Ceremonial Mason CJ Farewell from Melbourne CER

[1995] HCATrans 57

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 CHIEF JUSTICE SIR ANTHONY MASON,  A.C.,  K.B.E.

AT

MELBOURNE

ON

FRIDAY, 17 MARCH 1995 at 9.28 AM

Coram:

MASON CJ
DEANE J
GAUDRON J

Speakers:

Mr D. Graham, QC, Solicitor-General for the State of Victoria.

Mr D.J. Habersberger, QC, Chairman of the Victorian Bar.

Mr R. Smith, President of the Law Institute of Victoria

TRANSCRIPT OF PROCEEDINGS

MR GRAHAM:   May it please the Court.  The sitting of the Court which is now commenced will be the last occasion upon which your Honour the Chief Justice will sit in Melbourne as a member of its Bench.  So far as I can ascertain, the first occasion upon which your Honour sat as a member of this Court in Melbourne, following your appointment as a Justice on 7 August 1972, was at the October sittings of that year, that is to say more than 22 years ago.  Since then you have sat here on countless occasions, although of course less frequently since the Court established its permanent home in Canberra.     The current practice whereby the Court continues to hold sittings in Melbourne and Sydney several times each year to deal with special leave applications is beneficial and it is hoped that it will continue.

As the events of yesterday demonstrate, the work of the Court in the constitutional field is a matter of great interest and concern to the Federal and State governments of Australia, as well as to its people.  As a result, there is perhaps a tendency on the part of the public, at least, to lose sight of the significance of the role of this Court in all other fields of the law as the final court of appeal of this country. 

As a member of this Court for more than two decades, and as Chief Justice since February of 1987, your Honour has demonstrated a mastery of all fields of law and has made, if I may say so, an outstanding contribution to the jurisprudence of this country and of the common law in general  As a Judge, your Honour has always been patient, courteous and helpful.  If I may add a personal note, it has always been a pleasure to appear before a Bench of this Court of which your Honour was a member.

Now I see that the orange light is about to come on, I will simply say on behalf of ‑ ‑ ‑

MASON CJ:   I was going to give you an extension.

MR GRAHAM:   May I say then, your Honour, on behalf of the government and community of this State, we would record our gratitude and offer you our best wishes for a long, happy and active retirement.

May it please the Court.

MASON CJ:   Mr Habersberger.

MR HABERSBERGER   If the Court pleases, it is a great privilege to appear before your Honours today on behalf of the Victorian Bar to mark what will be your Honour the Chief Justice’s last sitting in Melbourne.  Of course, this is not yet goodbye, as your Honour will not retire until 20 April.  That occasion will be marked by a farewell ceremony in Canberra at which proper tribute will be paid to your Honour’s 23 years of service on the High Court, the last eight as Chief Justice.

According to my calculations, over 80 per cent of the Victorian Bar has signed the Bar roll in the 23 years since your Honour was appointed a Judge of the High Court.  Your Honour, of course, has extensive links with Sydney, having been born there on 21 April 1925, educated at the University of Sydney, admitted to the New South Wales Bar in 1951 and having been a Judge of the New South Wales Court of Appeal from 1969 to 1972.  What is less well known is that your Honour has links with Melbourne and with the Victorian Bar which are greatly valued by us.  On 1 May 1987 your Honour opened Owen Dixon Chambers West and your Honour’s photograph now hangs on the 17th floor or the Mason Level of that building.

Your Honour has always been generous with your time as far as the Victorian Bar and the Australian Bar Association have been concerned, and we thank you for that.  Another more recent, but much valued, link with your Honour is that two former associates, Stephen McLeish and Chris Caleo have now come to the Victorian Bar.  If their discretion and loyalty in categorically refusing to recount to me any but the most innocuous anecdote of life with your Honour is any indication, they will make fine barristers.

The High Court under your Honour has been a progressive one, in particular your Honour’s willingness to speak in public and to the press about the workings of, and the principles guiding, the Court has resulted in a more educated interest in and debate about the role of Australia’s highest Court.  In fact, your Honour is noted for your ability to put people at their ease.  Conspicuous as Lord John Russell would have said by your presence, your Honour was in the lift at the High Court on a day when a group of new associates had just started.  Justice McHugh’s associate, who had been about to get into the lift, jumped back when she saw your Honour.  “My august presence notwithstanding”, your Honour said, “you may enter.”

Your Honour’s time on the Bench has been marked by a great change.  As your Honour has said in addresses to the profession, no longer can the profession take for granted public acceptance of principles of judicial independence or the importance of an independent Bar.  This is an important message to communicate, particularly when there appears to be a greater number of examples of parliamentary pressure on both.  As your Honour has said, “Judicial independence is a privilege of, and a protection for, the people.  It is a fundamental element in our democracy, all the more so now that the citizens’ rights against the State are of greater value than his or her rights against another citizen.”

