Ceremonial - Swearing-in of Nettle J - Canberra

[2015] HCATrans 5

[2015] HCATrans 005

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

CEREMONIAL SITTING

TO MARK THE OCCASION

OF

THE SWEARING-IN

OF

THE HONOURABLE GEOFFREY ARTHUR AKEROYD NETTLE

AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA

AT

CANBERRA

ON

TUESDAY, 3 FEBRUARY 2015, AT 10.14 AM

Coram:

FRENCH CJ
HAYNE J
KIEFEL J
BELL J
GAGELER J
KEANE J

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

The Honourable Sir Anthony Mason, AC, KBE, retired Chief Justice of the High Court of Australia

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

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

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

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

The Honourable Susan Crennan, AC, retired Justice of the High Court of Australia

Members of the Judiciary seated within the Court:

The Honourable D. Bryant, AO, Chief Justice of the Family Court of Australia

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

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

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

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

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

The Honourable H. Murrell, Chief Justice of the Supreme Court of the Australian Capital Territory

The Honourable T. Carmody, Chief Justice of the Supreme Court of Queensland

The Honourable Justice S. Rares, Federal Court of Australia

The Honourable Justice M. Gordon, Federal Court of Australia

The Honourable Justice M. Finn, Family Court of Australia

The Honourable Justice M. May, Family Court of Australia

The Honourable President C. Maxwell, Court of Appeal of the Supreme Court of Victoria

The Honourable Justice R. Redlich, Court of Appeal of the Supreme Court of Victoria

The Honourable Justice P. Tate, Court of Appeal of the Supreme Court of Victoria

The Honourable Justice R. Osborn, Court of Appeal of the Supreme Court of Victoria

The Honourable Justice J. Santamaria, Court of Appeal of the Supreme Court of Victoria

The Honourable Justice K. Hargrave, Supreme Court of Victoria

The Honourable Justice B. King, Supreme Court of Victoria

The Honourable Justice L. Lasry, Supreme Court of Victoria

The Honourable Justice M. Sloss, Supreme Court of Victoria

The Honourable Justice D. Ashley, Supreme Court of Victoria

The Honourable Justice H. Hansen, Supreme Court of Victoria

Associate Justice N. Mukhtar, Supreme Court of Victoria

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

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

Magistrate J. Crowe, Magistrates’ Court of Victoria

The Honourable M. Black, AC (retired)

The Honourable S. Charles, QC (retired)

The Honourable E. Curtain (retired)

At the Bar Table the following persons were present:

Senator the Honourable G. Brandis, QC, Attorney‑General for the Commonwealth

The Honourable M. Dreyfus, QC, MP, Shadow Attorney‑General for the Commonwealth

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

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

Mr M. Grant, QC, Solicitor‑General for the Northern Territory

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

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

Mr P. Garrisson, SC, Solicitor‑General for the Australian Capital Territory

Mr P. Dunning, QC, Solicitor‑General of the State of Queensland

Mr M. O’Farrell, SC, Solicitor‑General for the State of Tasmania

Mr J. Peters, QC, Chairman of the Victorian Bar Council

Ms F. McLeod, SC, President of the Australian Bar Association

Mr M. Livesey, QC, representing the President of the South Australian Bar Association

Mr A. Moses, SC, Junior Vice-President of the New South Wales Bar Association

Mr G. Diehm, QC, Vice‑President of the Bar Association of Queensland

Mr P. Quinlan, SC, President of the Western Australian Bar Association

Mr B. McTaggart, SC, President of the Tasmanian Bar

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

Mr S. Gill, President of the Australian Capital Territory Bar Association

Speakers:

Senator The Honourable G. Brandis, QC, Attorney‑General for the Commonwealth

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

Ms F. McLeod, SC, President of the Australian Bar Association

Mr J. Peters, QC, Chairman of the Victorian Bar Council

TRANSCRIPT OF PROCEEDINGS

NETTLE 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.

FRENCH CJ:   Thank you, Justice Nettle.  Mr Phelan, would you please read the Commission.

PRINCIPAL REGISTRAR:  

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

I, General, the Honourable Sir PETER COSGROVE, AK MC (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 Geoffrey Arthur Akeroyd Nettle, Judge of the Victorian Court of Appeal, to be a Justice of the High Court of Australia commencing on 3 February 2015 until he attains the age of 70 years.

Signed and sealed with the Great Seal of Australia on 4 December 2014.  Peter Cosgrove, Governor‑General, By His Excellency’s Command, George Brandis, Attorney‑General.

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

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

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

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

PRINCIPAL REGISTRAR:   Yes, your Honour.

