Federal Court of Australia
Ceremonial Sitting of the Full Court to Farewell the Honourable Justice Spender
THE HONOURABLE PATRICK KEANE, CHIEF JUSTICE
THE HONOURABLE JUSTICE SPENDER
THE HONOURABLE JUSTICE GRAY
THE HONOURABLE JUSTICE HIGGINS AO
THE HONOURABLE JUSTICE FINN
THE HONOURABLE JUSTICE DOWSETT
THE HONOURABLE JUSTICE STONE
THE HONOURABLE JUSTICE SIOPIS
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE REEVES
BRISBANE
9.30 AM, WEDNESDAY, 14 JULY 2010
KEANE CJ: Colleagues, ladies and gentlemen, this Sunday, Justice Jeffrey Spender will retire as a justice of this court, and we are gathered to mark this milestone in the life of the court and to celebrate the extraordinary contribution which his Honour has made to the life of the court as a serving judge. He is its senior serving judge. It is only right and fitting that we should celebrate, on Bastille Day, the career of a judge who, at the Bar and on the Bench, has been dedicated to the great ideals of liberty, equality and fraternity.
From my own experience as a barrister who appeared many times before his Honour, I can say that he is a judge much revered by the legal profession. He is also much loved by his judicial colleagues. A good indication of the high regard in which Justice Spender is held throughout the Commonwealth by his colleagues and former colleagues is the circumstance that we are joined today by a most distinguished guest, the Honourable Robert French, Chief Justice of the High Court of Australia. I should also acknowledge the presence of Mr Ian Callinan AC QC, formerly of the High Court of Australia. He and Justice Spender appeared for many years together as counsel for the canegrowers before the Central Sugar Cane Prices Board, an institution borne of a peculiarly Queensland genius.
We are also joined by the Honourable Margaret McMurdo, President of the Queensland Court of Appeal, many judges of the Supreme Court of Queensland, the Family Court of Australia, the District Court of Queensland and the Federal Magistrates Court. There are many of Justice Spender’s colleagues and former colleagues who would wish to be here but cannot because of other commitments. In particular, Moore J of this court, who cannot be here today because he is sitting on the Court of Appeal of the Kingdom of Tonga, specifically asked me to say that he would very much have liked to be here to farewell his colleague and good friend. And I should also mention the Honourable Justice Susan Kiefel of the High Court of Australia who unfortunately is detained in Germany. Only serious physical injury has kept Chief Judge Wolfe of the District Court of Queensland from attending today.
At school, Jeff Spender was a brilliant student who received an open scholarship to the University of Queensland where his first degree was in Science, with honours in Mathematics. He later studied law at the University of Queensland, and at the University of London where he was awarded the degree of Master of Laws with Distinction. He practised at the Queensland Bar from 1967 until 1984, taking silk in 1983. He was the leader of the Criminal Bar in Queensland, but he was sought after as a forceful advocate in all fields of the broad spectrum of legal practice. He was a true all-rounder.
He was appointed to this court on 17 May 1984. He has thus served for more than 26 years as a judge. That is an extraordinary achievement. He has served as a judge of the Industrial Relations Court of Australia, and as a presidential member of the Administrative Appeals Tribunal. Importantly, he has served as an additional judge of the Australian Capital Territory. In 2001, he was appointed a member of the Court of Appeal of the Kingdom of Tonga. He has frequently been called upon to act as Chief Justice of this Court.
On the occasion of Justice Spender’s swearing in in 1984 he said:
The Federal Court is relatively new and entrusted with important and wide-ranging jurisdictions. It is my conviction that the court has a significant contribution to make to the Australian identity and to the concept of nationhood.
At that time, this court was barely eight years old. Now, 26 years later, there could be no question that the court has indeed made a significant contribution to the Australian identity and the concept of nationhood, and nor can there be any question that his Honour’s participation in making that contribution has been of enormous value. His retirement will be a great loss to the court in terms of judicial experience and wisdom.
If I may indulge for a moment in a personal observation, I should acknowledge my own personal debt to his Honour. When I was an articled clerk, I instructed him on the first occasion in which I had a case in the Court of Criminal Appeal, which he won. I learned a lot from watching him in action, in criminal cases particularly, and especially that human affairs, being what they are, it is very difficult not to entertain a reasonable doubt about many things.
