Ceremonial Sitting to Welcome the Honourable Justice Steward

[2021] HCATrans 3

[2021] HCATrans 003

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

CEREMONIAL SITTING

TO WELCOME

THE HONOURABLE
JUSTICE SIMON HARRY PETER STEWARD

AT

CANBERRA

ON

MONDAY, 1 FEBRUARY 2021, AT 10.02 AM

Coram:

KIEFEL CJ
BELL J
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J

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

The Honourable Tony Smith MP, Speaker of the House of Representatives

Senator the Honourable Scott Ryan, President of the Senate

Dignitaries seated in the Bar area:

Senator the Honourable Amanda Stoker

Members of the Judiciary seated within the Court:

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

The Honourable Kenneth Hayne AC QC, retired Justice of the High Court of Australia

The Honourable Geoffrey Nettle AC QC, retired Justice of the High Court of Australia

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

The Honourable William Alstergren, Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia

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

The Honourable Catherine Holmes AC, Chief Justice of the Supreme Court of Queensland

The Honourable Anne Ferguson, Chief Justice of the Supreme Court of Victoria

The Honourable Justice John Middleton, Federal Court of Australia

The Honourable Justice David O’Callaghan, Federal Court of Australia

The Honourable Justice Roger Derrington, Federal Court of Australia

The Honourable Justice Thomas Thawley, Federal Court of Australia

The Honourable Justice Michael Wheelahan, Federal Court of Australia

The Honourable Justice Paul Anastassiou, Federal Court of Australia

The Honourable Justice John Snaden, Federal Court of Australia

The Honourable Justice Stewart Anderson, Federal Court of Australia

The Honourable Justice Joshua Wilson, Family Court of Australia

Deputy President Richard Clancy, Fair Work Commission

Mr Gregory Robinson, Magistrates Court of Victoria

At the Bar Table the following persons were present:

The Honourable Christian Porter MP, Attorney-General of the Commonwealth of Australia

The Honourable Mark Dreyfus QC MP, Shadow Attorney-General of the Commonwealth of Australia

Mr Ross Drinnan, Treasurer of the Law Council of Australia

Mr David Bloom QC, on behalf of the Australian Bar Association

Mr Christopher Blanden QC, President of the Victorian Bar Association

Mr Stephen Donoghue QC, Solicitor-General of the Commonwealth of Australia

Mr James Peters AM QC

Mr Michael Wyles QC

Mr Philip Solomon QC

Mr David Batt QC

Mr Stuart Wood AM QC

Mr Daniel Crennan QC

Ms Kristen Deards SC

Mr Eugene Wheelahan QC

Mr Matthew Harvey QC

Mr Romauld Andrew

Ms Lisa Hespe

Speakers:

Mr C. Porter MP, Attorney‑General of the Commonwealth of Australia

Mr R. Drinnan, Treasurer of the Law Council of Australia

Mr D. Bloom QC on behalf of the Australian Bar Association

Mr C. Blanden QC, President of the Victorian Bar Association

TRANSCRIPT OF PROCEEDINGS

KIEFEL CJ:   On 1 December 2020, Justice Steward was sworn in as a Justice of this Court.  The Court now sits to welcome his Honour. 

Yes, Mr Attorney.

MR PORTER:   May it please the Court. 

May I begin by acknowledging the Ngunnawal people, the traditional custodians of the Canberra area, and pay my respects to all of Australia’s indigenous people.  

Your Honour’s elevation from the Federal Court to this most eminent of courts is another remarkable achievement in an already distinguished career and it is a reflection of the high regard in which you are held that so many members of the judiciary and legal profession are present today. 

