Ceremonial - Swearing in of Mr Justice McHugh - Canberra

[1989] HCATrans 15

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 JUSTICE McHUGH

AS

A JUSTICE OF THE HIGH COURT OF AUSTRALIA

TUESDAY, 14 FEBRUARY 1989

AT

CANBERRA

Coram:

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
MCHUGH J

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

Sir Ninian Stephen, (Governor-General and) former

Justice of the Court

Sir Guy Green, Chief Justice of Tasmania

Sir John Young, Chief Justice of Victoria

Mr Justice Gleeson, Chief Justice of New South Wales '

Mr Justice King, Chief Justice of South Australia

Mr Justice Miles, Chief Justice of the Supreme Court of the Australian Capital Territory

Mr Justice Asche, Chief Justice of the Supreme Court

of the Northern Territory

At the Bar Table the following persons were present:

The Honourable Mr Lionel Bowen, Attorney-General

for the Commonwealth

Dr G. Griffith, QC, Solicitor-General for the

Commonwealth

Mr K.H. Parker, QC, Solicitor-General for

Western Australia

Mr T. Pauling, QC, Solicitor-General for the

Northern Territory

Mr H.C. Berkeley, QC, Solicitor-General for Victoria

Mr K. McKenzie, QC, Solicitor-General for Queensland

Mr W. Bale, QC, Solicitor-General for Tasmania

Mr J.J. Doyle, QC, Solicitor-General for

South Australia

Mr K. Mason, QC, Solicitor-General for New South Wales

Mr K.R. Handley, QC, President of the Australian Bar

Association and the New South Wales Bar Association

Mr D. Byrne, President of the Law Council of Australia

Mr G.L. Davies, QC, President of the Queensland

Bar Association

Mr E.W. Gillard, QC, Chairman of the Bar Council

of Victoria

Mr J. Mansfield, QC, President of the Law Society of

South Australia

Mr T. Higgins, QC, Vice-President of the Bar

Association of the Australian Capital Territory

Mr B. Thornton, President of the Law Society of

New South Wales

Seated behind the Bar Table were the following:

Mr C. Crowley, President of the Law Society of

the Australian Capital Territory

Mr J. Mott, President of the Law Institute of Victoria

The following Queen's Counsel were also seated

behind the Bar Table:

Mr H.C. Williams, QC
Mr R.A. Conti, QC
Mr L.M. Morris, QC
Mr D.M.J. Bennett, QC
Mr B. Rayment, QC
Mr W.H. Nicholas, QC
Mr J.P. Hamilton, QC

Mr M. McGregor, QC

Mr D.E. Grieve, QC

Mr P.D. McClellan, QC

Mr J.A. McCarthy, QC

Mr I. Curlewis, QC

The following Judges and retired Judges were seated in the body of the Court:

Sir Laurence Street KCMG

The Hon Mr Justice Kirby CMG

The Hon Mr Justice Hope CMG

The Hon Mr Justice Meagher

The Hon Mr Justice Marling

The Hon Mr Justice Neaves

The Hon Mr Justice Gallop

The Hon Mr Justice Einfeld

The Hon Mr Justice Kelly

The Hon K. O'Leary

Speakers:

The Honourable Mr Lionel Bowen MP,

Attorney-General for the Commonwealth

Mr K.R. Handley QC,

President of the Australian Bar Association and the New South Wales Bar Association

Mr D. Byrne,

President of the Law Council of Australia TRANSCRIPT OF PROCEEDINGS

MASON CJ:	Mr Registrar, would you invite Mr Justice McHugh
to enter the Court?
McHUGH J:	Your Honour the Chief Justice, I have the

honour to announce that I have received a

Commission from His Excellency the Governor-General appointment me a Justice of the High Court of

Australia.

I now present my Commission to you.

MASON CJ:  Thank you. Mr Registrar, would you please

read the Commission?

