Gleeson CJ Swearing in CER

[1998] HCATrans 186

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 CHIEF JUSTICE

THE HONOURABLE ANTHONY MURRAY GLEESON, AC

AT

CANBERRA

ON

FRIDAY, 22 MAY 1998, AT 10.15 AM

Coram:

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

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

The Honourable Sir Gerard Brennan, AC, KBE, immediate past Chief Justice of the Court

The Rt Honourable Sir Harry Gibbs, GCMG, AC, KBE, former Chief Justice of the Court

The Honourable Sir Anthony Mason, AC, KBE, former Chief Justice of the Court

The Rt Honourable Sir Ninian Stephen, KG, AK, GCMG, GCVO, KBE, former Justice of the Court

The Honourable Sir Daryl Dawson, AC, KBE, CB

The Honourable John Toohey, AC

Seated behind the Bench were the following dignitaries:

The Rt Honourable Sir Thomas Eichelbaum, GBE, Chief Justice of New Zealand

The Honourable Michael Black, AC, Chief Justice of the Federal Court of Australia

The Honourable Alan Barblett, AO. RFD, AE, Acting Chief Justice of the Family Court of Australia

The Honourable D.K. Malcolm, AC, Chief Justice of the Supreme Court of Western Australia

The Honourable J.Harber Phillips, Chief Justice of the Supreme Court of Victoria

The Honourable J.J. Doyle, Chief Justice of the Supreme Court of South Australia

The Honourable C.J. Cox, Chief Justice of the Supreme Court of Tasmania

The Honourable P. De Jersey, Chief Justice of the Supreme Court of Queensland

The Honourable J.A. Miles, AO, Chief Justice of the Supreme Court of the Australian Capital Territory

The Honourable B. Martin, AO, MBE, Chief Justice of the Supreme Court of the Northern Territory

The Honourable K. Mason, President of the Court of Appeal of New South Wales

Members of the Judiciary seated within the Court

The Honourable Justice Paul Finn

The Honourable Justice Daryl Davies

The Honourable Justice Mary Finn

The Honourable Justice John Faulks

The Honourable Justice J.F. Gallop AM

The Honourable Justice Higgins

The Honourable Justice K. Crispin

The Honourable Justice Cummins

The Honourable Justice C. Simpson

The Honourable Justice T Simos

The Honourable Justice Barr

The Honourable Justice Cole

The Honourable Justice Clarke

The Honourable Justice Neil Buckley

The Honourable Justice David Angel

Chief Magistrate R.J. Cahill

At the Bar Table the following persons were present:

Mr R. Ellicott, QC

Mr I. Barker, QC, President of the New South Wales Bar Association

Mr D.F. Jackson, QC

Mr D. Graham, QC, Solicitor-General for the State of Victoria

Mr P. Capelin, QC

Mr D.M.J. Bennett, QC

Mr R. Castan, QC

Dr G. Griffith, QC

The Honourable D. Williams, AM, QC, Attorney‑General for the Commonwealth

Mr J. Gallagher, QC

Mr R. Stitt, QC

Mr M.L. Abbott, QC, President of the South Australian Bar Association

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

Mr E. Heenan, QC

Mr W. Bale, QC, Solicitor-General for the State of Tasmania

Mr J. Shaw, QC, Attorney‑General for the State of New South Wales

Mr K. Copley, QC

Mr D. Bloom, QC

Mr A. Bellanto, QC

Mr D. Wheelahan, QC

Mr R. Buchanan, QC

Mr R. Gotterson, QC, President of the Australian Bar Association and President of the Queensland Bar Association

Mr R. O’Connor, QC

Mr N. Young, QC, Chairman of the Victorian Bar Council

Mr R. Williams, QC, President of the Australian Capital Territory Bar Association