In the many years since, he has been a friend and mentor to me, and I would say that I would miss his advice and guidance but I am reasonable confident that the fact of his retirement will not mean that there will be an end to the advice.
On behalf of all members of the court, I wish Justice Spender and Glenys all the very best for a long, happy and fulfilled retirement. Do you move, Ms Playford?
MS A. PLAYFORD: May it please the court. First, may I acknowledge the traditional owners of the land on which we meet and pay my respects to their Elders, both past and present.
It is a privilege to be here today to represent the Australian Government at this ceremonial sitting of the Federal Court of Australia to farewell the Honourable Justice Jeffrey Spender. Other commitments have prevented the attendance today of the Attorney-General, the Honourable Robert McClelland. He has asked that I convey to your Honour his and the Australian Government’s appreciation of your distinguished and dedicated service to the Federal Court over the past 26 years.
As the Chief Justice has noted, your Honour came to the bench of this court on 17 May 1984, an appointment date which of course you shared with your colleague, the Honourable Justice Peter Gray. Reflecting on your academic and professional achievements prior to coming to the bench, one could say there was almost a sense of inevitability about your elevation to judicial office. Aged 42 at the time of your appointment, your Honour was regarded as a relatively young judge, although not as youthful as Justice Gray who was then just 38.
Your Honour was educated at St Laurence’s College, South Brisbane. In 1964, you graduated from the University of Queensland with a Bachelor of Science with honours in Mathematics. In 1966, you completed the Queensland Bar Board examinations and were admitted to practise as a barrister of the Supreme Court of Queensland in the following year. In 1968, your Honour graduated from the University of Queensland with a Bachelor of Arts and Laws, and in 1972, you graduated with a Master of Laws from the University of London. In 1983, your Honour was appointed Queen’s Counsel.
A very experienced counsel, your Honour served as a crown prosecutor before coming to the Bar and your practice included both criminal and civil jurisdictions. This was something that was remarked upon at the time of your appointment as providing a solid foundation for your work as a judge of this court.
In recognition of the considerable talents that you brought to office, every confidence was placed in your Honour that you would serve this court with distinction. You have more than fulfilled this expectation. Your Honour has been described as a “judge’s judge”, known to be on top of your material, always wanting to cut to the chase, and one who has a clear understanding of legal principles and a strong belief in the rule of law.
You are also known as being able to deal with counsel authoritatively and fairly, and to have strong views of what is a fair thing. Your Honour is fondly remembered by your colleagues as a judge with whom it is always a great pleasure to sit with on appeals. I am informed that litigants appearing before you always feel satisfied that they have been given a fair go from the law, undoubtedly one of the many measures of your Honour’s high reputation and standing as a judge of this court.
Your Honour has been an active participant in the annual Supreme and Federal Court judges’ conferences and an enthusiastic supporter of various conferences and seminars organised by the Queensland Law Society. Your involvement in these sorts of activities is said to enhance the reputation between the courts, the legal profession and the community.
On this occasion, recognition should also be given to the many and varied roles your Honour has undertaken in addition to your work on this bench. These were outlined for us by the Chief Justice. Your dedication to service of the law is demonstrated by your commitment to these roles. And if this were not enough, as the next most senior judge, your Honour has also filled the role of Acting Chief Justice of this court on many occasions.
On a personal level, your Honour is extremely engaging. I’m sure your loss will be felt all the more as you are warmly regarded as an important part of the collegiality of the court with your good humour and social disposition.
On occasions such as this one must inevitably come to the question of what life will hold for your Honour after retirement. You have an enviable reputation for being able to put your hand masterfully to many tasks, and I believe your interests outside of the bench are also many and varied: travel, fine cuisine, woodworking and an enthusiastic supporter of all football codes, to name just a sample. Your Honour is possibly the most travelled of your colleagues on the bench, having visited many places well beyond the limits of established tour destinations. Your Honour’s interest in woodworking extends to furniture making and the search for suitable pieces of exotic timbers and specialised machinery with which to craft these beautiful objects. Whatever pursuits your Honour intends to follow after retirement, I’m sure you will embrace them with the same passion, commitment, and vigour you have shown as a judge of this court.
At the ceremonial sittings to welcome your Honour you spoke of doing your best to maintaining the high reputation of the Federal Court bench. Your Honour has made good on your stated intention at that time, and more.
