Ceremonial Sitting of the Full Court
For the swearing in and welcome of the Honourable Chief Justice Allsop AO
Transcript of proceedings
THE HONOURABLE CHIEF JUSTICE ALLSOP AO
THE HONOURABLE JUSTICE MARSHALL
THE HONOURABLE JUSTICE MANSFIELD
THE HONOURABLE JUSTICE EMMETT
THE HONOURABLE JUSTICE DOWSETT AM
THE HONOURABLE JUSTICE JACOBSON
THE HONOURABLE JUSTICE BENNETT AO
THE HONOURABLE JUSTICE EDMONDS
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE COWDROY OAM
THE HONOURABLE JUSTICE TRACEY RFD
THE HONOURABLE JUSTICE BUCHANAN
THE HONOURABLE JUSTICE GORDON
THE HONOURABLE JUSTICE MCKERRACHER
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE JAGOT
THE HONOURABLE JUSTICE FOSTER
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE ROBERTSON
THE HONOURABLE JUSTICE GRIFFITHS
THE HONOURABLE JUSTICE KERR
THE HONOURABLE JUSTICE FARRELL
9.35 AM, MONDAY, 4 MARCH 2013
MR M. WEST: Your Honours, brothers and sisters, this beautiful land here today is the land of the Gadigal people of the Eora nation; one of the 29 of the Eora nation. When you look out there, the other clans are across the harbour. Cammeraygal, where the suburbs, Cammeray, has taken their name from. We have Wallumedegal when we go out on the harbour and turn left towards Parramatta. That is on the right. On the left side, we have Wangal. Keep going, we hit Burramattagal, Burra meaning "eel", where the eel people are, now known as Parramatta. Also Garigal, on the other side, on the northern side, and Terramerragal, out where Gordon Terrey Hills is. It's a privilege and honour to be here today.
I have also brought a message stick to give to his Honour to take with him on his journey on the Federal Court. It's – the message on this – traditionally a message stick would be a prompt, a consistent message to take to the different tribes or clans. This one has that we – the undulating lines represent a journey and a path that all of us are on. The concentric circles, they represent places that we stay, we live and we visit. Right here would be a place on that, of course. Each person would have their own interpretation of this. This was produced by myself and Graham Toomey, director of Boomalli Arts. The dots – they represent time. And it – the message is that we do belong to one tribe of humanity. And it also talks about justice and the scales of justice; about honour, truth. They're more than words, what's on here.
We also have about law – l-o-r-e, lore, l-a-w – about some Aboriginal peoples' interaction; about terra nullius; about truth; constitution; peers, how important it is to the legal fraternity; 1967; 1901, federation; Mabo; respect; 1788; sunset and ..... , and today, this date is on there. We would like to present this in the spirit of reconciliation. And it's about education, is what Metropolitan Local Aboriginal Land Council thinks – reconciliation. It's about Australia, looking in the mirror, being honest; both seeing the good and the bad of our history, but being honest if we are to have reconciliation. I would also like to acknowledge on behalf of all of us, not only Gadigal, your Honour, but all Aboriginal and Torres Strait Islander and traditional owners, Elders and custodians of the past, present and the future. I would like to pay respects to all our ancestors, too, who have gone before us, as we are the sum of those who have gone before us.
On behalf of Metropolitan Local Aboriginal Land Council, I would like to welcome all our Aboriginal and Torres Strait Islander brothers and sisters, and from the land, clan, tribe and nation you have come from; to all our brothers and sisters. As we say here, our brothers and sisters are the tribe of humanity. We would like to welcome you from the land, the family, the neighbourhood, the community you come from, to this ancestral land of the Gadigal people –
Aboriginal land, always was, is and will be Aboriginal land. And it's whether you've journeyed, and, of course, it's you and your bloodlines; across seas, oceans, deserts, planes, rivers, valleys, mountains. Wherever you've come from on this little blue planet that we share called Earth, floating through the ever-expanding cosmos. So I would like to present this to you.
MARSHALL J: Thank you, Mr West. In the spirit of reconciliation, we accept the message stick and we will display it appropriately in the Court. Thank you.
ALLSOP CJ: Justice Marshall, I have the honour to announce that I have received a commission from Her Excellency, the Governor-General, appointing me Chief Justice in the Federal Court of Australia. I now present to you my commission.
MARSHALL J: Mr Registrar, please read the commission aloud.
THE REGISTRAR: Commission of Appointment of the Chief Justice of the Federal Court of Australia:
I, Quentin Bryce, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution, and subsection 6(1) of the Federal Court of Australia Act 1976, appoint the Honourable James Leslie Bain Allsop, president of the Court of Appeal of New South Wales, to be the Chief Justice of the Federal Court of Australia beginning on 1 March 2013 until he obtains the age of 70 years. Signed and sealed with the Great Seal of Australia on 20 November 2012, Quentin Bryce, Governor-General, by her Excellency's command, Nicola Roxon, Attorney-General.
