Ceremonial Sitting - Swearing-in of Keane J - Canberra

[2013] HCATrans 40

[2013] HCATrans 040

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

CEREMONIAL SITTING

TO MARK THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE PATRICK ANTHONY KEANE

AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

ON

TUESDAY, 5 MARCH 2013, AT 2.14 PM

Coram:

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

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

The Honourable Sir Gerard Brennan, AC, KBE, retired Chief Justice of the High Court of Australia

The Honourable Murray Gleeson, AC, retired Chief Justice of the High Court of Australia

The Honourable Michael McHugh, AC, retired Justice of the High Court of Australia

The Honourable Michael Kirby, AC, CMG, retired Justice of the High Court of Australia

The Honourable William Gummow, AC, retired Justice of the High Court of Australia

The Honourable Dyson Heydon, AC, retired Justice of the High Court of Australia

Members of the Judiciary seated within the Court:

The Right Honourable Dame Sian Elias, GNZM

The Honourable James Allsop, AO, Chief Justice of the Federal Court of Australia

The Honourable Paul de Jersey, AC, Chief Justice of the Supreme Court of Queensland

The Honourable Terence Higgins, AO, Chief Justice of the Supreme Court of the Australian Capital Territory

The Honourable Marilyn Warren, AC, Chief Justice of the Supreme Court of Victoria

The Honourable Wayne Martin, AC, Chief Justice of the Supreme Court of Western Australia

The Honourable Trevor Riley, Chief Justice of the Supreme Court of the Northern Territory

The Honourable Thomas Bathurst, Chief Justice of the Supreme Court of New South Wales

The Honourable Christopher Kourakis, Chief Justice of the Supreme Court of South Australia

The Honourable Justice J. Mansfield, Federal Court of Australia

The Honourable Justice A. Emmett, Federal Court of Australia

The Honourable Justice J. Dowsett, AM, Federal Court of Australia

The Honourable Justice P. Jacobson, Federal Court of Australia

The Honourable Justice A. Bennett, Federal Court of Australia

The Honourable Justice R. Edmonds, Federal Court of Australia

The Honourable Justice A. Greenwood, Federal Court of Australia

The Honourable Justice S. Rares, Federal Court of Australia

The Honourable Justice J. Middleton, Federal Court of Australia

The Honourable Justice R. Buchanan, Federal Court of Australia

The Honourable Justice M. Gordon, Federal Court of Australia

The Honourable Justice L. Foster, Federal Court of Australia

The Honourable Justice A. Katzmann, Federal Court of Australia

The Honourable Justice A. Robertson, Federal Court of Australia

The Honourable Justice J. Griffiths, Federal Court of Australia

The Honourable Justice D. Kerr, Federal Court of Australia

The Honourable Deputy Chief Justice J. Faulks, Family Court of Australia

The Honourable Justice M. Finn, Family Court of Australia

The Honourable Justice M. May, Family Court of Australia

The Honourable Justice J. Basten, Court of Appeal, Supreme Court, New South Wales

The Honourable Justice M. McMurdo, AC, Court of Appeal, Supreme Court, Queensland

The Honourable Justice C. Holmes, Court of Appeal, Supreme Court, Queensland

The Honourable Justice J. Muir, Court of Appeal, Supreme Court, Queensland

The Honourable Justice H. Fraser, Court of Appeal, Supreme Court, Queensland

The Honourable Justice M. White, AO, Court of Appeal, Supreme Court, Queensland

The Honourable Justice R. Gotterson, Court of Appeal, Supreme Court, Queensland

The Honourable Justice J. Byrne, RFD, Supreme Court, Queensland

The Honourable Justice P. McMurdo, Supreme Court, Queensland

The Honourable Justice J. Douglas, Supreme Court, Queensland

The Honourable Justice P. Applegarth, Supreme Court, Queensland

The Honourable Justice T. Gray, Supreme Court, South Australia

The Honourable Justice R. Refshauge, Supreme Court, Australian Capital Territory

The Honourable Justice J. Burns, Supreme Court, Australian Capital Territory

Chief Federal Magistrate J. Pascoe, AO, CVO, Federal Magistrates Court of Appeal

The Honourable M. Black, AC (retired)

The Honourable K. Handley, AO (retired)

The Honourable P. Cummins (retired)

At the Bar Table the following persons were present:

