Ceremonial - Retirement of Mason CJ - CER

[1995] HCATrans 91

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

CEREMONIAL  SITTING

ON THE OCCASION

OF

THE RETIREMENT OF THE CHIEF JUSTICE

THE  HONOURABLE  SIR  ANTHONY  MASON,  AC,  KBE

AT

CANBERRA

ON

THURSDAY, 20 APRIL 1995, AT 10.16 AM

Coram:

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

In addition to the members of the Court the following dignitaries were present on the Bench:

The Rt Honourable Sir Harry Gibbs, GCMG, AC, KBE, former Chief Justice of the High Court

The Honourable Sir Ronald Wilson, AC, KBE, former Justice of the High Court

The Honourable Justice Gummow, Justice of the Federal Court of Australia

Seated behind the Bench were the following dignitaries:

The Rt Honourable Sir Thomas Eichelbaum, GBE, Chief Justice of New Zealand

The Honourable M.E.J. Black, Chief Justice of the Federal Court of Australia

The Honourable A. Nicholson, AO, Chief Justice of the Family Court of Australia

The Honourable A.M. Gleeson, AC, Chief Justice of the Supreme Court of New South Wales

The Honourable J. Macrossan, AC, Chief Justice of the Supreme Court of Queensland

The Honourable J.H. Phillips, Chief Justice of the Supreme Court of Victoria

The Honourable L.J. King, AC, Chief Justice of the Supreme Court of South Australia

The Honourable D.K. Malcolm, AC, Chief Justice of the Supreme Court of Western Australia

The Honourable Sir Guy Green, AC, KBE, Chief Justice of the Supreme Court of Tasmania

The Honourable B.F. Martin, AO, MBE, Chief Justice of the Supreme Court of the Northern Territory

The Honourable J.F. Gallop, Acting Chief Justice of the Supreme Court of the Australian Capital Territory

The Honourable M. Wilcox, Chief Justice of the Industrial Relations Court of Australia

At the Bar Table the following persons were present:

The Honourable M. Lavarch, MP, Attorney-General for the Commonwealth of Australia

Dr G. Griffith, AO, QC, Solicitor-General for the Commonwealth

Mr W.C.R. Bale, QC, Solicitor-General for Tasmania

Mr J.J. Doyle, QC, Solicitor-General for South Australia

Mr K. Mason, QC, Solicitor-General for New South Wales

Mr T. Pauling, QC, Solicitor-General for the Northern Territory

Mr P.A. Keane, QC, Solicitor-General for Queensland

Mr D. Graham, QC, Solicitor-General for Victoria

Mr P.A. Panegyres, Acting Solicitor-General for Western Australia

The Honourable R.J. Ellicott, QC

Sir Maurice Byers, CBE, QC

Mr J.D. Merralls, QC

Mr D.F. Jackson, QC

Mrs S. Crennan, QC, President of the Australian Bar Association

Mr S. Fowler, President of the Law Council of Australia

Mr W. Sofronoff, QC, President of the Bar Association of Queensland

Mr M. Tobias, QC, President of the New South Wales Bar Association

The Honourable J.W. Shaw, QC, Attorney-General for New South Wales

Mr G. Humphries, MLA, Attorney-General for the Australian Capital Territory

Mr C. Pullin, QC, President, Bar Association of Western Australia

Mr D. Habersberger, QC, President of the Victorian Bar Council

Mr J. Kable, QC,  representing the President of the Bar Association of Tasmania

Mr D. Clayton, QC, President of the Law Society of South Australia

Mr G. Richardson, SC, President of the ACT Bar Association

The Honourable Justice L.J. Priestley

The Honourable Justice J. Lockhart

The Honourable A.R. Neaves

The Honourable T.E.F. Hughes, AO, QC

Mr D.F. Jackson, QC

Mr D. Williams, QC

Mr A. Emmett, QC

Mr J. Mansfield, QC

Mr K. Copley, QC

Mr M. Rozenes, QC,

Mr J. Heydon, QC

Mr J. McKechnie, QC

Mr F. Callaway, QC

Mr R. Webb

Mr R.T.H. Barbour, QC

Mr R. Stitt, QC

Mr J. Kelly, representing the Queensland Law Society

Mr A. Melick, representing the Law Society of Tasmania

Mr R. Clynes, Law Society of the Australian Capital Territory

Mr R. Smith, Law Institute of Victoria

Mr M. Stack, Law Society of New South Wales

Also present in Court were the following former Associates of the Chief Justice:

Mr P. Lahy

Mr A. Sullivan, QC

Ms S. Tongue

Mr P. Comans

Mr I. Davidson

Mr A. Leopold

Mr S. Gageler

Ms L. Saunder

Mr S. McLeish

Mr S. Evans

Ms K. Walker

Speakers:

The Honourable M. Lavarch, MP, Attorney-General for the Commonwealth

Mr S. Fowler, President, Law Council of Australia

Mrs S. Crennan, QC, President, Australian Bar Association

Mr M. Tobias, QC, President, New South Wales Bar Association

TRANSCRIPT OF PROCEEDINGS

MASON CJ:   Mr Attorney.

MR LAVARCH:   May it please the Court.  This, of course, your Honour, is a very important occasion; it marks an end of an era both for your Honour’s distinguished legal career and, of course, in a sense, for the High Court itself.  In its history, the High Court of Australia has had only nine Chief Justices and, given the importance of the Court, its role in shaping the legal, social and economic fabric of the Australian nation, each Chief Justice has, of course, left an indelible mark upon this nation.

The decisions of the High Court, I suppose, reveal much about the contemporary debate occurring within the Australian community.  An historian could do no better than to examine decisions of the Court over the years to ascertain what were the pressing issues facing the nation at that given time.  Much, of course, has already been written about your Honour’s tenure as Chief Justice and undoubtedly, in the years to come, many volumes, indeed, will also be full with analysis written by people far greater than I in terms of their understanding of these matters.

Before I maybe touch briefly on some of the salient issues which have confronted your Honour during your term as Chief Justice, I think it is expected and somewhat traditional that I outline to some extent the history of your Honour’s career that led your Honour to this very high office.

During the latter part of the Second World War your Honour enrolled in the Royal Australian Air Force and trained in Canada as a pilot.  Your Honour then served for a short time as a flying officer with the RAAF.  After the war your Honour decided to follow in the footsteps of your uncle, a prominent Sydney silk, in studying law.  Your Honour graduated with distinction, first class honours in both law and arts, from Sydney University.

Your Honour then gained experience in court procedure when your Honour became for a time associate to Mr Justice Roper.  After being admitted to the Bar in 1951 your Honour went on to develop a wide practice in equity and commercial law and in the appellate courts, both in constitutional law, taxation and bankruptcy.  Your Honour maintained links with the Law School of Sydney University by lecturing in equity, a subject in which your Honour had a particular interest and found challenging.  Your Honour followed the tradition of other fine equity lecturers and from 1962 to 1964 was the Challis Lecturer in Equity. 

As a young Sydney barrister one of your Honour’s most notable cases was to defend Mr Fitzpatrick in the well‑known case of Fitzpatrick and Brown.  Your Honour was refused permission to represent your client in proceedings before the Parliament.  Messrs Fitzpatrick and Brown were each then given a three-months gaol sentence by the House of Representatives.  The case, as your Honour recently indicated, made an indelible impression on your Honour, reinforcing your Honour’s view that the rights of the individual are best protected by competent legal representation in the courts. 

Two days after your Honour’s appointment in December 1964 as one of Her Majesty’s Counsel your Honour was appointed Solicitor‑General of the Commonwealth.  As well as appearing for the Commonwealth in constitutional matters, your Honour played a major role internationally in codifying and co‑ordinating developments in international trade law.  Your Honour led the Australian delegation to the first and second sessions of the United Nations Commission of International Trade Law and in 1968 your Honour was Vice Chairman of that Commission.  In 1969 your Honour was appointed to the Council of the Australian National University and subsequently became the University’s Pro-Chancellor.  In that same year your Honour was made a Companion of the Order of the British Empire.  Your Honour was also appointed a judge of the New South Wales Court of Appeal, an appointment held until 1972, when, under the McMahon Government, your Honour was elevated to the position of Justice of the High Court.             In 1987 your Honour was appointed Chief Justice of the High Court by the Hawke Government.  Your Honour’s appointment was widely applauded and very popularly received.