MARSHALL J: Thank you, Mr Registrar. Chief Justice, I now invite you to take the oath of office.
ALLSOP CJ: I, James Leslie Bain Allsop, do swear that I will bear a true allegiance to Her Majesty, Queen Elizabeth the Second, her heirs and successors according to law, that I will well and truly serve her in the office of Chief Justice of the Federal 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.
MARSHALL J: Chief Justice, please subscribe to the form of oath that you have taken. Mr Registrar, please take the commission and the subscribed oath and place them in the records of the Court. Chief Justice, on my own behalf and on behalf of all the judges of the Federal Court of Australia, I very warmly welcome you as the fourth Chief Justice of this great Court.
ALLSOP CJ: Thank you, Justice Marshall. Mr Attorney.
MR M. DREYFUS QC MP: 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, past and present. It is a privilege for me, on behalf of the Australian Government, to welcome your Honour as fourth Chief Justice of the Federal Court of Australia. On this special occasion I would also like to convey to your Honour the warmest congratulations and best wishes of the people of Australia. I wish to acknowledge the presence today of her Excellency, Professor Marie Bashir, Governor of New South Wales; the Honourable Greg Smith, New South Wales Attorney-General; Senator, the Honourable George Brandis, Shadow Attorney-General; the Honourable Robert McClelland, former Commonwealth Attorney-General; John Hatzistergos, former New South Wales Attorney-General; Mr Justin Gleeson, Commonwealth Solicitor General.
And may I also acknowledge the presence here today of current and former justices of the High Court of Australia, current and former judges of the Federal Court of Australia, judges of the Family Court of Australia, former and current judges of the Supreme Court of New South Wales, judges of the Federal Magistrates Court, and judges of the Land and Environmental Court of New South Wales, and distinguished guests. I understand, your Honour, that many of your family and friends, including your wife, Catherine, your daughter, Julia, and your son, William, are also here today to share this special occasion with you. The announcement of your Honour's appointment by my predecessor, the Honourable Nicola Roxon, was lauded by the legal profession, the media and the public.
Your Honour's friends and colleagues have expressed their absolute delight on learning of your appointment. Although naturally disappointed at losing such an outstanding judge and president, your colleagues on the New South Wales Court of Appeal find some solace in the recognition of you. We have built in Australia a society where merit is recognised and rewarded in all fields of endeavour. In appointments to the Federal Judiciary, this principle of merit above all else was cemented by reforms brought forward by this Government and by Robert McClelland, in particular, in 2008, to help identify and encourage our country's best and brightest lawyers. It is such recognition and resulting appointments like this one that contribute to the Australian tradition of a strong, independent and diverse judiciary.
Your Honour did not have a traditional start to a distinguished legal career. It began in 1974 when your Honour graduated with a Bachelor of Arts from the University of Sydney and began your working life as a teacher of English and history. After three years in the classroom, your Honour returned to the University of Sydney to study law. In 1980, you graduated with a Bachelor of Laws with First Class Honours, wining the prestigious university medal in law. You served as an articled clerk at the Sydney firm of Freehill, Hollingdale & Page, now Herbert Smith Freehills. Fortunately for the Australian legal profession, your love of the English language and history never left you – something that is evident in your Honour's scholarship, your writings, your assistance to the next generation of lawyers entering the profession and your appreciation of the history and tradition of the legal profession.
In 1981, your Honour was admitted as a barrister to the Supreme Court of New South Wales and signed the Register of Practitioners of the High Court of Australia. It was about at this time that you worked as an associate to the then Chief Judge of this Court, the Honourable Sir Nigel Bowen. During your career of 20 years at the bar your Honour practised in many areas, including tax, trade practices, bankruptcy and insolvency, maritime law, intellectual property and administrative and constitutional law. Between 1981 and 1992 your Honour also found time to tutor and lecture at the University of Sydney Law School. In 1994 your Honour was appointed senior counsel in New South Wales and in 1998 you were appointed Queen's counsel in Western Australia.
I understand your Honour's style as a lawyer and judge was very influenced by the late Peter Hely, a judge of this court from 1998 until his untimely death in 2005. Early in your career two equity judges of the New South Wales Supreme Court, Justices John Kearney and George Needham, also made a lasting impression on your Honour for their humanity and judicial demeanour.