Your Honour, it has been a great privilege to be here today to express the government’s appreciation for the dedicated service you have provided to the court, and for your service to the law in general. Your retirement is a great loss to this court and the Australian people. On behalf of the government, I extend my sincere best wishes to you and your family for the future. May it please the court.
KEANE CJ: Thank you, Ms Playford. Do you move, Mr Ferguson?
MR G. FERGUSON: May it please the court. It is a privilege to appear on behalf of the Law Council of Australia and its constituent bodies, the Bar Associations and Law Societies of all the States and Territories, and the large law firm group to pay tribute to your Honour on the occasion of your retirement from the Federal Court. As the peak body representing the National Legal Profession in Australia, the Law Council is honoured to be involved in today’s farewell, and I speak on behalf of the National Legal Profession when I congratulate your Honour on your long and distinguished judicial career.
Your Honour’s contribution to this honourable court, the Australia legal profession and to the rule of law has been significant. As we have heard, your Honour has been a judge of the Federal Court of Australia since 1984. On the day you were officially sworn in, one of my predecessors, the Honourable Bill Pincus, welcomed you on behalf of the Law Council. During his address, he bemoaned the fact that he was losing a good neighbour as you apparently shared adjoining chambers. He said, while speaking on behalf of the National Profession, that it had every confidence that you would excel as a judge.
It was a sentiment echoed by the members of the profession who spoke from the bar table that day. They all kept emphasising one particular attribute, your Honour’s considerable intellect. Everyone predicted a stellar career at the bench, a career in which you would draw on that intellect, not to mention a wealth of experience in the legal profession, to make your mark on the Federal Court. And they were certainly right. Over the last 25 years your Honour has been involved in significant cases within the jurisdiction of the Federal Court, particularly in relation to administrative law, taxation, bankruptcy and intellectual property.
Amongst the most high profile cases over which he presided in recent times was the hearing involving Dr Mohamed Haneef. The Law Council, with its strong interest in human rights and rule of law issues, followed the case with great interest, a case which considered Dr Haneef’s right to have a visa reinstated. Your Honour famously described as astounding the Federal Government’s position that an association of any kind with criminals – a cup of coffee, a picnic with the kids – is enough for a non-citizen to fail the Migration Act’s character test.
Your Honour was the subject of national headlines when you said that you, too, might fail the test according to the government’s interpretation.
Your Honour is an institution in Queensland and the national judiciary and I have been fortunate, along with many practitioners and members of the community, to have experienced your generosity. I will always remember your willingness to make people feel welcome, not only on a professional basis but also on a personal note. Above all, I will always recall your Honour’s great sense of humour and ability to put people at ease or, in the case of some counsel, I’m sure, had the effect of putting them off their game.
Speaking of games, your Honour has always been a careful and thoughtful tactician throughout your legal career. You were, after all, a very successful fencer of the sword-wielding variety in your younger days. In fact, your Honour was awarded a Full Blue for fencing in the 1960s, was foil and sabre champion of the State and went on to represent Australian Universities in your country in the sport. There were, understandably, many fencing references during your swearing in 26 years ago.
But references were also made to your versatility in a range of other pastimes. Indeed, your Honour came to the bench with a reputation as a plumber, renovator, electrician and furniture restorer. These pastimes clearly explain your Honour’s practical approach to any problem. I’m not certain whether your Honour still has an interest in any of these pursuits, but we trust that, as you enter this new chapter of your life, you are afforded the opportunity to indulge more in the things you love, such as your two grandchildren in London who I know you are looking forward to seeing more often.
Your Honour has experienced considerable success in everything you have put your mind to and we are all sure that won’t change when the next phase of your Honour’s life commences. Your Honour’s contribution to this honourable court, to the law, and to the Australia judiciary will always be remembered. From all of us at the Law Council of Australia and on behalf of the National Legal Profession may I extend to your Honour our congratulations on your long and distinguished career on this honourable court. May it please the court.
KEANE CJ: Thank you, Mr Ferguson. Mr Stewart, do you move?
MR M. STEWART SC: May it please the court. Justice Spender, as we have heard, you have now served as a judge of this important national court for more than a generation. What is more, it is interesting to hear from those who have known you throughout this career that there seems to have been almost no alteration in your method throughout this very long period. You have conducted your court in the same way since 1984, and it is this which has led to the reputation as a colourful character that you have won.