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

FRENCH CJ:   Mr Attorney.

MR BRANDIS:   May it please the Court.

On behalf of the government and the people of Australia, it is a great pleasure to congratulate the Honourable Justice Geoffrey Nettle on your appointment as the 50th Justice of the High Court of Australia.  It is a testament to the esteem in which your Honour is held that so many distinguished members of the judiciary, the legal profession, and other dignitaries are present today.

May I acknowledge, in particular, the Chief Justices of the Federal Court, the Family Court, and the Supreme Courts of New South Wales, Victoria, Queensland, Western Australia, South Australia and the Australian Capital Territory; two former Chief Justices of Australia, the Honourable Sir Anthony Mason and the Honourable Sir Gerard Brennan, along with four former members of this Court, the Honourable Michael Kirby, the Honourable Michael McHugh, the Honourable William Gummow and the Honourable Susan Crennan; many current and former members of other Australian courts, State and federal; the Commonwealth Solicitor‑General and Solicitors‑General of the States; the leaders of the legal profession, and I note in particular the presence of many members of the Victorian Bar, and members of the Diplomatic Corps.  We are also joined by the Speaker of the House of Representatives, the Honourable Bronwyn Bishop, MP, and the Shadow Attorney‑General, the Honourable Mark Dreyfus, QC, MP.

I want to particularly acknowledge the presence of members of your Honour’s family who proudly share this occasion with you, your wife, Wendy; your mother, Mrs Dorothy Nettle; your three children, Virginia, Jonathan and Julia; your brother, Graham, and his wife, Vicki; as well as your sister, Janice, and her husband, Geoffrey.

Your Honour’s appointment to the High Court is a well‑deserved recognition of the exceptional legal skills you have demonstrated and developed over the course of a distinguished career in the law, and of the high esteem in which you are held as a Judge.  Your selection was based upon one criterion and one criterion alone, your outstanding ability as a lawyer and as a Judge.

Your Honour was born in Cottesloe.  However, you were not to live there for long as your family soon moved to Victoria, where your father, Charles Nettle, worked in the Commonwealth Public Service.  Your Honour began what was to become an exceptional academic career at Bennettswood State School in Burwood, Victoria, before attending Wesley College in Melbourne.

Later, following your family’s move to Canberra, your Honour completed an Economics degree at the Australian National University, and afterwards, you were recruited to the Treasury.  It is the legal profession’s good fortune that your Honour decided not to devote your life to a career in the dismal science.

After a year, your Honour decided to embark upon the study of law.  You attended the University of Melbourne from which you graduated Bachelor of Laws with First Class Honours in 1975.  Although your Honour received some credit from your Economics degree, it is a testament to your Honour’s academic prowess that you completed the four year LLB course in a mere two years.

Your Honour then won a British Council Commonwealth scholarship, which enabled you to read for the BCL at Oxford.  You attended Magdalen College, that nursery of so many distinguished Australian judges, and graduated with First Class Honours in 1976.  Your time at Magdalen came towards the end of that brilliant era in legal scholarship when the college’s senior law dons were none other than Sir Rupert Cross, JHC Morris, and Guenter Treitel.  You had the enviable privilege of having been taught evidence by Rupert Cross, and conflict of laws by JHC Morris.  As well, your tutor in restitution was the young Peter Birks, while you were taught trusts by the Australian scholar, John Feltham.  It is hard to imagine a more solid or rigorous intellectual grounding in the law.  Your subsequent career was to demonstrate the deep impression which those legendary legal scholars made upon you.

Returning from Oxford, your Honour’s professional career began in 1976 as an articled clerk of the firm then known as Mallesons.  Within a mere five years your Honour was made a partner of the firm.  However, you decided against the life of a solicitor, and were called to the Bar in 1982.  You read initially with Mr Hartley Hansen, QC, later Justice Hansen of the Supreme Court and the Court of Appeal of Victoria, and with Mr Kenneth Hayne, QC, who, fittingly, you now join as a member of this Court.

As a junior barrister, your Honour had a reputation for being a prodigious worker, having not just the mental fortitude but the zeal and physical stamina to dispatch demanding paperwork with speed and efficiency.  Your Honour quickly developed a reputation as a hard‑working and able advocate, and what was relied upon frequently to be more than merely a passive junior.

One of the most prominent and arduous cases your Honour was involved with was the Bank of Melbourne litigation in 1991, where you appeared for the Bank as junior to Hayne QC.  Your Honour shone as junior in that case, which was notable for the number of parties and distinguished counsel arrayed against the Bank.  That case cemented your reputation as a formidable trial lawyer, demonstrating your natural ability to conduct penetrating cross‑examination.