In 2001 your Honour was appointed as a judge of this court. During your seven years on the bench of this court you also served as an additional judge of the Supreme Court of the Australian Capital Territory, Deputy President of the Australian Copyright Tribunal and as the National Admiralty Convening Judge. In 2008 your Honour moved from the federal judicial system to take up your appointment as the President of the Court of Appeal of the New South Wales Supreme Court, so we are very pleased to have you back. I understand that as President of the Court of Appeal your Honour always manifested great kindness and understanding towards your colleagues which, together with the depth of your legal knowledge and the force of your intellect, it made you a first class judge.
I expect this court to flourish under your leadership. Your immediate predecessor, the Honourable Patrick Keane who was farewelled from this court last week and who will tomorrow be welcomed as a justice of the High Court, can rest assured that this court is in safe hands. Your Honour's legal and intellectual skills and capacity for hard work, demonstrated over many years, will undoubtedly assist you as Chief Justice. You have made an important contribution to the development of maritime law, to the promotion of maritime arbitration in Australia and to increased engagement with the international community. Your colleagues agree that the depth of that experienced, coupled with your scholarship and ability to understand and elucidate principle in all areas, makes your Honour an outstanding jurist.
Both your Honour's colleagues on the Federal Court and the New South Wales Court appreciate your Honour's commitment to nurturing others, something that has been particularly evident in your commitment to legal education. It has been said that at the Bar your Honour wanted everyone to be the best barrister and that on the bench every judge to be the best possible judge. I take from that that you can take a man out of teaching, but not teaching out of a man.
Earlier this year your Honour was made an Officer in the Order of Australia in recognition of your distinguished service to the judiciary and the law through reforms to equity and access and through your contributions to the administration of maritime law and legal education. Known for your brilliant intellect and scholarly approach, I understand that your Honour reads extensively in the areas about which you are passionate: legal theory, American jurisprudence, ancient history and maritime law. I am told that you have a terrific library in chambers and I hope to find time to look over it one day.
As well as being extremely well read, your Honour is also extraordinarily well travelled. I believe that you were recently travelling in the Middle East and that you are particularly fond of India. Your official visit to China around two years ago fuelled your interest in Chinese culture and I understand that your Honour has brought back many relics from your travels which compete for space with the books in your chambers.
Your Honour's passion for the law, for legal method and for judicial method will serve this court well. You have a keen understanding of the role of the court and how this plays out in the life of the nation, particularly in maintaining a vibrant commercial life. Your Honour's many admirers speak glowingly not only of your immense legal ability but of your vision for the way courts should operate to fulfil their role as an arm of government and in their provision of an efficient and accessible judicial system to litigants. Your Honour has a genuine passion and love for the law and a real vision of the administration of justice. I look forward to seeing how that vision will flourish in your Honour's leadership of this court. Your Honour, on behalf of the Commonwealth of Australia, I congratulate you on your appointment and welcome you on your return to the bench of the Federal Court of Australia. May it please the court.
ALLSOP CJ: Mr Catanzariti.
MR J. CATANZARITI: May it please the court. I too acknowledge the traditional custodians of the land on which we meet and pay my respect to their Elders, both past and present.
It is a great honour to speak on behalf of the Law Council of Australia and its constituent bodies. The Law Council represents 60,000 lawyers through its constituent bodies which include very State and Territory Bar and Law Society and the large law firm group.
Chief Justice of the Federal Court is one of the great public offices of this country. It has been filled by three lawyers of exceptional quality who had the respect of all levels of the profession. Your Honour has already proven to be such a person over four decades in the law, as a student, teacher, solicitor, barrister and judge. We have heard the Attorney recount the path you have taken to this day and how pleased he is that you could be enticed back to the Federal Court. I will not go over that ground today, other than to note that your professional and personal qualities should fill all with confidence.
Many of those here today would have also attended your farewell from the New South Wales Court of Appeal 10 days ago. The affection and esteem with which you were held was evidence, even if your Honour was revealed as the prowler of Queens Square. This referred to your tendency to wander the corridors hoping to steal a moment with unsuspecting appellate judges. Chief Justice Bathurst, in fact, was paying tribute to the care you showed for your fellow judges in the Court of Appeal. You headed a most collegiate court which sometimes made its judges forget the horrendous workload. Federal Court judges are now on notice as to this tactic.
The New South Wales Chief Justice also recounted the breadth and quality of your judicial work on the Court of Appeal. He thankfully gave us some room to move by leaving your already remarkable contribution to the Federal Court of another day. It started with your role as associate to the first Chief Justice of the Federal Court, Sir Nigel Bowen, in 1980 and 1981. The associate to Justice Philip Evatt at the time was a future Attorney-General, Rob McClelland, who is here today. "He was the senior judge's associates," said Mr McClelland, "but when we worked together he would provide guidance or advice without doing it in a pretentious manner. He always had a nice style about him."
