Ceremonial Sitting; To Mark the; Centenary Of the ; High Court Of Australia

[2003] HCATrans 446

[2003] HCATrans 446

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

CENTENARY OF THE

HIGH COURT OF AUSTRALIA

AT

HOBART

ON

MONDAY, 3 NOVEMBER 2003 AT 10.19 AM

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J

Speakers:

The Hon Judith Louise Jackson, MHA, Attorney-General of the State of Tasmania

Mr David John Gunson, SC, President of the Law Society of Tasmania

Mr Stephen Peter Estcourt, QC, representing the Tasmanian Bar Association

TRANSCRIPT OF PROCEEDINGS

GLEESON CJ:   Attorney-General.

MS JACKSON:   May it please the Court. I am honoured to be here to mark the one hundred years of the High Court of Australia. 

It is notable that we are in the same courtroom where the High Court sat one hundred years ago hearing an appeal from a decision of Justice Inglis Clark.  The speakers on behalf of the Bar Association and the Law Society will speak further on that connection. 

It is a great honour to stand here before you today as the only woman Attorney General in Australia.  In one hundred years of Federation only five women have been appointed to the role of the First Law Officer, and it is in this role that I will speak to you this morning about women in the law in Australia. 

At the time our founding fathers sat down to draft our Constitution it was, I am sure, inconceivable to them that a woman would sit on the highest court in the land before the end of the twentieth century. However, I am also sure that the pioneers who forged the path for women’s rights would have expected to have more than one woman on the High Court in one hundred years.

The principle of equality has been a lynch pin in the evolution of our society – from the time serfs knocked on the door of the King and asked for a fair hearing, to the entrenchment of the principles of equity throughout our laws.

Everyone is equal before the law; that is the principle – but is it the practice in the twenty‑first century.  It is true that direct discrimination is easy to proscribe, but it is also a reality that indirect discrimination is insidious.

Despite our advancement in formalising the principles of equity in our statutes, the invisible barriers of inequality permeate our society.  Cultural practices and mores protect the patch of the most powerful while closing out opportunities for others.  For women in the law, those barriers appear in boardrooms, on golf courses and in chambers.  It has been a long, slow trek for women in the law in Australia.

Ada Evans was the first woman to receive a law degree in Australia at Sydney University in 1902.  At a speech to the fiftieth anniversary of the New South Wales Women Lawyers last year, Justice Mary Gaudron recounted that although she had graduated, Ada was refused registration as a student at law on the ground that there was no precedent.  She went on to refer to Ex parte Ogden and I quote:

Indeed there was none.  Instead there was a line of judicial authority, testimony to the creative genius of the common law as administered by men, that women were not ‘persons’ and could not avail themselves of rights or privileges not specifically conferred on women.

Ada Evans was unable to practise until 1921 after the enactment of the 1918 Women’s Legal Status Act of New South Wales.  Women had given up pursuing equality through the courts and turned their attention to the legislature.

Nevertheless, the history of our nation on its journey towards greater equality has been shaped by many significant decisions of the High Court.  Developments such as the recognition of the non-financial contribution made by women in their homes, the principle that contracts can become voidable on the grounds of unconscionable conduct and of course the overhaul of the application of terra nullius to the law of Australia, all are watershed decisions in the growth of our community.  These judgments have shaped our nation’s legal and social history by the delivery of equality. 

Throughout our history there has been significant debate about the role of the High Court in making law.  I for one, welcome the contribution that decisions such as these can make to our nation, outside the sphere of party political influence, and the value and relevance of the High Court is only enhanced by them.

It is a mark of the leadership of the Court that it has never shirked its responsibility in this regard notwithstanding the controversial nature of the issues placed before it.  The High Court has shaped the culture of our nation through advancing the principles of equality but despite these advances, inequality still persists in many spheres of contemporary Australian life.

Since the advances of the 1950s and 1960s women have been entering the law in increasing numbers but the cultural barriers to their advancement in the profession persist.  In 1982 her Honour Jane Mathews, then a judge of the District Court of New South Wales and later a Supreme Court judge, observed that until the 1950s very few woman had the temerity to brave the last bastion of conservatism, the Bar.

