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TRANSCRIPT OF PROCEEDINGS

O/N H-1803726
FEDERAL COURT OF AUSTRALIA

CEREMONIAL SITTING OF THE FULL COURT

TO WELCOME

THE HONOURABLE JUSTICE KENNETT

THE HONOURABLE JAMES ALLSOP AC, Chief Justice 
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE FARRELL
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE PERRY
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE BROMWICH
THE HONOURABLE JUSTICE THAWLEY
THE HONOURABLE JUSTICE STEWART
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE HALLEY
THE HONOURABLE JUSTICE CHEESEMAN
THE HONOURABLE JUSTICE DOWNES
THE HONOURABLE JUSTICE GOODMAN
THE HONOURABLE JUSTICE O’SULLIVAN
THE HONOURABLE JUSTICE RAPER
THE HONOURABLE JUSTICE KENNETT
THE HONOURABLE JUSTICE JACKMAN

SYDNEY

4.30 PM, THURSDAY, 16 MARCH 2023
ALLSOP CJ:   Welcome to everyone to the Court to mark the public welcome of Justice Kennett to the Court.  I acknowledge the Gadigal people of the Eora nation and pay my respects to their elders past, present and emerging.  I particularly welcome the family of Justice Kennett.  Justice Kennett, your wife Winsome Hall, daughter Grace and her partner Luke, son Rowan and partner Paris and cousin Rod   

I acknowledge the presence in the courtroom of Justice Jagot of High Court of Australia, Chief Justice Alstergren of the Federal Circuit and Family Court, Chief Justice Bell of the Supreme Court, President Ward of the Court of Appeal, members of the Court of Appeal of the Supreme Court, the Federal Circuit and Family Court of Australia, the Supreme Court of the ACT, and Judges of the Land and Environment Court, Deputy Presidents Redfern and Rayment of the Administrative Appeals Tribunal, and the numerous former Judges of the Federal Court, the former Solicitor-General of the Commonwealth, Dr Gavan Griffith, Chief General Counsel of the Australian Government Solicitor, Mr Andrew Buckland, former Chief General Counsel, Mr Henry Burmeister AO KC, special counsel representing the AGS, first Mr Andras Markus, second Mr Robert Orr and third Ms Dale Watson.   Of course, the Attorney-General, who is speaking, the President of the Bar Association, and the President of the Law Council of Australia, and your many friends that are on the Court, and Mr David Bennett AO KC from the Bar.  

Justice Kennett, congratulations and welcome again to the Court.  This is a public welcome, and it’s with great pleasure that we convene here today.  On behalf of all the Judges of the Court, I wish you a happy and fruitful life on the bench on this Court.  Over the years, I have not, as a rule, spoken at any length or at all, at public swearings in or welcome, but with – and I will have to doublecheck with Chief Justice Bell – 19 days to go – he’s keeping count – I think I can say this without fear of any contradiction:  a person with a discerning eye and ear to those who are here would understand the depth, breadth and comprehensiveness of your knowledge of Commonwealth law, and the administration of government in this country.  There were few greater intellectual challenges and joys being a Judge on this Court than to have you appear before one, especially instructed, if I may say so, by Mr Markus or Mr Orr or Ms Watson.  One knew immediately that there were likely difficulties but also likely answers, and that the matter was important.  You always were the epitome of the fair and superbly prepared Crown Counsel.  It was always a delight to see and listen to you work.  I regret that we have only been colleagues for so short a time.  Mr Attorney.  

MR M. DREYFUS KC MP:   May it please the Court.  I also begin by acknowledging the Gadigal people of the Eora nation, the traditional custodians of this land, and I pay my respect to their elders past and present, and I extend that respect to any Aboriginal and Torres Strait Islander peoples present today.  And on behalf of the Australian Government, I recommit to the implementation of the Uluru 
Statement from the Heart in full.  It’s a great privilege to be here today to congratulate your Honour on your appointment as a Judge of the Federal Court of Australia, and I would like to take the time to thank you on behalf of the Australian Government for your Honour’s willingness to serve as a just of this Court.  The Government extends its best wishes for your time on the bench.  