It must be said, though, that the implementation of this method has had its casualties. As a judge of the Federal Court, you have presided over trials all over the country so that your impact hasn’t been confined simply to Queensland. As I speak for the members of the Australian Bar Association, I consulted with the presidents of the Bars of the other states and territories about their members’ experience of your Honour. One universal response was that they all have members who were “still in therapy after recovering” from the experience of a trial before you. One of these, Stuart Pilkinton, is now the president of the Bar of the ACT, although he still feels the effects, he tells me. As an essentially sympathetic and caring man, I know that your Honour will be pleased to know that, so far, Mr Pilkinton and, indeed, all of the others, are doing quite well.
But what is this method that your Honour has used which has caused so much interest and given rise to your colourful reputation? It seems, with respect, to me that it really is no more than the vigorous, intelligent and, perhaps, somewhat early application of the dialectical method, all perfectly laudable, in my respectful submission. Your Honour, barristers admire and appreciate this approach. Judges who keep their own counsel and choose not to debate points run the risk of not taking full advantage of our system which relies on the clash of opposing arguments to reveal the proper conclusion.
Those opposing arguments aren’t confined to the ones put by the parties. The judge’s views are the most important; they produce the result. They should be aired fully so that the parties can respond to them and seek to refine, change or perhaps even correct them. As I have said, if the judge’s views are not shared, the risk that the proper result will not be reached is greater. Counsel ran no such risk in your Honour’s court.
From the start, in fact sometimes before counsel for the applicant had even finished announcing their appearance, we have been given the benefit of your Honour’s views. A quality attributed by many to your Honour is the lightning speed with which you seem to grasp points and with which you seem to be able to reduce the complex to the comprehensible. This habit of early intervention in the debate is simply explained by these skills, I submit. Another feature that has marked your Honour’s career is the colourful, direct and sometimes earthy way in which you have expressed yourself when disagreeing with a submission put by counsel. A favourite of some of your Honour’s former associates, if not the barrister involved, is, “That’s a dud.” While a little unconventional, this certainly had the benefit of leaving the advocate in no doubt of where they stood.
To engage in this type of debate takes a certain strength of character and, as a result of the way you have conducted trials, your Honour, you have won a reputation for courage. But if the earliness of your intervention in the argument and the strength with which you expressed your views were the only hallmarks of your Honour’s approach, things might be different, but the other vital quality you have consistently demonstrated in the court is the capacity to change your mind, to be persuaded by the force of an argument that had not occurred to you. It takes particular courage to do this, and this is especially so when your views have been expressed so forcefully and colourfully. Yet your Honour has always shown a preparedness to change tack when this was the correct thing to do. In addition to courage, this exhibits your Honour’s intellectual honesty.
So far, I have spoken only about the impact of your Honour’s judicial method in a court upon barristers. More important, of course, is the effect that it has upon litigants. The results of your Honour’s method has been hearings that are dealt with efficiently and in a way that, at the end of the hearing, leaves everyone concerned satisfied that they had witnessed and, most importantly, participated in that most vital, if slightly unglamorous these days, of things, a trial – a fair trial.
It is tempting to consider what has made your Honour adopt this slightly idiosyncratic approach that has led to your colourful reputation. One school of thought has it that it is simply a product of your Honour’s innate élan, the same which led you to represent your country at fencing in the way described by the President of the Law Council. Another school has it that your Honour has taken this approach out of pure altruism and in an attempt to assist those who appear before you achieve true happiness. These people point, I submit, persuasively to the sign hung prominently, I understand, in your Honour’s chambers. I am told it reads:
The floggings will continue until morale improves.
On behalf of the Australian Bar Association, may I inform the court that morale is high, in no small measure, because of your Honour Justice Spender’s efforts over the last 26 years.
Throughout your Honour’s judicial career, you have been a loyal attender of the biennial conferences of the Australian Bar Association which are usually conducted overseas. It is vital for us to have judges participate in these events. They would not be the same without you. Thank you for this. I also thank you for your fine career as a judge and wish you and Mrs Spender a long, happy and fulfilling retirement. May it please the court.
KEANE CJ: Thank you, Mr Stewart. Do you move, Mr Douglas.