In Australia today, women constitute only thirty out of seven hundred members of the senior Bar.  We have made significant advances since Ada Evans first graduated in law, but the barriers for women entering the Bar remain.  These barriers are invisible, they are cultural and they must be confronted if we are to be a nation that stands proudly on the foundation of equality.

It is inevitable that the path of our social evolution will lead to greater equality.  The timeliness of that journey is up to us.

Thank you.

GLEESON CJ:   The President of the Law Society.

MR GUNSON:   May it please your Honours.  This year marks the centenary of the High Court of Australia.  It is but a few months short of one hundred years since the High Court first sat in Hobart.  It is my very pleasant duty today on behalf of the legal profession of this State to welcome the Court to Tasmania on what is a particularly auspicious occasion.

On the morning of 24 February 1904 the High Court sat for the first time in Tasmania, as the Attorney has already observed, in this very courtroom in which we are assembled today.  The case to be determined was that of D’Emden v Pedder. That case was the first of many Tasmanian cases to find their way to the High Court for determination in years to come. The case was important as one of the first cases to be heard by the Court that raised the extent of the Commonwealth’s authority pursuant to the Constitution.

As evidenced by reports in The Mercury newspaper in the days leading up to the hearing of the appeal, the arrival of the High Court was regarded as exceptionally newsworthy.  In an edition of that newspaper of 18 February it was announced that the first sitting of the High Court in Tasmania would be held on the following Wednesday at 10 30 am.  That brief article concluded by stating that:

Ladies desirous of being present are requested to send their names to the Deputy Marshal no later than Saturday.

On 20 February, the paper announced that the Royal Mail Ship Arcadia had arrived from Sydney and amongst its passengers was Sir Edmund Barton and several court staff.  The newspaper informed the public that Mr Justice O’Connor was then in Launceston but that his Honour would arrive in Hobart for the sittings of the Court in the next week.  Curiously though, no mention was made as to how the Chief Justice Sir Samuel Griffith was to arrive in Hobart for the Court’s sittings, the newspaper duly reported the arrival of the Chief Justice’s associate nonetheless.

Having thus reported upon these social matters, The Mercury of 25 February in its news epitome, reported the hearing of the case in these somewhat brief terms:

High Court of Australia sat in Tasmania for the first time yesterday in the Supreme Court, Macquarie Street and were welcomed by the Bar.  Only appeal case of the Federal High Court in Hobart yesterday was Pedder v D’Emden.  Argument not concluded when the Court rose.

This extremely brief article in the epitome was squeezed in between two other articles of particular local significance.  The first, which informed the public the Cascade Brewery had had a successful half year and had declared a dividend of six per cent, the second was what was described by the author as “a brilliant turnout to a dance given by Vice Admiral Fanshore and officers of the Australian Squadron in the Town Hall” on the previous evening.  The paper dutifully reported that their Honours left Hobart on 26 February.

The decision in D’Emden v Pedder was delivered by the Court in Sydney in April of that year.  Tasmania’s desire to readily embrace the jurisdiction of the Court continued reasonably unabated and a perusal of the first volume of the Commonwealth Law Reports reveals that in June of that year, the State of Tasmania was again before the Court in the case The State of Tasmania v Commonwealth of Australia and the State of Victoria, which was an early case involving the interpretations of section 92 and section 93 of the Constitution.

Section 92 has been the subject of many appeals to the High Court in Tasmania.  Many of those appeals have touched upon the regulation of primary industry in this State.  They dealt with such diverse matters as the export of sheep from the State to the import from other States of crayfish, one of the most important decisions being that of Cole v Whitfield in 1998.  There the Court declined to follow a number of its earlier landmark decisions that had dealt with section 92.  Also notable is the Court’s decision in Dickenson’s Arcade Pty Ltd v The State of Tasmania, in 1974, a case that dealt with the imposition of taxes on tobacco retailers in this State. Needless to say, that particular development excited the interests of all other States which were given leave to intervene and the intense interest of the States in that litigation was to support Tasmania in its claim that the duty the State sought to impose on the retail sale of tobacco was valid and thus not an imposition of duty within section 90 of the Constitution, thus preserving to the States an important source of revenue.