Your Honour’s appointment to this Court is another success in a distinguished and illustrious career.  That so many of your colleagues and the judiciary and the legal profession are here today shows the high regard in which your colleagues hold your Honour.  The Chief Justice has mentioned many of the distinguished people who are here, but I would particularly acknowledge Justice Jagot of the High Court of Australia, the Chief Justice of the Federal Circuit and Family Court of Australia, the Honourable William Alstergren, and the Honourable Andrew Bell, Chief Justice of the Supreme Court of New South Wales.  May I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you.  Your partner Winsome is here today with your children Rowan and Grace.  

Your Honour grew up in Canberra’s Woden Valley.  Your parents came from humble backgrounds.  However, each won a Commonwealth scholarship to study at the university, your father physics, and your mother classics, and they had long careers in public service.  Their commitment to education, to hard work and to public service has evidently had an enduring influence on your Honour.  Your brother Duncan attests that your Honour’s parents supported your inquisitive mind from a young age.  Your Honour’s brother asked your mother about your first remarks upon returning from pre-school.  Your mother recounted your frustrated reply, “I’ve been there a week, and I still can’t read.”  Even more importantly, your Honour’s parents instilled in you a commitment to equality and to a service of others.  

Your Honour has spoken previously of how hard your parents worked to provide a better life for you and your brother and, indeed, how so many young, educated and progressive women and men of their generation worked to build a better and fairer Australia for those who follow.  Your Honour’s own commitment to promoting equality for women and justice for Australia’s First Nations peoples shows you share that ambition.  Your Honour graduated from the Australian National University with a Bachelor of Arts Honours in 1985, a Bachelor of Laws Honours in 1989, and a Master of Public Law in 1993.  Your Honour later completed a Master of Laws at the University of Sydney in 2013.  Your Honour was admitted as a Legal Practitioner in 1989 in the Supreme Court of New South Wales, which preceded your Honour’s impressive career in the Public Service.  

Your Honour commenced your career in legal practice in the office of General Counsel in the Commonwealth Attorney-General’s Department, and you’ve spoken of the formative influence of the government lawyers you worked with in those days, including Dennis Rose QC and George Watynski QC.  Your Honour was then selected to be Counsel Assisting the Commonwealth Solicitor-General, Gavan Griffith AO KC.  Appointment to this role is a particular honour for any young public lawyer.  I recollect that this offered you the distinction of being led by Dr 
Griffith in the High Court in Longi v The Australian in one of your very earliest appearances as counsel.  Your Honour, I would reflect that other Junior Counsel in Longi toiled at the Bar considerably longer before winning briefs in such matters.  

In 1998 your Honour was called to the Sydney Bar, reading with John Marshall and the Honourable Justice Stephen Gageler.  Your Honour built a varied practice at the Bar, but you continued to make a particular contribution to the fields of constitutional and administrative law.  You appeared in a startling proportion of the leading cases in these fields over at least two decades, including by way of quick examples, Minister for Immigration and Citizenship v Li, Airservices Australia v Canadian Airlines, Plaintiff S157 v the Commonwealth, and the WorkChoices case.  Alongside this busy practice, your Honour found the time to apply your legal expertise to academic publications, parliamentary inquiries and legal committees with the same energy and rigour that you did your work as an advocate.  

Your Honour took silk in 2010.  In 2022 you returned to the city of your youth to be appointed a Judge of the Supreme Court of the Australian Capital Territory.  I’ve spoken briefly about your Honour’s professional accomplishments.  However, I would like to also note the personal qualities and strengths of character that your colleagues say mark your Honour out as such a deserved appointee to this Court.  Your Honour is known to approach both your personal and professional endeavours with dedication, humility and an iron determination.  This has been apparent throughout your Honour’s legal career.  

Your Honour is described as a steadfast family man with a strong sense of conviction.  Your brother, Duncan, has commented on the inspiration and encouragement that you provided him and others around you.  Your Honour also excels in many fashions outside of the law.  Of particular note is your Honour’s interest in cycling, fly fishing and bushwalking.  Your Honour’s attitude of if it’s worth doing at all, it’s worth doing excellently is not only apparent in your Honour’s career but in your Honour’s hobbies as well.  I’ve been told that within a few weeks of your Honour picking up cycling in Sydney your improvement was so vast that you were soon outpacing your experienced friends.  Your Honour did not stop there.  You then joined the Sydney Cycle Club and commenced racing.  Your Honour was also recently part of the winning team of the New South Wales Master’s Time Trial Championships.  Your friends have also descried your Honour as being a first-rate bushwalker and I’m told that it is best to be wary of any invitation by your Honour to a quick run up the mountain.  