The Honourable Mark Dreyfus, QC, MP, Attorney‑General for the Commonwealth

Mr J. Gleeson, SC, Solicitor‑General for the Commonwealth of Australia

The Honourable Greg Smith, SC, MP, Attorney‑General for the State of New South Wales

Mr Michael Grant, QC, Solicitor‑General for the Northern Territory

Mr Leigh Sealy, QC, Solicitor‑General for the State of Tasmania

Mr Martin Hinton, QC, Solicitor‑General for the State of South Australia

Mr Stephen McLeish, SC, Solicitor‑General for the State of Victoria

Mr Peter Garrisson, Solicitor‑General for the Australian Capital Territory

Mr Grant Donaldson, SC, Solicitor‑General for the State of Western Australia

Mr Joseph Catanzariti, President, the Law Council of Australia

Mr Michael Colbran, QC, President, Australian Bar Association

Mr Davis Jackson, QC, representing the President, New South Wales Bar Association

Mr Roger Traves, SC, President, Bar Association of Queensland

Mr Greg Stretton, SC, President, Australian Capital Territory Bar Association

Mr Alistair Wyvill, SC, Vice‑President, Northern Territory Bar Association

Speakers:

The Honourable Mark Dreyfus, QC, MP, Attorney‑General for the Commonwealth

Mr Joseph Catanzariti, President of the Law Council of Australia

Mr Michael Colbran, SC, President of the Australian Bar Association

Mr Roger Traves, SC, President of the Bar Association of Queensland

TRANSCRIPT OF PROCEEDINGS

KEANE J:   Chief Justice.  I have the honour to announce that I have received a Commission from Her Excellency, the Governor‑General, appointing me a Justice of the High Court of Australia.  I present my Commission.

FRENCH CJ:   Mr Principal Registrar, please read the Commission aloud.

PRINCIPAL REGISTRAR:  

Commission of Appointment of a Justice of the High Court of Australia

I, QUENTIN BRYCE, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and section 5 of the High Court of Australia Act 1979, appoint the Honourable Patrick Anthony Keane, Chief Justice of the Federal Court of Australia, to be a Justice of the High Court of Australia commencing on 1 March 2013 until he attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 20 November 2012.  Quentin Bryce, Governor‑General, By Her Excellency’s Command, Nicola Roxon, Attorney‑General.

FRENCH CJ:   Justice Keane, I invite you to take the Oath of Office and of Allegiance.

KEANE J:   I, Patrick Anthony Keane, do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to law, that I will well and truly serve Her in the Office of Justice of the High Court of Australia and that I will do right to all manner of people, according to law without fear or favour, affection or ill‑will.  So help me God.

FRENCH CJ:   Justice Keane, I now invite you to subscribe the Oath of Allegiance and of Office. 

FRENCH CJ:   Mr Principal Registrar, please place these documents with the records of the Court. 

PRINCIPAL REGISTRAR:   Yes, your Honour.

FRENCH CJ:   Justice Keane, I now invite you to take your seat at the Bench and to proceed to the discharge of the duties of a Justice of the High Court of Australia. 

FRENCH CJ:   Mr Attorney.

MR DREYFUS:   May it please the Court.

First, may I acknowledge the traditional owners of the land we meet on - and pay my respects to their elders, past and present.

Your Honours; distinguished guests, former Chief Justices of the High Court, the Honourable Sir Gerard Brennan, the Honourable Murray Gleeson; former Justices of the High Court, the Honourable Michael McHugh, the Honourable Michael Kirby, the Honourable William Gummow, the Honourable Dyson Heydon; Chief Justice of New Zealand, the Right Honourable Dame Sian Elias; current and former heads of jurisdiction and members of federal, State and Territory courts present today; Senator the Honourable Gary Humphries; the Honourable Greg Smith, Attorney‑General for New South Wales; Mr Justin Gleeson, Commonwealth Solicitor‑General; State and Territory Solicitors‑General; representatives of the legal profession.

It is a great privilege to be here today, at this special sitting, to welcome your Honour as a Justice of the High Court of Australia.  On behalf of the government and the people of Australia, I offer your Honour my congratulations and best wishes on your appointment to Australia’s highest Court.

I understand that many of those close to you, including your wife, Shelley, and your sons, Patrick, David and Michael, are here today to share this special moment with you. 

While I was unable to attend the official farewell from your previous role as Chief Justice of the Federal Court last week, I understand it was a much less solemn affair than usual.  All participants knew of your transition to this Court, rather than the retirement from public service which is the typical reason for such ceremonies.

