar Dinner.  It was there that your Honour spoke on the topic of Ego and Identity in the Administration of Justice under the heading, “Don’t you know who I am?”

Yes, we did.  It was, we took it, rhetorical, particularly since you had been introduced by Anne Horvath and Anna Katzmann, then the President of the Bar Association, and her Honour noted that as a man of science your elevation to Chief Justice was announced in the Journal of Australian Physics, something which can only be described as awesome. 

As is entirely appropriate upon the retirement of the Chief Justice of the High Court and a jurist of your distinction, the chronology and attainments of your career have been recounted on a number of occasions, most recently by Patrick O’Sullivan on behalf of the Australian Bar.  I will not give any potted version.  The New South Wales Bar is familiar with those matters and I am sure your Honour is too.

There is one matter which I do wish to mention and comment upon.  That is, the masterful way in which your Honour has conducted hearings, whether at trial, in the Full Court of the Federal Court or in the High Court.  The combination of civility and intellectual rigour has made it a pleasure for barristers of New South Wales to ply their profession before your Honour.  Appearance can and perhaps should be stressful, but the contribution to the due administration of justice of your Honour’s manner and its infectious quality has been a public service on the part of your Honour which should take its place with all those others which have been spoken about on other occasions.

That achievement, of course, is not limited to making our job more pleasant.  Most importantly, it secures and has secured to the parties and the public a confidence in the concern the Bench holds for their interests, lightens the burdens of litigation and for one side or the other the disappointment of defeat.  We wish your Honour well in whatever befalls your Honour hereafter.

If the Court pleases.

FRENCH CJ:   Thank you, Mr Hutley.  Yes, Mr Ulman.

MR G. ULMAN, President of the Law Society of New South Wales:   May it please the Court.

I would like to acknowledge the traditional owners of the land on which we meet here today, the Gadigal people of the Eora Nation, and to pay my respects to their elders both past and present.

Your Honour, in past addresses you have described New South Wales as a jurisdiction of familiar faces.  During your time both on this Court and the Federal Court, you sat in Sydney on many occasions, but even before your career on the Bench you appeared with and against many Sydney counsel in your home State of Western Australia.

Over the years, your Honour’s pleasant, courteous and good humoured approach has stood out to us in New South Wales and we hold you in the highest regard.  The engagement you have had with professional associations in New South Wales has been marked by your generosity and warmth.  The Law Society is especially grateful for the address you gave at the 2010 annual members’ dinner. 

The law first gripped your Honour not in study but in practice, for it was as a solicitor that you realised that the law could offer people real solutions to real problems.  Decades on, no doubt, your tenure as Chief Justice has seen its own share of difficult yet deeply interesting problems.  In answering the complex questions put to it, the Court during your Honours’ tenure has been perceived as safeguarding constitutional checks and balances while clarifying the real extent of Commonwealth power.

One notable example out of many was Pape v Commissioner of Taxation, the tax bonus for working Australians case in 2009 that considered whether the then government’s proposed tax bonus payment was unlawful and void.  While the legislation in question was deemed constitutional, the Court shed meaningful light on the parameters of the expropriation power.

Similarly, the 2012 case of Williams v The Commonwealth & Ors clarified the boundaries of federal executive spending power through the case study of funding chaplaincy services in schools. 

Your Honour has been known as a Chief Justice willing to speak from time to time about issues of national importance, for example, rejecting mandatory sentencing and drawing attention to indigenous incarceration rates.  Strongly supporting the goal of a national profession, your Honour recently used the memorable line that “If we manage a standard gauge railway we should be able to manage a standard regime for the legal profession”.  Let us hope that message resonates across the country. 

Much has been made of your Honour’s quip that barracking for the Dockers in the midst of a crowd of Sydney supporters might constitute an example of annoying conduct.  I am loath to take issue with your Honour on that subject but we are in Sydney, the home of the Sydney Swans, and I do feel compelled to correct the record.  So, speaking from experience, I respectfully submit that the definition of annoying conduct is in fact barracking for the Magpies in the midst of the Sydney supporters.

