Ceremonial - Swearing-in of Jagot J - Canberra

[2022] HCATrans 176

[2022] HCATrans 176

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

CEREMONIAL SITTING

ON THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE JAYNE MARGARET JAGOT

AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

AND

BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON

MONDAY, 17 OCTOBER 2022, AT 10.00 AM

Coram:

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

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

The Honourable Mary Gaudron KC, Former Justice of the High Court of Australia

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

The Honourable Kenneth Hayne AC KC, Former Justice of the High Court of Australia

The Honourable Virginia Bell AC KC, Former Justice of the High Court of Australia

The Honourable Geoffrey Nettle AC KC, Former Justice of the High Court of Australia

The Honourable Patrick Keane AC KC, Former Justice of the High Court of Australia

Members of the Judiciary seated within the Court:

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

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

The Honourable Alan Blow AO, Chief Justice of the Supreme Court of Tasmania

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

The Honourable Peter Quinlan, Chief Justice of the Supreme Court of Western Australia

The Honourable Andrew Bell, Chief Justice of the Supreme Court of New South Wales

The Honourable Mark Livesey, President of the Court of Appeal of the Supreme Court of South Australia

The Honourable Justice Steven Rares, Federal Court of Australia

The Honourable Justice Berna Collier, Federal Court of Australia

The Honourable Justice Anthony Besanko, Federal Court of Australia

The Honourable Justice John Logan RFD, Federal Court of Australia

The Honourable Justice Nye Perram, Federal Court of Australia

The Honourable Justice John Nicholas, Federal Court of Australia

The Honourable Justice Mordecai Bromberg, Federal Court of Australia

The Honourable Justice Anna Katzmann, Federal Court of Australia

The Honourable Justice Bernard Murphy, Federal Court of Australia

The Honourable Justice Kathleen Farrell, Federal Court of Australia

The Honourable Justice Deborah Mortimer, Federal Court of Australia

The Honourable Justice Michael Wigney, Federal Court of Australia

The Honourable Justice Brigitte Markovic, Federal Court of Australia

The Honourable Justice Robert Bromwich, Federal Court of Australia

The Honourable Justice Michael Lee, Federal Court of Australia

The Honourable Justice Katrina Banks‑Smith, Federal Court of Australia

The Honourable Justice Thomas Thawley, Federal Court of Australia

The Honourable Justice Wendy Abraham, Federal Court of Australia

The Honourable Justice Helen Rofe, Federal Court of Australia

The Honourable Justice Kylie Downes, Federal Court of Australia

The Honourable Justice Elizabeth Raper, Federal Court of Australia

The Honourable Julie Ward, President of the Supreme Court of New South Wales

The Honourable Justice David Hammerschlag, Supreme Court of New South Wales

The Honourable Justice Anna Mitchelmore, Supreme Court of New South Wales

The Honourable Acting Justice John Basten, Supreme Court of New South Wales

The Honourable Acting Justice John Griffiths, Supreme Court of New South Wales

The Honourable Acting Justice Carolyn Simpson AO, Supreme Court of New South Wales

The Honourable Justice Peter Garling RFD, Supreme Court of New South Wales

The Honourable Justice Kelly Rees, Supreme Court of New South Wales

Members of the Judiciary attending in Sydney:

The Honourable Justice Angus Stewart, Federal Court of Australia

The Honourable Justice Scott Goodman, Federal Court of Australia

The Honourable Justice Jeremy Kirk, Supreme Court of New South Wales

The Honourable Justice Trish Henry, Supreme Court of New South Wales

The Honourable Justice Kate Williams, Supreme Court of New South Wales

The Honourable Justice Elizabeth Cheeseman, Federal Court of Australia

Members of the Judiciary attending in Melbourne:

The Honourable Justice Susan Kenny AM, Federal Court of Australia

At the Bar Table the following persons were present:

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

Mr Tass Liveris, President of the Law Council of Australia

Dr Matt Collins AM KC, President of the Australian Bar Association

Ms Gabrielle Bashir SC, President of the New South Wales Bar Association

Mr Stephen Donaghue KC, Solicitor‑General of the Commonwealth of Australia

Mr Michael Sexton SC, Solicitor‑General for the State of New South Wales

Mr Peter Garrison AM SC, Solicitor‑General for the Australian Capital Territory

Ms Sarah Kay SC, Solicitor‑General for the State of Tasmania

Mr Joshua Thomson SC, Solicitor‑General for Western Australia

Mr Gim Del Villar KC, Solicitor‑General of Queensland

At the area immediately behind the Bar Table the following persons were present:

Mr Michael Wait SC, Solicitor‑General for South Australia

Mr Nikolai Christrup SC, Solicitor‑General for the Northern Territory

Ms Rowena Orr KC, Solicitor‑General for the State of Victoria

Mr Tom Sullivan KC, President of the Bar Association of Queensland

Mr Brahma Dharmananda SC, Vice‑President of the Western Australian Bar Association

Ms Roisin Annesley KC, President of the Victorian Bar Association

Ms Rebecca Curran, President of the Australian Capital Territory Bar Association

The following members of the Bar were present:

Mr David Shavin KC

Mr Bret Walker AO SC

Mr Noel Hutley SC

Mr Robert Newlinds SC

Mr Adrian Galasso SC

Mr Richard McHugh SC

Mr Richard Lancaster SC

Ms Sarah Pritchard SC

Mr Andrew Pickles SC

Dr Ruth Higgins SC

Ms Kristen Deards SC

Mr Timothy Begbie KC

Ms Kathleen Morris

Ms Anya Poukchanski

Ms Chantal Nguyen

Ms Nicola Gollan

The following Presidents of Law Societies were present:

Ms Joanne van der Plaat, President of the New South Wales Law Society

Ms Tania Wolff, President of the Law Institute of Victoria

Ms Farzana Choudhury, President of the ACT Law Society

Speakers:

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

Mr Tass Liveris, President of the Law Council of Australia

Dr Matt Collins AM KC, President of the Australian Bar Association

Ms Gabrielle Bashir SC, President of the New South Wales Bar Association

TRANSCRIPT OF PROCEEDINGS

JAGOT J:   Chief Justice.  I have the honour to announce that I have received a Commission from His Excellency the Governor‑General appointing me a Justice of the High Court of Australia.  I now present the Commission.

KIEFEL CJ:   Principal Registrar, please read aloud the Commission.

PRINCIPAL REGISTRAR:  

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

I, General the Honourable David Hurley, AC, DSC Retired, 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 Justice Jayne Margaret Jagot, a Judge of the Federal Court of Australia, to be a Justice of the High Court of Australia, commencing on 17 October 2022 until she attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 29 September 2022.  David Hurley, Governor‑General, By His Excellency’s Command, Mark Dreyfus KC, Attorney‑General, Cabinet Secretary.

KIEFEL CJ:   Justice Jagot, I invite you to take the Oaths of Allegiance and of Office.

JAGOT J:   I, Jayne Margaret Jagot, do swear that I will bear true allegiance to His Majesty King Charles the Third, His Heirs and Successors, according to law, that I will well and truly serve Him 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.

KIEFEL CJ:   I now invite you to subscribe the Oaths of Allegiance and of Office.

KIEFEL CJ:   Principal Registrar, please place these documents in the records of the Court.

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

KIEFEL CJ:   Mr Attorney.

MR M.A. DREYFUS, KC:   May it please the Court.

I begin by acknowledging the Ngunnawal and Ngambri peoples, the traditional custodians of the Canberra region, on whose ancestral lands we are gathered today.  I extend that respect to Aboriginal and Torres Strait Islander peoples present today.

It is great privilege on behalf of the Australian Government, and the Australian people, to welcome your Honour as a Justice of the High Court of Australia.

All appointments to this honourable Court are significant.  Your Honour is just the 56th person to be appointed, but your Honour’s appointment is of particular historical significance.  Today, for the first time since Federation, women make up a majority on the Bench of our highest court.

Just seven women have been appointed to this Court.  The first, Justice Gaudron, who honours us with her presence today, was not appointed until 1987.  The intervening years have seen the appointment of more women, including your Honour Chief Justice Kiefel, who has provided the Court with such able leadership since your appointment in 2017.

I respectfully submit a Court that reflects the community it serves is a better Court.  Diversity is a strength on the Bench and in the law more generally.

Your Honour Justice Jagot’s appointment follows an extensive consultation process with all State and Territory Attorneys‑General, the Shadow Attorney‑General, the heads of the Federal Courts and State and Territory Supreme Courts, State and Territory Bar Associations and Law Societies, National Legal Aid, Australian Women Lawyers, the National Association of Community Legal Centres, and Deans of law schools.

May I offer your Honour the Government’s warmest congratulations on your appointment and our gratitude for your Honour’s willingness to serve the Australian community as a Justice of this Court.

Your Honour’s elevation from the Federal Court of Australia to Australia’s highest court is another success in your distinguished and eminent career.  It also reflects the respect you command and the high regard in which you are held by so many members of the judiciary and legal profession, including those here today.

I have already acknowledged former Justice Gaudron but I would also like to acknowledge the Honourable William Gummow AC KC, the Honourable Kenneth Hayne AC KC, the Honourable Geoffrey Nettle AC KC, the Honourable Virginia Bell AC SC, and the Honourable Patrick Keane AC KC.