THE REGISTRAR:  Commission of Appointment of a Justice to the

Hieh Court of Australia. I, SIR NINIAN MARTIN STEPHEN,

a member of Her Majesty's Most Honourable Privy Council,

Knight of the Order of Australia, Knight Grand

Cross of the Most Distinguished Order of St Michael

and St George, Knight Grand Cross of the Royal

Victorian Order, Knight Commander of the Most acting with the advice of the Federal Executive
Excellent Order of the British Empire and

Council and pursuant to section 72 of the Consitution,

hereby appoint the Honourable MICHAEL HUDSON McHUGH,

a Judge of the Court of Appeal and the Supreme Court

of New South Wales, to be a Justice of the High

Court of Australia for the term commencing on

14 February, 1989 and expiring on his attaining

the age of 70 years.

Given under my hand and the Great Seal of Australia
on 15 December 1988, Ninian Stephen, Governor-General,

by His Excellency's command, Lionel Bowen,

Attorney-General.

MASON CJ:  I now invite you to take the Oath of Allegiance and

Office.

McHUGH J: I, MICHAEL HUDSON McHUGH, do swear that I will

bear true allegiance to Her Majesty, Queen Elizabeth

the Second, Her Heirs and Successors according to

law, that I will well and truly serve Her in the

Office of Justice of the High Court of Australia,

and that I will do right to all manner of people,

according to law, without fear or favour, affection

or ill-will. So help me God.

MASON CJ:  Would you now subscribe the oath. Would you

please take your seat on the Bench.

McHUGH J:	Thank you.
MASON CJ:	Mr Registrar, would you please place the commission

and the oath with the records of the Court.

Mr Attorney.

MR BOWEN:  May it please the Court. Your Honour Justice McHugh,

I am delighted to welcome you on the occasion

of your elevation to this Court and extend to

you the Government's and my own congratulations

on your appointment and wish you a most successful

and rewarding term of office.

I mention at the outset, Your Honour, that

the process of consultation with the States was

evident on this o~casion as it has been in the

past, since 1976, and I am delighted to say that

you were one of the nominees from which we were

able to select your appointment. I think it

shows the unifying aspect of Federation where

there are consultations with the States and I

think this Court has played a very significant

role in the history of Federation in that unifying

process.

I thought I might briefly advert to the

fact that when the Constitution Bill was in the

House of Commons on 14 May 1900, the Secretary

of State for the Colonies had this to say:

The Bill, which is the result of careful

and prolonged labours of the ablest statesmen

in Australia enables that great island continent

to enter at once the widening circle of

English speaking nations. No longer will

she be a congeries of States, each of them

separate from and entirely independent of

the others, a position which anyone will

see might possibly in the future, through

the natural consequences of competition,

become a source of danger and lead, at

any rate, to friction and to weakness.

And that is very true and that speech went on

to talk about the advantages of having intercolonial

free trade, saying this:

In the meantime, everything which has to

do with the exterior relations of the six

colonies will be a matter for the Commonwealth

and not for the individual governments.

And that is where the difficulties arise at times,

trying to work out where might be the division

of power. But the Court itself has been able

to overcome many of those difficulties and I
thought also at the outset I ought to advert

to the fact that Mr Deakin, when introducing

the appropriate legislation in our own Parliament

on 18 March 1902, had this to say about that
particular statute:

In the meantime, the statute stands and

will stand on the statute book just as in

the hour in which it was assented to, but
the nation lives, grows and expands, its

circumstances change, its needs alter and

its problems present themselves with new

faces.

The organ of the national life which

preserved in a union is yet able from time

to time to transfuse into it the fresh blood

of the living present - and that is the

judiciary, the High Court of Australia.

I think those words have been borne out by the process of time. And he had this to say about the Constitution:

Its script is read with the full intelligence

of time and interpreted in accordance with
the needs of time. That task, of course,

can be undertaken only by judges of profound

ability and long training. It is to secure

such judges that we desire the establishment

of the High Court of Australia.

Your Honour comes with impeccable credentials.