Your Honour, during your term as Chief Justice, as I have indicated, you have had, together with your fellow Justices, to deal with some of the most compelling issues which Australia itself is being asked to deal with.  I suppose a number of the cases which your Honour has been involved with are now very much bywords in the Australian community.  Cases in recent years such as Mabo, the Political Broadcasting Cases, I suppose are very widely known amongst the Australian community.  These cases, of course, have focused a great deal of attention on the role of the Court.  There has been spirited debate amongst the Australian community as the appropriate function of the Court of its appropriate place vis‑a‑vis the Parliament.  This is a debate which I have no doubt will continue.  Can I say that, from my perspective, you have conducted yourself in this debate, against the glare of very great public scrutiny, in a way that has brought great honour to yourself and, more importantly, to the Court.

You have, I suppose, in a sense broken new ground in going forth into the public, making yourself to some extent available to the media in order to explain the Court’s role; not to argue any particular case or to come down on one side or the other on any contemporary issue as such, but to explain what the Court does and what the role of a Justice of the High Court is.  That is a very important step which your Honour has taken because, without doubt, the role of the Court and its place in Australian society will become the subject of increasing debate.  I have no doubt about that.  If that debate is to be informed, if the Australian community is to understand and then properly make an assessment about the Court, then it must understand what the Court does and what Judges do.  To that extent I think great tribute should be paid to your Honour for taking what, in many ways, was a bold decision to confront this issue in the way that you have.

Could I say that from a personal level I have very much enjoyed my relationship with your Honour.  It is almost to the day, in fact two years ago, that I became the Australian Attorney-General.  In those two years in my meetings with your Honour and our conversations, I have very much enjoyed those times and I have enjoyed your Honour’s wit and good humour.  I have also very much appreciated on occasions being able to gain advice from your Honour on matters of importance to the Court.            I hope that your Honour also believes that our relationship has been a good one and that, while always of course a very proper relationship as it should be between an Attorney-General and the Chief Justice, nonetheless it has been a warm relationship, and I very much appreciate that.

On behalf of the Australian Government, and if I can be so bold as to speak on behalf of the Australian people, I wish to thank your Honour for the distinguished service that you have given to the law, the service that you have given as a Justice to the High Court of Australia and the leadership and the courage that you have shown as Chief Justice of the High Court of Australia.  I am sure as these histories are written in the near future that history will view your Honour’s term as Chief Justice favourably, that the difficult issues that you have had to grapple with, the leadership which you have been obliged to show, will be viewed as making a major contribution to the development of this nation in social, legal and economic questions.  May it please the Court.

MASON CJ:   Thank you, Mr Attorney.  Mr Fowler.

MR FOWLER:   May it please the Court.  It is an honour for me on behalf of lawyers throughout Australia to offer to you, Chief Justice, the legal profession’s warmest thanks and our good wishes on the occasion of your retirement.  I suppose it will be only after a considerable number of years have passed that a full assessment of the significance of your Honour’s work as a Justice and as Chief Justice of this Court will be possible.  But what is clear even now is that history will show that judgments in a series of extremely significant cases, cases of great relevance to our national and to our individual lives, have carried the stamp of your Honour’s learning, legal perceptiveness, far-sightedness and common sense.

The very high esteem in which you are held, Chief Justice, was reflected in the Law Council’s decision recently to invite your Honour to accept honorary membership of that Council.  We were delighted that you agreed to do so. 

As you suggested when that honour was bestowed on you, the standing of the High Court of Australia depends above all else on the integrity of its judgments.  I suppose the integrity of a judgment, like beauty, is to some extent in the eye of the beholder.  There is no doubt that a number of the judgments of the High Court in recent years have been controversial and one or two have been quite strongly criticised, with one of the more milder descriptive epithets being used as adventurous.  I understand that one of the more recently developed adventure sports, called base jumping, involves leaping from mountains and parachuting to earth and I recall a cartoon by Geoff Pryor in the Canberra Times depicting your Honours taking turns at leaping from a mountain while one of you remarked, “After Mabo, we all decided, what the hell, base jumping would have to be a bit of a breeze”.