It has also spared your Honour from listening to some of my remarks twice.

I start by noting that your Honour does not welcome gratuitous or excessive praise.  One of my predecessors, the Honourable Robert McClelland, only narrowly avoided the recording of a conviction against him for “outrageous flattery in a public place” at your welcome to the Federal Court in 2010.

So I state factually that you leave the Federal Court in excellent shape, and with a sterling reputation for strength and speed of decision making.

Your Honour’s appointment to this Court has been unanimously applauded.  Tributes by your colleagues upon hearing of your appointment included “overjoyed” and “all is as it should be” - a fairly sweeping statement to apply to a judicial appointment, but nonetheless testament to the high regard in which your Honour is held. 

In a political environment where bipartisan support can be elusive, your Honour should also draw satisfaction from the fact that your appointment is welcomed by both sides of the Parliament.

Your appointment is a return to a familiar workplace.  Over 20 years your Honour appeared before this Court on more than 50 occasions.  Your Honour’s familiarity with this place was such that of 5,000 practising Australian barristers, your Honour was the one who was asked to speak at the conference marking the High Court’s Centenary in 2003.

Your Honour’s reputation for having a prodigious intellect has rightly accompanied you throughout your career, and requires no re‑examination today.  Your other personal qualities, such as integrity, generosity and an ability to inspire others, are also obvious in large measure when recalling your Honour’s journey to the Bench.

Your Honour was raised in Wilston, Brisbane attending St Columba’s Convent School and St Joseph’s College, Gregory Terrace.  At the age of 14, you flagged law as your future profession, believing it would fit comfortably with your Honour’s love of the English language, and allow you to avoid mathematics, about which you were less enthusiastic. 

Your academic talent and leadership abilities were evident even at this early stage.  Your Honour was both school captain and dux of the school.  Your Honour has credited your parents as sacrificing much during your childhood to provide you with the best advantages and opportunities.  No doubt this example was instructive to your Honour in developing your own appreciation of the merits of persistence and industry.

You graduated from the University of Queensland in 1976 with a Bachelor of Arts and a Bachelor of Laws with first class honours.  Your Honour also achieved the University Medal in Law and three major academic prizes, the Walter Harrison Prize, the Virgil Power Prize and the John Hughes Wilkinson Prize.  While completing your studies, you also worked part‑time and served your articles with the firm, Roberts & Kane.

Even at this early stage of your career, your talents were being recognised.  You were sought out by the large Brisbane firm, Feez Ruthning, and commenced practice in 1976, taking 10 months away in 1977 to travel to Oxford University on the Sir Henry Abel Smith Scholarship.

At Oxford, your Honour undertook a Bachelor of Civil Law and graduated with first class honours.  You were also awarded the prestigious J.H.C. Morris Prize and the Vinerian Scholarship.  It appears that even then fate was conspiring to forge a connection between your Honour and Justice Heydon, his Honour having achieved the Vinerian Scholarship some 10 years earlier. 

The pattern established some 36 years ago is now being repeated, noting Justice Heydon’s appointment to this Court in 2003, and your Honour’s appointment now, 10 years later.

Your Honour was admitted to the Bar in 1978.  At this time, your desire to foster an environment of scholarship and learning began to emerge, with your Honour lecturing on a part‑time basis at the University of Queensland. 

Your Honour practised principally in commercial and constitutional cases.  You became renowned as a “first‑rate traditional legal technician”, and as someone who was able to identify and demolish the slightest weakness in your opponent’s argument. 

In 1988, your Honour was appointed Queens Counsel.  This appointment, after only 11 years at the Bar, is a testament to your hard work, incisive grasp of the most complex briefs, and force as a compelling advocate. 

No doubt these qualities contributed to the observation by the President of the Bar Association of Queensland, Mr Roger Traves, that your Honour was “always a shining light at the Queensland Bar”.  During your time at the Bar, you also provided invaluable guidance and support to several readers.

Shortly after taking silk, your Honour became a member of the Supreme Court Library Committee.  Although it is widely known that your Honour is a voracious reader, and it could be suggested that you simply hope to get priority for “in‑demand” texts, your Honour’s active participation on the Committee, and as Deputy Chairman of the Queensland Law Reform Commission from 1990 to 1992, again demonstrated your commitment to a culture of improvement and learning.