I would also like to acknowledge the Chief Justice of the Federal Court, the Honourable James Allsop AO; the Chief Justice of the Federal Circuit and Family Court of Australia, the Honourable William Alstergren AO; the Chief Justice of the Supreme Court of Tasmania, the Honourable Alan Blow AO; the Chief Justice of the Supreme Court of Victoria, the Honourable Anne Ferguson; the Chief Justice of the Supreme Court of Western Australia, the Honourable Peter Quinlan; the Chief Justice of the Supreme Court of New South Wales, the Honourable Andrew Bell; the President of the Law Council of Australia, Mr Tass Liveris; the President of the Australian Bar Association, Dr Matt Collins AM KC; and other members of the legal profession and distinguished guests.  May I also acknowledge the presence of your Honour’s husband, the Honourable Peter McClellan AM KC, who proudly shares this occasion with you.

Your Honour’s appointment to this Bench represents your dedication to justice and serving the community.  Highlighting a full catalogue of your Honour’s accomplishments would occupy more time than permitted, therefore I intend to just speak to a few of the qualities that have marked your career today.

Your Honour was born in the United Kingdom but migrated to Australia with your family at an early age.  Your Honour wholeheartedly grasped the opportunities that Australia presented.  After graduating from Baulkham Hills High School, you completed an Arts degree at Macquarie University and a Law degree at Sydney University and graduated with First Class Honours in both.

In 1991, your Honour was admitted as a Solicitor.  You commenced your legal career as what was then Mallesons Stephen Jaques.  Only six years later you became a partner in that firm, practicing in environmental and planning, local government, real property and administrative law.  Your Honour joined the Bar in 2002, quickly establishing yourself as a highly sought‑after junior counsel.

Indeed, so quickly did you distinguish yourself at the Bar that only four years later, in 2006, your Honour was sworn in as a judge at the Land and Environment Court of New South Wales.  On that court, your Honour heard and determined a variety of matters, including environmental and planning appeals, determinations of compensation for the compulsory acquisition of land, appeals against land valuations, claims to Crown lands by Aboriginal Land Councils, and various appeals.

In 2008, your Honour was appointed to the Federal Court where you served some 14 years.  Colleagues have commented on your remarkable contribution to the Federal Court over those years.  One colleague observed that your elevation to the High Court was equivalent to losing a limb for the Federal Court.

This is something of a theme through what has been described as your meteoric rise through the legal profession and the judiciary.  Colleagues in the Solicitors’ arm of the profession, the Bar, the Land and Environment Court, and now the Federal Court have in turn regretted your Honour’s loss as you moved into each new phase of your career.  The Federal Court’s loss is, however, the High Court’s gain.

After 16 years on two other courts, your Honour comes to this Court with an incredible breadth and depth of knowledge and expertise.  Your Honour has sat across the Federal Court’s practice areas and often had to deal with the most difficult and challenging cases.  Your Honour has handed down numerous high profile and acclaimed decisions – too many to list.  Of particular note was Bathurst Regional Council v Local Government Financial Services Pty Ltd.  Arising out of the 2008 Global Financial Crisis, this was a landmark case in which your Honour considered the liability of rating agencies for the rating, sale and purchase of structured financial products.  In addition to delivering a clear and straightforward decision, your Honour’s judgment was widely lauded as one of the best explanations of the Global Financial Crisis itself.

In Gilead Sciences Pty Ltd v Idenix Pharmaceuticals LLC, your Honour handed down a clear and well‑reasoned judgment in the complex field of patent law.  All the more remarkable was that your Honour had not practised in this area previously.  Indeed, your Honour has an astonishing ability to rapidly synthesise large amounts of information and to reach the correct conclusion – all the while, remembering the human side to legal matters.

Just last month, your Honour presided over an interlocutory decision in the matter of Widjabul Wia‑bal v Attorney General of New South Wales – a native title case in which your Honour wrote of:

the failure of our country to reach a lasting and equitable agreement with the Aboriginal peoples and Torres Strait Islanders concerning the use of their lands –

These proceedings demonstrate your Honour’s valuable contribution to native title law and practice.  During your time on the Federal Court, you also served as an additional judge on the Supreme Court of the Australian Capital Territory and as a Deputy President of the Australian Copyright Tribunal.

It is not just your Honour’s experience and expertise, however, that makes you such a worthy appointment to this Court.  Your Honour is said to discharge your judicial duties with courtesy, kindness, and empathy – conscious of the human element of the law and the legal process.  Indeed, just this year, your Honour delivered a speech on the value of compassion in the law.  Your Honour is known for the egalitarian manner in which you treat your colleagues and court staff – with compassion, humour and a sincere interest other people’s lives.  Colleagues have remarked that you are incredibly modest, despite your many achievements.