MR R. DOUGLAS SC: May it please the court. On behalf of the Bar Association of Queensland, I bid your Honour farewell from this court. The previous speakers have well essayed your Honour’s career achievements. Such achievements are indeed weighty: tertiary academic qualification in multiple disciplines in Australia and overseas; sporting prowess at a national level; an accomplished woodworker and, I am told, ballroom dancer; a tenacious but astute barrister; and an international sports arbitrator; a jurist of the highest quality and integrity; a sometime leader of this court; a court builder as well, indeed, of this court; but, equally important, a family man, a reliable friend, an affable companion and a mentor to others who have gone on to achieve great things.
Your Honour, the Bar has always looked up to you, even on occasions when, no doubt, for good reason, your Honour was a little grumpy and perhaps something more than that. You never shrank from identifying cant in any discourse, nor specious argument in any curial contest. Rare would it be, your Honour, for anyone to be mistaken as to your Honour’s view on any issue of importance or matter at hand for disposition. Your Honour is a life member of the Bar Association of Queensland. Mr Tony Glynn SC, when president of the Association in 2003, moving a motion for your elevation to that membership observed:
Jeff Spender has been a great supporter of this Association and the Australian Bar. For his entire professional life he has actively championed the Bar. He has shown a genuine interest in the Bar and has been willing to assist wherever possible. He is a worthy recipient of this honour.
Your Honour, the Bar wishes you well in your retirement, whatever that concept entails in modern mores. In truth, we look forward to the contribution, which no doubt you will make, in the application of your intelligence, your intellect, your integrity and your experience. Your Honour, we salute you and from this court we bid you adieu. May it please the court.
KEANE CJ: Thank you, Mr Douglas. Mr Eardley, do you move?
MR P. EARDLEY: Thank you, your Honour. Justice Spender, it is a great privilege for me to speak on behalf of the solicitors of Queensland on this occasion. We solicitors wish you well in your retirement. Earlier speakers have highlighted very significant aspects of your career and your personal attributes. I join in those acclamations unreservedly.
Your Honour has been a justice of this court for a very lengthy period of service. You have, throughout that time, maintained a high sphere of influence throughout the legal profession. I commend, in particular, your keen interest in Commonwealth legal affairs, your ever willingness to impart your judicial skills to a wider legal community beyond Australia. You have been a leader in encouraging a wider appreciation of the rule of law throughout the Commonwealth, particularly in countries where the rule of law is a fragile concept.
We solicitors, your Honour, regret your departure on slightly selfish grounds. Despite your high office and the well-expressed involvement in the affairs of the Bar Association as highlighted by Mr Douglas, you never neglected the solicitors’ branch. You have maintained a regular and concerned interest in the affairs of the society. You have been a good sounding board for many of the leaders of the profession. Your wisdom and guidance will be sorely missed.
Your Honour, congratulations and our sincere thank you for your very lengthy period of judicial service throughout the Federation of Australia. May it please the court.
KEANE CJ: Thank you, Mr Eardley. Justice Spender.
SPENDER J: Thank you, Chief Justice, for your generous remarks, and to Ms Playford, Mr Ferguson, Mr Stewart, Mr Douglas and Mr Eardley, thanks also to you for your generous remarks. If my late parents were present today, my father would have been very, very proud, and I am sure my mother would have believed every word of it. I am very grateful to everyone present and to those who have written to convey their apologies for their inability to be here.
I really am quite chuffed by the presence of so many members of the profession, my friends, my colleagues and my family this morning. I am particularly honoured by the presence of the Chief Justice of the High Court of Australia, the Chief Justice of Australia, Bob French, and by the presence in court this morning of many other judicial colleagues: judges of the Family Court, of the Queensland Court of Appeal, the Supreme Court, of the District Court, Federal and State Magistrates and members of tribunals.
I am particularly honoured by the presence of old friends who have retired, retired from the High Court, from the Federal Court, the Queensland Court of Appeal, the Supreme Court or the District Court. Your attendance has no element of noblesse oblige about it and so is doubly welcome.
When I was sworn in 1984, the Federal Court was at 294 Adelaide Street. After about nine months, during which I was the only Federal Court judge in Queensland, I was joined by Bill Pincus. Later, the court moved to 15 Adelaide Street, and Doug Drummond and Richard Cooper joined Bill and me there. And on 2 December in 1993 we moved to this dedicated Commonwealth Law Courts Building.