Over the last 20 years, you have been on many extended trackless wilderness expeditions.  Your Honour is known to deal calmly with unexpected difficulties, finding yourself in a swamp not depicted on the map, for example.  I need not elaborate on the suitability of such a temperament to the judicial task.  This new role takes you again from the city your Honour described as still having relatively manageable traffic, great weather and the mountains on the horizon.  Fortunately, Sydney typically possesses two out of three of these qualities and I hope that the surrounding nature offers you something of the contemplative peace found on the 
tracks of the Brindabellas.  Your Honour’s appointment to this Court acknowledges your dedication to the law and accomplishments in the legal profession.  Your Honour takes on this judicial office with the best wishes of the Australian legal profession and it is trusted that you will approach this role with exceptional dedication to the law as you have shown throughout your career.  On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and welcome you to the Federal Court of Australia.  May it please the Court.  

ALLSOP CJ:   Thank you, Mr Attorney.  Ms Bashir, President of the New South Wales Bar Association and representing the Australian Bar Association whose president is at the Bar table, Mr Dunning.  

MS G. BASHIR SC:   May it please the Court.  I acknowledge the traditional custodians of this land, the Gadigal people of the Eora Nation and pay my respects to their elders past, present and emerging.  I extend my respect other First Nations peoples with us today and on other lands via livestream.  Your Honour, on behalf of the Australian Bar Association and the New South Wales Bar, it is a great pleasure and a privilege to welcome your appointment to this Court.  Your Honour has previously observed that when you were called to the New South Wales Bar in 1998, it was with encouragement from Neil Williams SC who became your Honour’s unofficial third tutor.  Your Honour took on much of his quiet achiever style in your career, also becoming a significant figure in administrative and constitutional law.  

Your Honour’s first appearance as a barrister was in the High Court and as we have heard, your Honour went on to appear in innumerable matters before that Court demonstrating your exceptional advocacy skills and breadth of knowledge of our laws.  Whether your Honour was appearing in a Court of first instance or in the High Court or even being interrogated by the now Commonwealth Attorney-General in your capacity as an expert appearing for the Law Council of Australia before the Parliamentary Joint Committee on Intelligence and Security, your Honour’s demeanour was unfailingly calm and authoritative.  Neil Williams SC credits your Honour as the person who came up with the winning argument in the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Proprietary Limited.  It was no small feat to conceive an argument that would lead to the overturning of the judgment of a former Chief Justice of this Court.  

You also appeared against Williams SC in a number of cases, including in the Full Court of the Federal Court in Buzzacott v The Minister for Sustainability, Environment, Water and Communities.  In the finest traditions of the Bar, your Honour appeared pro bono for Mr Buzzacott, an Arabunna nation elder, challenging ministerial approvals for the expansion of the Olympic Dam proposal to mine copper, gold, silver and, critically, uranium.  That meant there was a nuclear action and thus a controlled action, in turn posing neat questions of statutory interpretation in and surrounding conditional approvals under the Environment Protection and Biodiversity Conservation Act.  

Your Honour has been described as a skilled and tough but always fair opponent and quickly came to be highly regarded as an astute advocate in public law.  Not only did your Honour have an extremely busy practice at the Bar, but your Honour played a large role in the work of our public law section at the New South Wales Bar Association, took on many more pro bono matters, and your Honour also gave your time up to give expert advice to the Law Council of Australia.  The independent bars salute your Honour’s many years of service to the profession.  Your Honour’s transition from the Bar to the bench was seamless.  This came as no surprise, given your Honour’s well-known mastery of complex, factual and legal matters, ability to martial volumes of material into neat summaries, and your Honour’s genuine curiosity and humanity.  

Your Honour has been described as a true pleasure to appear before, genuinely open to being persuaded by counsel during the course of argument, testing them in respectful and courteous exchanges, and with your ever incisive questioning.  It has been said that your Honour’s deployment of the Socratic method with counsel appearing before you, gently honing in on the true issues in the case, has led to production of refreshingly short and timely judgments.  Your Honour is expert in setting aside passing issues and side issues and focusing on points of genuine contention without unnecessary adornment.  Another welcome characteristic of your Honour’s judgment writing is accessibility, through clarity of language and succinct distillation of legal principles in complex areas.  