After only 10 years at the Bar, you took silk in 1992.  As a member of the inner Bar, your Honour’s reputation for excellence grew, as did your practice, a considerable part of which was devoted to appearances in the Victorian Court of Appeal.  While your Honour maintained specialist expertise in revenue law, you were heavily in demand to appear in commercial and equity matters, constitutional law, administrative law, trade practices, corporations law and property law cases.  Your Honour’s talent for recalling leading cases from almost any field of law from memory must have been a real asset as an advocate with such a broad practice.

Your Honour was known for your exceptional skill as an advocate at both the appellate and at the trial level.  As an appellate advocate, the depth of your Honour’s knowledge of the law and your firm grasp of legal principle was evident.  When you appeared at first instance, you were both a feared and an admired cross‑examiner.  Your Honour is known for wearing your erudition modestly, and not seeking personal acclaim for your work.

At the Bar, you were enormously supportive of colleagues, in particular junior colleagues, with a leadership style that inspired junior barristers to excellence.  That commitment to the professional wellbeing of your colleagues was evident in the enthusiastic reaction of so many of them to your appointment to this Court.

Your Honour is an exemplar of the highest levels of integrity and the ethical standards of the Bar.  Between 1989 and 2002, your Honour demonstrated a commitment to public service as a part‑time member of the Victorian Civil and Administrative Tribunal and its predecessor, balancing that work with the demanding practice you then conducted.

In July 2002, your Honour was appointed as a judge of the Supreme Court of Victoria, an appointment that was received with widespread acclaim.  On the Bench, you earned a reputation for judgments of outstanding analytical clarity and deep legal scholarship.  Your Honour’s mastery of the judicial craft was recognised when, in 2004, you were appointed to the Court of Appeal of the Supreme Court of Victoria, in which you have served with distinction for more than a decade.

Your Honour’s light has, of course, not always been inside a law school and a courtroom.  I understand that not only were you an exceptional student, but also a good sportsman.  At Wesley College, you were selected for the First Eight in rowing, and later rowed for the First Eight at Trinity College at the University of Melbourne.  I am also told that you played rugby union in your youth, and in later life qualified as a referee.

I understand that your Honour still sails the Jubilee class sailing boat you bought many years ago.  I know that your Honour has a passage for vintage English motorcars, and that you still own the 1946 Mark IV Jaguar that you bought whilst at university, and lovingly restored.

Your Honour is a dedicated family man with three grown‑up children.  Just as you have inspired junior counsel to excellence during your career, so you have inspired your children.  You must be very proud that your daughters, Virginia and Julia, have followed your footsteps into the law, while your son, Jonathan, has chosen the no less demanding professional route in his career as a doctor.

Your Honour is regarded, if I may say so, by Bench and Bar alike as one of Australia’s finest jurists.  I can scarcely remember an appointment to this Court which was so seamless, so free of controversy, and so universally appraised.  Your appointment to the High Court is a fitting pinnacle to a glittering career.  You will be an outstanding addition to this Bench.

May it please the Court.

FRENCH CJ:   Thank you, Mr Attorney.  Mr McConnel, President of the Law Council of Australia.

MR McCONNEL:   May it please the Court.

It is a great honour to be addressing the Court on the occasion of your Honour Justice Nettle’s swearing‑in as a Justice of the High Court of Australia.  I do so on behalf of the Law Council of Australia and its constituent members, the Australian Bars and Law Societies, and the 60,000 or so Australian lawyers who practice law under the guidance of this Court every day.

The Attorney‑General has told something of your personal story.  The Law Council would like to focus on your Honour’s service to the legal profession and to the judiciary over four decades.

After a distinguished academic achievement of First Class Honours in law, your Honour’s career as a solicitor began at Mallesons Stephen Jaques, undoubtedly then, as now in its current manifestation as the global firm of King & Wood Mallesons, one of the most prestigious law firms in Australia.  That it took your Honour only five years to be invited into partnership is a sure testament to your Honour’s exceptional skills, even as a young lawyer.

However, your Honour was destined not to remain in the solicitor’s branch of the profession, joining the Victorian Bar in 1982.  More will be said of that time by my learned friends, McLeod and Peters, but I just note that it was only 10 years before your Honour took silk, another mark of your Honour’s obvious skill but also dedication and integrity.

Over 20 years at the Bar, your major areas of practice were commercial law, revenue law, constitutional law and administrative law, but your Honour enjoyed a wide variety of practice and was equally comfortable in trials as in appellate advocacy.  One notable case illustrating such variety was in 2000 when your Honour acted for the Commonwealth in an extradition sought by Latvia against the alleged World War II criminal, Konrad Kalejs.