Professionally and personally, much has been said of your kindness.  This ranges from the empathy you extend to those appearing in your courtroom to the generosity shown to those around you.  Your husband, Peter, regards you as incredibly kind and notes that you always have been.  I am told that during school, your Honour swam competitively and there was one competitor who simply could not beat you.  This competitor was promised a new bike by their parents if they won a race.  When your Honour heard about this, you lost the race so your rival could have the new bike they had set their heart on.

Despite your busy schedule, your Honour has worked tirelessly with a number of different organisations including the Minds Count Foundation.  This Foundation works hard to build greater awareness and provide help around depression, anxiety and mental health across the Australian legal community.  Notwithstanding the high position your Honour occupies, you have never sought the limelight and have been described as the “great quiet achiever”.

When reflecting on your appointment, one of your colleagues recently remarked that many complex legal questions have two or more answers.  However, the better answer is the one that reconciles fundamental principles and the human context with the law.  It is clear your Honour is up to the task of finding the better answer.  As you take on this judicial office, your Honour brings your many positive attributes including your sharp legal intellect, strong work ethic and sense of empathy and compassion.  I trust these will serve you well on this Court and that you will continue to approach this role with the exceptional dedication that you have demonstrated throughout your career to date.

On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and welcome you to the High Court of Australia.  May it please the Court.

KIEFEL CJ:   Mr Liveris, President of the Law Council of Australia.

MR A.A. LIVERIS:   May it please the Court.  I acknowledge the Ngunnawal people and pay my respects to their elders past, present and emerging.

It is a privilege to appear on behalf of the Law Council and its constituent bodies to congratulate your Honour and welcome your appointment to this Court.  On 6 October 1903 the first three justices of this Court took their oaths under a relatively new sovereign, King Edward VII, witnessed by what was described as a sea of distinguished personages in a brimming Melbourne courtroom.  One hundred and nineteen years on, on another October day, this time in the Bush Capital, you are the first justice of this Court to take the oath of allegiance under that monarch’s great‑great grandchild.  In doing so, you have pledged yourself to the same enduring commitments.  On that 1903 occasion, then‑Chief Justice Griffith said:

upon our success or failure in the discharge of these functions must depend the future well‑being of the Commonwealth as an instrument and device for the prosperity and happiness of the inhabitants of Australia.

In a recent speech your Honour quoted Roman playwright Terence who wrote:

I am human and nothing which is human is alien to me.

You invoked the impulse to compassion, the great moral engine of human action, describing the law as a real‑world problem‑solving system.  You observed that fairness, civil debate and common rules are valuable animating principles in a troubled world.  These reflections echo Chief Justice Griffith’s connection between judicial functions and deeply human considerations, the wellbeing of Australia’s citizens.

Your Honour’s elevation is a remarkable milestone, but one that has been prefigured by moments of prescience.  As a young solicitor you instructed the Honourable Murray Tobias who upon reading your written submissions exclaimed, “That is the quality you will find on the High Court”.  He later bestowed on your Honour his red bag when he went to the Bench.

In the task of a jurist, understanding of the law must be paired with the ability to communicate it.  Your writing, which prompted such exclamation, is characterised by the impactful economy of language lending itself to accessible explanations of deep and complex law.  The record of your Honour’s work testifies to a brilliance of mind, a retentive memory and a remarkable ability to cut swiftly to the heart of issues.  These qualities typify the ideals of the administration of justice, as does your practical approach in dealing with all litigants who come before you.  Your Honour recognises that the law is not a purely abstract academic instrument, but a tool through which real impacts and resolutions may be reached.

Your Honour has dealt adeptly with a wide variety of legal areas, mastering each with apparent ease.  You quickly established a formidable reputation as a pre‑eminent judge on intellectual property, in addition to your areas of specialty at the Bar.  Your Honour’s conversancy with the breadth of the law will be an asset to the community, as well your involvement to date in significant cases.

In Bathurst Regional Council, by the numbers your Honour delivered a 3,723‑paragraph judgment following a hearing spanning 53 days, just 66 days after submissions closed.  The judgment, accepted around the world as the clearest legal exposition of the Global Financial Crisis, was breathtaking in the authority and usefulness with which it navigated a deeply complex topic.  The judgment also exemplifies your prodigious sense of industry.  Your Honour has managed an extensive and busy docket and you have joked that you would develop an eye twitch if your reserved judgments ever amounted to six at any one time.

Your Honour has taken a keen role in the development of native title law and practice, making significant comments in cases such as Widjabul Wia‑bal in which your Honour recognised the difficulties presented in those cases.  You acknowledged that negotiating with multiple others the recognition of those rights and interests which First Nations people have held for millennia can be exhausting, debilitating and re‑traumatising.