Whatever may be said about particular judgments, I believe the integrity of those who comprise the Court is unassailable.  It is, of course, one of the greatest attributes of our system that we are free to criticise the decisions of our courts without risking the severe reprisals we would experience in some other places.  At the same time, of course, it is of great importance that courts should be respected.  That respect must be built, not only on judgments and judges of integrity, but on a much wider knowledge and understanding of the importance of judicial independence.  That independence, as you have pointed out, Chief Justice, is not something that exists for the benefit of the judges, but is an essential privilege and protection for our community.

In explaining the Court and its work your Honour has, I suggest, moved much further than any of your predecessors.  The adventurous spirit that some have detected in judgments has, to some extent, been mirrored in the Court’s willingness and, in particular, your own willingness and, indeed, your deliberate initiatives to make the High Court better understood in the community.

On another occasion and in your presence, Chief Justice, I referred to the pretence that judges somehow have secret access to sources of the law, to something like a Cassotian spring or, perhaps, something closer at hand like Lake Burley Griffin, from which flows as from an oracle, a mysterious and infallible stream of judgments.  I suggested then, as I do now, that one of your Honour’s important contributions to the understanding of the role of the Court has been to strip away that pretence and make it more widely understood that judges do, from time to time, actually make law.

Whether it is correct to go so far as one commentator did and to describe this Court as Australia’s most powerful judicial, legislative and policy-making institution is an entirely different matter.  But, a product of the Court’s dealing with controversial issues in recent years has been a suggestion that the Court is seeking to play a legislative role even, so some have asserted, to usurp the role of Parliament.  That is an assertion which you, Chief Justice, have firmly rejected.  However, there obviously remains, in some minds, an image of the High Court which, if not addicted to the thrills of base jumping or even bungee jumping, is moved by what is described as a judicial activism that is hard to confine.  Many others see this judicial activism as no more than a consequence of the Court’s willingness to face up to the demands of its function as that function must be exercised today, exercised in fashioning a distinctly Australian law and a distinctly Australian legal system.

Whatever the judgment of history may be, for the moment we are engaged in a fascinating debate that goes to the constitutional foundations of our democracy and that cannot be a bad thing.  Part of that debate relates to the way in which we protect the rights of our citizens and to the tension between the roles of the High Court and the Australian Parliament.  There is discussion as to whether we need a Bill of Rights and this is a topic on which your Honour has expressed some views.

We look forward to hearing further from your Honour on this and other important issues because we believe that your Honour will have much to contribute to public debate and understanding in the years ahead.  We are very pleased to know from your Honour’s associations with at least two universities that your Honour will have opportunities to write and to speak and to continue in another way the very significant contribution that your Honour has made to public life.

More specifically we would warmly welcome a continuing link between your Honour and the legal profession to which your Honour has much to contribute.  The Law Council of Australia and the profession are already in your Honour’s debt.  Your Honour’s assistance, notably through your addresses to the Australian Legal Convention, but also in other ways, has been greatly appreciated.  Your Honour has always received the presidents and other representatives of the Law Council with the utmost courtesy and your Honour has been very willing to seek and consider the Council’s views on the Court rules and procedures and other matters.

The Law Council has enjoyed a most cordial relationship with your Honour and your Honour’s colleagues and we value your Honour’s part in that relationship, as we do the occasions on which we have been honoured by the presence of your wife.  Service to the law and, through the law, to the community has been a distinguishing characteristic of your Honour’s life and work.  Your Honour’s judgments, if I may borrow a phrase your Honour applied to someone else on the day of your Honour’s swearing in, have illuminated the law of this country.

I am delighted to have this opportunity to acknowledge your Honour’s service and to honour you for it.  I also express the hope that your Honour and Lady Mason will enjoy many, many happy years, busy though they undoubtedly will be.  May it please the Court.