Mr W. Martin, QC, President of the Western Australian Bar Association

Mr B. Walker, SC, President of the Law Council of Australia

Ms R. McColl, SC

Ms A. Bennett, SC

Mr D. Grace, QC

Mr B. Selway, QC, Solicitor-General for the State of South Australia

Mr L. Katz, SC, Solicitor-General for the State of New South Wales

Mr A. Robertson, SC

Mr R. Meadows, QC, Solicitor-General for the State of Western Australia

Mr J. Graves, SC

Mr J. Kelly, SC

Mr G. Humphries, Attorney‑General for the Australian Capital Territory

Mr H. Burmester, Acting Solicitor-General for the Commonwealth

Mr K. Cush

Mr S. Kerr

Mr R. Refshauge
Mrs M. Doogan

Mr D.O’Connor

Ms K. Traill

Mr J. Gleeson

Mr P. Sharp

Mr D. Hassall

Mr M. Flynn

Ms J. Gleeson

Mr E. Willheim

Mr G. Williams

Mr T. Hodgson

Mr D. O’Gorman

Mr N. Rein

Mr R. Heinrich

Mr A. Scott, President of the Law Institute of Victoria

Dr J. Mann, President of the Queensland Law Society

Mr J. Stellios

Professor G. Carney

Mrs Gallagher

Mr J. Fernon

Mr N. Abadee

Mr M. Dempsey

Ms M. O’Gorman

Speakers:

The Honourable Daryl Williams, AM, QC, Attorney-General of the Commonwealth

Mr Bret Walker, SC, President of the Law Council of Australia

Mr Robert Gotterson, QC, President of the Australian Bar Association

Mr Ian Barker, QC, President of the New South Wales Bar Association

TRANSCRIPT OF PROCEEDINGS

GLEESON CJ:   Your Honour Justice Gaudron, I have the honour to announce that I have received from His Excellency, the Governor-General, a commission as Chief Justice of the High Court of Australia.  I present my commission.

GAUDRON J:   Mr Principal Registrar, would you please read the commission aloud.

PRINCIPAL REGISTRAR:

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

I, WILLIAM PATRICK DEANE, Companion of the Order of Australia, Knight Commander of the Order of the British Empire, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution, hereby appoint the Honourable ANTHONY MURRAY GLEESON, Companion of the Order of Australia, Chief Justice of the Supreme Court of New South Wales to be the Chief Justice of the High Court of Australia for the term commencing on 22 May 1998 and expiring on his attaining the age of 70 years.

Signed and sealed with the Great Seal of Australia on 17 April 1998, William Deane, Governor-General by His Excellency’s command, Daryl Williams, Attorney-General.

GAUDRON J:   Thank you.  Chief Justice, I invite you to take the Oath of Allegiance and of Office.

GLEESON CJ:   I, Anthony Murray Gleeson, do swear that I will bear true allegiance to Her Majesty, Queen Elizabeth II, Her Heirs and Successors, according to law, that I will well and truly serve Her in the Office of Chief 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!

GAUDRON J:   I now invite you to subscribe the Oath of Allegiance and of Office.

Mr Principal Registrar, please place these documents in the records of the Court.

PRINCIPAL REGISTRAR:   Yes, your Honour.

GAUDRON J:   Chief Justice, on behalf of the Justices of the Court I congratulate you on your appointment and I invite you to now take you seat as Chief Justice and to proceed to the discharge of your duties.

GLEESON CJ:   Mr Attorney.

MR WILLIAMS, QC:   May it please the Court.  It is a very great honour and a pleasure for me to be here this morning at this special sitting of the High Court of Australia to welcome the Honourable Murray Gleeson as Chief Justice.  On behalf of the Government and the people of Australia, I offer your Honour the Chief Justice congratulations and best wishes on your appointment to head Australia’s highest court.  It is fitting that your Honour’s already distinguished legal career should now be crowned by your appointment to the highest judicial office in the land.

The breadth of the acclaim and support that followed the announcement of your Honour’s appointment indicates the admiration and respect in which you are held by the legal community. 

Your early childhood days were in the small New South Wales country town of Wingham.  Your first step from Wingham on the road to Canberra and the High Court was taken at the age of 10 when you commenced as a boarder at St Joseph’s College at Hunters Hill in Sydney. It was here that you completed your secondary education and, incidentally, winning oratorical competitions along the way.

I understand that the Marist Brothers at Hunters Hill have a reputation for producing eminent jurists and excellent rugby players.  Your Honour’s appointment to head this Court furthers that tradition. 

After completing your secondary school education, your Honour attended the Law School at Sydney University.  As has been mentioned in the press recently, your student colleagues at university included the Prime Minister, the Honourable John Howard, who is here today, and your colleague on this Court, the Honourable Justice Michael Kirby.

