Ceremonial - Farewell to the Honourable Bell J - Canberra

[2021] HCATrans 22

[2021] HCATrans 022

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

REMARKS TO FAREWELL

THE HONOURABLE JUSTICE VIRGINIA BELL, AC

AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

BY VIDEO CONNECTION TO SYDNEY

ON

FRIDAY, 12 FEBRUARY 2021, AT 9.15 AM

BELL J:   Mr McHugh.

MR M.G. McHUGH, SC:   May it please your Honour.

I acknowledge the traditional custodians of the lands on which we meet and pay my respects to their elders, past, present and emerging. 

It is an honour to represent the New South Wales Bar Association and the Australian Bar Association, to mark the occasion of your Honour’s retirement from, at least, Australian judicial life and acknowledge your Honour’s contributions to the law and the profession.

Your Honour has the experience of sitting through a number of these occasions, certainly swearings‑in, and your Honour has likely heard the biography all before.  I had always thought some of these occasions tend towards hagiography - yet, what is that?  I am, as your Honour is well aware, no Bret Walker, and so I turn to counsels’ last salvation of authority - Wikipedia. 

A hagiography (from Ancient Greek - hagios “holy”, and graphia “writing”) is a biography of a saint or an ecclesiastical leader, and by extension, an adulatory and idealised biography of a founder, a saint.  At least that is the origin.

Now, perhaps it is all these opening of law term religious services I have been attending, yet, as I said to Justice Rares yesterday in response to his general admonition to “get on with it” – “bear with me and I’ll try to make this good”. 

Your Honour’s early career is characterised by the provision of legal services that brought together case work and policy reform advocacy.  Your Honour’s legal defence of people arrested during the first Mardi Gras protest in 1978 has become legendary, as have your Honour’s efforts as one of the first volunteer solicitors at the Redfern Legal Centre, and pro bono work for prisoner action groups, inspiring the vocational pathways of many young lawyers to follow. 

After your Honour was called to the Bar in 1984, your Honour’s advocacy work continued as a public defender and as a criminal law barrister in private practice. 

Your Honour was admired for your execution of cases in criminal trials and, indeed, it was not unusual for young lawyers to watch your Honour.

Your Honour again contributed to policy reform as counsel assisting the New South Wales Royal Commission into Police Corruption.  In 1997 your Honour took silk. 

During a break from legal practice in 1990, your Honour had a period of hosting the ABC radio program, Late Night Live, speaking to the masses. 

In 1999, your Honour was appointed a judge at the Supreme Court of New South Wales and made history as part of the first all‑woman Bench in the common law world when your Honour sat with Justice Beazley and Justice Simpson in the Court of Criminal Appeal.  That occasion has been recorded in what has become an iconic photograph. 

Reflecting on this milestone more than 20 years later, on the occasion of becoming patron of the Women Lawyers Association of New South Wales, your Honour remarked (with good humour) how the “rarity value has passed” for women in the judiciary with the appointment of more women judges.  However, your Honour noted there continue to be systemic factors disadvantaging women across the legal profession and ongoing work to be done in addressing this.  I was there that night and witnessed the great respect, dare I say veneration, of the assemblage. 

In 2008 your Honour was made a judge of the Court of Appeal and soon after appointed to the High Court in 2009. 

These and other contributions were later recognised with an award of a Companion of the Order of Australia in 2012. 

As a High Court Judge, your Honour has been supportive of women at the Bar, including writing to congratulate newly appointed women silks, and continuing the tradition initiated by Justice Mary Gaudron to invite each to join your Honour for celebratory drinks after the Bows ceremony in Canberra. 

Twelve years later, with a cumulative 22 years of experience as a judge, presiding in matters across wide‑ranging areas of law, it is now reductive to characterise your Honour as a criminal law specialist.

Outside of the courtroom your Honour has been a generous guest speaker.  Your Honour has assisted with events for law students and societies, judicial conferences and the like, and this has been on top of commitments in official capacities over the years, including as President of the Australasian Institute of Judicial Administration and Part‑time Commissioner of the Law Reform Commission of New South Wales. 

At speaking engagements, your Honour has shared your Honour’s knowledge and experience of legal practice and the profession with great insight and good humour. 

One can imagine that in post‑judicial life your Honour will remain a sought‑after guest speaker.  Indeed, we have the honour to have your Honour booked for the Bench and Bar Dinner in September this year as our guest of honour, or your Honour might consider returning to radio where broadcasters are not subject to a mandatory retirement age and your Honour could indulge your Honour’s interest, I am told, in 14th century Sienese art. 

Legendary; speaking to the masses; iconic; venerable; greatly respected and already a patron - I am going all in and pursuant to newly discovered canon law powers in the depths of the ABA constitution and with great respect to Papal sensitivities, pronouncing “Saint Virginia”.