MASON CJ:   Thank you, Mr Fowler.  Mrs Crennan.

MRS CRENNAN:   If the Court pleases.  It is a privilege to appear today on behalf of the Australian Bar Association, representing members of all Bars throughout the Commonwealth, to farewell your Honour as Chief Justice of the High Court of Australia.  The details of your Honour’s long and illustrious career in the law are well known and the Attorney has outlined your Honour’s services to the law and through law to the whole Australian community.  Your Honour brought to the office of Chief Justice an outstanding legal intellect, high personal integrity, great gifts of analysis and a willingness to entertain and, for that matter, give effect to new ideas and developments apt to the wider contemporary world.

Adjectives such as ‘activist’, ‘progressive’, ‘reformist’ and ‘creative’ have all commonly been applied to the High Court under your Honour’s leadership.  None does justice to the complex and difficult developments in the law achieved by the High Court presided over by your Honour, both in its final appellate role and as the constitutional Court.  The High Court, under your Honour’s leadership, has demonstrated the capacity of the common law for change.  That it could do so is an incident of the true sovereignty of the Court which is in turn a critical prerequisite for and expression of the sovereignty of the nation itself.

Your Honour and the High Court led by your Honour enhanced the confidence of all Australians in the administration of justice when just outcomes took precedence over adherence to rules and doctrines which had become unsound and which would inevitably have resulted in injustice.  To an extent this central aspect of the judicial process described by you had been foreshadowed by certain predecessors.  Sir Owen Dixon, on the occasion of first sitting as Chief Justice of the then High Court in Melbourne, said he “believed the High Court has always administered the law as a living instrument and not as an abstract study”.          From the American jurisdiction, Justice Benjamin Cardoza somewhat earlier had observed that judges can be, as he put it, “under a duty to stake a path along new courses, make a new point of departure from which others who come after will set out.” 

Lord Denning, a judge about whom no two lawyers would necessarily agree, had his efforts to “stake paths along new courses” stalled by some and appreciated by others.  An example of the former occurred on his appointment as a Lord of Appeal in Ordinary.  Officials of the College of Arms refused to let him have, as he suggested, a palm tree on each side supporting the coat.  On the other hand, the parliamentarian, Lord Renton, said: “It is said Lord Denning usurps the functions of the legislature.  Well I venture to say that I have been a democratically elected legislator for almost as long as Lord Denning has been a judicial one, and I do not mind a bit.  He saves a lot of time in Parliament where we always pass too many laws.”

I mention all three to illustrate that what has distinguished your Honour’s Chief Justiceship is not a radical departure from the continuities of the judicial process.  Rather it is that your Honour as Australia’s Chief Justice shouldered in an unprecedented and very public way full responsibility for the development of an Australian body of law, shaped, upheld and restated by your Honour and your Honour’s Court and intended to match a conception of Australia’s history and nationhood in which all Australians have a just place and all can expect justice without necessarily awaiting remedial or other legislation.

It should also be said on a lighter note that despite your Honour holding the highest legal office in the land your Honour has no fondness for pomp and ceremony.  The length of the ceremonies at the opening of Parliament, for example, have led your Honour occasionally to look for a back door and the chance of an early flight back to Sydney.  On one particular occasion your Honour found what appeared to be an inconspicuous door from which to leave the ceremonies in their full flight, soundlessly slipping away and shutting the door slowly and quietly behind you.  Behind that very door the massed bands who were waiting in position outside the door to play a welcome for Sir Ninian Stephen, and making a mistake, which in all the circumstances was natural enough, promptly struck up a rousing rendition of the national anthem.

It would be presumptuous to attempt to assess your Honour’s lasting contribution to the law but may I venture to suggest one of the pleasures of your Honour’s retirement will be to watch developments of certain of the “paths along new courses” staked out by your Honour. 

On behalf of those I represent I thank you for your distinguished services to the law.  I also thank you for your many courtesies to counsel and to litigants in person and extend very best wishes to yourself and Lady Mason for your retirement.  If the Court pleases.

