Ceremonial Sitting

[2005] HCATrans 571

[2005] HCATrans 571

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 FINAL SITTING OF THE HIGH COURT

IN THE SUPREME COURT OF SOUTH AUSTRALIA

AT

ADELAIDE

ON

TUESDAY, 9 AUGUST 2005, AT 9.31 AM

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

Speaker:

Mr Christopher John Kourakis QC, Solicitor-General for the State of South Australia

TRANSCRIPT OF PROCEEDINGS

GLEESON CJ:   Yes, Mr Solicitor.

MR KOURAKIS:   If the Court pleases, it was within a month of the appointment in 1903 of the first inaugural Justices of this Court that they embarked on their first judicial walkabout or circuit session and visited Adelaide.  Those circuit sessions have remained a distinctive feature of this Court’s existence.  More than a century later, the time has arrived for your Honours to move from this building that has housed the Court on its visits here to a place of your own. 

The justices who served on the Supreme Court of South Australia at the time of your Honours’ first visit might well have been surprised at the suggestion that it would have taken as long as it has for your Honours to move into a Federal Court building.  They had, after all, refused to give up their own rooms for the visiting Justices, insisting that they enjoy the much smaller rooms of their Honours’ associates.  It appears that they regarded the High Court at the time as itinerants, touting for work.

It was left to the Attorney‑General of South Australia, the Honourable John Gordon, in his address to the Court on the occasion of that ceremonial sitting to address the important role of the High Court on that, its first visit to Adelaide.  At that ceremonial sitting, he observed that the chief function of the Court would be in its constitutional work and in undertaking the exposition of the constitutional arrangements that would govern the relationship between the States and the Commonwealth.  He observed that it was in the exercise of that work that the harmonious development of Australia as a united nation depended.  He expressed confidence that the High Court would, over time, fully discharge those responsibilities.

It is in that spirit that since that time the profession, the judiciary and the public of South Australia generally have welcomed this Court on its circuit visits to Adelaide. 

In more recent times, of course, the work of the Court in Adelaide has been confined to the hearing of appeals and applications for special leave to appeal.  I was, however, recently reminded that in earlier times Justices visited Adelaide to sit and hear trials in the patent, trademark and tax jurisdiction of the Court in those earlier times.  Moreover, in August 1982 both Justices Deane and Dawson presented their commissions at a ceremonial sitting held in Adelaide.

Quite apart from the judicial work undertaken by the Court in its visits to Adelaide, individual Justices have given their time to attend social functions and give public lectures, work that has been equally appreciated by the South Australian public.

Your Honours, Sir Samuel Griffith explained in his address to the ceremonial sitting held in Adelaide that it was the Court’s firm view, and that of the Executive of the time, that it should embark on circuits throughout Australia so that it could become familiar with the different parts of Australia, but also so that the High Court, in the mind of the Australian public, would not remain a mere abstract body, but would be seen as real live human beings willing to be looked at.

Lawyers, law students and the public alike generally fill and have filled the gallery in this Court to do just that.  Moreover, the forensic contests and exchanges can be interesting and instructive, sometimes, in a sense, even entertaining.

There is, however, a particular exchange that occurred in the course of the hearing in R v Lipohar, held in this very courtroom, that I think is particularly worth repeating on this occasion.  In the course of argument in that case, one of the Justices of this Court asked counsel how many common laws of Australia were there.  Before counsel could reply, the Justice answered his own question with the observation, “There is one and you are looking at it”.

The sudden epiphany of the Australian common law in the form of seven High Court Justices understandably left counsel momentarily speechless, but it is hard to imagine any better illustration of the integrated nature of the Australian judicature than that exchange, taking place as it did with the High Court sitting on the very Bench from which the judgment below had been delivered.

Your Honours, next year the Court will sit in its own building across Victoria Square from here.  Undoubtedly news of the controversy over that building’s appearance has reached your Honours.  Architectural controversies are, of course, no strangers to the High Court.  I read recently that the design of the High Court building in Canberra has been described in what I think was meant to be a compliment as an exercise in the structural demolition of a square, but for those not yet taken by the appearance of the Federal Court building in this city, I think they would do well to remember the grey concrete box that once stood there and served as the headquarters of the South Australia Police.

A lecturer in architecture recently attempted to explain some of the design concepts employed in the new Federal Court building.  She said that the colours represented the Adelaide hills and the plains sweeping to the sea beneath them.  That landscape is not as obvious now as it once must have been.  It has been obscured, of course, by Adelaide’s urban development.  It is, however, I think, fitting that this Court, placed as it is at the apex of the Australian judicature, should sit in a building that incorporates a symbolic reference to the ancient landscape on which this relatively young federation has been planted.