On that note may I formally acknowledge the Speaker of the House of Representatives, the Honourable Tony Smith MP; the President of the Senate, Senator the Honourable Scott Ryan; three former members of this Court, the Honourable William Gummow AC, the Honourable Kenneth Hayne AC QC and the Honourable Geoffrey Nettle AC QC; the Chief Justice of the Federal Court, the Honourable James Allsop AO; the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, the Honourable William Alstergren; the Chief Justice of the Supreme Court of New South Wales, the Honourable Thomas Bathurst AC; the Chief Justice of the Supreme Court of Queensland, the Honourable Catherine Holmes AC; the Chief Justice of the Supreme Court of Victoria, the Honourable Anne Ferguson; the Shadow Attorney-General, the Honourable Mark Dreyfus QC MP; the Treasurer of the Law Council of Australia, Mr Ross Drinnan; the President of the Australian Bar Association, Mr Matthew Howard SC; the President of the Victorian Bar Association, Mr Christopher Blanden QC, and other members of the legal profession.

Your Honours, it is a truly great privilege to be here today on behalf of the Australian Government to congratulate your Honour on your appointment as a Justice of the High Court of Australia.  Personally, I wish to note the rare privilege of appearing here is not lost on me.  Your Honour’s swearing‑in will mark only my third appearance before this Court and the first two times my senior at the DPP had tempered my enthusiasm with very clear instructions known to juniors everywhere.  I still have them, as they were written down.  They simply read:  “No matter what happens, under no circumstances are you to say anything – not a word”.  So it is particularly pleasing to express the Australian Government’s sincere thanks for your Honour’s willingness to serve as a judicial officer of this Court without having to write that sentiment down on a piece of paper and earnestly push it across the table, for it to be dutifully ignored by senior counsel who had already thought of the notion four minutes ago.

So, on behalf of the Commonwealth Government, may I also personally acknowledge the presence of your Honour’s family who proudly share this occasion – your wife Anne, your children James and Imogen and your parents Edwin and Patricia and brother Christopher.  It is simply not possible to achieve all that your Honour has without the support of those people closest to you, and this is a very special day for all of them and to all of your family the government’s gratitude is also forthcoming.

Recounting the full chronicle of the path of achievement that led to your Honour’s appointment to the High Court of Australia would occupy more time than is permitted, so I will focus on just a few of the qualities that have marked your Honour’s career to date.  With respect to your formative years and early education, your Honour’s intellect and drive were detectable from a very early age.  I understand that when your three older brothers began attending school and you were the only child left at home, that you insisted on your parents having you begin kindergarten one year earlier than the formal age of admission, with the cascading result that your Honour graduated from Xavier College in Melbourne one year younger than all of your peers. 

I am further told that as a child your Honour followed in your mother Patricia’s footsteps and from a very young age developed a love for art and history.  Your Honour’s love of the law also became apparent early and it is said that it was with your Honour’s father Edwin on a trip into Melbourne that you saw the court buildings and declared that this is where I want to be.  Amongst this crowd, your Honour, that type of early self‑legal selection marks you, in our collective mind, as a discerning and driven young boy, but of course for many Australian families their young boy committing themselves fulsomely, publicly and unequivocally to the pursuit of high legal office would be marked as being on the outside edge of precocious and on the inside edge of being a very unusual behaviour for a 12‑year‑old boy.

But like your fellow judges, there was nothing ordinary about your academic and legal commitment to purpose.  Your Honour commenced a Bachelor of Laws at the University of Melbourne where you graduated with first class honours.  Alongside your legal studies, your Honour studied fine art and it was in one of those fine art courses that you met your wife Anne. 

Your Honour commenced your career at Mallesons Stephen Jaques, now King & Wood Mallesons, and was admitted as a barrister and solicitor of the Supreme Court of Victoria in 1992.  Following your promotion to senior associate at Mallesons, you earned a formidable reputation for your diligence, hard work and commitment to your practice.  Indeed, I am told that this is when your colleagues, in what was yet another moment of prescience, first began referring to you as your Honour.  Your Honour completed your Masters of Law at the University of Melbourne in 2000, specialising in constitutional limitation on taxation powers.    