MASON CJ:   Thank you, Mrs Crennan.  Mr Tobias.

MR TOBIAS:   If the Court pleases, the Bar of New South Wales is your Honour’s the Chief Justice’s home Bar.  As its President, I am proud to be able to join with the previous speakers in publicly acknowledging your Honour’s significant contribution to the Australian community in your capacity as Chief Justice of the High Court of Australia.  You now retire from that office with great honour and dignity and with the universal acclaim and gratitude of the legal profession in general and the Bar of New South Wales in particular.  I must say, your Honour, when listening to the other speakers and sitting in my place, I suddenly appreciated that this would be the first time, perhaps apart from tomorrow, when I have had in the past or will in the future have the opportunity of putting submissions to this Court which will be received with universal acclaim, with no questions or criticisms, without the necessity of a reserve judgment but of immediate order that the plaintiff win.

Those who have proceeded me have chronicled your Honour’s career and your significant judicial contribution to the law in jurisprudence of this country.  On that subject, it is sufficient for me to remind your Honour of what was said by the Honourable Kenneth McColl, MLA, the then Attorney‑General for New South Wales, on the occasion of your Honour’s swearing in as a Judge of Appeal of the Supreme Court of New South Wales on 1 May 1969.  The learned Attorney made the point that the preservation of the rule of law depends primarily upon the judges who administer the law, upon their skill and learning and, above all, upon their integrity.  It was, as he said, with those thoughts in mind that he welcomed your Honour to the Bench of the Supreme Court.  It is again with those thoughts in mind that on behalf of the New South Wales Bar we farewell your Honour from the Bench of this Court.

There is, however, one important aspect of your Honour’s many endeavours which has been mentioned by the Attorney and concerns the manner in which your Honour has transcended the boundaries of the legal profession and the judiciary to a larger context, in particular the way in which your Honour has come to terms with the media and, in so doing, communicated to the public the work of this Court to an extent never before undertaken.  Your Honour’s successful initiatives in this field are but illustrative of a mind which has remained flexible and intellectually enlarging right throughout your Honour’s career.

After serving articles with Clayton Utz and Company, your Honour was admitted to the New South Wales Bar in 1951.  Your Honour read with the late Ken Asprey, whom you had met in 1948 whilst an articled clerk.  Your Honour thereby joined a band of outstanding lawyers who had read with Asprey:  Frank Hutley, who became a judge of the Court of Appeal of the Supreme Court of New South Wales; Sir Kenneth Jacobs, who ultimately became a Justice of this Court; the evergreen, as you yourself have described him, Tom Hughes, QC; and Gordon Samuels, also a former member of the New South Wales Court of Appeal.

Asprey was a great admirer and supporter of your Honour.  After he took silk he would invariably nominate your Honour as his junior whenever a solicitor asked him who he would like briefed in that capacity.  Of course, instructing Asprey while you were articled to Clayton Utz had its compensations.  He had a very striking private secretary, Miss Patricia McQueen.  Keen observers at the time noticed your Honour paid her particular attention.  The rest, of course, is history.

Your Honour followed in Asprey’s very large footsteps by becoming a leading equity, company and commercial law junior.  Along with L.W. Street, as he then was, you were universally recognised as the two shining lights of the New South Wales Junior Equity Bar.  That was some compliment, bearing in mind that that Bar was then full of rising stars, including Ellicott, Fox, Mahoney and Deane.  Your Honour in turn nurtured and influenced several more rapidly rising equity juniors such as Priestley, Meagher and Gleeson, as they all then were.  On the occasion of your Honour’s swearing in as Chief Justice of this Court on 6 February 1987, Gyles, QC, then President of the Australian Bar Association, when speaking on behalf of that Association and the New South Wales Bar, for some reason guardedly observed that that influence was “mostly for the good”.  Eight years on it would not be unreasonable to confirm that conclusion more robustly, given the offices their Honours presently occupy.