Your Honour was appointed Queensland Solicitor‑General in 1992, a role you held with distinction for 13 years.  Your Honour appeared in many significant cases, including Wik, Fardon and Ainsworth v The Criminal Justice Commission. 

In 2003, your Honour was awarded a Centenary Medal for conspicuous service to the Queensland Bar.

Your Honour’s judicial journey has been more varied than most.  Your Honour’s previous appointments as a judge of the Court of Appeal of the Supreme Court of Queensland in 2005, and as the Chief Justice of the Federal Court of Australia in 2010, equip your Honour with deep experience in the workings of those courts.

During your time on the Bench, your Honour has acquired a reputation for hard work, an exceptional memory, and an ability to rapidly produce judgments. 

I make special note of the benefits of a strong memory - a talent and a learned skill that is becoming less common, with digital information at our fingertips. 

Similarly, I applaud your Honour’s nurturing of tried and true methods of communication.  Rumours abound of your use of phone calls and actual conversations to convey your views to colleagues, in preference to emails.

I assume that this means we are unlikely to see a Twitter account named “‘hashtag’HighCourtPat” at any time soon.

Your desire to cultivate an environment of development and education has also been evident throughout your career.  Judicial colleagues at the Federal Court have commended your Honour for your encouragement of judicial and staff education, and programs for supporting judges in other countries. 

You also sat on the Council of the Australian Institute of Judicial Administration, chairing the Projects and Research Committee which was responsible for several significant projects including the Bench Book for Children Giving Evidence in Australian Courts, a very helpful guide for Australian judges. 

Your own scholarly achievements were also recognised by the University of Queensland in 2011, with your Honour being awarded an Honorary Doctor of Laws. 

Focusing on your professional and academic achievements only tells part of the story.  Your Honour’s colleagues have remarked that your success has come from your extraordinary intellect and industry, garnering much respect because you never take a moralising or high‑minded approach.  In addition, you are highly regarded for being generous and modest, and having a superb sense of humour.

Your Honour is also known for your love of family, your strong loyalty to Queensland, particularly at State of Origin time, and your ability to converse on just about any issue.

Once again, on behalf of the Commonwealth of Australia, I extend to your Honour congratulations and a very warm welcome as a Justice of the High Court of Australia.

May it please the Court.

FRENCH CJ:   Thank you, Mr Attorney.  Mr Catanzariti.

MR CATANZARITI:   May it please the Court.

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

I appear on behalf of the Law Council of Australia to express the pride felt by all members of the Australian legal profession in your Honour Justice Keane’s appointment as a Justice of the High Court of Australia.

It is, indeed, a great honour to be addressing the Court on the occasion of your swearing in as the 50th Justice of the High Court of Australia.  I do so, on behalf of each Constituent Body of the Law Council and their respective members - the Australian Bars, every Australian Law Society and the Large Law Firm Group.

The High Court is the pinnacle for any lawyer in Australia.  Over its 110 years, only 50 people have graced its benches.  They have ruled on issues which have shaped this nation and done so with a quality of jurisprudence that is the envy of other nations. 

Its members are not drawn from a ruling class and those who are appointed invariably have a remarkable story to tell.  Today is no different.  We have heard the Attorney recount your journey to this day; of how your war widow mother, Margaret, ensured you had every opportunity to succeed - and how you continue to honour her memory with both your professional and personal achievements.

Your Honour is one of the true gentlemen of the law.  You treat everyone with the same respect and courtesy and have a rare generosity of spirit.  In conversation you fix people with a gaze that suggests what they are saying is the most fascinating thing you have heard.

You honour your father, Patrick, by being this type of man.  He died when you were seven of a heart attack when serving with the RAAF, but you have clear and fond memories of him.  You have said that “he and his mates had an egalitarianism that would make Robespierre look like Queen Victoria’s ladies in waiting.  It was a very egalitarian society where we were, Wilston.”

Wilston, if your Honour will forgive the reference, was not one of the better areas of Brisbane in the 1950s and 1960s, but your parents were determined to send you to what they believed to be the best school in Brisbane, Gregory Terrace.  You ended up being dux and school captain, and settled a career in law - having rejected medicine because you could not stand the sight of blood.  It appears your Honour and I chose a career in the law for exactly the same reason.

Queensland University and Oxford followed.  You were 22 and newly married to Shelley.  You have described your time at Oxford as the best year of your life, but you were impatient to resume work as a lawyer, which you did on your return. 