At the Federal Court you were a generous contributor to the development of digital practice and served as Chair of Rules Committees.  Your approachability and genuine nature also made you a favoured source of advice.  Your Chambers provided an atmosphere of warmth in every sense, given that your Honour – having grown up in an expatriate English-Australian family, has an aversion to the cold.

Your Honour has commanded universal respect from litigants, counsel and fellow judges by, as one put it, so obviously knowing what you are doing.  As a true friend, known for your kindness at heart, the bonds you created with everyone, from court offices to judges and associates, were treasured.  One court officer who served in the Federal Court for 25 years, before retiring at age 80 – Jan Harrison – has made special effort to travel from Sydney to be here as a mark of appreciation for the friendship and support you showed her.

Fuelling your excellent command of the written word is the fact that your Honour is a voracious reader, as your father was before you.  You plough through the wide genre of books at remarkable speed, giving equal attention to The Hunger Games series as to military history.

On October 6, 1903, then‑Attorney‑General James Drake said this Court would serve as both guardian and interpreter of the Constitution, breathing life and spirit into its dry bones.  He reflected that time would evolve the union of hearts and mind and purpose of the Australian Federation, and that the names of the first Justices of the Court would live on in history.

Your Honour will breathe life and spirit to the law, bringing to bear the entire scope of your substantial leading talents, and shaping it with reason, wisdom and compassion.  Time has indeed evolved this great Federation of Australia, as well as this Court.

Just as the names of Griffith, Barton and O’Connor resound throughout the pages of our nation’s history, your Honour now joins in the great task, as they did, of composing the future.  May it please the Court.

KIEFEL CJ:   Mr Collins, president of the Australian Bar Association.

DR M.J. COLLINS, KC:   May it please the Court.  I appear on behalf of the Australian Bar Association and its constituent bodies to congratulate your Honour on your appointment to this Court.  I, too, acknowledge the traditional owners of the lands on which we meet, the Ngunnawal and the Ngambri peoples, and acknowledge their continuing culture, and pay respect to their elders, past and present.

It is a privilege to have been invited to speak today on the occasion of your Honour swearing‑in as the 56th person to be appointed as a Justice of this Court.  Because the High Court sits at the apex of our justice system, its members have unique and onerous responsibilities.

And, as Mr Liveris has alluded, this Court is an ultimate safeguard of the Australian experiment:  a nation on a remote and unforgiving, yet fragile and beautiful continent, nurtured for millennia by the peoples of the oldest continuing civilisation on Earth; a Western democracy whose foundations rest on the displacement of that civilisation.

A Federation both blessed and cursed with the sharing of powers and responsibilities between its constituent paths.  In its modern incarnation – perhaps the most successful multicultural nation on Earth – and, despite the relative youth of our foundational document and the institutions it established, a country whose commitment to the rule of law is basal and has not wavered.

One of the many reasons why the Australian community can have confidence that your Honour will discharge your duties as a Justice of this Court with distinction, and provide a bulwark for the Australian experiment, is that your Honour has, throughout your career, reflected deeply upon the intersection of the law and humanity.  That deep reflection has found form in the manner in which your Honour has managed and adjudicated the cases you have heard and determined.

Your Honour has observed that fundamental touchstones for the rule of law in a civilised society include the separation of powers, the judiciary alone having authority to declare what the law is, and having laws that apply equally to all people and equally to individuals and the State.  But your Honour has also observed that adherence to the rule of law does not protect us from bad laws, laws that are inconsistent with our shared values.

The law is our social compact, the rules by which we are all, governors and the governed, agree to be bound.  The strength of that compact depends upon the law comporting so far as possible with the human values that we agree, at least as an aspiration, ought to define our society, requiring a constant process, as your Honour has put it, of re‑examination and recalibration by all three arms of government.

But, as your Honour has articulated, the judicial function, even on a court free from the yoke of binding precedent, is not to substitute the judge’s view of what the law should be for the judgment of Parliament or what the outcome should be for the exercise of discretion by the Executive or the principled development of the common law.  As Justice Brennan put it in Mabo [No. 2], not even this Court is free to adopt rules that would “fracture the skeleton of principle which gives the body of our law its shape and internal consistency.”

These are principles your Honour profoundly believes in.  You will bring to the awesome responsibility of sitting on our ultimate Court not only a remarkably broad mastery of the law and a renowned work ethic and efficiency but also a nuanced view of the machinery of the compass which points the law towards justice or our shared values, chief among which is compassion, described by your Honour as the great moral engine of human action.  Your Honour is in good company.  Arthur Schopenhauer described compassion in 1840 as the basis for morality.

Your Honour also comes to this Court with a clear and compelling vision of the judicial function.  Your Honour is no cog in a system.  You understand the role that the law plays in the functioning of society, that it is the optimal means by which we resolve real world problems and that it cannot achieve that objective unless every litigant, whether a claimant in a native title dispute or a multinational pharmaceutical company in a patent case, has equality of access and is accorded respect and a fair hearing.