Following graduation from Sydney University with a degree of Bachelor of Laws, with first class honours, you were admitted to practise as a barrister of the New South Wales Supreme Court in 1963.  At the Bar, your Honour practised in most areas of the law, but displayed particular expertise in the equity and commercial jurisdictions.  During your early years of practice, you frequently acted as junior to the current Governor‑General, Sir William Deane, himself a former Justice of this Court and a former student of St Joseph’s College.

As well as building and maintaining a busy and successful practice, your Honour also contributed to the education of younger generations of legal practitioners by tutoring in law at St Paul’s College at the University of Sydney between 1963 and 1974. 

Your Honour’s skills and standing at the Bar were duly recognised in 1974 when you were appointed at a relatively young age as Queen’s Counsel.  Having taken silk, your Honour continued to specialise in equity and commercial matters, but also built a substantial appellate practice.  In addition, your Honour appeared in many notable constitutional and criminal matters.

Your Honour’s reputation at the Bar was as an advocate with formidable analytical and technical skills.  Having had the privilege of appearing against your Honour, I can personally vouch for the validity of that reputation. 

Beyond day‑to‑day life at the Bar, your Honour served as a member of the Council of the Bar Association of New South Wales between 1979 and 1986 and as President of that organisation from 1984 to 1986.  In the Queen’s Birthday Honours in 1986, your Honour’s services to the law were acknowledge when you were created an Officer of the Order of Australia.

In 1988, your Honour’s considerable talents, personal qualities and standing in the legal profession brought to appointment as Chief Justice of the Supreme Court of New South Wales.  That appointment was the first in over 50 years to have been directly from the Bar.       During the period, your Honour served as Chief Justice of the Supreme Court, that court, and the justice system in general, faced many challenges and changes.  Among those challenges was the emergence of a greater willingness on the part of the general community, and the media in particular, to question the authority of the judiciary. 

In the criminal jurisdiction, sentencing decisions frequently became the subject of political debate and media scrutiny.  In response to this unprecedented level of interest in the workings of the courts, the Supreme Court appointed a public information officer, an initiative that has proved to be an outstanding success.

Also in the criminal jurisdiction, you found it necessary, on occasion, to express concern about delays in the criminal justice system and the effect of this on defendants held in custody.  You highlighted what you saw as insufficient resources allocated to the Supreme Court to allow the court to deal with its business in a timely manner. 

However, your Honour also recognised that courts themselves have an important role to play in ensuring that available resources are used effectively and efficiently, and you initiated relevant reforms within the Supreme Court to improve efficiency.  Among those reforms was the adoption of case management strategies whereby a particular judge would take an active role in the progress of a matter from start to finish in order to avoid unnecessary delays and waste of the court’s time.

The members of this Court will be aware of the desire of some within the legal profession and elsewhere to see reform in relation to multiple judgments.  In the High Court it has generally been the practice for Justices to write separate judgments, sometimes even when legal principle is enunciated in very similar terms in some of those separate judgments.  The reader has to examine similar judgments, searching for nuances in the different expositions, in order to identify the ratio in the case. 

Of course, each judge, through the oath or affirmation of office, undertakes a personal obligation to reach his or her own decision in every case.  One of your predecessors, Sir Harry Gibbs, thought that “there is no surer way of discharging that obligation than by writing a judgment for oneself”.  Joint judgments, Sir Harry has warned, “may lead to the danger of compromise and ... may prevent the expression of individual lines of thought which may prove to be the source of new and valuable developments of legal principle”.

Although there are undoubtedly occasions when this will be true, there are other occasions when joint judgments can encourage the development of legal principle by stating the law more clearly than separate judgments can.  Separate judgments sometimes lead to confusion, a fact realised by the four Justices of this Court in the majority in the Wik Case, when their Honours endorsed a short postscript clarifying the effect of their four separate judgments.

In the highest courts in some other jurisdictions, mechanisms exist to encourage single majority judgments, without limiting the independence of individual judges.  In the United States the Supreme Court has a system of assignment of judgments.  The most senior judge in the majority assigns the task of writing the joint majority judgment to one of the majority judges.  If there are judges in dissent, they will usually choose a judge, from among themselves, to write a joint dissenting judgment.  Of course, this procedure does not prevent a judge from writing a separate judgment if he or she is not prepared to join the resulting majority or minority judgment. 

In the Canadian Supreme Court, too, the judges confer after a hearing and one of the judges who is a member of the group that appears likely to form a majority usually writes a first draft in what may become a joint majority decision.  Once again, nothing prevents a judge from writing a separate judgment whether joining the majority or dissenting.