The Bar soon beckoned but there was an obstacle to overcome; your fear of public speaking.  Your Honour had given up debating at school – “out of embarrassment”, you said recently – but took heart from the Latin poet, Virgil.  You said, “I was comforted by the fact that Virgil trained as a barrister for many years.  But in his first case in court he couldn’t get a word out edgeways so he went off and wrote the Aeneid.  I thought if worse comes to worse and I turn about to be as bad a lawyer as I was a debater I might be able to write”.  As luck would have it for the law in this country, you could do both.

You learnt at the feet of outstanding barristers such as David Jackson, Geoff Davies, Bruce McPherson and Bill Pincus.  The competition at the junior Bar was also pretty hot, as Bill Pincus reminded you one day.  After perusing your draft outline of argument, Bill Pincus was scathing as he tossed it aside:  “You know”, he told you “that Sue Kiefel is a very helpful junior.  She actually identifies the points that are likely to win the case”. 

Your Honour now finds yourself seated alongside Justice Kiefel on the High Court.  You will be pleased to know that she is still identifying the points that win a case. 

It was your Honour who told that story at Justice Pincus’ farewell from the Queensland Court of Appeal in 2001.  In fact, your Honour is more likely to tell the stories of defeat than victory, from your time at the Bar.  This was particularly so when your beloved Queensland was on the end of an injustice - or misguided statutory interpretation.  There were, however, some notable victories when you were the State’s Solicitor‑General, none more so than the 2004 case of Fardon.

You held the Solicitor‑General role from 1992 until joining the Queensland Court of Appeal in 2005.  The Australian Bar Association and your home Bar will recount that part of your career in more detail, which included over 50 appearances in the High Court. 

No one has missed the significance of the accolade bestowed upon you in 2003 when you were the only practitioner invited to speak at the Centenary of the High Court.  It is now 10 years on since many of those present suggested it was only a matter of time before you joined this Court. 

You took one step with your elevation to the Court of Appeal and another three years ago when you were made Chief Justice of the Federal Court.  You underlined your industry and leadership skills at a time when the court was being asked to do more with a lot less.

Your judgments on both courts have frequently been cited with approval.  While on the Court of Appeal your Honour wrote the principal judgment in R v Stafford, which quashed a 1992 murder conviction and ordered a retrial. 

In Aurukun Shire Council v CEO of the Office of Liquor, Gaming and Racing you had to decide whether restrictions on buying alcohol, such as the termination of licences, were invalid because of the Commonwealth’s Racial Discrimination Act.  Your Honour firmly pointed out that “the opportunity to have access to a licensed source of alcohol supply provided by local government . . . has not been recognised as such a human right or fundamental freedom.” 

You also pointed out another important factor.  “The women and children whose right to personal freedom from violence apparently motivated the enactment of the amending Act were not represented as parties in this Court . . . the Queensland legislature was entitled, if not obliged, to address the claims of women and children in Aurukun and Kowanyama.”

On the Federal Court, you tackled a wide range of legal subjects such as intellectual property, competition law, native title and immigration law. 

In British American Tobacco Australia v Secretary of Department of Health and Ageing, there was a question surrounding advice on the legal and constitutional issues relating to generic packaging of cigarettes.  Your Honour was part of a bench which decided the legal professional privilege in the Attorney‑General’s Department’s legal advice had not been waived after partial disclosure of that advice.

SZQDZ was an important decision on time limits for immigration appeals - as was Whittaker v Child Support Registrar and Forsyth v Gibbs regarding findings of fact at trial.  In Forsyth, you remarked that equity “does not seek to define what an elephant is but knows one when it sees one”. 

In Apotex v Sanofi‑Aventis Australia you found the contributory infringement section of the Patents Act had been “designed to capture those who supply a product to persons whose use of a product infringes a patent as infringers themselves”.

Singtel v Optus has become a leading case on the assessment of penalties under the then Trade Practices Act.  Your Honour was part of the Bench which said “those engaged in trade and commerce must be deterred from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention” and that a penalty should not be “regarded by that offender or others as an acceptable cost of doing business”.

All these cases suggest a jurist who takes account of every aspect of a case, including its human and moral dimensions, while respecting the rule of law. 

The Law Council would also like to make special mention of two aspects of your Honour’s tenure away from the Bench. 

The first is the support your Honour has given to workshops organised by the Law Council. 