You are the thirty-eighth person to be appointed

to the High Court. The Court is the apex of

our judicial system and during recent years its

role in Australia as the final authority on legal

and constitutional questions has become the subject

of public interest and discussion. It is now

widely recognized that the High Court decisions

have helped shape the economic, political and

social history of our nation.

In turn, Your Honour, you have travelled

a number of diverse roads before reaching this

high pinnacle. After leaving school at an early

age you worked in a variety of fields. You were

educated at Newcastle. You then studied at the

barristers' admission course by correspondence

while working as a clerk for BHP. Your Honour,

you started your life, as I am told, delivering

telegrams, as most successful people in Australia

appear to have done and you are are now, of course,

expected to deliver High Court judgments. Such

a contrast manifests the success and the dedication

of your life.

You were admitted to the Bar in New South Wales

in July 1961. You built a very substantial practice,

particularly in defamation, before taking silk

in 1973. Your practice extended to all branches

of the law including appellate work before this

Court. Your Honour represented the Commonwealth

Government in the Royal Commission on Australia's

security and intelligence agencies and the applicants

in the application for special leave to appeal

to the High Court brought by Mr and Mrs Chamberlain

in respect of the death of their daughter, Azaria.

Your Honour, along with Mr Justice Glass

and Mr F.M. Douglas, also found time to co-write

the book, "The Liability of Employees in Damages

for Personal Injury". Between 1977 and 1983

Your Honour undertook the roles of member,

Vice-President and finally President of the

New South Wales Bar Association. You were the

President of the Australian Bar Association and

President of the Media Law Association of Australia

from 1963 to 1984 and a member of the Law Council

of Australia between 1981 and 1983.

In October 1984 you were appointed a judge

of the Court of Appeal and the Supreme Court
of New South Wales and you are the third member
of the present High Court to have served on the

Bench of the Supreme Court of New South Wales.

Your Honour has delivered many important

judgments and from them can be gleaned not only
your care and skill in the application of the

law but also your concern for the individual

in our society and your respect for citizens'

differing attitudes and belief.

Might I say, Your Honour, that you have

carried out your duties, both as a barrister

and as a judge, with distinction and you are

well equipped for the demands of your new position

in this most important Court in Australia.

I am delighted to mention that your family

is here today. Your wife, Jeanette, and the

children are present. And so to Jeanette we also extend our congratulations, who, in her

own career, has been very successful and has

undertaken the rigour of politics and has been

successful in being elected to the House of
Representatives.	I know how they are all

justifiably proud, as you must be, on this very
day.

May I therefore, on behalf of the Government which I have the honour to represent and on behalf

of the Australian community to whom you have

pledged your service, welcome Your Honour to

your new and distinguished office.

As the Court pleases.

MASON CJ:  Thank you, Mr Attorney. Mr Handley?

MR HANDLEY:  Your Honour, if the Court pleases, the

Australian Bar Association and the members of

the independent Bars of Australia congratulate

Your Honour on your well-merited appointment

to this Court. In your last years at the Bar

Your Honour was truly a member of an Australian

Bar, frequently appearing as Queen's Counsel

outside your home State and in cases before this

Court which originated from all over the Commonwealth.

In addition to your Australia-wide practice,

Your Honour, as the Deputy Prime Minister has

said, was President of the Australian Bar Association

during 1983 and 1984. During your term as President

the Australian Bar Association held its first

ever law conference in Surfers Paradise in 1984.

The Australian Bar Association has continued

to hold such conferences and this initiative,
taken during Your Honour's term as President
has done and will continue to do much to foster

the development of a truly national Bar in this

country. Indeed, we hope that Your Honour will

be able to attend our next conference to be held

in Darwin in July 1990.

The Australian Bar Association welcomes

Your Honour's appointment for another reason.

It is clear that Your Honour has been appointed

to this Court on merit alone. Prior to

Your Honour's appointment being announced there

had been some ill-informed suggestions in the

media that the vacancy caused by Sir Ronald Wilson's

retirement should be filled by someone other

than Your Honour simply because there were already
three Justices on this Court from ~ew South Wales.