Your Honour was then called to the Bar in 1999 where you quickly became involved in many high‑profile tax cases and it is through this work that you forged an expertise in taxation law and gained a reputation as being pre‑eminent in your field.  Your Honour had a successful career at the Bar, taking silk only 10 years after being called to the Bar, being the first person in your graduating class to do so.  You soon became the counsel of choice for the Commonwealth Commissioner of Taxation and also for private clients.  Your eminence and skill in taxation law was evidenced when your argument in the Full Court of the Federal Court saw it overturn one of its own decisions handed down just two years prior.

Perhaps the ultimate testament to your skills in tax law was that your elevation from the Bar to the Federal Court caused a rare sense of emotion in the Australian Taxation Office.  Having acted with maximum skill and effect, both for and against the Commonwealth in tax matters, the Australian Taxation Commissioner appeared both happy and sad to see you appointed to the Federal Court.  For a position not noted for displays of things that can be recognised readily as human emotion, it is rare to see a Commonwealth Taxation Commissioner display signs of things that are detectable as either sadness or happiness, let alone both in one day.

Reflecting on your Honour’s time at the Bar, your colleagues have described you as a formidable advocate, noting in particular the precision of your submissions, the product of a quest for legal principle and of hours spent reading and thinking and debating with your juniors.  Your colleagues have described you as brilliant, meticulous and honest, and you are also evidently prepared to argue a principle even if it is unpopular.  In one matter where advocacy and exchange were described as tense, the matter of Handbury Holdings, in the heat of the exchange your Honour submitted to Justice Hayne that you ought to have “brought your fire‑retardant robes to the application”.  Who knew taxation law could be so dramatic?

As a judge of the Federal Court, your Honour was also known for your preparation, courtesy and clarity of reasoning.  Your Honour presided over a wide breadth of cases during your time at the Federal Court, including the recently decided Glencore Investment Case, an income tax case concerning transfer pricing, being a complex and contentious area of law in which your Honour is so very well versed.  This intellect and precision will be fitting among your Honour’s colleagues at this Court. 

Not only is your Honour known as a formidable practitioner with a natural flair for advocacy, but this flair, I am reliably informed, extends to the sartorial which, when given free reign, has seen your Honour sail in tweed suits and partake in fly fishing dressed in head to toe linen.  If I may say so, your Honour, it is not fly fishing if there is no linen.

Your Honour is an excellent communicator, gifted with a clarity of thought and expression that enables you to express complex concepts in a clear and concise manner, and that communication has been said to also manifest in a sharp wit and humour, so sharp indeed that you have been witnessed on more than one occasion providing genuine mirth to others on the subject of taxation law.  That is quite an achievement.

The government sources have also been informed that your Honour has a particular gift for impersonations, performing impersonations of luminaries at the Bar and Bench that have become quite famous amongst your colleagues.  In fact, I am told the inspiration for some of your best impersonations may very well be in this courtroom today.  I shall, however, refrain from making further submissions with respect to that particular matter. 

Your Honour is admired for your generous spirit and willingness to give your time to your colleagues who have sought your guidance regardless of how busy you may be.  Your Honour’s generosity has also been recognised through your contributions to the development and training of future practitioners, examples of which include your longstanding commitment to lecturing on tax litigation at the University of Melbourne and your time as President of the Tax Bar Association where you worked tirelessly to promote the interests of junior barristers. 

I am told that your Honour considers your greatest achievement to be your family, your wife Anne, son James and daughter Imogen, who are the centre of your life. 

After years of hard work and steadfast dedication to the law and justice, your Honour’s appointment to this Court should come as no surprise and while your Honour has many attributes that support your appointment to this high office, it is your sound judgment, professionalism, intellect and enduring work ethic that instil in our government the belief that you will be an outstanding addition to this most eminent Court. 

On behalf of the Australian Government and the Australian people I extend to you my sincerest congratulations to you personally and to your family and to welcome you to the High Court of Australia. 

May it please the court. 

KIEFEL CJ:   Mr Drinnan, Treasurer of the Law Council of Australia. 

MR DRINNAN:   May it please the Court. 

