Gleeson CJ, Hayne, Callinan JJ - Welcome Adelaide CER

[1998] HCATrans 277

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

SPECIAL SITTING

WELCOME TO

THE HONOURABLE CHIEF JUSTICE ANTHONY MURRAY GLEESON, AC

THE HONOURABLE JUSTICE KENNETH MADISON HAYNE

and

THE HONOURABLE JUSTICE IAN DAVID FRANCIS CALLINAN

AT

ADELAIDE

ON

MONDAY, 10 AUGUST 1998, AT 2.00 PM

Coram:

GLEESON CJ
HAYNE J
CALLINAN J

Speaker:

Mr J.M. Harley, President of the Law Society of South Australia

TRANSCRIPT OF PROCEEDINGS

GLEESON CJ:   Mr Harley.

MR HARLEY:   May it please the Court.

On behalf of the legal profession of South Australia, may I congratulate each of your Honours upon your respective appointments to this Honourable Court.

The annual visit of the High Court to South Australia is sometimes referred to by local wags as the arrival of the “wise men from the east”.  I would not be so deprecating as to say that when referring to your Honours’ journeying.  Without intending to be blasphemous, I would prefer to liken the visit of the High Court in each legal year to be more like the coming of Our Lord.  As with Christmas, when the stables were made ready, so our Supreme Court judges get ready their rooms by vacating them and putting in fresh straw.

We are respectfully appear before you and pay homage, as did the wise men, the sheep, the donkeys, the chickens and the cows.  I think that could allude to the varying calibre of the counsel which you may encounter whilst here.  In any event, we are joyous at your arrival and welcome each of your Honours on this first occasion upon which you sit as members of the Court in this State.

Justice Hayne, before your appointment to the High Court on the 22 September last year, you were a judge of the Supreme Court of Victoria and then of the Court of Appeal of that State.  I understand that on your appointment, there was some disagreement between Queensland and Victoria as to whether you were a Queenslander or a Victorian, even though whilst born in Gympie, you left Queensland whilst still a young boy 50 years ago.

I understand that you spent 22 years at the Victorian Bar prior to your appointment to the Supreme Court of that State.  Your were a Rhodes scholar.  You were interested in legal education during your period on the bench in Victoria, and you are a person who is regarded with great eminence and respect by all who appeared before you.

Justice Callinan, I understand that you are indeed a Queenslander and have spent your whole life there.  You were sworn in in February after having had a most successful career at the Bar.  You are in fact the first practising barrister to be appointed to the High Court in 22 years.

You have been President of the Bar Associations of both Queensland and of Australia and you have been a regular contributor to many conferences and seminars over the years.  In fact, I understand you convened the first national conference of the Australian Bar Association at Surfers Paradise in 1984.

You are a lover of the arts.  You have been an author of plays and of novels.  You have been Chairman of Trustees of the Queensland Art Gallery and Chairman of the Queensland TAB.  You have been on the Board of the Australian Broadcasting Commission, a director of the Council of Law Reporting, and a visiting Professor of Law at Newcastle University.

Chief Justice, your appointment as Chief Justice of the High Court has been welcomed by us all.  Your reputation as a judge in New South Wales has indeed been heard even in these far climes.  You were previously Chief Justice of New South Wales for approximately ten years.  Before that you had a particularly successful career at the Bar, taking silk at a relatively young age, in 1974.  You were President of the New South Wales Bar Association from 1984 to 1986 and a member of its Council between 1979 to 1986.

You were recognised for your services to the law by our Queen in 1986 when you were created an Office of the Order of Australia, and in 1992 as a Companion.

In 1989, you were appointed the Lieutenant Governor of New South Wales and also in that year made an Honorary Bencher of Middle Temple of the Inns of Court in London.

I say to all of your Honours, that I extend the wish that you will each enjoy your periods in office, and we look forward to welcoming you back here on your future visits.

I am most pleased that you will all be our guests at dinner on Wednesday evening when the profession may be able to extend to you our hospitality in a less formal atmosphere.

The High Court has, of recent times, been engaged in much controversy.  At the recent Australian Bar Association conference in London (at which Justice Callinan and our own Executive Director, Dr Fitzgerald, were present) - I was not present because I cannot afford to go to London - Lord Brown-Wilkinson made the observations that if important judgments are agreeable politically, they are perceived as “wise”.  If not, the decisions are described as “interventionist” or “intrusive” into the law-making role of the legislature.

He expressed the view to his audience that the current debate on judicial activism is misleading because the whole common law is judge-made law.  It is the function of the judges to bring the law into line with society as it now is.  He cited the examples relating to the environment, the changed status of women, genetic engineering and areas of rapid change.

Until such time as Australia has a Bill of Rights incorporating the UN Declaration of Human Rights into Australian law, we rely on you, the Judges of the High Court, to protect us against the continued and relentless erosion of our rights by governments.

Your Honours, you have accepted a heavy responsibility for the people of Australia.  We regard the High Court as our shield and buckler against the tyranny of populist governments.

May it please the Court.

GLEESON CJ:   Mr President, Justices Hayne, Callinan and I thank you for your welcome and for your good wishes.

If it is the case that local wags say of the annual visit of the High Court that “wise men have come from the east”, they can comfort themselves with the knowledge that 500 years ago Christopher Columbus demonstrated that everywhere is east of somewhere else. 

Each of the three of us is conscious of having taken up a heavy responsibility, but welcomes such as the one you have given us are a source of encouragement and some reassurance. 

We have all visited Adelaide in the past on professional business, and we are delighted to have the opportunity to return in a new capacity to this beautiful city.

The legal history of South Australia is one in which the citizens of the State are entitled to take great pride.  The State’s judiciary and legal profession have a reputation for excellence.  I have had the particular pleasure of working on the Council of Chief Justices of Australia and New Zealand with the former Chief Justice King, and more recently Chief Justice Doyle.  They have both made major contributions to the work of that body.

We are honoured by the presence at this welcome of the Chief Justice and a number of his colleagues.  They have generously arranged accommodation for us and we thank them for that.  We are also honoured by the presence of so many members of the legal profession of South Australia.  I was myself, for a number of years, a member of the South Australian legal profession.  When I took silk here it was on condition that I would only appear with a local junior counsel.  That was a prudent precaution adopted by the authorities, though whether it would survive scrutiny under modern competition policy is not quite clear.  However, it was a condition I was very happy to accept, and I valued the association with local practitioners.

All judges, and not least the members of the High Court, rely heavily on the assistance they receive from the members of the practising profession who conduct cases before them.  It is part of the adversarial nature of our system that cases are decided on the issues that are presented for decision by the lawyers for the opposing parties, and on the evidence and arguments they choose to put before the Court.  The theory underlying the system is that a just outcome is most likely to result from hearing strong arguments on both sides of a question.  Clearly enough, the validity of that theory depends upon the assumption that the strongest available arguments will be put on both sides.  To the extent to which that expectation is disappointed, the validity of the theory is diminished.  A strong, competent and committed legal profession is the indispensable basis of the capacity of courts to administer justice according to law. 

The three of us thank the South Australian profession for today’s welcome, and for the honour that you have done us by your presence.

We will adjourn.

AT 2.11 PM THE COURT ADJOURNED