I commend to the Court for its consideration, the possibility of adopting a procedure that encourages the preparation of joint judgments yet does not interfere with individual responsibility.  Such a system could enhance the clarity of the law enunciated by this Court whose responsibility is to state the law for all of the country.  It could also produce significant economy and efficiency for those obliged to read, comment upon and report judgments, with the potential for significant savings for the community in legal and other costs. 

That, however, is a matter for the future.  I return now to the mile posts that have marked your Honour’s journey from Wingham to Canberra. 

On your appointment as Chief Justice of New South Wales, your Honour also became President of the Judicial Commission of that State.  This body is unique in Australian jurisdictions, with responsibilities for both judicial education and the examination of complaints against New South Wales judicial officers. 

In the area of judicial education, the Commission has used information technology to make information available to judicial officers in a more easily accessible and timely manner.  To this end, the Judicial Information Research System allows judicial officers and researchers easy access to research and education materials.

The Sentencing Information System allows judicial officers to access sentencing statistics, and material on sentencing principles and practice.  Needless to say, the ready availability of sentencing statistics is of considerable benefit to judicial officers contemplating the imposition of appropriate penalties. 

Maximising the effectiveness of the use of information technology in legal processes and procedures is undoubtedly one of the major issues confronting court administrators today.

In a paper presented to the Annual Conference of the Supreme Court of New South Wales in 1995, your Honour speculated that in 20 years time the Supreme Court:

would be a “paperless court,” operating without paper files.  Solicitors will institute proceedings electronically.  There will be no need for people to attend a court registry in order to file documents.  The court will be both unable and unwilling to act as the repository of masses of paper.

Anybody who has witnessed the advances in information technology over the last 10 years would not question the accuracy of your Honour’s predictions.  It is vitally important that scarce taxpayer resources expended on the application of information technology in our courts produce maximum benefits for all jurisdictions. 

I would hope that the Council of Chief Justices might adopt a leadership role in this area by encouraging sharing between jurisdictions of information on technological change to ensure that the benefits of initiatives to improve the workings of our courts are shared by all.

Your Honour’s appointment as Chief Justice of New South Wales was not the last occasion on which your talents were publicly recognised.  In 1989 you were appointed Lieutenant‑Governor of New South Wales.  That same year, you were made an Honorary Bencher of Middle Temple of the Inns of Court in London.  In 1992, your Honour’s services to the law were further recognised with your appointment as a Companion of the Order of Australia.

Today, we celebrate your Honour’s appointment as Chief Justice of the High Court of Australia.  I wish you well in your new appointment.  I am sure you will distinguish yourself as head of this Court as you have distinguished yourself as Chief Justice of the Supreme Court of New South Wales. 

On behalf of the Government and myself, I extend to your Honour congratulations, best wishes and a very warm welcome on your appointment as Chief Justice of Australia.

GLEESON, CJ:   Thank you, Mr Attorney.  Mr Walker.

MR WALKER:   May it please the Court.

When, about 10 years ago, your Honour was appointed Chief Justice of New South Wales, all around the country, but particularly in New South Wales, there was general delight at the appointment of your Honour to that Bench and to that position.  There was all around Australia, but particularly among instructing solicitors and many barristers, however, real pangs of regret at losing your Honour from the position which you had occupied as the pre‑eminent advocate in Australia.

Of course things changed fairly soon in light of experience.  A somewhat different pattern could be observed relatively quickly.  There was some delight among a highly select number at the Bar at the availability of crumbs from your heavily laden table.  You were, of course, irreplaceable, but someone had to be found to do that work.  There was, however, even more an increase in the pangs which many felt, particularly those who found cause to utter the words “poacher turned gamekeeper”, as your Honours acuity as a judge was seen to reflect very exactly your acuity as an advocate. 

Your Honour may also have experienced some reversals of perceptions.  Those of us who, having witnessed it, likened your advocacy to the skills and charms of a snake charmer, may well after some time reflect that perhaps your Honour now had a somewhat different approach of the objects of advocate’s wiles and I am sure that there has been nothing reptilian about either your Honour or any of your Honour’s companions on the Bench in your mind ever since.