I also acknowledge the traditional custodians of the land on which we meet, the Ngunnawal and Ngambri people and pay my respects to all of Australia’s indigenous people. 

As the Chief Justice noted at your Honour’s swearing‑in on 1 December last year, there was considerable uncertainty then as to the manner of your swearing‑in and the conduct of the traditional welcome ceremony due to restrictions of movement imposed as a result of the COVID-19 pandemic.  Although restrictions continue, it is a special privilege to be able to welcome your Honour’s appointment on behalf of the Law Council of Australia today, some two months after you were sworn in.  Such an important occasion is best honoured in person and I am pleased that many of your current and former judicial colleagues, family, friends and representatives of the profession are able to be here for this welcome. 

As the Attorney said, your Honour’s legal career commenced as an articled clerk at Mallesons Stephen Jaques.  I understand that as part of your early training you were required to work in the tax group with Michael Clough and David Wood.  You came to appreciate and enjoy the intellectual challenges that the tax practice offered.  You have acknowledged, and they are no doubt proud to claim, that they converted you. 

Your Honour has an exceptionally diligent approach to your work.  It seems that quality also finds its roots at Mallesons.  I am told that your admission as a barrister and solicitor of the Supreme Court of Victoria was moved by David Wood.  One might have reasonably expected that the admission ceremony would be followed by a modest lunch to celebrate the occasion.  Apparently, David made it plain that he had no such thing in mind and that it was his expectation you would return directly to the office to complete a day’s work, for which he pointed out you were being remunerated.  Without hesitation your Honour did precisely that. 

Another quality admired in your Honour and described to me by a number of people who have worked closely with you over your career is impeccable judgment and clarity of approach.  You have a respected ability to distil complex facts and law to a few critical issues.  You are also someone who approaches problems with an open mind and a great capacity for listening to others - valuable skills which will be put to great use in this Court.

As the Attorney has also remarked, your Honour has a widely acknowledged command of and experience in taxation law.  Of course, to practise taxation law requires a broad understanding of private and public law.  It was Chief Justice French, when speaking at the Tax Institute’s National Convention, who observed that there is an extensive intersection between taxation law and the law of contract, torts, property, corporations and partnerships, and with equity and the law of trusts.  Your predecessor on this Court, Justice Nettle, added criminal law to that list when addressing the Tax Bar Association.  Your Honour’s learning and expertise in these areas of the law will contribute significantly to the jurisprudence of this Court. 

One important aspect of your work, particularly over the last decade, has, as the Attorney noted, been dealing with the complex cases which arise as a result of the tension between, and the application of, the tax laws in different countries for businesses engaged in international trade.  You have had a significant involvement in a number of these important transfer pricing cases.  I have traced this work back to the W.R. Carpenter case in which your Honour appeared for the Commissioner of Taxation before this Court.  You also appeared in the Roche Products case, and then the SNF cases, which, among other issues, examined the important question of the applicability of revenue laws to foreign multinational groups with Australian loss‑making subsidiaries.  You also appeared for the taxpayer in the Chevron case and most recently, as a member of the Full Court, your Honour determined the Glencore case.  These have all been important cases in defining the boundaries of Australia’s sovereign taxing power. 

Your Honour’s breadth of experience across the profession, first as a solicitor, at the Bar, and most recently as a judge, has given you the opportunity to grapple with legal dilemmas from many different perspectives, and through those experiences you have developed the knowledge and skills necessary to discharge your public duty.  Your Honour’s intellectual curiosity, steadfast dedication to your work, and professional civility will be of great service to the important work of this Court. 

The Law Council of Australia again congratulates you on your appointment and looks forward to the significant contribution your Honour will make to the administration of justice and to the nation. 

May it please the Court.

KIEFEL CJ:   Mr Bloom, on behalf of the Australian Bar Association. 

MR BLOOM:   May it please the Court. 