Tasmania’s contribution to the work of the High Court has not been limited to the constitutional cases.  There have been a significant number of important criminal appeals decided by the Court that have had significant ramifications not only for this State, but for the administration of the criminal law throughout the Commonwealth.  I mention but a few:  Vallance v The Queen; Phillips v The Queen; Williams v The Queen; Boughey and of course Stingel and Hawkins in the early 1990s – the latter two cases dealing with provocation and how a court should deal with particular findings of insanity when section 157 of the Criminal Code is raised.

There have though, been two other cases of significance that I would be remiss not to mention today.  The first is that of The Commonwealth of Australia v The State of Tasmania, more commonly known as the Tasmanian Dam Case.  There the Court held that the Gordon River Hydro‑Electric Power Development Act of Tasmania was inconsistent with the World Heritage Properties Conservation Act of the Commonwealth, and was therefore invalid under section 109 of the Constitution, thus preventing the Franklin Dam Project from proceeding. Had that case been determined otherwise the Franklin River and the Lower Gordon River would have been flooded and lost to the people of Tasmania forever.

The second case that is notable is that of the Burnie Port Authority v General Jones Pty Ltd in which the Court held that the rule in Rylands v Fletcher had for the purposes of the common law in Australia been absorbed by the general principles of negligence.  I am sure that in this brief list of cases I have omitted many other important decisions of the Court from this jurisdiction.  If that is the case, then I apologise for that omission.  That the Court continues to sit to hear appeals from this State is a matter of great pride for all Tasmanian legal practitioners.  The Court has done so now for nigh on a hundred years and it is to be hoped by all of us present here today that the Court will continue to visit the State on a regular basis for the disposition of its Tasmanian appellate work.

On behalf of the profession in Tasmania, I thank the Court for its willingness to travel here for that purpose.  The Tasmanian profession looks forward to welcoming the Court for many years to come.

May it please the Court.

GLEESON CJ:   President of the Tasmanian Bar.

MR ESTCOURT:   May it please the Court, four weeks ago today your Honours sat in the splendid Banco Court in Melbourne where one hundred years earlier Sir Samuel Griffith was sworn in as the first Chief Justice of Australia and the work of the High Court began.

Four months later in what must have been a considerable undertaking, Chief Justice Griffith and Justices Barton and O’Connor made the journey to Tasmania by sea to hear the first appeal from our Full Court.  As it happened, this was the first case to go on appeal to the High Court from any State Supreme Court involving a constitutional issue.

As my learned friend Mr Gunson has indicated, the case of course was D’Emden v Pedder in which Deputy Postmaster D’Emden had been convicted on the complaint of Superintendent of Police Pedder, for failing to pay the State imposed stamp duty of tuppence on the receipt he gave his Commonwealth employer for his wages.  He had been fined one shilling. 

Despite the trivial nature of the facts, however, the case was important to the extent that the High Court applied American case law to the interpretation of the Australian Constitution, and to the extent that it also established what came to be known as the doctrine of implied immunities.   The Court continued to develop and apply the doctrine of implied immunities for some fifteen years after D’Emden v Pedder until it was eventually discarded in the Engineers’ Case.

D’Emden v Pedder remains important to Tasmania not only because it marks the first of many very much welcomed visits of the Court to this State, but also because the Court in its joint judgment upheld the dissenting voice in the Court below of Justice Andrew Inglis Clark. 

Andrew Inglis Clark was a Tasmanian of whom Tasmanians remain immensely proud.  As your Honour Chief Justice Gleeson remarked in your speech to those assembled in the Banco Court recently, Andrew Inglis Clark was one of the original architects of Federation and had himself been regarded as a leading candidate for appointment to the Court.  Justice Clark did not achieve his ambition to join the Court.  He missed appointment in 1903 when Prime Minister Barton decided that he himself would be the Court’s third Justice and he again missed appointment in 1906 when the first offer went to Sir Samuel Way, the then Chief Justice of South Australia, who declined. 

As the primary architect of the Australian Constitution Andrew Inglis Clark displayed remarkable vision.  The inclusion of clauses proposing the creation of federal courts below the High Court and the abolition of appeals from the High Court to the Privy Council eventually found expression, but not for over seventy five years.