One example was the cogent and coherent explanation of the intersection of the principles of incontrovertibility with inconsistency of verdicts and the meaning of the full effect of an acquittal when faced with many possibilities inherent in an inscrutable jury verdict.  Recently Chief Justice McCallum of the ACT Supreme Court remarked of one of your Honour’s first judgments in the ACT Court of Appeal, of Booth v the Queen, the judgment articulately captured a complex criminal point that has not been settled by the New South Wales Court of Criminal Appeal, with your Honour writing a beautiful and clear judgment, which is now referred to by judges of the New South Wales Courts.  Not long after your Honour’s appointment to the ACT Supreme Court, in a matter of proceedings invoking the Human Rights Act in the ACT, in a claim for damages, your Honour was confronted on a strikeout application with questions of whether the doctrines of res judicata and issue estoppel applied to declaratory relief granted in earlier proceedings between the plaintiff and the executive, as opposed to the ACT, the Territory. 

This in turn raised questions of privity and whether the previous declaration operated as a judgment in rem.  Your Honour’s judgment delineates a pellucid path through multiple and compounded complexities.  Your Honour was also called on while sitting on the ACT Court of Appeal to interpret mandatory minimum sentence provisions in the Criminal Code in the matter of Hurt v The Queen, and to adjudicate a claim that a line of authorities commencing with the Western Australian Court of Appeal in the judgement of Bahar, which traced through the New South Wales CCA judgment of Karim, should not be applied to the text of the freshly inserted legislation.  

Your Honour’s joint judgment ensured a coherent approach to national provisions.  Chief Justice McCallum has observed that in the first few months of your Honour’s commission in the ACT Supreme Court all of the matters listed before your Honour settled out of Court.  This has been corroborated.  Associate Justice McWilliam tells how, for many weeks, each time his Honour was about to commence a matter, the case evaporated.  Large civil negligence cases settled.  Criminals pleaded.  Even a very senior and highly regarded silk appeared before his Honour and abandoned the application he had travelled to Canberra to argue.  It may have been the inspiration for a novel approach there of listing two matters before your Honour at the same time in different courtrooms.  Your Honour dealt with the conundrum with characteristic good humour.  

This envious record for matters settling on the spot earned you the affectionate nickname, from the Judges and Associates of that Court, of Scary J, despite your Honour, in truth, being unfailingly pleasant to appear before.  Such a track record will no doubt be welcome in this jurisdiction.  The Attorney-General has spoken of some of your Honour’s personal qualities, of dedication, humility and determination.  Your Honour’s self-effacing nature is evident in your Honour’s claims to be only mediocre in your pursuits of road cycling and trail running, and what your Honour has called a mid-life obsession with endurance sports.  The Attorney-General has already given us a window into the true nature of those interests and hobbies.  

Other qualities that your Honour’s colleagues, friends and staff admire are your Honour’s shy and gentle nature and good sense of humour.  When your Honour took silk, one Judge presiding at a new silk Bar ceremony nicknamed you Rowdy Kennett in the classic Australian tradition, by which nicknames chosen are the opposite of a person’s true characteristic.  Your Honour’s journey from the sixth floor Selborne Chambers to the 10th floor, followed by your relocation to the capital, is now crowned by your Honour’s appointment to this bench.  It is only fitting that the nation should benefit from your Honour’s indomitable skills.  The Bar thanks your Honour’s family for their unfailing support of your Honour’s endeavours and welcomes you all here today, including the newest addition to the family.  On behalf of the Australian Bar Association and the New South Wales Bar, we wish your Honour and your family all the very best in the years ahead.  May it please the Court.  

ALLSOP CJ:   Thank you, Ms Bashir.  Mr Murphy, President of the Law Council of Australia and representing the Law Society of New South Wales.  

MR L. MURPHY:   May it please the Court.  I also respectfully acknowledge that we are meeting on the traditional land of the Gadigal people of the Eora nation, and I pay my respects to their elders both past and present, and to elders from other communities who are here today.  I acknowledge the Attorney-General, the Honourable Mark Dreyfus KC MP, Chief Justice, the Honourable James Allsop AC, President of the Australian Bar Association, Mr Peter Dunning KC, President of the New South Wales Bar Association, Ms Gabrielle Bashir SC, all judicial officers, dignitaries and colleagues and, most of all, your Honour and your Honour’s family, friends and colleagues.  It is an honour to represent the Law Council of Australia 
and, in particular, the New South Wales Law Society at this afternoon’s ceremony, and to welcome you on behalf of the National Legal Profession on your appointment to the bench of this Court.  