I have been asked to speak on behalf of Mr Howard of senior counsel, who apologises but he is locked down in Western Australia.  His misfortune, though, provides my privilege, and it is my privilege to appear, even by default, on behalf of the Australia Bar to add its welcome to your Honour following your Honour’s appointment as a Justice of this Court.  I promise – and your Honours will be pleased to hear that I will not ad lib – but will stick to the words of Mr Howard’s draft.

The Australian Bar Association acknowledges the relationship between the land on which barristers work around our country and the First Nations’ people of Australia.  I pay my respect to their elders, past, present and emerging. 

The appointment of any judge, but especially the appointment of a Justice to this Court, is a significant event in the life of our society.  We are fortunate in Australia that appointments to this Court are rarely controversial and do not provoke the political convulsions we see in some other places.           May I suggest, respectfully, that it is the product of respect and acceptance which this Court has from the society it serves and from the Executive which appoints.  It is also a product of the unquestionable calibre of appointments made, including your Honour’s. 

It is three years to the day that your Honour was welcomed to the Federal Court.  At that time, it was observed that your Honour’s conspicuous abilities as a leading silk and your personal qualities augured well for the successful discharge of your new calling.  Those high expectations were more than met.  Those same abilities and qualities, now tested in the Federal Court, have brought us to this significant occasion.

The welcome by the Bar three years ago spoke to your Honour’s intellect and ability as a lawyer which was evident from the beginning.  In your chosen field you were the junior of choice, before taking silk after only 10 years at the Bar.  As a silk, your standing saw your briefed in many of the most significant revenue cases, both in the Full Federal Court and in this Court.

Your Honour was chair of the Victorian Tax Bar and it was a sign of your international standing that when you organised the specialist tax stream for the ABA’s international conference, your Honour was able to attract the most senior experts from around the world to speak.

Your Honour found taxation work fascinating.  I have it on good authority that your Honour is so talented a public speaker that other people have also been led to think that the area is interesting.

In addition to the description of your outstanding abilities, what was also notable from the welcome three years ago was your colleagues’ deep affection and admiration for you.  That has been more than obvious from the reaction of the profession across the board to your Honour’s appointment. 

Your Honour has been appointed to fill the seat left vacant by the retirement of Justice Nettle, whom I acknowledge is present in the Court today.  He, in turn, had filled the seat on the retirement of the Honourable Susan Crennan QC.  So, your Honour, to put it in the vernacular, you have “big shoes to fill”.

A friend of yours, whom I will not name, has suggested to me that I might remark on the similarities you share with your immediate predecessor – although, on review, it appeared to me that the suggested similarities may need some qualifications.  Firstly, it was said that you both love English cars.  Your predecessor loves working on them and has a pit in his garage.  Your Honour just likes driving them.  Your predecessor loves ocean sailing.  Your Honour apparently has a sailing jacket and has been in a trailer sailboat.  Your predecessor has run marathons and your Honour, it was suggested, may have seen one once.  Nonetheless, the Bar expresses its confidence that your Honour will fill those judicial shoes.

Events around the world have emphasised both an importance and fragility of institutions.  Your Honour is motivated by duty and service.  You have a profound respect for institutions and their preservation for the benefit of the society they serve.  Your Honour brings your immense abilities and learning to the performance of that service and to the enhancement of the strength of this Court as one of the great institutions of this country.

The Bar congratulates your Honour again on your appointment and very much looks forward to appearing before your Honour in this Court. 

May it please the Court.

KIEFEL CJ:   Mr Blanden, President of the Victorian Bar Association.

MR BLANDEN:   May it please the Court. 

I appear on behalf of the Victorian Bar to congratulate your Honour on your appointment to this Court.  I too acknowledge the traditional owners of the land on which we meet and pay my respects to their elders, past and present.

Your Honour’s appointment to this Court comes after distinguished service at the Bar and the Federal Court of Australia, to which your Honour was appointed in February 2018.  As has been noted, your Honour attended Xavier College and the University of Melbourne, obtaining first-class honours and winning exhibitions in philosophy and history. 