The Attorney has also pointed to the judges’ superannuation surcharge case, your last as a barrister and a landmark in your career.  The case confirmed, favourably for the judges, the limit on the power of the Commonwealth Parliament to pass a law that taxed State judges in a discriminatory way, and found that such a law was an impermissible interference with the capacity of the States to govern as States.  I note that Mark Moshinsky, your junior counsel in that matter, himself now a silk and former Chairman of the Victorian Bar, is here today, as are so many of your former Victorian colleagues.

Before the decision was handed down in that case, your Honour was appointed to the Supreme Court of Victoria.  Perhaps this is just as well.  Had the case gone differently, with the judges being required to pay tax on their pensions, your Honour might have enjoyed the eternal fulfilment of a lifelong career at the Bar.

Your Honour’s bench career started in the Trial Division, but you were quickly appointed to the Court of Appeal in 2004.  Even after that appointment, your Honour would still conduct trials from time to time, telling colleagues it was your way of staying in touch.  This familiarity with, and the understandings of the workings of the criminal law and the central proposition of justice as being a broader compact with society, pervades your Honour’s judgments.

Your opinions have been frequently upheld by this Court.  For example, in Dupas v The Queen, the Court upheld your Honour’s conclusion that the pre‑trial publicity of an accused in a murder trial did not require a permanent stay because a fair trial could be conducted with the appropriate direction to the jury.  In doing so, this Court expressly adopted the language coined by your Honour of the social imperative that an accused be brought to trial.

In R v Saad and Saad, your Honour reformulated the test on whether, on a murder trial, it was necessary to offer the jury an alternative verdict of manslaughter in all cases following uncertainties in the state of the law after this Court’s decision in Gilbert v The Queen.  In rejecting the requirement, your Honour spoke of the general principle of what justice requires in the particular circumstances of the case, and that, in turn, depends on all the circumstances of the case.  The analysis undertaken by your Honour and the principle there stated has been expressly adopted by the Victorian Court of Appeal many times since, and approved by this Court.

In a similar vein, in another judgment approved by this Court, your Honour and President Maxwell of the Court of Appeal of Victoria, in Herald and Weekly Times v [A], articulated the principles governing suppression orders in respect of an accused with simple clarity.  Your Honours observed the power to make such an order:

is defined by the criterion of necessity . . . 

The question, therefore, is what the circumstances warrant.  Since the foundation of the inherent power is the need to ensure that justice is done in the proceedings, it follows that the exercise of the power can range no wider than is necessary to secure that object . . . 

any exercise of the power to suppress publication must . . . involve an exercise in balancing the interests of society in ensuring that the accused receives a fair trial against the competing interests of society in the freedom of expression.

It is no surprise then that your Honour’s judgments have also been applied on numerous occasions in other State Supreme Courts, including at the appellate level and then affirmed by this Court.

Away from the Bench, your Honour has made an important contribution to articulating the functions of the adversarial system of litigation in speeches and other writing.  In a 2005 article in the Deakin Law Review, your Honour offered a warning about the need for substantive fairness in criminal trial procedure, explaining that:

the rules by which our criminal trials are conducted should reflect a concern that the resources of the state as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious.                

Your Honour also said practicing the law was about public service.  “It is not just another business”, you said, “It is a noble profession - and with its nobility comes a large measure of responsibility . . . The law exists to maintain social order and thereby to serve society.  Those who are called to practise the law are called to serve the law and thus society.”

Your Honour is a living example of such service in articulating the law in Victoria and Australia with that principle of social order firmly in mind.  Those 60,000 lawyers who practice every day under the guidance of this Court can look forward to the continuation of that example that the next chapter of your Honour’s distinguished service to the law will bring.

On behalf of the Law Council of Australia, I congratulate your Honour on this most deserving appointment. 

May it please the Court.

FRENCH CJ:   Thank you, Mr McConnel.  Ms McLeod, President of the Australian Bar Association.

MS McLEOD:   May it please the Court. 

I appear on behalf of the Australian Bar Association.  On behalf of the independent Bars of Australia, I warmly congratulate your Honour on your appointment to this Court. 

As counsel, your Honour was focused, able and courageous, an extremely competent advocate, and your Honour was always acutely aware of the duty of counsel, that is, to be completely independent, work entirely as an individual, drawing on one’s own resources of learning, ability and intelligence, and owing allegiance to none. 

It was no surprise that your Honour was appointed silk after only 10 years at the Bar, and appointed to the Supreme Court of Victoria 10 years later, a move a colleague described at the time as insane, but one which you described as a privilege and an honour.

