Ceremonial - French CJ - Welcome Adelaide

[2008] HCATrans 364

[2008] HCATrans 364

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

SPECIAL SITTING  

WELCOME TO

THE HONOURABLE CHIEF JUSTICE ROBERT SHENTON FRENCH

AT

ADELAIDE

ON

TUESDAY, 4 NOVEMBER 2008, AT 9.31 AM

FRENCH CJ

Speakers:

Mr J.R. Goldberg, President, Law Society of South Australia

Mr M.F. Blue, QC, President, South Australian Bar

TRANSCRIPT OF PROCEEDINGS

FRENCH CJ:   Mr Goldberg.

MR J.R. GOLDBERG:    Your Honour, on behalf of the Law Society of South Australia I have the privilege of welcoming you to South Australia in your capacity as Chief Justice of the High Court of Australia. 

Your Honour has already been welcomed in Canberra and Sydney but this is an occasion of significance for both the legal profession and the people of South Australia.

At the date of entering office in September of this year your Honour had already served with distinction as a judge of the Federal Court for 22 years, having been appointed at the age of 39 years. 

Your Honour brings to your new role a long history of achievement and a diversity of experiences. 

Your first tertiary qualification was not in law but in science, majoring in physics. 

You were the founding chair of the Aboriginal Legal Service in Western Australia in 1973, and after a period of practice in your own firm you went to the independent Bar in Western Australia in 1983.

From 1994 to 1998 you were inaugural President of the Native Title Tribunal.  You have also served as a Deputy President of the Australian Competition Tribunal and part-time Commissioner of the Australian Law Reform Commission.  In addition, you have served as a Judge of the ACT Supreme Court and as a non-resident member of the Supreme Court of Fiji.

Your appointment to Australia’s highest judicial office has been met with universal praise.  Without detracting from that position in the slightest, I would like to make it clear that it has been the position of the South Australian Law Society for some time now that the Federal Government should be looking west of Canberra for High Court appointments.  Imagine then our delight when the government at last heeded our advice.  Perhaps, however, on the next occasion the Federal Attorney-General might see fit to stop before he reaches the Nullarbor.

Having said that, there is a recognition that appointment to the position of Chief Justice should be based on merit alone.  Parochial considerations such as geography need to be abandoned in the quest for qualities of judicial excellence and leadership. 

The universal consensus is that these two significant qualities reside in your Honour. 

As a bonus, because it is certainly not a requirement for office, your Honour has been described by the President of the Law Society of Western Australia, Dudley Stow, as “a good bloke”.  Cynics might say that he would say that, but the weight of authority is on your Honour’s side.  One of your Honour’s former partners, Rod Warren, stated that your Honour is one of the most likeable and approachable people that you will ever meet.  Clearly, these are excellent qualities for judicial office, but one might wonder at the context in which they were so well publicised.  Perhaps it was viewed as something of a curiosity that someone could be both a highly qualified jurist and a good bloke at the same time.

At the 2008 constitutional law conference you said that Sir Owen Dixon was once warned that if he stayed long enough on the Bench he would go mad.  You pointed out that he did not and you confidently predicted back in 1986 that you too expected to avoid madness.  Testimony to your Honour’s continuing sanity, or as you have described it, “the slippery concept of normality” is your ability to relate abstract legal concepts to everyday life.  As an example, I cite your recent reference in a case dealing with the definition of annoying conduct where you described your own conduct of barracking for the Dockers while sitting in the middle of a bunch of Swans supporters.  The Federal Attorney‑General ungraciously suggested that this also demonstrated the strength of your convictions in the face of great adversity.

In any event, your Honour’s well-rounded personality does not end there.  If the many reports are reliable, your Honour is a marathon runner, a scuba diver and a sky diver; hopefully not all concurrently or even serially. 

In addition, your Honour still features on the internet on the Western Australian Government’s “Be Active” website providing useful advice for people in desk-bound occupations on how to take opportunities to exercise.  I commend your very sensible advice to many of my South Australian colleagues. 

Running in a marathon is a good analogy for the role of a Justice of the High Court.  The track is long, about nine years in your Honour’s case, the pressure is unrelenting, and there is a requirement for consistent performance which in turn calls for both stamina and endurance.

The Law Society and the South Australian legal profession congratulate your Honour on your appointment as Chief Justice and express the wish that you may have the opportunity to take some time away from your important deliberations to enjoy the sights and hospitality that Adelaide has to offer.  May it please the Court.

FRENCH CJ:   Thank you, Mr Goldberg.  Mr Blue.

MR M.F. BLUE, QC:   May it please the Court.  It is my great privilege to appear on behalf of the South Australian Bar to welcome your Honour on the occasion of your first sitting on the High Court here in South Australia.