The Law Council is extremely grateful for your involvement and the insights you have given practitioners.  The Court and the profession have also co‑operated on the Case Management Handbook that is now on the Court’s website.  It reflects a shared responsibility on access to justice, which is a continuing challenge for our legal system. 

Secondly, the Law Council would also like to acknowledge that the growth in native title determinations on your Honour’s watch. 

You have remarked that, as Queensland Solicitor‑General, you were responsible for returning significant areas of the State back to the traditional owners.  As Chief Justice you made considerable inroads into the backlog of determinations, which has been a blight on the Australian legal landscape.  The court is now resolving over 40 a year - up from about seven five years ago.

Since your arrival in the Federal Court, the focus has been on the biggest cases and pushing them towards a hearing date through active case management.  Elders are now living to see their claims settled, which was regrettably not always the case.

Your Honour has also made a significant contribution to debate on legal issues with your speeches and other writing. You have an understanding of government and how it works and you value our Constitution as a factor in our stable system of government.

But a continuing theme has been a reminder that everyone is equal before the law - and that we have, and I quote, “a shared national morality that inspires its people to be generous, even to strangers”.

You said, “We should treat everyone who comes within our borders, including complete strangers afflicted by misfortune, not just with respect and dignity, but with generosity because we too have - at some time - been ourselves saved, without any particular merit on our part, from the misfortunes which are part of the human condition.”

The Law Council has decided not to make anything of your Honour’s aversion to technology - or mobile phones.  We have even glossed over other perceived weaknesses – an obsession with cricket and the fervent support you give any Queensland sporting team. 

Today is a day to celebrate your achievements to date and recognise the contribution you have made to the law.  It is fitting that you are joined by your wife, Shelley, your three sons and other family members and friends. 

The Law Council is sure that the Court’s 50th Justice, Patrick Anthony Keane, will service this great institution with distinction and honour.

May it please the Court.

FRENCH CJ:   Thank you, Mr Catanzariti.  Mr Colbran.

MR COLBRAN:   May it please the Court.

I acknowledge the traditional owners of this land and pay my respects to their elders, past and present.

As the third speaker at your Honour’s third judicial welcome, I feared that like a slow Masterchef contestant I would find the cupboard bare. 

Fortunately, the ever‑resourceful honourable Justice Middleton was ready to help.  He recalled how, in the days you happily shared at Oxford, a dual passion was engendered.  First and foremost the passion for the pursuit of excellence in the law but, coming a close second, a passion for the pursuit of a better wine than that which the economics of student life allowed.  But more of that secondary passion later. 

For more than 21 years your Honour has served in public office the community of Queensland and later the wider community of the nation.

The ceremonial farewell sittings of the Queensland Court of Appeal in March 2010 and from the Federal Court last Thursday revealed the mutual affection and respect between your Honour and your judicial colleagues and the staff of each court you have served.

At your Honour’s farewell from the Queensland Court of Appeal, Chief Justice de Jersey spoke of your Honour as a “gifted . . . [and] astute lawyer with [a] fine capacity for decisive and reliable judgment”, and said that you were, in the production of judgments, “from the very start, not just quick but rapid and that reflected [your] unbridled capacity for hard work, [your] judicial assurance and [your] immense learning”.

Your Honour characteristically deflected the focus of this gathering of the profession, one to thank you and celebrate your achievement, by making it instead a tribute to your fellow judges and the staff of the court.

Your Honour spoke with warmth of the remarkable contributions to the Court of Chief Justice de Jersey; of President McMurdo and of the judges and staff of the court; of the practising legal profession; and of the prosecutors, legal aid and public defenders.

Showing the forward‑looking vision for which you are renowned, you offered a thought‑provoking comment on the importance of our common law adversarial system and the role of the superior courts.  You spoke then of the co‑operative national system of integrated State and federal courts - observing that “the days of vertical glass walls and jurisdictional turf wars are gone.”  We are, you said, “not really State or federal, but rather Australian - with an integration that ensures unity and coherence.”

So it was with your Honour’s farewell last Thursday.  Gracious and forward looking, you paid tribute to Sir Nigel Bowen and Dr Michael Black and spoke with affection and admiration of the members and staff of your court.  You then spoke forcefully about the need for courts “to ensure that the central processes whereby justice is administered to the satisfaction of the community are as efficient as is humanly possible”.