As has been mentioned by the Attorney, after a dabble in economics here in Canberra, your Honour laid a sure foundation in the law.  You achieved the high academic distinction of First Class Honours degrees from the Universities of Melbourne and Oxford.  You served articles with Peter Kelly at Mallesons, achieving partnership in that firm, and you came to the Bar, reading first with Hartley Hansen, then with Ken Hayne, as their Honours then were. 

Your Honour embraced the collegiality of the independent Bar.  Generously you shared with anyone who came to you the fruits of your own intense and disciplined foundation, and the sharp focus of your analysis.  You had three readers - Pamela Tate, now Justice Tate of the Victorian Court of Appeal; Michelle Gordon, now Justice Gordon of the Federal Court; and Robert Hay, SC and there was quite a queue on the horizon when your Honour took silk. 

As a commercial, revenue, equity, and constitutional lawyer, your Honour had major commercial and institutional clients, but you also took pro bono briefs and deserving cases in the best traditions of the Bar.  After appointment, you sat in all jurisdictions of the court, at least once expressing regret that you had not practised in crime or appeared before civil juries, but well and truly making up for it on the court.  However, your Honour has not revisited your constitutional law for some time, and when Justice Hayne gleefully announced that the Court had saved them up for you – several Full Bench constitutional matters – you were observed performing what your children would no doubt describe as an eye roll.  Nevertheless, you have launched into the work, well ahead of today and armed with an advance copy of the Court iPad as your constant companion over the Christmas vacation. 

As silk, you remained loyal to the small firms and sole practitioners who briefed you in early days.  Free advice over the phone, on call, was comprehensive and cheerfully given.  Your Honour was highly sought after as a junior in silk.  As we have heard, you appeared with Ken Hayne, QC, as he then was, in the long running Bank of Melbourne Case and took silk during that time, having demonstrated your considerable talent. 

You also worked often as a junior to the late Dr Peter Buchanan, QC, as he was, later your colleague on the Court of Appeal.  In preparation for one trial, you both attended a view of a property overlooking Shelley Beach in Portsea.  Dr Buchanan in his customary work attire of t‑shirt, runners, and jeans, slipped fashionably low, and your Honour in your customary work attire of a three‑piece suit and dazzlingly polished shoes, gently filling with sand on the beach.  I know because I was there - the awestruck articled clerk in the company of two intellectual giants. 

Your Honour admires the inscrutable, heroic and measured performances of Clint Eastwood in his westerns and Dirty Harry movies, and there was often that same twinkle in your Honour’s eye as you went into battle as an advocate.  It has been said that your Honour has a devilish sense of humour.  As Chairman of the Bar, Robert Redlich said at your Victorian welcome, “There is a gentle humour in the earnestness of he who polishes even the soles of his shoes, and who, coming into work on a Sunday, resolutely spirals up seven empty floors of car park to reach his assigned spot.”  Gentle humour is a strategy your Honour employed at the Bar, and as a judge.  Your concentration is always intense, and by using gentle humour, you rise above the intensity, lighten the tone, and engage at a human level with counsel. 

Your Honour’s personal concentration on your work was absolute.  It was almost impossible to break your focus.  One weekend, the fire alarm in Chambers went off.  You got up and resolutely closed the door to keep out the infernal racket, working on.  In one case before you were on the Court of Appeal – Major Engineering Pty Ltd v Timelink Pacific Pty Ltd ‑ your Honour is said to have relished the opportunity to delve into two of your great loves, mechanics and sailing.  It is thought, perhaps, your Honour was even more interested in the outcome than the parties.

Your Honour has been a great contributor to the Victorian Bar.  You are the architect of our original mandatory continuing legal education program, creating a new framework to suit the needs of the barristers, and raising it to excellence.  Your first reader, Michelle Gordon, inherited the CPD mantle from you, and the wall of boxes that accompanied that role in those days.  Many of your Honour’s rules find their way into the national barrister’s CPD Rules, to come into effect on 1 July with the national profession. 

Many of your friends from the Court and the 14th floor of Owen Dixon West are here today to celebrate your Honour’s appointment, and you have steadfastly maintained your close ties with old friends.

Your skills as an advocate of some quality translate easily into less formal occasions.  You have been known to work your magic as Mr Junior and as a guest speaker at a recent Bar dinner.  At a Victorian Bar dinner to celebrate the service of your former master and friend, Justice Hayne, you spoke for 45 minutes of the contribution of his Honour on the Victorian Court of Appeal and as a Judge of this Court, quoting directly from judgments, verbatim, including an extraordinary analysis of the principles underlying the dissenting judgments in R v Thomas, and all without a single note. 