During your 13 years at the New South Wales Bar, your Honour made a significant but not so well‑known contribution to the work of the Bar Association.  Your Honour served on its council in 1955 and 1956 under the presidency of Sir Garfield Barwick and in 1959 under the presidency of the late Bruce McFarlan and in 1960 under that of the late Sir Nigel Bowen.  In those days, I am informed, the Bar Council met in the chambers of Clive Teece, QC, with silks sitting on the chairs and juniors on the floor.  I am pleased to report that the junior members of the Bar Council also now sit on chairs.

As Gyles also pointed out on the occasion of your Honour’s swearing in as Chief Justice, you have, since your elevation to the Bench in 1969, retained a lively interest in the doings of the Bar and barristers.  Thus, as recently as July 1992, in a keynote address to the 1992 Conference of English, Scottish and Australian Bar Associations in London, you strongly advocated the value of an independent Bar of sole practitioners and its indispensable function in the efficient administration of the adversarial system of justice. 

On that occasion your Honour also spoke of the future of the Bar, observing significantly that the public perception of the Bar did not match the Bar’s perception of itself.  In the context of the challenges which the independent Bars of Australia and the United Kingdom then faced, you advocated that their best response would be the reaffirmation of the Bar’s traditional, professional ideals in terms of the pursuit of public service and the aspiration to excellence.

Your Honour further said this, and I quote, “The public’s perception of the Bar may be unjustified, but if the Bar is to enjoy the public trust and confidence it must reassert its dedication to its traditional ideals in a tangible way.  You must examine ethical rules with a view to retaining those which serve the public interest and justifying or modifying them on that basis.  At a time when the cost of justice is a burning issue, and the level of cost impedes access to justice, practices which are anti‑competitive can only be justified if they are shown to serve the public interest.”

The Bar of New South Wales, along with the other independent Bars in Australia, have positively responded to your Honour’s words of warning and wisdom.  Along the way we may have briefly become somewhat lost but we are, I believe, now much closer in terms of both attitude and practice to pursuing those traditional, professional ideals to which the Bar, of which your Honour was a leading member some 31 years ago, was dedicated.

The Bar of New South Wales is, indeed, proud of the significant achievements over 31 years of public service which your Honour, one of its most distinguished alumni, has made to law and justice in Australia.  We wish your Honour and Lady Mason a long, healthy and stimulatingly active retirement from judicial office.  If the Court pleases.

MASON CJ:   Thank you, Mr Tobias.  Mr Attorney, Mr Fowler, Mrs Crennan and Mr Tobias, I thank you all for your more than generous remarks.  Fortunately, there is no contradictor and, on this occasion, no one will convict me of neglect if I fail to subject what you have said to critical judicial scrutiny. 

In addition to my former colleagues, Sir Harry Gibbs and Sir Ronald Wilson, I am pleased that we have with us today the Australian Chief Justices and the Chief Justice of New Zealand, Sir Thomas Eichelbaum.  Sir Thomas has been attending a meeting of the Council of Australian Chief Justices here in Canberra.  Although he attends our meetings in the capacity of an observer, that description does not do justice to his contribution to our discussions.

The Council provides a valuable forum for the exchange between Chief Justices of information and ideas and enables each of us to reach better informed conclusions on a broad range of issues.  Sir Thomas’ contribution to the Council and his presence today signify the close ties which exist between the judiciary in Australia and New Zealand.

As you have heard, I have been a member of this Court for almost 23 years and that amounts to half my working life. It has been a great experience. Indeed, I cannot imagine anything else that would have given me as much satisfaction. From my very early days, it was my ambition to become a barrister and at no stage did it ever occur to me that I might take up any other career. Curiously enough, one of the attractions of the Law, as I saw it in my younger days, was that it offered all the certainty of mathematics as a discipline, a view from which I was later forced to retreat when, as a law student, I began to study Constitutional Law and I became acquainted with the old learning on section 92 of the Constitution.

Later, as a barrister and then as Solicitor-General, I appeared not infrequently before this Court.  As a judge of the New South Wales Court of Appeal, I had the purifying experience of being reversed on appeal by the High Court on a number of occasions.  So, even in the two decades before 1972, the decisions of this Court had become the focal point of my working life.