In November of last year, his Honour Chief Justice Allsop, on addressing the Papua New Guinea Bench and Bar Dinner said this of the ultimate purpose of judicial power:  

It is to protect people and society by upholding the law and by resolving controversies peacefully, fairly, with dignity and, where appropriate, mercy.  Given that purpose, acceptance of a judicial appointment must therefore carry the obligation to protect people by resolving disputes peacefully, fairly and with dignity and mercy.  Accordingly, when extending an invitation for a judicial appointment, the Attorney must clearly be confident that the potential judicial officer must be capable of making a positive contribution to the administration of justice by fulfilling that obligation.  Such a contribution will ensure that the judiciary succeeds in its protective function by enjoying the trust and confidence of all society.  

The corollary of that obligation is that every judicial officer when accepting an appointment is expressing a willingness to bear the burden of judicial office which arises from society’s expectation of the judiciary.  That burden is not a small one.  It is one that requires, as the Chief Justice set out in his speech, legal acumen, capacity for hard work, fairness, a lack of anger or emotion, practical judgment, a respect for the dignity of all and empathy for all before the Court which recognises the powerlessness of those put into the position of litigant who depend on the judgment of others.  As we have already heard this afternoon, your Honour’s distinguished legal career is evidence of the depth of your legal acumen and your capacity for hard work, both of which will serve your Honour and the community well as you administer justice.

Just as importantly, though, is your Honour’s demonstrated willingness to contribute to the work of our profession through its associations and bodies for the benefit of our community.  Of particular significance has been your contribution over many years as the chair of the Law Council of Australia’s Administrative Law Committee and also as a member of the Constitutional Law Committee.  This willingness to give back to our profession for the benefit of others has helped ensure our laws are fairer for all.  The ultimate objective of this volunteer work is to help ensure the national policies and laws that govern our nation are effective and inclusive and don’t create unintended harm for those in our community who are vulnerable or less able to participate in policy development.  

The Law Council’s work would not be possible without the voluntary commitment of time and expertise by our committee members such as your Honour.  And for this, the Law Council, our profession and community thank you.  You have, of course, served, as we have heard, as a Justice of the Supreme Court of the Australian Capital Territory.  During the speech you gave at your swearing in ceremony you spoke 
about the overrepresentation of Aboriginal people in our criminal justice system and that this was just one of many ways that life for First Nations people is not what it should be.  It is very clear that your Honour understands and accepts the responsibility that comes with a judicial appointment.  The Australian profession has every confidence that your appointment will continue to ensure that justice is administered fairly towards all through your understanding of how deeply affected people can be by even, perhaps, the most seemingly routine matter.

Your appointment will, we are sure, only enhance our society’s trust and confidence in its judiciary.  On behalf of the lawyers of Australia, we congratulate you and extend our best wishes in this next phase of your professional career. May it please the Court.  

ALLSOP CJ:   Thank you, Mr Murphy.  Justice Kennett.  

KENNETT J:   Chief Justice, fellow Judges, Attorney-General, distinguished guests, friends, family and members of the profession, thank you all for being here today and honouring the Court with your presence.  I also wish to acknowledge the Gadigal people of the Eora Nation as the traditional owners of this land and pay my respects to their elders past and present.  Coming from the last speaker of the day, those words are in danger of sounding a little formulaic, but they are important.  If the terrible disparities in opportunity and life experiences between the indigenous peoples of this country and those of us whose ancestors came more recently is to be remedies, the remedy, as I have said before, must start with respect.  So when we gather for important ceremonies, particularly in the institutions of power that have displaced traditional governance, it is a good thing that those who speak pause for a few moments to acknowledge the people on whose traditional lands we meet.  

I received an email a few weeks ago from Gavan Griffith wondering how I would manage the task of giving another swearing in speech.  He observed that most people seem to have only one such speech in them.  I’ve begun to understand the force of that observation.  

In saying what I said a moment ago about respect to traditional owners, I have already repeated something that I said almost exactly a year ago in a courtroom in Canberra.  I am going to try not to give the same speech again, so former teachers, colleagues and mentors who I acknowledged and thanked on the last occasion should deem themselves to continue to be acknowledged and thanked.  

I was formally sworn in as a Judge of this Court in December, just before the start of the vacation.  Taking the judicial affirmation twice in one’s career might be thought to show an unseemly appetite for adulation.  To the extent that I enjoy being painted in such an exaggeratedly good light by leaders of the profession, as to which I make no admission, that box has been well and truly ticked today and I thank all of the speakers for their efforts.  