In speaking to many people for the purpose of preparing these remarks, from judges to counsel who have appeared before your Honour, to associates and former associates and others, there was a striking consistency.  Your Honour has a calm patience, unfailing respect for others, empathy and modesty.  You are a natural leader and a person of rare well‑roundedness combining intellect, wisdom, judgment, equanimity and good humour.  Your judgments are characterised by an elegant simplicity which belies the intellectual effort they incarnate.

People asked about your Honour invariably mention your humility.  When you tell a funny story, and you are known to do so, it is more likely than not to be at your own expense.  They also mention your authenticity.  Your Honour is the same person on the Bench as off it, the same person sworn in today as a Justice of the High Court as the law student who was interviewed for a summer clerkship by Julie Ward, now President of the New South Wales Court of Appeal.  Good call, by the way, Justice Ward.

You are the sort of judge beloved by counsel because you credit them with winning submissions even where, in truth, you were the author of them or had improved them when recording them in your reasons for decision.  I have been told that counsel who appear before your Honour often can assess how they are going from your no‑nonsense responses to submissions.  “Yep” means I get it and that is right, “uh‑huh” means I get it but I do not buy it, and “nup” means “nup”.

I spoke earlier of the Australian experiment because your Honour considers yourself to be a lucky beneficiary of it.  In truth, your Honour’s appointment says something both meaningful and reassuring about the strengths of our nation.  Your Honour has risen to the apex of the Australian judicial system in exactly the way we would hope for it to be possible:  through talent and hard work, quietly earning and building respect without talking yourself up or others down.

The Attorney‑General consulted, and is to be thanked for consulting widely, in the period leading up to your Honour’s appointment.  Your Honour emerged as the outstanding candidate and your appointment has been universally welcomed by the profession.  Australia is fortunate that there are people of your Honour’s calibre who are prepared to serve the community by accepting appointment to higher judicial office.  I have not the slightest doubt that your Honour will discharge your new duties with intelligence, integrity, diligence and compassion.

On behalf of the Australian Bar Association, I wish you a long and satisfying career as a justice of this Court.  May it please the Court. 

KIEFEL CJ:   Ms Bashir, President of the New South Wales Bar Association.

MS G.A. BASHIR, SC:   May it please the Court.  I, too, acknowledge the traditional custodians of the land on which we meet, the Ngunnawal and Ngambri people, and I pay my respects to their elders past and present.

Chief Justice Kiefel, it is an honour to speak at this ceremonial sitting to welcome her Honour Justice Jayne Jagot and to witness the oaths taken today.  Your Honour Justice Jagot, the barristers of New South Wales offer you their profound congratulations and are in equal measure humble and proud to say that we once called you one of our own.  The vast knowledge and experience that your Honour brings to this Court is not only of the Constitution, the laws, rules and systems of the Commonwealth and what your Honour recently described as the knowable but infinitely adaptable principles of the common law.    Your Honour also brings your depth of understanding of being “on country” around the nation of this ancient land and the many languages, traditional laws, customs and custodians of the land, including those we have each spoken of in our acknowledgements of country today.

Indeed, your Honour’s breadth of experience is as detailed as knowing that along an unnamed road at a point on the New South Wales and Queensland border in the Northern Rivers region of New South Wales, traced along the northerly, easterly and southerly banks of the Tumbulgum Creek, the banks of the Clarence and Rocky Rivers and further identified by precise coordinate points and exquisite descriptions, lie the lands and waters in relation to which your Honour declared in 2017 that:

all Western Bundjalung people can now say Ngullingah Jugen (“our country”) and know that this is true not only under their traditional customs and laws, but also under the law of Australia as a whole.

The happy occasion of that declaration was marked in the Federal Court without pomp, sitting at a racecourse many miles north of here.  The determination was met with whistles and applause from the 400 or so people in attendance.  It was an extraordinarily significant day for our country and another moment of unassuming excellence in your Honour’s judicial career.

Your Honour has long been known as an exceptional jurist and admired for your prodigious work ethic, clear thinking, collegiality and good humour.  Your Honour’s ability to distil vast amounts of complex factual material into elegant and expeditious judgments can make some wonder why there was ever thought to be any issue in a matter.  More than one barrister has been heard to say that to lose a case in front of your Honour is to understand that you were always wrong.  These skills naturally attract the allocation of difficult and complex cases and it seems your Honour’s inexorable trajectory was to be on this Court.