Your Honours, South Australia has been pleased and honoured to accommodate the Court during its visits to Adelaide.  You have been welcome house guests and we look forward to welcoming you next year as neighbours.

If the Court pleases.

GLEESON CJ:   Your Honour the Chief Justice of South Australia, your Honours, Mr Solicitor, members of the South Australian legal profession, ladies and gentlemen, for 100 years the High Court of Australia on its annual visits to South Australia has enjoyed the hospitality of the Supreme Court of the State and has sat in these premises.  It seems reasonably certain that this week’s sittings will be the last sittings of the High Court to take place here.  By next year we should have our own accommodation in Adelaide.

In 1905, the issue of circuit sittings by the High Court was charged with emotion and conflict.  As the Solicitor‑General has pointed out, there was considerable uncertainty at that time as to the role of the High Court and its need, apart from constitutional cases.  It is important to bear in mind that most people in 1905 regarded the Judicial Committee of the Privy Council as the court of final resort for Australians and as likely to remain so for the foreseeable future.  It was a South Australian who said that a High Court was about as necessary as the fifth wheel on a coach.

There were proposals at the time of Federation that the High Court should not be a permanent court but should be a scratch court, composed, for example, of State Chief Justices when necessary to deal with its business.  There was further a large issue as to whether the Court should go on circuit at all and as to the financial arrangements that should be made in that regard.

The first three members of the High Court following the Court’s establishment were residents of Sydney.  Justices Barton and O’Connor were New South Welshmen and Chief Justice Griffith came back to New South Wales to live after the establishment of the Court.  In 1905 the Commonwealth Attorney‑General, Sir Josiah Symon, was a South Australian and he and Chief Justice Griffith locked horns over the question of the expense of circuit travel and the wider question of whether circuit sittings were either necessary or appropriate.  The conflict was only resolved in favour of the Court’s point of view when Sir Josiah Symon was replaced as Attorney‑General by Sir Isaac Isaacs.

Throughout the 20^th century, and even after the establishment in 1980 of the Court’s own building and permanent headquarters in Canberra, the practice of circuit sittings continued and it continues up to the present.  Some people ask the question, “Why does the High Court sit on circuit in State capitals?”  They might also ask the question, “Why does the High Court sit at all?”  For years technology has existed that would permit us all to work from home, but it is part of the function of a court to sit to conduct its business in public and to expose itself and its reasoning to the public gaze and that is why the High Court sits on circuit.

Until the establishment in the 1970s of the Federal Court and the Family Court, apart from the members of the High Court, there were very few federal judges.  In consequence, in most of the States to which the High Court travelled, there was no Federal Court building.  In recent years in Brisbane and Perth, and now in Adelaide, substantial buildings have been constructed to accommodate Federal Courts and federal judges.

It is worthwhile bearing in mind what a substantial and expensive building the building in which we now sit must have been when it was originally erected by the State of South Australia and what a major capital investment on the part of South Australia this court must have been when it was first constructed.

This Court’s reliance upon State court buildings and accommodation has gradually diminished and with the completion of the unobtrusive new Federal Court’s building in Adelaide, which will surely have occurred by this time next year, it will come to an end.

This is an appropriate occasion to remind ourselves of the hospitality we have received in Adelaide over the last century and to express our gratitude.  As the Solicitor‑General has reminded us, in Australia we have a national common law.  We should also remind ourselves that in Australia we have a national judiciary.  The sharp distinction between federal and State judiciaries that exists in the United States of America does not exist here.  In Australia, State and federal judges are recruited from the same sources.  Their terms of appointment are approximately the same.  There is movement of judges between State and federal courts.  Five of the seven Justices of the High Court at present are former members of State Supreme Courts.

There is a council of Chief Justices, which I chair, and which includes the Chief Justices of the Federal Court, the Family Court and the State and Territory Supreme Courts.  There is a National Judicial College chaired by the Chief Justice of South Australia which provides educational facilities and services to State and federal judicial officers.  This cohesion is an important source of strength for the Australian judiciary.

In the spirit of co‑operation and collegiality that exists throughout the nation’s judiciary, the judges of the Supreme Court of South Australia have welcomed members of the High Court and generously provided them with a courtroom and Chambers to accommodate the Justices and members of their staff.  We acknowledge the courtesy with which we have been received.

Our sense of obligation extends beyond the judges.  Officials of the South Australian Supreme Court, registry staff and the personal staff of judges, have all provided assistance to facilitate these annual circuit sittings.  We are most grateful to them also. 

We thank you, Mr Solicitor, for your pertinent observations and all those who have attended this morning to provide us with an opportunity to acknowledge our debt.

We will adjourn to reconstitute.

AT 9.45 AM THE COURT ADJOURNED