First, may I say how delighted we are in Adelaide to host the High Court sitting here for the next fortnight due to an unexpected turn of events.  We have become quite familiar with leaks in the legislative and executive branches but were non-plussed to hear that the High Court has sprung a leak.  We were reassured to hear that it was a leaky roof.

We are not sure why the Court chose to sit in South Australia while the roof is being restored.  It may be because we are strong believers in centralism here.  Being central, we can be all things to all people.  We are the mid west to West Australians, the immediate south to Northern Territorians and the mid east to the four eastern States and the Capital Territory. 

It may be due to the state of the art facilities here in the Dame Roma Mitchell Building, of which we are very proud.  From our perspective, the Court is welcome to stay on permanently in Adelaide if the plumbers find the leak in the roof in Canberra insurmountable.

The Court’s visit here is a unique opportunity for us to observe our interstate brethren appearing before the Court in interstate matters on our own doorstep.  We will be richer for the experience. 

An opportunity to welcome a Chief Justice sitting for the first time on the Court in this State is a rare honour because it arises on average only once every two decades.  Your Honour’s predecessors in this regard appointed directly to the office of Chief Justice have been Sir Samuel Griffith in 1903, Sir Adrian Knox in 1919, Sir John Latham in 1935, Sir Garfield Barwick in 1964 and your immediate predecessor, Murray Gleeson, AM in 1998. 

Your Honour is eminently qualified to follow in those footsteps and indeed to forge your own path as the Court’s twelfth Chief Justice.  I was honoured to represent the South Australian Bar at your Honour’s swearing‑in ceremony on the first day of spring and I seek your Honour’s leave to refer briefly to the breadth and diversity of your Honour’s interests and contributions to the community that were mentioned on that occasion.

Your Honour’s education at St Louis Jesuit School at Claremont, culminating in your Honour’s final year as dux and school captain, encouraged wide‑ranging intellectual inquiry and a commitment to higher interests.  These themes were continued by your Honour’s experiences as a science and then a law student as the University of Western Australia in the heyday of the 1960s.

Your Honour practised as a barrister and solicitor from 1972 to 1983, and as a barrister at the independent bar from 1983 to 1986.  As well as your formative role as Chair of the Aboriginal Legal Service, you were also chair of the Town Planning Appeal Tribunal, on the Council of the Bar Association, a member of the Barristers Board, the Legal Aid Commission and the Law Reform Commission each of Western Australia, an associate member of the Trade Practices Commission, and Governor of Amnesty Lawyers Group.

Following your Honour’s appointment to the Federal Court in 1986, as well as the additional roles mentioned by Mr Goldberg, your Honour has also been Chancellor of Edith Cowan University, Councillor of the AIJA, member of the National Indigenous Cultural Awareness Committee of AIJA, President of the Australian Association of Constitutional Law, member of the Western Australia Genetics Council, Governor of the Indigenous Justice Issues Committee of the National Judicial College of Australia and foundation member of the Australian Academy of Law.

Your Honour has earned a formidable reputation for your energy, enthusiasm, intellect, courtesy and your breadth and diversity of interests.  As well as the extreme sports mentioned by Mr Goldberg, your Honour has maintained your skills in science and mathematics and your interest in science fiction.  Above all, your Honour has developed a strong social and humanitarian commitment, initially fostered by your Jesuit teachers, through your Honour’s contributions ever since your founding of the Aboriginal Legal Service in 1973.

Your Honour is well familiar with South Australia, having sat here on many occasions both on Federal Court and the Australian Competition Tribunal.  Your Honour last addressed South Australians at our 2006 Trade Practices Workshop on the topic of “Authorisations and Public Benefit”.  Your Honour passes through or over South Australia on your many journeys between east and west. 

Your Honour therefore knows firsthand that, contrary to a submission made on the occasion of your first sitting in this Court in Sydney, funnel web spiders, with all their attributes, have not indeed come to live in Adelaide.  If they have indeed left New South Wales, as was reported to you on that occasion, we cannot assist the Court as to where they have gone.

Your Honour has spoken on several occasions, most recently at the 75th anniversary of the founding of the Law Council, of your Honour’s belief in a national profession.  We embrace a national profession.  South Australia and Western Australia share a similar professional history.  For example, at the same time as Francis Burt, later Sir Francis Burt, and his colleagues were founding the independent Bar in Perth in the early sixties, Christopher Legoe and his colleagues were founding the independent Bar in Adelaide.

The reality of a national profession is exemplified today by the presence in Adelaide of many of our interstate colleagues.  It is also exemplified by Justice Mansfield’s sitting in Sydney today on a Full Court of the Federal Court to hear the C7 appeal, Justice Besanko sitting on another Full Court in Sydney and by my immediate predecessor, Mr Whitington, appearing before Justice Gzell in the Supreme Court of New South Wales today in the James Hardie civil penalty litigation.