Ten years later there are no pangs of any kind and there is thoroughgoing delight among the Australian legal profession, for whom I speak on behalf of the Law Council of Australia, at your Honour’s elevation to the highest office any lawyer can occupy in this country.  You will bring, we suspect however, many of the glorious memories which we have of you as an advocate enhanced as they are of you now as a judge.  The same attic style we expect, the same compelling argument we expect and the same great attachment to logic.  Indeed, from the Bar you took to the Bench and then developed a form of Socratic dialogue which you elevated to the plane of an advanced surgical technique, together with the essential modern accompaniment of good surgery, namely, minimal loss of blood.  Indeed, the patient often did not know what had happened.

Translated to your Honour’s style as a judge, to which the profession confidently looks forward as a continuing element of your Honour’s professional contribution to this country, will be the calm, clear and demanding way in which your Honour will preside over hearings in this Court as in Full Courts in New South Wales.  As to the demanding element, there is no complaint from the advocates who have appeared before you or who will appear before you, that being the best way to ensure direct response and direct response being the best way to ensure fairness and thoroughness in argument.

We have heard from the learned Attorney some flattering words to your Honour about your predictive ability.  The archives of the Law Council reveal that in your attendance as an office holder from New South Wales, contributing to debate about the Law Council and its future, you were unusually conservative in one prediction that we would leave the Australian Council of Professions within fifteen years ‑ it was much sooner - and you pointed out that the Law Council, being a body which sought to unite the voices of all the lawyers around the country, could never hope to have a strong uniform voice whilesoever each body from each State and Territory had one vote on its Council.  I hope, and I think there are others who hope, that prediction of your Honour may turn out not to be correct.  Many advocates and constitutionalists may also be wondering whether that provides some clue to what your Honour once thought at least, about federalism generally.

Your Honour, the learned Attorney has already referred to the innovations you made as Chief Justice, particularly in relation to what ought to be said and revealed about the workings of a busy court.  You are being translated to a Court which is every bit as busy but which is at the pinnacle, rather than in the thick, of trial work.  Nonetheless, there are words and experiences from your time as Chief Justice in New South Wales which the profession confidently expects will prove to be continuing themes in your Chief Justiceship of the country.

In 1989, in the first of the reviews to which you wrote an introduction, you said, “Undue and avoidable delay is, itself, a form of injustice and the manner in which the Court, as an institution, deals with its business is, in some respects, as important an aspect of the administration of justice as the way in which individual judges decide particular cases”.  And from a man who is well known for insisting that the business of judges is judging, and not a question of businesslike productivity, those words remain an important corrective to any suggestion that there ought to be a slowdown in the reform movement led ultimately by this Court.

In 1997, the last introduction you wrote, continuing a theme which was marked by practical innovation as Chief Justice of New South Wales, you said, “The measurement and evaluation of court performance is an infant science and the statistics that are useful for some purposes may be of no assistance for others.  Even so, with all their imperfections, and allowing for the need for interpretation at evaluation, the fact that statistics of the kind appearing in these reviews are being prepared and refined, reflects an acceptance by those involved in court administration of the requirement of accountability”.  There is a growing recognition”, you said, “amongst judges and court administrators of the need to develop better techniques of producing significant information”.

The legal profession applauds your history over those 10 years of a leadership role in relation to collecting information about a system of such transcendent importance to every citizen and to the rule of law.  As to the future, the Law Council looks forward to the continuing challenge which your Honour and your Honour’s colleagues will face in relation to this Court’s procedures.  Special leave applications will continue to require attention as to whether they are serving an appropriate function or as to whether some other tool, perhaps legislative, properly balanced with the constitutional dictates that this Court be available to hear all relevant disputes, should be considered as a further protection of this Court against gross overwork.

Bearing in mind the quality of cases which this Court will continue to hear, that is, of transcendent or overarching social importance beyond the interests of the individual parties, techniques and procedures to do, for example, with interventions by non-parties, will come under continuing pressure for scrutiny in the future.  The same goes for the way in which evidence may be required in constitutional and quasi-constitutional cases in this Court concerning, for example, economics.

Finally, in relation to the habit which has been encouraged, both in the press and in academic discussion of the Court, we are about to enter the era of the so-called “Gleeson Court”.  The Law Council deprecates the notion that a collegiate court, which is a continuous and seamless tradition from the beginning, is one which can be divided up into slices according to the surnames of the presiding Chief Justice.  That is an incorrect notion of your position among your fellow Justices and of their individual contributions to the Bench.  Nonetheless, the Law Council, with enormous confidence, looks forward to this Court under your leadership continuing its great traditions.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  Mr Gotterson.