You referred with justified pride to the leadership shown by the court in adapting technology, including electronic filing, to the process of administration of proceedings.

Then, in a typically generous way, you added “The skilled lawyers who bring to bear critical human intelligence to the analysis and refinement of the available data remain the most important resource available to the courts and the community in the doing of justice.” 

We appreciate your Honour’s ever‑present grace towards the profession.

I have referred to two themes in your long journey, but perhaps there is a third. 

When completing your time as Solicitor‑General for Queensland in 2005, your Honour spoke of being “called to sally forth from the sacred soil of Queensland to resist the incursions of the Federals” and the “eerie sensation of knowing for certain how it felt to serve in the Army of Northern Virginia”.

In my role today as speaker for the Australian Bar, or Australian Bars, I note that the journey from recognising the rallying call of the confederate south to marking the end of the nation’s jurisdictional turf wars is a significant one.  The last step, which brings you here today, caps the path to an Australian vision.

Justice Keane, apart from your judicial career, you bring to this Court an extraordinary breadth of experience from Articles with Myles Kane in the small firm of Roberts & Kane; to the large firm of Feez Ruthning; to 25 years at the Queensland Bar, including 13 years’ service as Solicitor‑General. 

Your Honour also brings the admiration and respect of the Bars of the nation - won through doing each of the jobs you have had with unstinting application, clarity of thought, good humour and courtesy.

As Federal Court Chief Justice your Honour travelled extensively, sitting in every registry, and this, from time to time, afforded the opportunity to engage your secondary passion - for the wines of the nation. 

You have foregone the peripatetic possibilities which your last job offered, but your love of trees without leaves and a fire in the fireplace will, I hope, ensure frequent visits to Melbourne where you will be assured, as in every other city and State of the country, of a very warm welcome.

On behalf of the Australian Bar Association and the barristers of Australia, I wish your Honour long, distinguished and satisfying service.

May it please the Court.

FRENCH CJ:   Thank you, Mr Colbran.  Mr Traves.

MR TRAVES:   May it please the Court.

It is a privilege to appear today on behalf of the members of the Bar Association of Queensland at this ceremony marking your Honour’s appointment to the High Court of Australia. 

The members of the Queensland Bar would wish me to convey to your Honour their respect and admiration for you, as counsel and as a judge, their congratulations and their best wishes.

Your Honour was a natural force at the Bar, possessed with outstanding scholastic ability and the strength of personality, skill in advocacy and capacity for devotion to duty truly to distinguish you among your peers.  You had that ability, characteristic of truly able leaders, often in the most difficult of cases, not only ably to present the case but also to absorb the uncertainties and pressures of the matter rather than to deflect them. 

You were then and you are now as a judge exacting, but unpretentious and modest, courteous and open minded, notwithstanding your singular talent.  You are blessed with a powerful legal intellect and a capacity for industry.  You have never overtly sought promotion, yet your appointment now to this Court is the consequence of what has seemed the most natural of progressions.  From the perspective of those who worked with you, your advancement was always assured. 

The Queensland Bar has no doubt that you will be an outstanding member of this Bench. 

We take great pride in your Honour’s appointment and wish you well. 

May it please the Court.

FRENCH CJ:   Thank you, Mr Traves.  Justice Keane.

KEANE J:   Chief Justice, colleagues, ladies and gentlemen, Mr Attorney, Mr Catanzariti, Mr Colbran, Mr Traves.

Thank you for all the very kind things that you have said.  I am also very grateful to the many friends and colleagues who have come so far to witness so much poetic licence and to do so with so little audible protest.  It is understandable that, because this is the third time that I have been sworn in as a judge, the desire on the part of the speakers to say something nice about me that has not already been said has driven them to stretch credulity too far but, once again, I readily forgive them their excesses. 

Some people might think that a judge whose occupation is after all a byword for sobriety would become impatient with outrageous flattery.  Having now experienced this process on three occasions, I can say quite unequivocally that those people are wrong. 

On the other hand, I must acknowledge that the younger members of my family do find it quite remarkable that every few years in their young lives they are washed and brushed and dressed in uncomfortable clothes and taken to uncomfortable places where oddly dressed people say ridiculously kind things about the “old fella” when all the time they know that the only court of appeal in our lives that matters is the wise and just Shelley.  Their assessment is, of course, correct.  Without her love and support I would certainly not be here. 