May I finish by offering your Honour a fitting tip for the cup this afternoon?  Boundless by Nothing Less out of Van Nistelrooy.  On behalf of all South Australian barristers, I offer to your Honour our congratulations and best wishes and we warmly look forward to visits by and appearing before the French Court in the years to come.  May it please the Court.

FRENCH CJ:   Mr Goldberg, Mr Blue, ladies and gentlemen, my thanks for your kind remarks.  It is a pleasure and a privilege to be welcomed by the legal profession of South Australia upon my first sitting here as Chief Justice of the High Court. 

There are, of course, exaggerated remarks often made on these occasions.  I am labelled a sky diver.  I did one sky dive and I thought that was enough.  I would not tempt fate.  I am labelled a Dockers fan.  I happened to attend one match where I supported the Dockers because they were playing against a Sydney side.  I referred to that example in the course of a hearing in the matter of Evans v State of New South Wales in Sydney in the Full Court of the Federal Court and was transformed into a lifelong, diehard Dockers supporter.  The truth is, more in despair than in hope, I support both the Dockers and the Eagles and whoever happens to have a chance of getting a premiership against an Eastern States side.

As I recalled on another occasion at a seminar in honour of the late Justice Brad Selway, I have not always felt welcome in South Australia.  I have a memory from the mid‑1990s of standing in front of the gates of a South Australian pastoral property in my then unwelcome capacity as President of the National Native Title Tribunal reading a sign which said “South Australian civil servants not welcome.  This extends to all other liars, cheats and thieves”, or words to that effect.  Although I am not and was not then a South Australian civil servant, I had the feeling that I would be readily incorporated into the catch‑all category.

Brad Selway, with whom I had dealings in his capacity as Solicitor‑General in relation to native title matters, was an antidote to that unwelcome feeling.  He was also later to be a valued colleague on the Federal Court.  His premature death robbed South Australia and Australia of a great jurist.

The legal profession and judiciary of South Australia are the products of a long and proud history which began on 2 January 1837 when the Supreme Court of the five day old province was established by Royal ordinance.  As Howard Zelling, formerly a justice of the Supreme Court, observed in a short summary of the history of the court, there were only 546 people in the colony at that time, but South Australia obviously put then, as it does now, a high value on law and order.  The first judge was Sir John Jeffcott, previously Chief Justice of Sierra Leone.  In May 1837 the first South Australian legal practitioners were admitted and their admission was the beginning of the history of the profession in this State, particular landmarks of which were the formation of the Law Society in 1879 and the independent Bar in 1955.

Like Western Australia, my home State, South Australia has managed to combine the benefits of a fused profession and those of the voluntary, Independent Bar which was established by Christopher Legoe, with whom incidentally as President of the Native Title Tribunal I continually met in his capacity as a representative of bee keeping interests.

South Australia has produced many notable lawyers and judges.  The point has been made more than once that nobody from South Australia has ever been appointed to the High Court.  That is true and it is regrettable.  It should also be acknowledged, however, that there were two notable refusals by South Australian judges to accept appointment to this Court. 

In 1906 when the Judiciary Act had been amended to increase the number of judges on the High Court the first approach made by Prime Minister Deakin to fill the vacancy was made Sir Samuel Way, then Chief Justice.  In his letter to Way on 24 September 1906, Deakin said:

“Our desire is that the High Court should be enlarged by the addition to its already eminent Bench of the leading, most experienced and most learned lawyers of this country, and actuated by this aim it is but natural that we should turn to you first”. 

Sir Samuel was 70 years of age, he was Chief Justice, Lieutenant‑Governor, and Chancellor of the university.  His refusal to accept an appointment involving long and frequent journeys and absences from home is perhaps, in retrospect, not surprising.  Indeed, there was a suggestion by Justice Gordon, also on the Supreme Court of South Australia at the time, that the invitation was a political ruse and the refusal a foregone conclusion.  Justice Gordon himself was approached in 1913 and declined on grounds of ill health.

South Australian lawyers and the South Australian judiciary have made an indelible mark on the national judiciary and the national profession of which they are undoubtedly part.  Time does not permit a recitation of those who have made that contribution, but in recent times the leadership given by Chief Justice Doyle and, in particular, as Chairman of the National Judicial College, and Justice Debelle as President of the Judicial Conference of Australia, are signal examples.

Mr Blue and Mr Goldberg, ladies and gentlemen, I am delighted to be here.  I look forward to sitting in South Australia on other occasions in the future.  I put a high value on the circuit work of the High Court.  It reminds us that we are a Federation.  I am proud to have received your welcome, and once again my thanks.  I will now adjourn.

AT 9.44 AM THE COURT WAS ADJOURNED