Your Honour, on behalf of the Australian Bars I extend a warm thanks for your years of service and, whatever may be next, we wish your Honour all the very best. 

May it please the Court.

BELL J:   Thank you, Mr McHugh.  Ms Warner.

MS J.R. WARNER:   May it please your Honour. 

I acknowledge the Gadigal and Ngunnawal people, the traditional owners of the lands on which this Court stands, and pay my respects to their elders, past, present and emerging.  I also extend those respects to any Aboriginal and Torres Strait Islander peoples who are joining us today.

I come before the Court on behalf of the solicitors of New South Wales, by whom you are greatly respected and venerated, to farewell your Honour. 

In preparing my remarks for today, I reviewed a speech your Honour once gave at a launch event for the University of New South Wales Law Journal.  The new issue included an article grappling with why there were so few biographies written about Australian judges.  Your Honour noted that this was partly because “Australians are uninterested in the lives of judges” and concluded that this “reflects very well on the judiciary and on our constitutional arrangements”.  Be that as it may, I think your Honour has lived a life that would prove rich source material for any biographer. 

Today is a welcome opportunity to pay tribute to your years of continuous service to our State and our nation as a solicitor, barrister, public defender, senior counsel, Law Reform Commissioner and judicial officer of both the Supreme Court of New South Wales and the High Court of Australia. 

Your Honour was admitted to the Roll of Solicitors on 21 December 1977 and found a home with the State’s first CLC - Redfern Legal Centre.  Established in March 1977, your Honour was one of its first volunteers and later became a paid employee, cutting your teeth on tenancy, criminal law and credit law, amongst other areas. 

Over the next seven years, your Honour pushed for the establishment of the Prisoners’ Legal Service and became involved in landmark civil liberties cases, which included, as my friend has noted, the defence, along with fellow solicitor, the late John Terry, for 53 people arrested during the inaugural Mardi Gras Parade, known as the “78’ers”.  An official apology for their ill treatment would be issued by the New South Wales Government nearly four decades later, in 2016. 

Throughout your long and storied career, your Honour has often found yourself ahead of the institutions you have served.

Your Honour was called to the Bar in 1984, joining Frederick Jordan Chambers.  A would‑be biographer might be inclined to close this chapter of your Honour’s life with reference to Redfern Legal Centre’s Christmas Party that same year.  So, I told you I had a story. 

My spies tell me the musical accompaniment was provided by Mutant Death, described by one commentator as “a very obscure activist punk” band.  In honour of their host that night, they performed the song “Police Verbals”, which criticised the type of behaviour that would become the subject of the Wood Royal Commission.  The song included the lyrics:  “I woke up next morning still bleeding in my cell, got on to Redfern Legal Centre, spoke to Virginia Bell”.  I hope they went on to be wildly successful, but they probably needed a name change, for example, INXS. 

In any event, in literature, they call this technique foreshadowing because just over a decade later your Honour would become counsel assisting the Wood Royal Commission and help expose corruption in the New South Wales Police Force.

In reviewing your formative years as a young solicitor, what is telling is how many of the characteristics that would define your career at the Bar and on the Bench were already present.  We see the brilliant advocate with a forensic legal mind, your commitment to social justice and the will to hold powerful people and institutions accountable - that is called speaking to power - and the keen sense of collegiality and willingness to collaborate. 

Even today, many years after your Honour’s pioneering work on the Wood Royal Commission, I understand that your Honour continues to keep in close contact with the men and women you worked with on that Commission. 

The one thing that we cannot see from this vantage point was just how tech savvy your Honour would become.  Your Honour is, I am told, an avid user of technology, whose knowledge of the latest apps, devices and gadgets regularly exceeds that of your much younger associates. 

When your Honour watched the US election unfold, it had to be on multiple screens - a laptop for cable news, an iPad for blogs and web‑related coverage and the odd television screen thrown in for good measure.  I applaud you for this, because I confess I still need help from the nearest five‑year‑old.

The culmination of your Honour’s legal career was, after your ascent to the Supreme Court of New South Wales and then a stint on the Court of Appeal, your appointment to the High Court of Australia in 2009.  In achieving this, you became only the fourth woman in history to serve on Australia’s highest Court. 

It is here that I would like to speak ‑ not only on behalf of the profession - but also as a woman in the law. 

Your career and service on the Bench has been vitally important to an entire generation of women lawyers.  It has been both an inspiration and a message - to all female lawyers about what is possible. 