It might also be thought that the circumstance that this is the third occasion on which I have pledged my allegiance and fidelity as a judge suggests a rather showy desire to belong.  In that regard, I am consoled by the reflection that as I look about there are others here today who have three times sworn the judicial oath so that in the event that the revolution does come, when the tumbrel arrives to collect me, I can expect to be in very distinguished company.

The speakers have all noted, rightly, that I have taken the scenic route to this Court.  My experiences on the Supreme Court of Queensland and the Federal Court of Australia, as well as my time on the Council of the Australasian Institute for Judicial Administration, have given me an excellent opportunity to observe the workings of our nation’s judiciary at first hand.  That experience has led me to the view that the Australian judiciary is comprised of honest, faithful, competent and hard‑working judges dedicated to doing justice and ensuring that it is seen to be done by our community.  I have not yet discovered one cynic among them. 

While speaking of Australian judges, I must pause to acknowledge the enormous contribution made to the law and to the Australian community by my predecessor, the Honourable J.D. Heydon, AC.  In his time on this Court, Justice Heydon set a standard of erudition and rigour in the pursuit of justice which is an example to all Australian judges, even if it is an example that none of us could hope actually to emulate. 

If I might take a moment to say a little more about the Australian judiciary.  It is my firm conviction that the Australian judiciary is, as a matter of social history, a truer reflection of our people and their values and aspirations than has been the case with judges in previous times and in other places.  To say this is not to lay the ground for some more expansive role for judges within the tripartite division of the powers of government in this country, but to make the point that the suggestions that one occasionally sees in the media to the effect that our judges are some sort of remote elite are quite wrong. 

Just how remote a judiciary can be, and has been in some places and at some times, is illustrated by a recent article by Sir Stephen Sedley concerning the resistance of English judges to the extension of the franchise and political rights to women in the United Kingdom.  This resistance took the form of a number of decisions to the effect that women were not comprehended by the description “persons” when Parliament first conferred political rights on persons.  The usual rule of statutory interpretation is, of course, that the expression “person” encompasses both male and female. 

When the UK Parliament gave women the right to stand for election, Lady Sandhurst was unseated from the London County Council by an opponent who claimed that not being a “person” because she was not a man, she could not be a fit person of full age qualified to be a candidate for office and when a Miss Cobden was elected and waited until the time for challenge was passed before taking her seat, she was promptly prosecuted for being a person sitting as a councillor when unqualified.  She put up the seemingly iron‑clad defence that if she was not a person for the purpose of being elected, she could not possibly be a person for the purpose of being prosecuted.  Naturally, she was convicted.

That the Australian judiciary is not the champion of elite privilege, but the reflection of the egalitarian democracy which we share with our Anzac cousins, is something for which, I think, we must be grateful to that great generation who were our parents. 

It is customary on occasions like this to thank the people who have helped us to make the occasion possible.  It is a wholesome custom because none of us should imagine that we come here unaided by those who have nurtured and mentored us.  Nevertheless, it can be sometimes a little hard on the members of the audience who do not know the people who are being thanked.  So I am mindful that only a few people here today had the good fortune to know my parents, Pat and Peggy Keane, but I have no doubt that every adult here today has known people just like them, working people who in their youth endured the hardships of the decade of the Great Depression only to find themselves fighting a war for our national existence and, having won that war, they reshaped their nation, providing selflessly and generously for their children to enjoy educational opportunities that they and previous generations could only dream about. 

Ben Chifley, a great hero to that generation, said that he would rather have had Bert Evatt’s education than £10,000.  For my generation of Australians, our parents ensured, amongst many other things, that their children could have that education, attending university for the first time in the history of their families. 

This generation took the initiative to ensure that in 1967, for the first time, indigenous Australians should be recognised as our fellow citizens.  Martin Luther King famously said that the moral arc of the universe is “long, but it bends towards justice”.  I do not think that it is hubris to say that in this part of the southern hemisphere the arc has bent more sharply than elsewhere. 

It is not, I think, to descend into undue sentimentality or complacency for us to acknowledge that the character of the Australian people and of its judiciary has been shaped by the courage and generosity of our parents.  The least that can be asked of us, who have not been tested as they were tested, is that we should strive to make them proud. 

Thank you all for the honour you do me and the Court by your attendance here today.

FRENCH CJ:   The Court will now adjourn until 10.15 tomorrow morning.

AT 2.55 PM THE MATTER WAS CONCLUDED