Your Honour brings all these capacities to the Court, and your enormous capacity for hard work, and in between, your Honour has found time to run and to sail.  Hopefully, your Honour’s workload will allow for both, as you take up digs on the 9th Floor, with the lake and the Canberra marathon beckoning. 

On behalf of the Australian Bar Association and the independent Bars of the Australia, I wish your Honour continuing distinction as a Justice of this Court. 

May it please the Court.

FRENCH CJ:   Thank you, Ms McLeod.  Mr Peters, Chairman of the Victorian Bar.

MR PETERS:   May it please the Court.

The Victorian Bar is delighted that one of our finest jurists has been appointed to this Court.  As a Judge of the Court of Appeal, your Honour’s hallmark was excellence in a wide range of areas in the law.  Indeed, on appointment, your Honour proved to be a master in broader areas than your practice at the bar.  For example, judicial colleagues describe your Honour as having embraced the criminal law with a passion and having an astonishing feeling for criminal law and cases.  Perhaps your Honour’s practice to sit routinely in the Trial Division in criminal cases aided this deep understanding.  More likely, it arose from your Honour’s wide range of interests in life and your genuine concern for the justice system.  Indeed, your Honour’s natural condition was to be in touch with what is going on around you in the word.

Your Honour was also a judicial reformer.  Justice David Ashley observed the English model of criminal appeal reforms in action.  When similar reforms were proposed to Victoria, your Honour worked with Justice Ashley to implement them.  Your Honour’s contribution has been described as fundamental and inspirational.  In addition, your Honour, in fact, drew the relevant practice direction and the rules, a testament to your Honour’s prodigious work ethic. 

The outcome of those reforms is eloquent testimony to the quality of your Honour’s work.  Six hundred pending criminal appeals were reduced to 148 in a little over three years.  Cases pending 12 months or older, were reduced from 200 to eight.  The median time to disposition of a criminal appeal was halved from over a year to less than six months.  Prompted by this spectacular success, your Honour was again asked to take the lead in civil appeal reforms.  Again, your Honour not only contributed but prepared the draft rules and settled the draft practice direction.  Similar success is expected from your Honour’s efforts after those reforms commenced last November.

As a colleague on the Bench, your Honour has been described as wise and open and a ready and generous source of wise counsel to all members of the Court.  To the advocate, your Honour was a great believer in the tradition of oral advocacy and the need to examine the strength or weakness of an argument through a deep exchange with counsel.  Whilst your Honour has always been polite and attentive, I do not mean to suggest that appearing before your Honour was nothing less than a demanding day.  However, your Honour would never let any litigant suffer the disadvantage of the disparity between the abilities of respective counsel or the difficulties of being a self‑represented litigant.  Perhaps this stems from your Honour being a firm believer in the views of Sir Owen Dixon, as echoed by Professor Jolowicz, that what really matters is that at the end of the day the parties, especially the losing party, shall feel they have had a fair hearing.  Your Honour has lived by that creed in your judicial career. 

The Commonwealth is indeed fortunate that it has gained another member of this Court of the highest calibre.  On behalf of the Victorian Bar, I wish your Honour every satisfaction in what will undoubtedly be an outstanding and distinguished career as a Justice of this Court.

May it please the Court.

FRENCH CJ:   Thank you, Mr Peters.  Justice Nettle.

NETTLE J:   Your Honours, ladies and gentlemen, thank you all for your attendance here today and the honour which you do me by your presence. 

I acknowledge in particular the attendance of retired Chief Justices and Justices of the High Court of Australia, Chief Justices of the Federal Court of Australia and the Family Court, Chief Justices of a number of the States and Territories, Judges and retired Judges of the Federal Court and of the Family Court, the President of the Victorian Court of Appeal, Judges and retired Judges of the Supreme Court of Victoria and of the Australian Capital Territory, the Solicitor‑General of the Commonwealth, Solicitors‑General of a number of the States and Territories, Chairman of the Victorian Bar Council and Presidents of the other Bar Associations and the President of the Law Council of Australia.  I am honoured, too, by the presence of the Attorney‑General of the Commonwealth, Mr Brandis QC, and the Commonwealth Shadow Attorney‑General, Mr Dreyfus QC, and the Honourable Bronwyn Bishop. 

May I also thank each of you, Mr Attorney, Mr McConnel, Ms McLeod and Mr Peters for the very kind things which you have had to say about me, the credit for most, if not all, of which was in many cases due to others rather than to me and for the great discretion which you have exercised in not mentioning the many less flattering things which could so easily have been said about me.