Your Honour Justice Jagot also brings a unique understanding of the criminal law, ranging from environmental prosecutions to the Criminal Code (Cth) and the oft‑closely entwined international humanitarian law. Your Honour has previously spoken of the human underpinnings of the law, the dignity and autonomy of the person, and the relations between persons that our laws govern. Seen through that lens, the recognition in the case of Habib v Commonwealth of Australia that our Parliament’s statutes reflect and embody the common law’s extreme revulsion for the practice and fruits of torture such as to oust reliance on the “act of state” doctrine might now be described as classic Jagot reasoning.

Your Honour is also a master of matters commercial, intellectual property and patents and of competition, public law and defamation law, along with all of their “marvellous subtleties and nuances”, to use another phrase of your Honour’s.  Most recently your Honour presided as the senior insurance list judge in the Federal Court, demonstrating your celebrated and imperturbable patience in regulating exchanges between opponents, not least when COVID‑19 presented unique controversies in circumstances of urgency.

Your Honour’s luminous skill was recognised from the outset by innumerable awards at law school.  Before long, a former Chief Justice of the Supreme Court of New South Wales, Jim Spigelman, was remarking to a fellow barrister that you were the best instructing solicitor he had seen in his career.

You were called to our Bar in 2002, and appeared in many jurisdictions, including the Land and Environment Court, the Supreme Court, the Court of Appeal of New South Wales and your new home away from home, the High Court. 

Not only were you highly sought‑after counsel, but your Honour always found the time generously to mentor others, several of whom have now themselves been appointed.  It was not surprising that, at an extraordinarily early age, you were sworn in as a judge of the Land and Environment Court in 2006,  nor that in 2008 you were swiftly stolen away to the Federal Court of Australia.

Throughout your time as a judicial officer, you have fostered enduring relationships with your associates, and taken enormous pride in their achievements.  I imagine, like the New South Wales Bar, their hearts are full today.

The New South Wales  Bar recognises that the love and support that your family and friends is woven into your Honour’s professional success, and extends the warmest of wishes to them as we celebrate your Honour.

On behalf of the New South Wales Bar Association, congratulations again your Honour.  We wish you all the very best in this new and glorious phase of your career.  May it please the Court.

KIEFEL CJ:   Justice Jagot.

JAGOT J:   Mr Attorney, Mr Liveris, Dr Collins, and Ms Bashir, thank you.  I thank everyone who has honoured this Court by attending.  I acknowledge the presence of the Chief Justices of the Federal Court of Australia, and of the Federal Circuit Court and Family Court of Australia, the Chief Justices of the Courts of the Supreme Courts of the States and Territories, the chief judges, judges and members of other courts and tribunals, practising and academic lawyers, colleagues, friends, family, and others.  I also wish to thank my predecessors who are present:  the Honourable Mary Gaudron, the Honourable William Gummow AC, the Honourable Kenneth Hayne AC, the Honourable Geoffrey Nettle AC, the Honourable Virginia Bell AC, and of course, my immediate predecessor, who leaves such large shoes to fill and giant footprints in the law to follow, the Honourable Patrick Keane AC.

I thank the Attorney‑General of the Commonwealth and the representatives of the Law Council of Australia, the Australian Bar Association, and the New South Wales Bar Association for the generous – undoubtedly, overgenerous – things they have said.

In her speech made on the swearing in to this Court on 6 February 1987, the Honourable Justice Mary Gaudron, the first woman to be appointed to this Court – said that she wished:

that the day had arrived when the appointment of a woman to this Court was unremarkable.

35 years has since passed.  The fact that I am the seventh woman to be appointed, that I join the Bench where the Chief Justice is a woman, and that a prominent theme of the public remarks made on my appointment was not so much that I am a woman, but that my appointment meant that for the first time, this Court has a majority of women, shows how far we have come in those three‑and‑a‑half decades.

I am not surprised.  I have always had the utmost faith in Australia.  This country has given me everything.  It has given me a safe and stable place to live.  It has cared for my health.  It has given me an education.  It has given me opportunity.  It has been a privilege to serve in the administration of justice in this country.  It is a privilege to continue to do so in this new role.  I am not undaunted, but I will bring everything I can to do right by those who have placed such trust in me and, as part of this Court, to do justice according to law.

Professional lives in the law seem exceptionally long compared to other professions.  We start at the start time as others, but we go on for years, even decades, when others enter retirement.  Minds may differ about the right age for judicial appointment and retirement.  From a personal perspective, I consider it an incredible stroke of good fortune to have been appointed to judicial office at a relatively young age.  On occasions I have said that, in a civil law system, I most probably would have taken the judicial path straight from university.

Whatever the advantages and disadvantages involved, I can say that being a judge is a learned skill.  In my case, my teachers have been my colleagues, and the hundreds of lawyers who have appeared before me over the last fifteen or so years.  I have not always been a perfect pupil.  While I have always ultimately managed to reconcile in my own mind the application of the legal principles to the facts, the law is a human system and I have sometimes been wrong.  At the least, I have certainly been told I am wrong.