Life as a practitioner began at Mallesons where you quickly found your way into the taxation group and that involvement really set the direction for your Honour’s career thereafter.  When you came to the Bar, you set about developing a substantial revenue practice and appeared both as preferred junior and then silk in many well‑known cases. 

When asked, friends and colleagues nominate fastidious planning and preparation as standout elements in your Honour’s approach, not just to opinions and later judgments, but to all matters.  Sometimes, however, planning and preparation can be taken too far.  I am able to confirm that your Honour has been sailing, at least once.  Notwithstanding that the sail involved a fairly gentle navigation of the sheltered waters of Port Phillip Bay, I am reliably informed that your Honour arrived fully kitted out as if embarking on a Sydney‑Hobart with a storm warning, much to the mirth of the skipper and your companions.

Generosity of spirit is another recurring theme.  At the Bar, your Honour was a regular visitor to the chambers of others with whom you shared, checking up and encouraging a collegiate atmosphere.  Your Honour continued this habit in the Federal Court and paid numerous pastoral visits to the chambers of fellow judges to maintain the spirit and collegiality of chambers. 

On many occasions, the fastidious preparation and generosity combined.  A barbecue for judges and staff in the Federal Court was the perfect opportunity for your Honour to demonstrate your natural gift and flair for pastoral care.  The Federal Court insignia was copied, and it and the name of the judicial recipients embroidered onto chefs’ aprons, which were duly distributed.  I am told they are now collectors’ items.  However, an attempt by your Honour to assist with some preparatory knife work caused deep concern to your colleagues who only breathed a sigh of relief when you were persuaded to surrender the knife. 

Of course, no welcome for your Honour would be complete without reference to your Honour’s propensity for collection ‑ books, antiques, clothes, art, curios.  None have escaped your Honour’s attention.  Indeed, so well known is this propensity that the Australian newspaper, when announcing your appointment to this Court, fulsomely described your Honour thus:  “A tax expert from Melbourne with a love of antique furniture”.

Your Honour’s dress and sense of style has also been the subject of much favourable comment.  The two descriptors that figure most prominently are “eclectic” and “Harris tweed”.  Your Honour takes pride in the fact that you do not own a pair of jeans.  Of course, those light‑hearted aspects tend to distract from the more readily given descriptions such as scholar, great intellect, incredibly widely read, having a passion for history, strongly independent, a huge work ethic and a believer in service to the community. 

Late last year after your appointment your Honour featured in two very different publications, but the publications say much about your Honour and the way you are regarded by others.  The first was the summer edition of the Victorian Bar News.  It reprinted an advice your Honour had written for the Bar Council some years earlier.  The question:  what happens to QCs when the Queen dies?  Your Honour’s consideration of the topic commenced with the origins of the rank under Elizabeth I in about 1594.  It continued through 30 fulsome paragraphs with 33 comprehensive footnotes to its ultimate conclusion - they become KCs.  The second publication was the Xavier News of December 2020.  In honouring your appointment, the author reflected the sentiment that so many have expressed.  He said simply, “We don’t mind saying that we are absolutely chuffed”. 

On behalf of the Victorian Bar, I wish your Honour a long, satisfying and distinguished service as a judge of this Court. 

May it please the Court.

KIEFEL CJ:   Justice Steward.

STEWARD J:   The Court and I are honoured by the presence of the Speaker of the House of Representatives, the President of the Senate, retired Justices of this Court, the Chief Justice of the Federal Court, the Chief Justice of the Family Court, the Chief Justice of New South Wales, the Chief Justice of Queensland, the Chief Justice of Victoria, justices of the Federal Court of Australia and the Family Court of Australia, other judges and tribunal members, the Attorney‑General, the Assistant Minister to the Attorney‑General, the Shadow Attorney‑General and the Solicitor‑General for the Commonwealth of Australia.  I thank you deeply for your attendance.