MR GOTTERSON:   May it please the Court.  Chief Justice, it is both a privilege and a delight for me to appear this morning on behalf of the Australian Bar Association.  The members of all the Bars throughout the Commonwealth congratulate and welcome you on attaining the office of Chief Justice of Australia.  Your Honour’s appointment was predicted by many, who rated it not just as a chance but as a certainty.  Happily, the seeming inevitability in no way diminished the acclaim that greeted the actuality.  For your Honour, the universal and enthusiastic professional and public endorsement of this appointment is a magnificent personal tribute.  This measure of approval signifies a recognition of your Honour’s pre‑eminent suitability for the office and an expectation of a grand era for the High Court under your leadership.

Of your Honour’s predecessors as Chief Justice of Australia only one other was a serving Chief Justice at the time of appointment.  He was the great Sir Samuel Griffith, whose portrait adorns this courtroom.  He founded the admirable tradition of High Court sittings in the major capital cities.  It is a tradition which serves to emphasise the national character of this Court and allows the profession and the people of each State to see it at work.  Just as Sir Samuel had done, your Honour has, by a combination of great talent, ripe experience and erudition led, in a commanding way, the Supreme Court of which you were a member.  Your Honour’s term in office cannot last as long as his did but it will be sufficient for you to influence markedly the development of both the institution of the High Court and of the law it administers.  It would be a worthy ambition, indeed, to have said about you upon retirement what Sir Isaac Isaacs said about the first Chief Justice upon his retirement, in these words. 

The status this High Court holds in the confidence of the Australian people is due, in no small measure, to the wisdom and capacity of its illustrious head.  We shall always have his example. 

We at the Bar will have to get used to the presiding style of a new Chief Justice.  Our New South Wales colleagues have told us that your Honour can be very direct.  I saw a little of this first-hand at the Sydney Bar Dinner last Friday night.  I suggested to your Honour that you would find this week rather tiresome, with two court ceremonies and as many lavishings of flattery.  You corrected me instantly:  I was quite wrong, you said, “There won’t be time for enough of it.”

Your Honour’s interest in professional affairs has already been noted.  You have a unique connection with the Australian Bar Association.  You won the draw for the early bird registrant’s award at our conference in San Francisco in 1996.  Apparently this was an exciting novelty for you and at a private presentation ceremony your Honour confessed that you had never won a raffle in your life before.  As it happens the draw was conducted by Glen Martin, who was the conference convenor, and just this morning he was commending himself to me for his adroitness in selecting your name from the barrel.  I could think only of the many other raffles you must have entered, especially Bar Association raffles, and of all of those who left your tickets in the hat, how they must be ruing their maladroitness today.

Chief Justice Gleeson, the Bars of Australia share a pardonable pride in your appointment and wish you a most successful and rewarding term in office.  If it please the Court.

GLEESON CJ:   Thank you, Mr Gotterson.  Mr Barker.

MR BARKER, QC:   May it please the Court.  Your Honour, the barristers of New South Wales warmly congratulate you and applaud your appointment.  I confess on occasions like this to feeling just a little uneasy because, never having been a judge, I am not entirely sure what they do in between argument and judgment.  Your Honour, of course, made the transition from barrister to judge some 10 years ago and, at the time or soon afterwards, you were asked to comment upon the transition and you observed that a judge must have patience and courtesy and concern for the interests of justice rather than the individual parties.  You went on to say that you would be opposed to the use of anabolic steroids by judges but you could see they would have some use by barristers.

Dr Griffith attended your swearing in as Chief Justice of New South Wales, representing the Commonwealth Attorney‑General.  He said it is sometimes said south of the Murray that the first ground of appeal for a New South Wales counsel is that one has lost.  I say this partly, I suppose, in public expiation of guilt, but for nearly 10 years, with great patience and courtesy, your Honour has from time to time listened to desperate arguments delivered at excruciating length.  It will be a comfort to you to now have the protection of the fearsome barrier of the special leave procedure which does not permit even the most desperate arguments to go beyond 20 minutes.

Your Honour, in these days where the length and number of law reports has become to practitioners positively oppressive you have set a standard for succinctness of expression and conciseness of language, which is a further reason for applauding your appointment.  Yesterday we looked back with nostalgia.  Today we look forward with anticipation.  Your Honour, congratulations.  If the Court pleases.