When the Attorney announced my appointment last December it was noted in the press that it meant the appointment of the oldest appointee ever to this Court.  Vaingloriously in the euphoria of the moment I took that to be a compliment.  Later, however, I was made to appreciate the reality of the situation.  As one of my erstwhile and perhaps more acerbic Victorian colleagues piquantly remarked:  “What your age really means is that you’ve taken far longer than any other Judge in the history of the Court just to get appointed and whatever else that might suggest it hardly implies anything very desirable about the rate of performance in the future”. 

Logically, I am compelled to acknowledge the force of that observation and I confess that there is not a great deal which can be said against it.  Try as I might to propound an adequate riposte, it continues to elude me.  May I, however, offer you two thoughts by way of mitigation?  First, since we are in Canberra where these things are better understood than they tend to be down south, I draw inspiration from Josh Mann‑Rea’s example.  Secondly, to invoke one of the Pythons’ more illustrious injunctions, “always look on the bright side”.  The selectors may have backed a wild card, as the press put it, but, if one looks at the matter objectively, the selectors have also capped the risk.  Given the constitutionally entrenched statutory age of senility of 70 years, and that I am now three score years and four, any damage I might do in the time which remains available is bound to be relatively limited. 

Be all that as it may, I am deeply honoured and pleased to have been awarded this wonderful opportunity.  As some of you will understand, there is nothing else that I wish to do more; even though until late last year I had long since ceased to imagine or hope that the chance might ever be offered. 

When I began in the study of the law it was with a fairly vague and unresolved idea of where it would lead.  It was only later, sitting at the feet of some of the most inspirational of my law teachers, that the real significance of it started to dawn on me.  Of course, that is a long time ago and some of those men are now dead, but it is appropriate I acknowledge my debt to them and to others who taught me and also to other sections of the academy with whom I have the privilege, occasionally, to continue to associate from time to time.

As you have heard, when I started in the practice of the law I was fortunate to be articled to Mr AP Kelly of Mallesons, as the firm then was, who was then a leading commercial lawyer and a most benignant and wise master and mentor.  I am very pleased that he and Mrs Kelly are here today.  My good fortune continued, as you also heard, when I went to the Bar and read for a short time, first, with Mr Hartley Hansen, later a Judge of Appeal (with whom I had the honour to sit on that Court) and then for a much longer period with Mr KM Hayne who is now, of course, the senior associate Justice of this Court and with whom, from today, I shall have the honour and great pleasure of sitting, albeit for the all too brief period before he must retire.  Each of my pupil masters in different ways and in differing degrees was instrumental in guiding me to such successes as I might have achieved at the Bar.

Later, at the Bar, I was fortunate to find myself in a set of chambers among a fine group of barristers with whom I formed close friendships.  As I look back now on how taxing practice at the Bar can sometimes be, I rather doubt that I would have got by without their fellowship or, even now, without their occasional company.  Some of the oldest and best of them are here today, as well as some very old and dear friends from other quarters. 

Above all else, however, I was sustained in my career at the Bar and for the last 13 years as a judge by the love and unwavering encouragement of my wonderful wife, Wendy, and my children and other members of my family, of whom I am intensely proud. 

It is a reflection of how swiftly time passes at the Bar and for that matter on the Bench, that it is now more than 17 years since I watched Justice Hayne sworn in, in this courtroom, and then returned to this courtroom later that day to argue a case about the application of section 51(xxxi) of the Constitution to the revocation of an exploration permit issued in what was then euphemistically called “the zone of co‑operation”. Regrettably, but not without precedent, my argument was rejected. Today, I am here to be sworn in as a Judge of the Court and this afternoon I shall return to this courtroom to hear a case about the application of section 51(xx) of the Constitution for some sort of entity established in Queensland. Naturally, I hope to do a little better on this occasion.

Thirteen years ago, when I was first sworn in as a judge, my father was present with my wife and children and other members of the family to witness the occasion.  At that time my mother was too ill to attend.  On this occasion, as I am sworn in as a judge for the last time, my father is no longer alive but, as a result of an extraordinary effort on my mother’s part, and what I judge to be a superhuman effort on the part of the others, miraculously she is here.

Throughout my years on the Supreme Court of Victoria I have been privileged to work with judges of consummate legal ability and unquestionable professional integrity.  For most of that time the Court has been led by Chief Justice Marilyn Warren and over the last 10 years the Court of Appeal Division has been led by the President, Justice Chris Maxwell.  The present high standing of the Victorian Court, including the Court of Appeal, is testament to the exemplary standard of their Honours’ leadership.