Mr Attorney, Mr Blanden, Mr Bloom speaking on behalf of Mr Howard, and Mr Drinnan, may I thank each of you for your attendance and for your kind and generous statements of affection.  If any of what you have said is true – and that is far from clear – then it has been only the result of providence or the work of others or perhaps both.

I will not repeat the important acknowledgements the speakers have made today, nor will I repeat, or reference, the tributes to all of those individuals who mean so much to me and have contributed to my life which I made at my welcome to the Federal Court of Australia.  Happily, nearly all of you are here today in Court.  However, I do wish today to take the opportunity to thank the Society of Jesus for the education they gave me at Xavier College in Melbourne and for instilling in me, as best as they could, that it is a privilege to serve others. 

I also wish to remark that it is a great honour for me that my wife, Anne, and my children, James and Imogen, and my parents are with me in Court today.  I am also honoured that my brother, Dr Christopher Steward, is also here in Court, although I regret that my other brothers, Mark and Jeremy, are unable to be here.  My appointment took place whilst Imogen was completing Year 10 and James was undertaking exams for his Juris Doctor at the Melbourne Law School.  I am immensely proud of them both. 

It is apt that I pay a singular tribute to my wife, with whom I have been very happily married for over 27 years.  Without Anne I should indeed be a lost soul and would have achieved nothing.  She has always been, and remains, my essential inspiration and I wish to record on this occasion my profound gratitude to her.

I succeed, but do not replace, Justice Nettle.  Indeed, no one could.  His Honour is one of the finest jurists this country has ever produced.  He has served Australia with great distinction as a judge for almost 20 years.  He has set for me an ineffable example of how a lawyer can contribute to our country.  I thank him and wish him every happiness for the years which now follow.

For the last three years I was a judge of the Federal Court of Australia.  It would be remiss of me not to acknowledge that very great and esteemed college of judges led so exceptionally by its distinguished Chief Justice.  It was an honour to serve on so happy a court and I am indebted to Chief Justice Allsop for all his kindness and support during my years on that court. 

When I was at the Melbourne Law School I studied – I know not why – the public reaction in America, in particular that of President Thomas Jefferson, to the well‑known decision of Marbury v Madison.  At that time the relationship between the judicial and executive branches in that infant republic was fractious.  The heat between President Jefferson and Chief Justice Marshall, as many of you will recall, is discernible in the letters written at the time by Mr Jefferson.  For students of the doctrine of separation of powers, they make for a very interesting read. 

Happily in this country the relationship between the different branches of government has, since Federation, generally not been fractious but has instead been amicable.  Under our system of government each branch, generally speaking, has treated each other with respect, with courtesy and with empathy for the different duties and challenges each must discharge and face.  Those commonly held values of courtesy, respect and empathy, and others like them, are not necessarily rules of law.  The role they can play, however, in regulating our individual behaviours as well as the behaviours of State institutions, reminds us that the rule of law is not an exhaustive principle for the governance of a civic society.  Such commonly held values are, in my view, inalienable attributes of a humane and civilised community and even now remain vital to a country that is ruled by laws.  At the same time, whilst the rule of law may not constitute an all‑encompassing standard for the maintenance of a just society, it nonetheless remains a vital necessity for justice.  Every lawyer has a duty to promote, defend and enhance it.

I should finally like to thank the Chief Justice of Australia, the Justices of this Court and its wonderful and tireless staff for the warmth of their welcome and for all their generous assistance following my appointment.  The staff, in particular Ms Philippa Lynch and Mr Ben Wickham, have done an extraordinary job in organising today’s ceremony in such difficult times.  The Judges of this Court are indeed very fortunate to be so very well supported. 

It is an enormous privilege, and a call of duty, to be appointed a Judge of this Court.  It will be my heavy burden to face many difficult trials in the years ahead.  I hope that with God’s grace I shall face these with diligence, fortitude and wisdom. 

I thank you all for your attendance in court.

KIEFEL CJ:   The Court will now adjourn until 10.00 am tomorrow.

AT 10.34 AM THE MATTER WAS CONCLUDED