GLEESON CJ:   Mr Attorney for the Commonwealth, your Honours, Mr Walker, Mr Gotterson, Mr Barker, ladies and gentlemen, I am most grateful for your presence, for the goodwill that you have demonstrated, and for the generous remarks that have been made this morning.  I have attended, as a barrister and later as a Chief Justice, many ceremonies for the swearing‑in of judges.  Although they have some of the external form of court proceedings, they do not represent the adversary system in its full rigour.  The procedure on occasions such as this makes no provision for a contradictor.  That is something I have not overlooked whilst listening to the speeches of welcome.  Only one side of the case has been put.  I know better than anyone of the arguments that could have been put on the other side.

I am honoured, and the Court is honoured, by the presence of their Excellencies the Governor‑General and Lady Deane, the Prime Minister, the President of the Senate, the Speaker of the House of Representatives, His Excellency the Dean of the Diplomatic Corps, Sir Harry Gibbs, Sir Anthony Mason, Sir Gerard Brennan, Sir Ninian Stephen, Sir Daryl Dawson, the Honourable John Toohey and the members of the Council of Chief Justices of Australia and New Zealand.  The attendance of many of my friends and family, including my mother, and my judicial and professional colleagues, most of whom have travelled a considerable distance to be here, is a source of immense pleasure.  Of special importance to me is the presence of my wife Robyn and our four children.

I am delighted that the retiring Chief Justice, Sir Gerard Brennan, has joined us.  The tributes that were paid to him yesterday testified to the enormous contribution he has made to the administration of justice in Australia and to the development of the common law.  He was an ornament to the Australian judiciary, and will be greatly missed.  I wish to express my gratitude to my new judicial colleagues for the generosity of the welcome they have extended to me, individually and collectively.  It is a privilege to be given an opportunity to share in their work.

We are living in a time of challenge to everybody concerned with the administration of civil and criminal justice.  This is a rights‑conscious, litigious age, in which all manner of disappointments and grievances are promoted as grounds for legal redress, and the courts are made battlegrounds in social, economic and commercial conflict.  The court system is struggling to cope with a remorselessly expanding caseload.  The law, and legal procedures, are required to respond, in a principled fashion, to new expectations and new realities.

At the same time as civil litigation is increasing in volume and complexity, the administration of criminal justice, especially in the area of sentencing, is becoming a political issue, and the work of the courts, and of individual judges and magistrates, is being subjected to intensive scrutiny.  The efficiency and economy with which the justice system operates has become a major issue of public administration.

Judges and magistrates accept that it is part of the responsibility of the judiciary to work with governments, the legal profession, and other interested parties to address these issues.  Maintaining our separateness and our independence is necessary; but it is not enough.  Some of the things that need to be done to improve the system and to assist it to cope with the demands now made upon it can only be done by the judiciary.  Trial judges have extensive powers available for the control of litigation, and are now much less inclined to act as spectators, while the lawyers and the parties decide the manner in which a case will proceed.  Courts as institutions are active in developing systems for the management of their lists.  Most of the law concerning legal procedure was originally judge made.  If judges could make it, to suit former circumstances, then they can change it to suit changed circumstances.

Litigation is only one means, and often a very imperfect means, of achieving justice.  In the last resort, however, the citizen’s right of recourse to the courts, when in conflict with a fellow citizen, or with government, is what upholds the rule of law.  The maintenance of a viable and accessible justice system is not a responsibility that judges can leave to others, contenting themselves with deciding individual cases as and when they reach the head of a queue.

The judiciary and court administrators have shown leadership in applying technology to improve the efficiency of the Australian legal system.

At a meeting some two years ago the Council of Chief Justices noted that modern information technology might be used to increase the efficiency of the appellate process by enabling material to be transmitted from court to court and ultimately to the High Court in electronic form.  The Council established a working party of court administrators and technology consultants to advise it.  That work became the Electronic Appeals Project.  At our meeting on 20 May 1998, the Council of Chief Justices agreed in principle to the recommendations of the working party with a view to securing the availability of what will, in effect, be electronic appeal books in all Australian superior courts.  It was agreed that the recommendations be made public, comment invited and individual courts further consulted.  The importance of the electronic appeals project extends beyond the project itself; it will involve, in effect, the electronic integration of data movement within the whole Australian legal system, beginning at the appellate level.