The Government and the Deputy Prime Minister and Attorney-General in particular are to be

congratulated on resisting such pressures.

At various times in its history this Court

and indeed the nation has benefited from the

appointment of outstanding judges on merit regardless

of any resulting geographical imbalance in the

Court. In 1929 the death of Mr Justice ·Higgins
reduced the number of Victorian judges on this
Court from four to three, but how fortunate that
the number of Victorians was promptly restored

by the appointment of Owen Dixon of King's Counsel.

Again, in 1972 the death of Mr Justice Owen reduced

the number of New South Wales judges from four

to three, but happily the number was restored

by the appointment of Your Honour the present

Chief Justice to the vacancy.

Recently we have had two Justices on the Court from Queensland at the same time and until

last week the Court included two Justices from

Western Australia. Two appointments at the one

1 1

time from Queensland and Western Australia could

not be supported simply on geographical or demographic

grounds, but fortunately no such principle was

invoked in either case to deny the second appointment.

The Australian Bar Association strongly supports

the principle that recognized merits should be

the sole criteria for appointments to this Court

and is opposed to appointments being .made on

any type of quota system based on geographical

or any other criteria. We would not dream of

selecting our national sporting teams otherwise

than on merit and are even better reasons

for selecting the members of our highest Court

on that basis.

The number of barristers from New South Wales

who are here today is vivid testimony to the

esteem and affection with which Your Honour is

regarded by your former colleagues. We trust

we will continue to see Your Honour in our common

room from time to time when the High Court is

in Sydney. I would conclude by referring to

Your Honour's remarkable career which has taken

you from the Newcastle steel works and clerking

for bookmakers to Queen's Counsel, the top of

your profession, the New South Wales Court of

Appeal and now to the High Court of Australia.

Your Honour's career establishes that ability

and hard work are a guarantee of success and

rapid advancement of the independent Bar. We

who must remain must do all that we can to ensure

that this continues to be true today and in the

future so that men and women, without capital

or connections, can come to the Bar and make

it to the top. We wish Your Honour a successful

and satisfying term of office as a Justice of

this Court. If the Court pleases.

MASON CJ:  Thank you, Mr Handley. Mr Byrne?

MR BYRNE: May it please the Court. It is an honour and

a pleasure for me to join in this welcome to the Honourable Justice Michael McHugh to the

Bench of our nation's highest Court. I do so on behalf of the Executive and Members of the Law Council of Australia.

When Your Honour's appointment was announced

by the Attorney-General recently the Acting President of the Law Council at that time, Mr Alex Chernov, QC,

said that Your Honour would have the good wishes

and the full support of the Law Council of Australia

as you took up your new responsibilities. I

wholeheartedly endorse that remark. It is a

recognition of Your Honour's legal skills and

personal qualities that you have been appointed

to such high and important office. It is a

recognition also of your standing within the

legal profession that the profession has so widely

and warmly welcomed your appointment.

Your Honour, you come to a Court to which

you are no stranger. Your distinguished legal

career has brought you to this place many times.

Throughout that career you have enjoyed the confidence

and esteem of your colleagues. That is not just

a matter for satisfaction. That kind of confidence

and esteem by your colleagues is an essential

part of the foundation on which the community

builds confidence in the judiciary. Community

confidence in the judiciary in turn is an essential

element of our system of justice.

Recently I spoke at the welcome to a judge

where reference was made to the fact that he
had worked as a taxi driver in Sydney while he

was studying for the Bar exams. Normally that
would lead me into a description of Your Honour's

path to the place you now occupy, but that history

is well known. I will say only that the application

and determination that have marked Your Honour's

career have only enhanced the great respect you

enjoy amongst your professional colleagues.

You have served the legal profession with great

distinction. You have served through the work

of the New South Wales Bar Association, the Australian

Bar Association and the Law Council of Australia.