In spite of the fact that by your Honour’s own admission you have attended but one Dockers’ game in your lifetime, I trust that in your retirement your Honour will find the time to join the ranks of the purple haze at many of its games.

Your Honours’ role as Chief Justice of the High Court is in sharp contrast to two earlier would‑be career directions.  The first is your Honour’s early qualification in science thwarted only by your own estimation that a Bachelor of Law degree might keep your career options open.

The other is your 1969 tilt at politics when you were a candidate for the State seat of Fremantle standing against Kim Beazley senior.  While attempting to get your message out to the youth vote, you enlisted a rock band call “The Timepiece” which I have researched and appears to have long since been consigned to rock and roll history.  The band played on the back of a campaign truck and the crowd was extremely receptive.  The festivities then transitioned into what was meant to be an impassioned stump speech from your Honour.  Unfortunately, the crowd did not love this quite so much and began rocking the truck to get you to stop.  Happily, your Honour’s pronouncements from the Bench have not shared the same fate. 

In the days of Sir Samuel Griffith, the appointments of Chief Justices used to refer to the Governor‑General’s confidence in the appointee’s loyalty, integrity and ability.  While they are no longer read, these are fitting words to describe the upmost confidence in your qualities that the solicitors of New South Wales have had in the duties you have discharged as Chief Justice of this Court.  On behalf of the solicitors of New South Wales, I thank you for your faithful service to Australia and wish you well in the next chapter of your career.

As the Court pleases.

FRENCH CJ:   Thank you, Mr Hutley, and you, Mr Ulman, for your kind remarks, and to the judges and members of the profession who are attending the Court on this occasion.

I have pleasant memories stretching back many years of sitting in Sydney as Chief Justice on special leave applications and before that as a Federal Court judge on trials and appeals with some of the finest products of the Sydney Bar as my colleagues.  I mentioned in particular the late Nigel Bowen, John Lockhart, Bryan Beaumont and Ian Sheppard at my farewell ceremony in Canberra.

In late 1987, I sat on the State Banking Case with Sir Nigel Bowen and Ian Sheppard and a stellar line‑up of the Bar in front of us, including James Spigelman, Ken Handley, David Bennett, Arthur Emmett and many others.  It was one of the longest appeals the Federal Court had heard at that time and went on for many days.  Three or four weeks after we reserved, we were told not to bother with the judgment, the parties had settled.  Given the length and complexity of the matters debated before us, I remember feeling then an early sense of profound gratitude and warmth towards the Sydney Bar.

The Supreme Court of New South Wales and the Federal Court in Sydney have always generated a very significant proportion of the High Court’s appellate work, and that is not a backhanded compliment.  Many important cases are decided in this city.  The profession and the Bar here are productive of important developmental arguments of law and two outstanding examples are seen in the decisions of this Court in Kable and in Kirk.

The Bar here is also productive of a variety of ingenious techniques for persuading the Court to grant special leave.  I carry in memory Mr Walker’s characterisation of the importance of his special leave point on one occasion as transcendental, a term with mystical and theological overtones not readily associated with a rather unprepossessing provision of the goods and services tax legislation whose construction he was agitating at the time.

I remember former Solicitor‑General Stephen Gageler taking a more worldly tack when he characterised the importance of his two special leave points in another tax case by observing that the first point was worth $1.2 billion and the second worth $600 million.  I think we granted leave on the lesser.

I am pleased to be coming to the end of my judicial career and look forward to a varied and interesting post‑judicial life.  I will always carry with me very fond memories of this city and its judges, its barristers and its solicitors.  I thank you again, Mr Hutley and Mr Ulman, for your remarks and wish the two branches of the profession in New South Wales a happy Christmas and a prosperous New Year.  We will now proceed to the special leave list.  Thank you.

AT 9.39 AM THE MATTER WAS CONCLUDED