This project was nearly scuppered in the 1991 finance cuts, but at least there were two things that saved this project. First, I had arranged for the Commonwealth Attorney-General at the time, Michael Duffy, to be photographed, in The Courier‑Mail, turning the first sod on the site of this building on the old McDonnell and East site, and that proved to be a continuing commitment to this project going ahead. Secondly, there was a large number of representations, including, in particular, by the Premier of the day in Queensland, Wayne Goss, who emphasised how important this building was to Queensland, how important the jobs in its construction would be.
In particular, there had been no public federal building built in Queensland since the Anzac Square Centre was built in the 1970s. The building was postponed for a year because of the budgetary conditions at the time, but the site had been bought by the Commonwealth and the project was saved. I am pleased that John Grealy, the architect of this magnificent building, is here today as well.
I have had the honour to serve under the three Chief Justices of the Federal Court, Sir Nigel Bowen, Chief Justice Michael Black, and this year, Chief Justice Pat Keane. The court has forged for itself a national and international reputation for excellence in its judicial function, and the reputation of the Federal Court has been confirmed by me on my occasional travels overseas. It is not only in legal scholarship that the court has earned its reputation. It has embraced innovation, technology and administrative techniques. It is, in my view, a first-class, worldwide court.
When I was appointed in 1984, the court had about half the number of judges it now has and none of them was a woman. During my time on the bench, six women have retired or graduated from the Federal Court, including Justices Susan Crennan and Susan Kiefel to the High Court, and there are currently eight women judges on the Federal Court. That has been an important change during my time on the bench.
Now, one of the primary reasons for my going now, about 15 months deemed statutory senility, has been the impact of generational change. Many of the judges with whom I have served have either passed away or have retired, and there has been a regeneration of judges in the Federal Court. I mean no disrespect to the modern appointees, but I do miss not having John Toohey and Malcolm Lee on the court in Western Australia, Bob Fisher and Maurice O’Loughlin in Adelaide, Ken Jenkinson, Ray Northrop, Sir Edward Woodward and Peter Heerey in Melbourne, Michael Foster and Doug McGregor in Sydney, John Gallop in Canberra and my colleagues here in Queensland. And there are many others. In 2005 the court lost five sitting judges who died in office, as well as two just retired judges. In that group were friends and outstanding judges in Brad Selway, Richard Cooper and Graham Hill.
However, I still think, today anyway, there is room for a bit of nostalgia. I have very happy memories of my childhood and adolescence in Balmoral, and my secondary education at St Laurence’s. I acknowledge the sacrifices that my parents made to give me the education that was denied them. I have extraordinarily happy memories of my undergraduate career as a science student at the University of Queensland, my friends in fencing at Australian universities and internationally, my service as deputy warden at International House in the first three years of that college’s existence and my continued presence on the board of governors, later the board of directors, and for the last 10 years or so, I have been Master of International House.
I have happy memories of my time at Crown Law, and the many continuing friends I have made from those days. I still nurse a sense of grievance that I was not able to get a year’s leave of absence without pay to study for my Master’s degree in London from Crown Law, while two others who were contemporaries of mine were able to get that leave without pay. Bill Ryan, the Solicitor-General in those days, apologised but said the reason that I couldn’t get leave was that, in his view, I was indispensable, and therefore I had to resign so that my position could be replaced.
That decision had the consequence that I went to the private Bar when I came back from England. We had a wonderful year at LSE and University College in London, Glenice and I. Fiona came with us, then aged six weeks. And we did two thorough trips of Europe, totalling more than 10,000 miles during that year, the three of us in a Volkswagen that we purchased from a friend for ₤30, and which we sold after the year, also for ₤30.
My practice at the private Bar was an enormous pleasure for me. The Grosvenor School of Law truly was an institution. I am saddened that three of my close barrister friends, Bill Cuthbert, Basil Martin and Bob Greenwood, are no longer with us. The Bar in those days was an enormously pleasant place to practise. I am also very, very grateful for the solicitors of those days who briefed me, particularly Jim Barry, Terry Mellifont and John Manners, each of whom, I am pleased to say, is with us today.
To swap the camaraderie of the Bar for the isolation of the Bench has been a big change for me, but I have, during that time, had the assistance of a great many people during my Federal Court career. All of my associates, many of whom are here today, were wise beyond their years and were a very great help to me. The staff of the Federal Registry here have been superb, not only at the top levels with people like Graham Ramsay and Jocelyn Green and others, but all the Registry staff and court officers and court reporters.