One of the two significant disadvantages of this appointment, therefore, is that I must now put aside my attachment to the Victorian Court and the company and wonderful collegiality of my Victorian colleagues.  The other disadvantage is that I am required to part company with Mr Ken Wriedt, who has been with me as my associate since the start.  He and Mrs Wriedt are here today and, although it may embarrass him, I wish to say that his untiring support and fellowship in everything that I have done as a judge has been outstanding.  Words are inadequate to express my gratitude to him for his dedication and service.

As best I recall, my first significant exposure to the High Court was close to 40 years ago when I was sent to the old High Court in Melbourne to instruct the great Tom Hughes of Her Majesty’s Counsel as he appeared before a Full High Court presided over by the then Chief Justice, Sir Garfield Barwick.  Like others at the time, I marvelled at Barwick’s sagacity, not to mention his irascibility, which, however, for all its intensity, appeared to run off Hughes like water off a duck’s back - and, like others, I was transfixed by Hughes’ ability to bend and shape the argument despite the constant verbal hammering to which he seemed to be subject.  It was a scintillating introduction to the level and pace of debate in this forum and so to what is rightly still regarded as the critical function of the High Court dialectic.

Sir Garfield Barwick retired shortly before I was called to the Bar and, therefore, I did not get a chance to appear before him.  But I did have the privilege of appearing before each of the subsequent Chief Justices, including even Chief Justice French when he was a member of the Federal Court; and, as I recall them now, each of the Chief Justices of this Court and the courts over which they presided were all very different.  So, too, were the judgments which they rendered.

Of course, unlike some of you here today, I have not had the experience of appearing before the present Court.  And nor do I wish to say anything of the Gleeson court, if only because it is in the recent past and short‑term comparisons are problematic.  But, as to the others, I hope I may observe, without implying the slightest disrespect that, to look back now at the work of a High Court over the last 40 years is not a little like beholding the spiral of the Zeitgeist.  For instance, who amongst us in the 1970s would have imagined that the Barwick Court’s approach to tax avoidance, as typified say in Slutzkin, would be as rapidly and fundamentally repudiated as it was by the Gibbs court, less than a decade later, in Gulland. 

Equally, how many of us in the 1970s would have conceived of the Mason court enlightenment which spawned legal developments as deep and diverse as, for example, the Shirt calculus; the overarching doctrines of estoppel formulated in Verwayen and Amadio; the recognition of the role of restitution and unjust enrichment in Pavey and Matthews v Paul; the provision of counsel to an indigent accused at State expense according to the notion of fair trial conceived in Dietrich;, the radical revision of section 92 jurisprudence in Cole v Whitfield; and surely, most remarkably, the Mabo conception of autochthonous land title?

Was it not also unimaginable in the time of the Barwick court, and perhaps even in the early years of Sir Anthony Mason’s leadership that, less than 20 years later, a majority of the Brennan court (although not Sir Gerard) would discern in Kable a constitutionally implied limitation on the power of the States to legislate with respect to State courts and would conclude, in Lange, that Chapter I of the Constitution implies a freedom of political communication which transcends the common law of defamation and such if any right to privacy as there might otherwise be?

Of course, it is not my place or intention to pass upon the rectitude of any of those developments.  Newly arrived as I am here, that would be as uninteresting as it would be uninformed.  Nor do I intend to suggest that what is conceived to be a desirable pace and scope of change in one era is necessarily right for another. 

Nonetheless, I trust you will not think me presumptuous to observe that, as exemplars of the pace and magnitude of the Court’s development of Australian law over the last 40 years, even the few cases I have mentioned this morning bespeak a fluidity of approach and depth of understanding which by the standards of their day was phenomenal and which by any standards remain inspiring.  Consequently, to say that I am excited about beginning on the task to which I have been sworn this morning would be a very considerable understatement. 

At the same time I remain acutely conscious that this Court is both the custodian of the Constitution and the final arbiter of the Australian common law. There is no court above it to detect and correct one’s errors. The role which I take up today thus entails extraordinary responsibilities and it is impossible not to be aware of the heavy burden of trust which that means is now placed in me.

I shall do my best to rise to the occasion, as I have sworn to do.  But, in the end, only time will tell whether that is enough.  Ultimately, I can but hope that by striving to emulate the example of the fine Judges who have gone before, and drawing heavily on the support of the profession, I may prove adequate to the task.

Your Honours, ladies and gentlemen, thank you all.

FRENCH CJ:   Thank you, Justice Nettle.  The Court will now adjourn until 2.15.

AT 11.01 AM THE CEREMONY WAS CONCLUDED