We have come a long way in the years that your Honour and I have practised law.  I am told that in 1969, while you were still a law student at the University of Queensland, it was acceptable for senior students to host a function to help female students retain their femininity while practising law.  I must say that I still find that triggers a nervous facial twitch and makes me want to scream.  But it also reminds me of a dress code that one of the firms put out some time in the 1980s - thankfully it was not my firm - that pointed out the somewhat startling fashion advice that brown is not a power colour and recommending to women solicitors lingerie bags for stockings.  In any event, that no longer happens and your Honour will leave a profession very different to the one you entered, thanks in no small part to the role that female jurists like yourself have played. 

I hope you will now enjoy your much deserved retirement in the company of good friends and family.  Your Honour has often reminded your associates that to have a good life in the law you need a good life outside of it, and that is a truism your Honour has lived by. 

Retirement from this office will also bring you even more opportunities to get your steps up.  I am told your Honour is an avid lunchtime walker and regularly tracks her steps via your Fitbit.  While a champion of collegiality at the Bench, I understand your Honour was, nonetheless, delighted on one occasion to let Justice Edelman know that his step count was lagging significantly behind your own. 

Wherever your feet take you upon retirement (and by all accounts, it is likely to be Italy, if the international borders open) I wish your Honour well, and with a good podcast to entertain you on the way. 

I look forward to your continuing association with the Law Society of New South Wales as an honorary judicial member and on behalf of the solicitors of New South Wales, thank you, your Honour, for your service to our State, to our country and to the legions of lawyers for whom you have been such an inspiration. 

As the Court pleases.

BELL J:   Thank you, Mr McHugh and Ms Warner, both for your attendance and for your kind remarks. 

Ms Warner, you may be pleased to know that relatively recently I learned that a female member of Mutant Death had joined the solicitors’ branch of the profession. 

I am grateful, particularly in these rather singular circumstances which find the three of us trialling the format for the COVID compliant virtual farewell.  It is probably a reflection on my age, but I find myself regretting the intimacy of the days when the farewellers and the farewellee were together in the same courtroom.  I content myself with the thought that probably by the time Justice Edelman retires, everyone will be attending remotely from their loungeroom in some form of leisure wear. 

I am most grateful to Chief Justice Bathurst, to my sibling Justice Bell, President of the Court of Appeal, to Justice Ward, the Chief Judge in Equity, to Chief Justice Allsop and Justice Katzmann for their attendance at this disembodied sitting. 

My successor, Justice Gleeson, also does me the honour of being present today.  I have had the opportunity to congratulate her and to wish her well in what will be a longer tenure on this Court than I have had and I look forward to being present in the gallery at her swearing‑in on 1 March.

Judicial life shares with life at the Bar the singular charm of work that almost always offers intellectual interest and almost always makes no administrative demands, a near perfect balance.  My time at the Bar, and for the past 22 years as a Judge, has been very satisfying and I will miss the work. 

The one compensation following my retirement is that I expect to be no longer accosted in Phillip Street, as I have been in recent months, by individuals insensitive enough to ask me:  “Just when is it that you turn 70?” 

My judicial career has spanned trial work, work in the Court of Appeal and in this Court.  The experience gained in the first two was apt to reinforce in me the desirability of this Court providing a clear statement of the law in any given matter.  I am pleased that in my time as a member of the Court, under the stewardship of Chief Justice French, and for the past four years Chief Justice Kiefel, the Court has striven wherever possible to give clear guidance by speaking with fewer rather than more voices.  This is truly a collegial court and I will greatly miss the comradeship of my colleagues. 

Contrary somewhat to the tenor of some kind things said both by you, Mr McHugh, and by you, Ms Warner, I am from a generation of women barristers that cannot lay claim to any pioneering status.  The way in that respect, certainly for those of us in New South Wales, was paved by women barristers of the eminence of Mary Gaudron, Elizabeth Evatt and Priscilla Fleming.  Nonetheless, when I was first at the Bar, women counsel still had a certain rarity value, which often enough we could have done without.

I have been very pleased to see the change in the composition of the Bar in recent years.  It has given me particular pleasure to see my former female associates succeeding at the Bar in areas of practice that were almost exclusively male preserves when I was a junior counsel.  Equally, I should say, it has given me much pleasure to see my former associates, male and female, pursuing a variety of stimulating careers in the law, from succeeding in the academy to litigation practice in large firms and to working on both sides of the record in criminal practice. 

They all share with me a high regard and fondness for my personal assistant, Stephanie Betar, who has been unfailingly kind and helpful to all of them.  I take this opportunity to record my thanks to Steph for her work, her support and her friendship over the 20 years that we have worked together.  I hope we are both going to have a very good retirement. 

But, I am, as they say, getting ahead of myself.  There is a long list of applications for special leave to appeal to be determined.  I thank you all for your attendance. 

The Court will now adjourn briefly to reconstitute.

AT 9.35 AM SHORT ADJOURNMENT