On my personal staff, Lorraine de Lacey was my most long-serving secretary, followed by Kate Emery and Ann Tarragano. Each of them is here today, and I am very, very grateful to each of them. I am quite sure that some of my demands on them were in breach of even the most generous occupational health and safety requirements, but they and the hard-working associate at the time never seemed to grumble sufficiently hard or sufficiently long for me to alter my work habits.
I have no regrets about my time on the Federal Court, although I would have to say that, in only a handful of the many appeals from my judgments that have been successful, I do prefer in those small number of cases the judgment at first instance.
It goes without saying, and therefore it is seldom said, that the law is an honourable and a noble profession. I have had the great pleasure and privilege of being a working barrister and a judge for nearly 45 years. The law is directed to the peaceful resolution of conflict. Now, I know that “gentleness” would not be a word normally associated with my practice as a judge. Intellectual rigour and hard work should be the talisman of all counsel, and I really believe that justice according to law is best achieved after a thorough and rigorous inquiry of the Socratic kind.
The golden argument is proved in the furnace of judicial inquiry. The technique that I have adopted is directed only at those who have the intellectual ability and the forensic skills of counsel to equip them for that searching inquiry, and I should say it should be regarded as a badge of honour to be worn with pride by those who were worthy to be exposed to that technique.
I don’t propose to practise as a mediator or an arbitrator in my retirement, and I’ll not offer any parting observations about the current state of the law or of the judiciary, except to make one genuine and deeply felt observation. It is a disgrace, in my opinion, that there is a small cohort of judges on the Federal Court who, even now, are subjected to the discriminatory superannuation surcharge. I’m not in that group, but that charge was imposed without any rational justification for its application to judges and, when it was cancelled for appointees, after the date of cancellation it was not cancelled or abolished retrospectively. Two of our best judges on the court left the court to avoid the impost of that charge.
There are many judges who were appointed before it was imposed, and many judges who have been appointed subsequent to its cancellation. For those small remaining number, however, it is a continuing grievance. Sound policy demands that it be repealed. For the government not prepared to act because of the screams of outrage contemplated from the Daily Telegraph and other like media, can I say that the surcharge law was aimed to claw back some of the tax deductions wealthy payers had in respect of their payments into super. Judges never had that deduction so the imposition of the tax on them was unfair.
The High Court struck down the tax in its application to State judges. The government should acknowledge the unfair and unjustified tax on a small and seemingly forgotten group of judges, and repeal the imposition of the tax. Sound government trumps the braying of the ignorant, even if there are those who are caught by the tax who include politicians and some public servants.
I would be very grateful if you, Ms Playford, could convey to the Treasurer and to the Attorney-General my sentiments that fear of misplaced criticism is no reason not to amend a wrong and unjust impost. The unfairness of it is magnified by the fact that, notwithstanding the tax has been imposed, it can’t be paid until the judge on whom it is imposed retires, and it accumulates interest, but can’t be repaid. While it is a tiny thing in the grand scheme of things, its unfairness positively rankles, particularly to those few still caught by it. It should be repealed.
Finally, I want to express my great thanks to my family, particularly to Glenice, my wife of more than forty years. My life at the Bar and on the Bench has imposed difficulties in my absence from my family, however, I am truly grateful for the support that I have received, particularly from my wife, and the love and comfort that our children have given us.
Two of our three children, Fiona and Duncan, are here today with Duncan’s wife Kim, and two of our Canberra grandchildren, Penelope and Louis. Our other son Tom is in London with his wife Mina, and our two London granddaughters, Alice and Camille. There is a whole future of grandchildren ahead of Glenice and myself.
A little while ago I was kicking a football around with Alice, aged just over two, in the back garden of her apartment block in St John’s Wood, when, after a while Alice said, “Grandad, let’s do something else.” I said, “Alice, what would you like to do?” She thought for a while and said, “I know, let’s play hide and seek.” I said, “How does one play hide and seek, Alice?” She said, using that tone of voice that women of all ages use when having to explain the obvious to a mere male, “Well, you put your hands over your eyes like this, and you count to 10. And while you’re doing that, I hide behind the tree.”
To all of you here today, my thanks. Thank you, Chief Justice, and to the other judges of the Federal Court of Australia, including those on the Bench with me today, for giving me this opportunity to express my thanks and to say farewell.
KEANE CJ: Thank you, Justice Spender. Mr Bevan, the court will now adjourn.