As a judge, we must do justice according to the law.  To do this, we must be permitted to question, to express doubt, to test views.  Vigorous debate and dispute is an essential part of the process.  Judges, in particular, but not alone, have a responsibility to see justice done, as it is now said in most civil procedure provisions, according to law and also as quickly, inexpensively and efficiently as possible.

In a court with a heavy workload, a judge, as much as anyone, can experience frustration and impatience.  Our role as judges, however, is unique.  Our law is based on a deep belief in the inviolable dignity of and need for respect of each person.  This belief infuses the substance of the common law.  Our legal procedures are a manifestation of this belief.  The ideal is that our workplace, the courtroom, should always reflect this belief.  The years I have had in training, on the Bench, as it were, for the Bench, have led me to appreciate that in the law, as in many other spheres of discourse, the aphorism that, in part at least, the medium is the message, remains good.

To all those lawyers, both colleagues and those appearing before me who have been my teachers, I give my thanks.  To those who will appear before me to teach me more, I express my gratitude in advance.  With the support of my new colleagues, four of whom are also old colleagues, I embark on this new role to continue to serve, and aware of the importance of the institution which I now join to our country and the way of life we treasure.

I would not be here if my parents, Joan and John, had not wisely decided that Australia offered them and their children opportunities that would not be available to us in the United Kingdom.  I spoke of my parents on the occasion I was first sworn in as a judge of the Land and Environment Court of New South Wales.  On this occasion, I will say only this:  my mother, Joan, by some process I still do not understand given that she was a baby in arms when she was placed in an orphanage in London and had virtually no formal education, instilled in me and my brother, Simon, an assumption that we would obtain a tertiary education.  My father, John, who spent some six years in another orphanage when his mother was killed in the Blitz on London and his father was called up to fight in the North African campaign, instilled in me a lifelong love of reading.

I also would not be here without the love and support of family and friends.  Simon, my brother, is also my lifelong friend.  His wife, Kathryn, and their children, my niece and nephew, Emma and Thomas, are a source of delight to them, of course, but also to me and to Peter.  For me to have acquired grandchildren without having had children is an incredible stroke of good fortune.  I have Peter, the other half of our single soul, to thank for this, of course.  I am immensely pleased that Jo and Stephen, and their children, Otis and Aya, and Nick and Jane and their children, Harry and Rory, are able to be here today.  My second mother, Jung, the joy and contentment of my father in his later life, and my step‑sister Inn Hee, are also here, for which I thank them.  I am also delighted that some cherished friends are here to share this occasion and others have been able to watch online.  Without these people, my life would be impoverished.

I spent most of the last 14 years as a judge of the Federal Court of Australia located in the Sydney Registry.  The Sydney Registry of the Federal Court has the good fortune to share premises in the Law Courts Building with both the High Court, suitably located on the top floor, and the Supreme Court of New South Wales.  This co‑location has enormous benefits.  The building is dedicated to the administration of justice.  Those who work in it, judges, lawyers, Registrars and Registry workers, have a common purpose to do justice according to law and thereby uphold the rule of law in our society.  This co‑location in Sydney contributes to a common sense of purpose in contributing to our unified legal system.

I have been fortunate as well in my time on the Federal Court.  I have had the advantage of working under three exceptional Chief Justices, the Honourable Michael Black AC, the Honourable Patrick Keane AC, in whose footsteps I now follow, and the Honourable Chief Justice Allsop AO.  Each reposed enormous trust in me and, in so doing, gave me invaluable opportunities to learn.  I will forever be in their debt.  I could not be where I now am but for the support they gave me and the confidence they had in me.

I have good friends indeed on the Federal Court, friends whose company and support I cherish.  The mix of trials and appellate work on that Court, the national operation of the Court, the demanding nature of much of its caseload, the need for timely decisions and the sheer volume of its caseload requires judges of enormous energy and dedication, a Chief Justice of potentially superhuman qualities, a high quality, focused and diligent Registry team, and exceptional young lawyers working with judges and the Registry.  I have had the support of all of these people over many years now.  I am grateful to have been given the opportunity to serve on the Federal Court and am immensely proud to have done so.

I return to the Honourable Justice Mary Gaudron on the occasion of her swearing in.  She said that she believed in three things remaining unchanged:  the need for rigorous and dispassionate intellectual analysis, the obligation to ensure equality before and under the law, and the obligation to ensure that justice is done in accordance with the law.  I share these beliefs.  I will try to fulfil the trust and confidence placed in me to undertake my part in upholding these values.

Thank you.

KIEFEL CJ:   The Court will adjourn until 10.00 am on Tuesday, 18 October 2022.

AT 10.47 AM THE COURT ADJOURNED