Like other members of the Court, past and present, I have been very conscious of the responsibilities entrusted to the Court by the Constitution. Those responsibilities are perhaps more widely appreciated now than they were even a decade ago. If so, that is a very good thing because we need to enhance better understanding of our Constitution and how it works. But I doubt that the role of the Court is more widely publicised or better understood now than it was in the first quarter of this century, when the Court’s decisions, particularly in the early years after Federation, dealt for the first time with many of the critical questions arising under the Constitution. Those decisions had a significant impact on the structure of government in this country and reflected the new-found sense of national identity.

Today, one difference is that the courts, especially the High Court, are required to decide a wider variety of legal issues of public importance.  Decisions on these issues naturally and inevitably excite public discussion.  The very existence of that discussion emphasises the importance to the community of the judicial function and the vital part which it plays in the life of the community.

Of course, it is neither practical nor possible for the judges to become continuing participants in the public discussion of the merits of particular decisions.  The judges’ reasons for their decisions are expressed comprehensively in their judgments.  So it is on the quality and cogency of those reasons that the acceptance of the decisions and, ultimately, public confidence in the judiciary depends.

In the case of questions which are difficult and controversial, it is not possible to expect that the answers given will attract universal acceptance.  But the community is entitled to expect judgments will be principled, reasoned and objective - characteristics that distinguish the judicial function from the political process - and that the courts will strive to conform to that standard. 

And the community has the protection and the satisfaction of knowing that judicial decisions are given by independent judges, for our Constitution incorporates that fundamental principle of democratic Constitution, the separation of powers. Under the Constitution the federal judicial function is exercised by independent judges, who, though not elected, are appointed indirectly by the elected representatives of the people. The hallmark of the judicial function is that the judge is independent and objective; the judge does not act as the representative of any section or group in the community. Hence, judicial independence is an essential element of modern democracy in which the citizen’s rights and interests, enforceable against government, are of vital importance.

Judges look to precedents and I am no exception.  So I was interested to read recently that an English judge, faced with compulsory retirement at the age of 76, was reported to have said, “Of course I am regretful.  I have thoroughly enjoyed it.  They are a jolly nice bunch of chaps and the work is interesting.”  Taken as a whole, this is not a precedent that I can follow.  The work has been interesting but I am not “regretful” and, although my colleagues are “jolly nice”, the presence of Justice Gaudron precludes me from describing them as “a jolly nice bunch of chaps”. 

My working relationships with my colleagues, particularly those with whom I am sitting today for the last time, have been both harmonious and cooperative.  Indeed, what the Court has achieved during my period as Chief Justice is very largely due to their ability and their co-operation.  And that brings me back to what I said when I took office as Chief Justice over eight years ago, that is, each Justice of the Court is only a contributor to the decision-making processes of the Court as an institution, for it is the Court that decides the cases and declares the law.  The Justices therefore have a collective responsibility, but that collective responsibility cannot be carried to the point where individual integrity is compromised.

I am told that there is life after judicial retirement, so I look forward to what the future holds.  I shall continue to follow the Court’s work with interest, reading the judgments with what I trust will be an understanding rather than a critical eye, recognising that, in the determination of difficult and complex questions, there is real scope for genuine differences of opinion.

I thank the representatives of the legal profession for its contribution to the work of the Court.  I repeat what others have often said - under the adversary system of justice the quality of the Court’s work depends very much upon the quality of the arguments presented to it.  I reciprocate the Attorney-General’s comments about the relationship which we have enjoyed over the last two years and I much appreciate what he has had to say today about that relationship.  I am delighted to see many of my former associates here today and I thank them for making the effort to attend, despite the inconvenience and expense that that must entail.

Last, and certainly not least, I thank my wife for her ceaseless and unfailing support and for her invaluable advice that I should confine my reading to reports and articles that are complimentary to me.  As she says, it reduces significantly the volume of material that needs to be read.

It remains for me to offer my warmest congratulations to Sir Gerard Brennan and Justice Gummow, and to wish the Court well for the future.

The Court will now adjourn until 2.15 pm today.

AT 10.58 AM THE COURT ADJOURNED