The Victorian Bar wishes your Honour well, after a long career of exceptional service to the profession and to the nation. 

If your Honour pleases.

MASON CJ:   Mr Smith.

MR SMITH:   If the Court pleases.  This is an unusual occasion.  It is characterised as a farewell to your Honour the Chief Justice and yet your Honour will not in fact retire from the Bench for another month.  Perhaps, therefore, we are saying au revoir, but not quite goodbye.  Perhaps, also, it may place matters in perspective if it is noted that this is, after all, St Patrick’s Day.

Nevertheless, it is a privilege to appear before the Court today representing the solicitors of Victoria to acknowledge your Honour’s enormous contribution to the law in this country but from a particular Victorian point of view.  Your Honour’s service to the law has included five years as Commonwealth Solicitor-General, three years as a Judge of the New South Wales Court of Appeal, 15 years as a puisne Judge of the High Court of Australia and eight years as Chief Justice.  It has been an extraordinary career of service to the Australian community.  But the statistics, quickly related, do little justice to the substance. 

Your Honour has led Australia’s highest appellate Court and, in a real sense, the Australian legal profession during an extraordinary period of change and development.  Controversial landmark decisions have been made by the Court in areas ranging from Aboriginal land rights to trade practices under your Honour’s leadership.  Late last year, in an article in the South Australian Law Society Bulletin, the Chief Justice of South Australia, Mr Justice King, spoke of the new dimension your Honour has provided to judicial leadership in this country.  To quote His Honour, “Not only have your ideas expressed in judgments and extra curial speeches and papers had a major effect upon the development of the law, but your leadership and example have also had a marked effect upon the quality of judicial work and, therefore, the administration of justice throughout the country.”  I think all of us in the Australian legal profession, certainly in this State, would echo those views.

From another perspective, more perhaps than any previous Chief Justice, your Honour has been prepared to take a public role on behalf of the Court and the law.  In doing so, your Honour has willingly balanced demands for a greater level of accountability of the judiciary with a staunch defence of the vital independence of Judges and the judicial system.  Notably, interviews with your Honour, particularly recently, have been prefaced by the words “rare” or “exclusive”.  Only last week, your Honour gave another rare interview to the Melbourne Age.  I venture to say that, in giving the Court a public face, your Honour will soon clock up more interviews than my learned friend, the Chairman of the Bar, and I could hope to emulate.

Your Honour has also been willing to give of your time to speak or otherwise contribute to the activities of various Law Societies and Bar Associations throughout Australia.  I thank your Honour for the time you have been prepared to give to the Law Institute of Victoria in this regard.  In conclusion may I, on behalf of the Law Institute of Victoria and all Victorian solicitors, congratulate your Honour on what has been an outstanding career and wish your Honour and Lady Mason a long and happy retirement. 

If the Court pleases.

MASON CJ:   Mr Solicitor for Victoria, Mr Habersberger, Mr President of the Law Institute, I thank you for what you have said.  On occasions like this, there is an actual tendency to put a favourable gloss on what has happened over many years and counsel are skilled in the art of the gloss.  I should add the President of the Law Society to that band.  After all, that is the very core of the professional experience of counsel and advocates.  However, having said that, I do appreciate the spirit in which the speakers have made their remarks this morning and it confirms and reinforces the very happy recollections that I shall have of my period of service on this Court.  Incidentally, I should say, it will convert me into a strong supporter of the Court continuing to hear special leave applications in Victoria.

When I was appointed to the Court 22 years ago, I first sat in Sydney, as Mr Habersberger has pointed out, so that it is appropriate that my last sitting day, in the sense of actually sitting to hear a case, will be very probably in Melbourne which was, of course, as you all know, the original seat, the principal seat of this Court for so long after Federation.

My one regret is that my last day of sitting in Melbourne is in this court room.  From an aesthetic perspective it can only be described by the adjective “indescribable”.  The lighting is bewildering, particularly when you walk in on to the Bench in the morning.  Indeed, the entire building looks as if it represents the fall-out of some massive industrial confrontation.  So I do hope that the proposals for the establishment of a new court building in Melbourne to accommodate the Federal Court, the Family Court and the High Court when it sits in Melbourne do come to fruition.

I thank you all for your attendance here today.  I could not but be moved by the number of members of the profession who have attended and by the spirit of the remarks which have been offered by the Solicitor and the leaders of the profession.  I would like to take this opportunity of thanking the Victorian profession, particularly the Victorian Bar, for its co-operation with the Court during all my time on the Court.  That co-operation has been forthcoming, even at times when changes made by the Court have not been entirely favoured by the profession itself.  But notwithstanding that, co‑operation has always been forthcoming.

In conclusion, I would like to say that I have every confidence that the profession’s co-operation with the Court will continue in the future and that the mutual relationship between the Court and the Victorian profession will be as harmonious as I have always known it to be.

The Court will now adjourn.

AT 9.42 AM THE COURT ADJOURNED