The role of this Court involves special responsibilities. The Court maintains the Constitution, determines, when disputes arise, the powers of governments, protects the rights of citizens, and acts as a final court of appeal in civil and criminal cases.

As we approach the Centenary of Federation, and look back at past constitutional achievement and history, it is easy to forget that much of what we now accept as the established order represented substantial change when it occurred, and was often unpredictable and to an extent sometimes even accidental.

On 14 September 1900 (“And Be One People”, published Melbourne University Press 1995) Alfred Deakin wrote:

“All History takes on the appearance of inevitableness after the event.  Looking backward the future will be tempted to say that Australian Union was Australia’s destiny from the first and that nothing could have prevented its consummation ... Any one of a thousand minor incidents might have deferred it for years or generations.  To those who watched its inner workings, followed its fortunes as if their own, and lived the life of devotion to it day by day, its actual accomplishment must always appear to have been secured by a series of miracles.”

Many of the decisions of this Court interpreting the Constitution were, at the time they were given, no more inevitable that the Constitution itself. If the outcome of constitutional disputes were inevitable and completely predictable, there would not be any constitutional cases. Even so, maintaining a Constitution involves maintaining a secure and stable base for the operation of our parliamentary democracy. Notwithstanding all the disputes that have required resolution, and all the proposals for change that have been and are being advanced, the nation owes a great deal to the security and stability provided by the Commonwealth Constitution as interpreted and applied by this Court for almost a century.

There have been important, and relatively recent changes, in the appellate work of the Court.  Two in particular have affected the Court’s role.  The first was the abolition of appeals to the Privy Council.  In the beginning, and for the greater part of the time since then, the Court’s role in hearing appeals from the various Australian jurisdictions was shared with, and was, to an extent, subject to the Judicial Committee of the Privy Council in London.  The abolition of appeals from the High Court, and then from all Australian courts, resulted from legislation enacted in the 1970s and 1980s, but only took final practical effect as pending cases worked their way through the system.

I appeared as counsel for the appellant in the last appeal that ever went from this Court to the Privy Council.  That was in 1980.  There were later Australian appeals to the Privy Council but they were from State Supreme Courts.  That has come to an end, and this Court is now the final appellate court in civil and criminal cases for all Australian jurisdictions.  The change can be illustrated by comparing some observations made by the first Chief Justice of the Court, and some made by the most recent Chief Justice.

On the occasion of the opening of the Court in 1903, Sir Samuel Griffith said:

“We know that some cares will come to us of necessity;  in others it will be optional with the citizens to say whether they will trust us with the decision of their cases, or whether they will prefer to have recourse to the great tribunal that sits in the very centre of the Empire.”

Those words sound strange to us now.  They are from a time that has gone forever.

In 1992, Sir Gerard Brennan, in the course of a judgment, said:

“Since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. ... Increasingly since 1968 the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation.

As has been noted many times, the confidence which is reflected in that change is justified only by a commitment to the impartial application, and principled development, of sound legal doctrine.

The second relatively recent change affecting the appellate work of the Court is that appeals can no longer be brought as of right.  Until amendments to the Judiciary Act in 1984, civil appeals could be brought to this Court, without the need for leave, provided the cases involved a specified, relatively modest, amount of money, or involved disputes about property of a certain value.  In practice, an appeal could be brought if the appellant considered that what was at stake in the case justified the legal expense.  Most such appeals were capable of being decided by the application of settled precedent.  For most of this century, work of that kind occupied a large part of the time of the Court.  Now, special leave to appeal is required in all civil cases.  Leave is granted or refused according to such considerations as whether the case involves a question of law of public importance, or whether the High Court is required to resolve differences between other courts as to the state of the law.

The result has been a substantial change in the nature of the appellate work of the Court, and of the nature of the issues that now arise for decision.  This is a consideration which sometimes escapes notice in characterisation of modern decision-making.  It also follows that the procedures and principles by which the Court deals with special leave applications have assumed a great deal of practical importance in the exercise of the Court’s appellate functions. 

I am deeply conscious of the weight of the responsibilities I have taken up today.  However, as has been said on occasions such as this in the past, a sense of inadequacy is no excuse for lack of courage or determination.  I thank you all for your support. 

The Court will now adjourn.

AT 11.00 AM THE COURT ADJOURNED