D’Emden v Pedder is also notable in this respect, in tracing the history of section 74 and the road to the abolition of appeals from this Court to the Privy Council.  That is so because later in 1904 after D’Emden v Pedder the Court affirmed the doctrine of implied immunities in two Victorian cases, which overturned decisions of the Victorian Supreme Court, which were in favour of the State.  The Victorian Government applied for a certificate under section 74 but the Court refused it and so the Victorian Government waited until the next occasion when the issues were before the Supreme Court and appealed directly to the Privy Council.  But ultimately however, as your Honour the Chief Justice observed last year in a paper delivered to the Samuel Griffiths Society on the life and death of section 74, a curious aspect of the Australian Constitution is that the provision that was the last significant obstacle on the road to Federation no longer matters.

It would have mattered, however, to Inglis Clark some eighty three years before the passing of the Australia Act, when the Law Quarterly Review in 1903 attacked his expressed lack of confidence in the Privy Council as the ultimate court of appeal for decisions of Australian Courts.   The Review claimed that Clark’s views were “hardly likely to carry conviction to those who can appreciate the quality of the judicial work which has been performed by the Privy Council.” 

History demonstrates that Inglis Clark was prescient in this respect.  The same may not be said however, of Sir Samuel Way in declining appointment to the Court.  Sir Samuel is said to have remarked that being a member of the Court would have meant tramping about the continent as a subordinate of an itinerant tribunal, which he likened to a “fifth wheel on a coach”.  No prediction could have been less accurate, your Honours.

As the Chief Justice noted on behalf of your Honours at the Centennial sitting in Melbourne, the role of the Court is sustained not by force but by public confidence and the statements made at that sitting by the Prime Minister on behalf of the Commonwealth, by the Attorney-General on behalf of the States and Territories and by leaders of the legal profession reflected the confidence which the High Court has earned by its work over the past one hundred years.

May I be permitted to echo those words, your Honours, on behalf of all those who practise at the Bar in this State, and to congratulate the Court on its centenary.

May it please.

GLEESON CJ:   Your Excellency, Chief Justice Cox, Attorney‑General, Mr President of the Law Society, Mr Estcourt, this ceremonial sitting is to mark, in Hobart, the Centenary of the High Court.  My colleagues and I are delighted and honoured by the presence of all who have joined us for that purpose.  We are grateful to the Attorney-General, and to the representatives of the Law Society and the Bar Association, for their expressions of goodwill, which we value highly.

I should mention in particular the presence of the Governor of Tasmania, and the Chief Justice and other members of Australia’s oldest Supreme Court.  As a former Chief Justice of the second oldest Supreme Court, I am happy to make that acknowledgment.  I should also add how gratified we are by the presence of Sir Guy Green, who, over many years, has made a major contribution to the Australian judiciary and to Australian public life.

Tasmania played an important role in the events leading to the Federal Union to which the High Court owes its existence.  In the opening paragraph of his book The Making of the Australian Constitution Professor La Nauze wrote:

On the first day of January 1901 great crowds assembled in Sydney, the capital of New South Wales, to celebrate the inauguration of the Commonwealth of Australia. Many of the framers of its Constitution were present that day as guests or participants in the formal ceremonies but two may be noticed ... Andrew Inglis Clark, a Justice of the Supreme Court of Tasmania, had devised the first draft of a Constitution for a federal union of the Australian colonies. Edmund Barton was now to be sworn in as first Prime Minister of the Commonwealth.

Tasmania had been active in the Federal Council of Australasia, which first met in 1886, but which was weakened by the non‑participation of New South Wales. Andrew Inglis Clark played a prominent role at the 1891 Convention. He was one of the principal architects of Chapter III, dealing with the Judicature, his influence reflecting his unmatched knowledge of United States constitutional doctrine and history. An important biography of Clark, the work of the late Mr Justice Neasey and his son, has recently been published. Justice Heerey of the Federal Court, in an article in the New Federalist, described Andrew Inglis Clark as “one of Tasmania’s greatest sons, and a founder of our nation.” One of his particular contributions to the Constitution, and to Chapter III, was his insistence that the establishment of the High Court should be mandatory, and not merely permissible. This requirement was relied on heavily by Alfred Deakin in his speech in support of the Judiciary Bill in 1902. He had to meet objections to the establishment of the Court on the ground that it was unnecessary, at least for the time being. Deakin pointed out that the existence of a Federal Supreme Court to resolve issues as to the boundaries of governmental power – issues which must necessarily arise under a federal system of government – was an essential part of the federal agreement. The High Court, he said, was not an inessential appendage to the new constitutional structure. It was the keystone of the Federal arch.