Taking the affirmation twice in different Court systems in one calendar year is, I accept, somewhat unusual.  I have so far managed to identify only one other Australian who has done it.  William Deane was appointed as a Judge of the Supreme Court of New South Wales in 1977 and a mere 58 days later was appointed as a Judge of this Court.  I was slightly hesitant about mentioning Justice Deane.  He was only on this Court for about five years before going off to other places, so he is in a different category from me.  

Early last year, after 23 years of practising happily as a barrister here in Sydney specialising in what some people are metaphysical regions of public law, I made the decision, surprising to some, to go back to the place where I grew up and join the Supreme Court. 

It comprised only five resident Judges (including me) and an Associate Judge, with a completely general civil and criminal jurisdiction.  I acknowledged at my swearing in that I was going to be seeing more of the rich tapestry of life than I was used to.  And that was certainly correct.  The ACT Supreme Court sees many kinds of crime at first instance and on appeal from the Magistrates Court.  I often found myself remarking to my colleagues on what a sheltered life I had led.  I understand that sometimes I was seen to raise my eyebrows during sentencing hearings.  

Sitting in criminal cases was, however, extremely educational for me and not only for what it taught me about Canberra’s night life.  I am grateful to have had the opportunity to experience it as well as the opportunity to sit at first instance and on appeal on a fairly wide range of civil matters.  Seeing some of the breadth of human experience, and the cases that come out of it will, I’m sure, make me a better Judge than would otherwise be the case.  I want to thank my colleagues on the ACT Supreme Court for their warm welcome, their good fellowship, and for answering my naïve questions.  I also thank the registrars and staff of the Court for everything they did to make me welcome and to make things go smoothly.  

People in this room who know the former Sydney lawyers still serving on that Court will appreciate that there is some significant judicial talent in the ACT, and I’m pleased to note that at least one of my former colleagues is here today.  

When the offer came towards the end of last year to join this Court, I could not say no, but it was with some sadness that I said goodbye to the ACT Supreme Court.  I’m also quite fond of Canberra – I can say that among friends – and was enjoying the cool weather and the ready access to the bush.  

The first time I left Canberra and came to work in Sydney was in 1998.  I was leaving behind a very enjoyable career as a Government Lawyer in the Department that you, Mr Attorney, now administer.  When I came to the Attorney-General’s Department in the early 1990s, after wandering around some other parts of the public service, I knew immediately that I was in the right place.  I would quite likely have stayed there forever if I had not been exposed to the thrill of advocacy in the High Court. 

My colleagues were brilliant, modest, public-spirited lawyers.  The work was continually varied and called for as much intellectual rigour as I could give it.  I was also dimly aware then that I was contributing in a small way to a venerable and important aspect of our constitution.  Government Lawyers play a significant and not very widely understood role in the public life of this country.  I want to take this opportunity while I have, more or less, a captive audience to say just a little bit about that.  In her book on Solicitors-General in Australia, Professor Gabrielle Appleby said this about Government Lawyers: 

To apply constitutional rules,… the executive needs assistance from those skilled in understanding the law to interpret them.  It is the understanding of the constitutional text and judicial pronouncements held by public officials (elected and appointed) that guides their actions.  Often, it is legal advice they receive that forms the basis of their understanding.  

She quoted Cornell Clayton, who said: 

… custom, convention, professional norms and institutional cultures merge to authorise and constrain discretionary conduct.  It is the work of government attorneys … to construct and define these informal understandings and to assist their political superiors to navigate through them.

Professor Appleby went on: 

It is the officials’ understanding, combined with their conduct, that eventually becomes accepted as constitutional convention ….  The advice of government lawyers assists in keeping governments within the law, and also facilitates the adaptation of legal frameworks in a climate of evolving social needs and political ideas.  Government lawyers are key components in achieving constitutionalism.  They can act as guards against tyranny and abuse within government. 

This all strikes me as broadly correct.  It indicates why the sources of government legal advice matter and why advising government is or at least ought to be regarded somewhat differently to advising other clients.  It crystalises for me some of the reasons why I’m happy to have spent part of my career as a Government Lawyer, and I’m very pleased that some current and former Commonwealth Legal Advisers – some even old enough to have worked with me – were able to come today.  