You are known as a strong and positive leader

of the Bar and you have been a member of the

Council of the Law Council of Australia.

The legal profession is grateful to you

for that service. It is a mark of Your Honour's

personal qualities that, as I have discovered,

you are regarded by those who have worked with
you and for you, not only with great respect

and admiration but with great affection. I have

heard stories about your exceptional memory.

I was told of a young barrister who was becoming

a little panic-stricken when he had to find quickly

some cases dealing with estoppel. You came to his aid with a list of cases and detail out of

your head. I was told, too, that when the men

in your father's workplace at Newcastle wanted

to settle an argument or a bet on a piece of
cricket history, it was to the 11-year-old

Michael McHugh's memory that they turned for the facts.

I have heard that when it was suggested

to you while you were still a junior that you

apply for silk your response to the person who

made that suggestion was, "You're crazy". Whether

the suggestion was crazy or not, Your Honour, you

followed it and, as they say, the rest is history.

You became one of Australia's most eminent Queen's Counsel and you established an outstanding

reputation. Your practice in defamation and

many other matters made you a leader of the Bar.

You were associated with matters of wide public

interest and, for example, the name Combe, Ivanov

and Chamberlain come to mind in that context.

Your views and advice were sought by premiers

and prime ministers, yet you kept in touch with

your professional colleagues at all levels.

You tried to encourage in younger lawyers an

understanding of the history of the law, believing

that no lawyer could be fully effective in his

work without it.

All this leads me to suggest, Your Honour,

that your work on the Bench of the High Court

of Australia, as did your work at the Bar and

in the New South Wales Court of Appeal, will

bear the marks of your mind and attitudes of
your respect for the law and for the rule of

law.

We are confident, too, Your Honour, that

in this place you will continue to serve the

law and the people with skill, dedication and

distinction and that your work will further enhance

the already high reputation of this Court. If

the Court pleases.

MASON CJ:  Thank you, Mr Byrne.

McHUGH J: Mr Attorney-General for the Commonwealth, Mr Handley,

Mr Byrne, I thank you for the generosity of your

remarks and the goodwill which is inherent in

them. They will remain a continuing source of

support for me in discharging the high responsibility

which acceptance of the office of a Justice of

this Court imposes.

The presence of this gathering and the

congratulatory communications which I have received

from those who are unable to be present today will also serve as a source of support for me in carrying out the arduous work of the Court.

Many of those present are personal friends.

Many, indeed most of those present, have travelled

considerable distances to be here. I thank you

for the respect which you show for this Court

and for the honour you do me by your attendance.

I am especially honoured by the presence

on this Bench of one of its former members.

His Excellency the Governor-General,

Sir Ninian Stephen.

I am also honoured by the presence on this

Bench of the Chief Justices of most of the States

and Territories including the Chief Justice of

the State of New South Wales. It is not without

regret that I leave his Court so soon after his

appointment to that high office.

I record my gratitude that also present are the President and Judges of the Court of

Appeal of New South Wales on which I served for

over four years, Judges of the Federal Court

of Australia and the Supreme Court of the Australian

Capital Territory, my former Chief Justice,

Sir Laurence Street, the Solicitors-General and

the Presidents and representatives of the professional

organisations of the States and Territories.

Last, but certainly not least, I am grateful

for the presence of the former Prime Minister

of Australia, Mr E.G. Whitlam, QC, and

Mrs Margaret Whitlam.

Twenty-seven years have now elapsed since

I left Newcastle, the city of my birth, to become

admitted to the Bar of New South Wales. For

me, the journey which began in Newcastle in 1961

and brings me to this Court today has been an

immensely satisfying one, and rewarding beyond

my wildest anticipations. But that journey was

only possible with the support and encouragement -

and in come cases the love and devotion - of

many people. On the occasion of my swearing-in

as a Judge of the Court of Appeal in 1984, I
expressed my gratitude to all those persons who

have given me support and encouragement over

the years. Many of them are present today.