Sir Owen Dixon, on the occasion of his retirement, described Sir Samuel Griffith and Andrew Inglis Clark as the two dominant legal figures in the Federal movement, and said that the Constitution owes its shape more to them, probably, than anybody.

The reference by Professor La Nauze to the presence together of Clark and Barton at the 1901 ceremonies in Sydney contains one poignant aspect.  Deakin failed to persuade Parliament that the first High Court should have five members.  If it had, Clark would almost certainly have been one.  Even when the number was reduced to three, it was widely expected that Clark would be appointed, but the seat went to Barton who, as Prime Minister, was in a position to choose.  I have seen correspondence between Clark and Professor Harrison Moore concerning some decisions of the first High Court.  It is clear that his critical faculties never deserted him.   But his health failed, and, when the number of Justices was increased to five, he was largely out of contention.

Another major contribution of Clark to Chapter III of the Constitution, and to the character of the High Court, was the recognition that the new Court should not merely replicate the constitutional role of the United States Supreme Court, but should also have a general appellate jurisdiction from State courts. This made possible the development of an integrated legal system and, at least since the abolition of appeals to the Privy Council, an Australian common law.

Alfred Deakin, in his speech on the Judiciary Bill, described the Court as “a structural creation which is the necessary and essential complement of a federal Constitution”.  For one hundred years, the Court has functioned as a central institution in our federal framework of government.  Over that time the Court’s individual members have done their best to discharge their responsibilities.  But it is to the Court as an institution of government, not the individuals who come and go over time, that we look principally on an occasion such as this.

The work of the Court is sustained by, and its capacity to perform its constitutional role depends upon, the confidence of the Australian public.  For that reason we value the support implicit in the presence today of the Governor, the Premier, and members of the community.  Public confidence in a court of final appeal requires, in particular, the confidence of the legal profession and the judiciary.  For the same reason we are grateful for the support shown today by members of the judiciary in Tasmania, and representatives and members of the legal profession.

The first members of the High Court were sworn in in Melbourne on 6 October 1903, and they granted special leave to appeal in the case D’Emden v Pedder on 7 October 1903.  The High Court sat in this courtroom on 24 and 25 February 1904 to hear the appeal.  The Court sat here again on 18 April 1904, to hear an electoral petition in Cameron v Fysh.  The High Court visited Hobart seven times during its first ten years.  It came here every year between 1908 and 1918.  The first visit coincided with the celebrations of Tasmania’s Centenary.  The State Attorney-General was the Hon Herbert Nicholls.  The Justices arrived separately.  Justice O’Connor, who had spent the summer vacation in South Africa, arrived at Launceston, where he was met by Senator Keating, a protege of Andrew Inglis Clark.  In the light of views Senator Keating had expressed in Parliament in 1903 about Sir Samuel Griffith, it would have been prudent not to assign him to welcome the Chief Justice.

The Hobart Mercury of 25 February 1904, in an editorial, attributed the decision of the High Court to hold occasional sittings in the different State capitals to the delay in fixing the site of the national capital, evidently assuming that thereafter it would confine its sittings to one place.  Sir Samuel Griffith, at a sitting to welcome the Court, said that it was very satisfactory that arrangements had been made whereby the Court visited all the States, instead of the original idea of its sitting as a court of appeal at the seat of Government.  He added that he personally enjoyed the opportunity of visiting different parts of the Commonwealth, renewing old acquaintances, making new friends, and meeting the legal profession.  But he warned that this practice might not continue.  In the event, the Court has continued to sit in Hobart, approximately every two or three years, over its first century.  It did not obtain a base in the national capital until 1980; and it has never confined its sittings to one place.  The predictions of the Hobart Mercury, and the first Chief Justice, were not borne out.  Not all departures from the expectations of the founders of our Federation have been in the direction of centralism.

We are grateful to the Supreme Court of Tasmania for the willing hospitality it has extended, and continues to extend to the Court.  We are grateful to all of you who have come to help us mark the Court’s centenary.

AT 10.45 AM THE COURT ADJOURNED