As you have heard, the siren song of courtroom advocacy caught my ear, and I came to the Bar and moved to Sydney.  It was probably a brave thing to do in retrospect, with a young child, another on the way, and an aging dog, and having few contacts in the profession here.  Yet, Winsome, my partner and now wife, didn’t question the plan at all, at least not that I remember, even though her own career up until then was based in Canberra.  

I found advocacy endlessly challenging and stimulating and found pleasure also in trying to craft opinions properly.  I had many opportunities to appear for and against government, arguing what seemed, at least at the time, to be important questions.  It was sometimes hard work, but I always said it was better than having a job.  Being led by leading silks, including the last five, by my count, Commonwealth Solicitors-General, was a great learning experience, and passing on my wisdom, such as it was, to younger lawyers was a source of great satisfaction.  

Among both my leaders and my juniors were people of extraordinary talent, whose brilliance made me look good.  Having extraordinarily talented opponents provided less immediate gratification, of course, but I always learned something from them.  It’s a great pleasure and honour that many familiar faces from the Bar are here today, especially members of my old floor, and also my former clerks, Emma and Di. 

I want to express gratitude also to the many solicitors who briefed me.  Almost universally, they were conscientious, much more organised than me, pleasant to work with and effective at managing the client.  

I argued many cases in this Court and in some of them the Court made the correct decision.  

My first hearing as a Judge in this Court was akin to an out of body experience.  It was in Court 22A, where I appeared many times.  I sat with Justices Thawley and Stewart, both of whom I have known for a while and appeared before.  Counsel on one side was an occasional opponent for my whole time at the Bar.  Counsel on the other side had instructed me as a solicitor and later appeared as my Junior.  It was a migration case.  Everything was completely familiar, except the position from which I was viewing proceedings.  It brought home, in a way that being a Judge in the ACT did not, how my role in life has changed.  

Before I say some thanks and wind up, I hope you will indulge a couple of ruminations about why I became a Barrister and then a Judge, and why I’m here.  

First, although I was not a particularly motivated student at law school, I was captivated on the very first day when we were shown an example of how common law Courts identify, apply and build on the principles that they find in earlier cases.  It must have caught me at an impressionable age, or maybe I haven’t grown up much since then.  I only understood it later, but for most of my adult life, I’ve found that process of development through cases fascinating, and I’ve wanted to be part of it.  That, I think, is the main reason why I went to the Bar and why I did the kind of cases I did.  It also goes a long way to explaining why for some time I have hoped that there would be a judicial role somewhere in my future.  

Second, and this comes to why the Attorney’s offer was one that I couldn’t refuse.  For a long time, my attention has been focused on the evolving legal doctrines that seek to define relationships between the government and the governed, and the limits of public power.  Here, you have officials and statutory authorities backed by the coercive power of the State, armed with the power to do things to people: to change people’s rights, or to refuse to do so.  Identifying and enforcing the limits on those powers is, to my mind, one of the most important aspects of the rule of law.  Bound up in it are questions about relationships between arms of government and the proper role of the Courts themselves in a democracy.  In this Court, more than any other, those issues, which have fascinated me for a long time, arise every day; and the decisions of the Court have national application and significance.  

Now, you probably did not come here on a hot Thursday afternoon to hear constitutional musings from a neophyte Judge.  It is almost time for a drink and a bite to eat.  However, you may have noticed that I did not include my family among the people who earlier I said should deem themselves to be thanked.  The debt that I owe to my family for their endless support, stimulation and inspiration, has continued to grow and needs to be acknowledged again.  My family members are here.  They know who they are and what they mean to me.  I will just mention two specific things.  

One reason why it’s worthwhile to me to have had a second welcome ceremony is that, this time, both of my children are able to be here with their partners; and my granddaughter Mae, who has just celebrated her first birthday, has had her first courtroom experience today. 

When Winsome and I were married, a friend who spoke at our reception observed that Winsome lights a room.  This is true.  Unlike me, she can strike up a conversation with anyone and gets involved in everything.  Her tireless voluntary work was recognised by the aware of a medal of the Order of Australia in this year’s Honours list, which is richly deserved and makes us all very proud.  

I regret, Chief Justice, that we will not get a chance to sit together, other than ceremonially, before you are taken away by section 72 of the Constitution. But I relish the opportunity to serve with the fine judges who remain, and those yet to be appointed, as part of this great national Court.  

ALLSOP CJ:   The Court will now adjourn.  

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