Without naming them, I again express my gratitude.

Each of them will know to whom I speak and as

to how grateful I am for his or her support and

encouragement.

There are, however, two persons who were

present in 1984 who are not present today. One

is the Honourable Harold Glass, QC, my former
colleague on the Court of Appeal, whose unfortunate
illness prevents him being present this morning.

For more than twenty-five years he gave me great support and encouragement and the benefit of

his monumental legal skills. I will be ever

grateful to him. The other person who was present

in 1984 but who is not present today is my father

who unfortunately died in 1987. It is a matter

of immense regret to me that he did not live

to see this day.

As you know, I cor!le to the High Court after

four years as a Judge on the New South Wales

Court of Appeal. The litigious spirit of the

people of New South Wales, the aggressive nature

and the wealth of much of the commerce of that

State, and the skill and ingenuity of the New

South Wales legal profession result in the regular presentation of many complex and important legal

issues before the Court of Appeal. The high

quality of my judicial colleagues and predecessors

on that Court has given it a reputation throughout

the common law world as an outstanding intermediate

appellate court. I learned much about the nature

of the judicial process as a member of that Court

and I know that my experience there will be invaluable

role of this Court is very different from the

to me in discharging my duties on this Court.

role of any other court in Australia including

the intermediate courts of appeal and that experience

in the discharge of the duties of other courts

does not necessarily fit one for the unique

responsibilities of this Court.

It goes without saying that this Court's

role as ultimate interpreter of the Constitution

places a burden of responsibility on its members

which cannot be shared by the members of other

courts. The oppression of that burden is increased

by my belief that, from time to time in important

constitutional cases, competing views concerning the resolution of issues cannot be characterized

as simply right or wrong. In the resolution

of difficult constitutional questions, sometimes

all that a judge can do in the end is to select

the solution which seems constitutionally preferable

to other possible solutions. Although the proper

exercise of the judicial function requires that

the choice of the preferred solution be justified

by a reasoned decision based on considerations

external to the judge's own set of values and

not by reference to what Mr Justice Jacobs once

called "individual predilections ungoverned by

authority", reason and logic are not always

conclusive.	As closely split decisions of this
Court demonstrate, opposite conclusions are reached

because the individual judgments, although logically
impeccable, commence with different premises

based on different constitutional values, none

of which is logically irrelevant or inappropriate

to the resolution of the question to be decided.

Outside the field of constitutional law, the

role of this Court also differs from that of

an intermediate appellate court and other courts

although the difference is not always perceived

even by members of the profession. The principal

function of an ultimate appellate court, such

as the High Court, is to evolve and settle the

law for the benefit of the nation and not to

right errors which may have occurred in the course

of trials or in the intermediate appellate courts.

When this Court grants special leave to appeal,

ordinarily it does not do so on the ground that

the rights of a litigant may have been infringed.

It does so because in addition to that factor
the case raises a question of great general importance.

This means that, unlike the position which existed before the amendments to the Judiciary Act in 1984,

almost every private law decision made by this
Court has great significance for the people in

Australia. Moreover, since this Court is not

bound by its own or other courts' decisions,

it can and must examine the functional operation

of legal rules and questions of policy to an

extent denied to intermediate appellate and trial

courts.

Against that background, it is inevitable that, no matter what legal experience a person

has had, reflection on the nature of this Court's

role must induce a measure of anxiety as to his

or her capacity to discharge the responsibilities

of a Justice of this Court. I am no exception.

My anxiety is not lessened by the knowledge that

my appointment follows the retirement of that

much loved and highly respected judge,

Sir Ronald Wilson, and that the Court to which

I now come consists of outstanding lawyers of

immense capacity and reputation.

Although I am only too well aware of the

difficulties involved in discharging the duties

of a Justice of this Court, nevertheless, I remain

confident that, with your goodwill, the co-operation

and assistance of the legal profession and my

fellow judges, and my own determination and experience,

I will discharge my duties to your satisfaction.