The court welcomed you back in 2001 and it was not long before you were marked as a future leader. One of your first judgments was in Branir v Owston Nominees. It concerned a contract dispute around a wildlife sanctuary on Tipperary Station in the Northern Territory, but the key legal issue was the role of an appellate court. Over 500 paragraphs your Honour restated the principles relating to intervention by appellate courts and the extent to which they should defer to trial courts. It has been cited on an extraordinary number of occasions and at times been honoured in the breach by the High Court.
Your Honour's work on migration matters underlined your ability to combine humanity with fidelity to the law. In Su v Minister for Immigration and Multicultural and Indigenous Affairs, you were part of a bench which forced a rethink on the operation of section 424A of the Commonwealth Migration Act and role of the Refugee Review Tribunal. In Aden your Honour considered the appeal on a Turkish man who had come to Australia when he was six months old who had his visa cancelled when he was 25, after repeat convictions for theft. You expressed great sympathy for him and noted that in every respect, except citizenship, he is an Australian, but you did not find in his favour.
This year in Karim, which addressed the mandatory detention of people smugglers, you dismissed the appeals against sentence, but noted that a stay in prison has been determined out of public view for reasons of administrative or political choice and not law. It is a judgment that shows you never lost sight of the human dimension to your work. Indeed, in 2010 you said that you found dealing with the profoundly felt fears and hopes of struggling, decent people both rewarding and important, however hopeless their cases may sometimes have been. In fact, you have explained that your fascination with administrative law comes down to the fact it is about the control of power and how people should be treated in the exercise of power in a just and decent civil society. It showed not only respect for the rule of law but its limits.
The Regional Outreach Program was also one of your pet projects. However, nothing could exceed your enthusiasm for maritime law. You would conduct six-hour workshops on the subject and resist any attempt to edit the television recording. You had even been given the nickname of the "Admiral". This was despite your Honour never having owned a boat or expressed any interest in sailing. Your return to this court means you can again take the tiller on such cases. It's just as well, because some withdrawal symptoms were starting to emerge. In a recent slip and fall, involving a ship in Newcastle Harbour, your Honour threatened to make it a maritime case that would apply Federal Court Rules. Your Honour is, in fact, one of the world's leading authorities on maritime law. You have written widely on the subject and delivered lectures in prestigious forums – in the Unites States, England and Sweden.
Part of the fascination can perhaps be explained by your internationalist look on the outlook of law. Indeed, the relations you have established with other nations will also stand the court in good stead. You have devoted your holidays to sitting on cases in other nations, in the Asia Pacific, and play the lead role in developing links with the judiciary in China. You've also provided practical guidance to the profession in a series of talks on the conduct of litigation. They started when you were with the Federal Court. Each year the court, in conjunction with the Law Council, conducts workshops with 60 to 80 legal practitioners. Your Honour's talk on case management one year drew enthusiastic praise for the way you worked the room and made it more a discussion than a lecture. You continued the practice at the Court of Appeal.
You outlined exactly what was expected of litigants. But all are left in no doubt that your usual, quiet voice can take on some menace when those expectations are not met. Counsel best take not of the Golden Rule you outlined in 2011, "Dense, turgid and structured written submissions," your Honour said, "turn sweet, gentle and humane appellate judges into bad-tempered and rude enemies." The Law Council believes your Honour will make an enormous contribution of the court and the nation as Chief Justice. You have the depth of legal knowledge and integrity to handle what many regard as the hardest judicial role in the country. Federal Court judges are spread across the country and there is a huge amount of travel involved.
There are special administrative challenges that go with the fact that unlike the Supreme Court, it is a self-governing court. You must also interact with the Commonwealth Government, so there can be some political delicacy about the role. There is also challenge of keeping up with Federal legislation. To help you settle in, the Attorney has kindly supplied an unabridged version of the Tax Act and the latest reprint of the Migration Act. Those should be good at least until the end of next week. In a sense, it is back to the future for the Federal Court. But today is also a day for all those who have shared your journey to this place, most notably, your wife Catherine, and children, William and Julia. All that is left is to wish you well. May it please the court.
ALLSOP CJ: Mr Colbran.
MR M. COLBRAN QC: May it please the court. I acknowledge the traditional owners of this land and pay my respect to their Elders, both past and present. The Honourable Justice Katzmann once said that being sworn-in is rather like sitting through your own funeral, because at no other occasion do people say such flattering things about you. It may be a suitable analogy under some circumstances, but in the context of this, your Honour's third such ceremony, you could be forgiven for feeling an unnerving sense of dÉjÀ-vu, if not someone maudlin. Not that – and analogies have other attendant risks. At first glance, the return of the Prodigal Son might seem appropriate this morning.
But after checking the Gospel of Luke, I was reminded that he had set off for a distant country and there squandered his wealth in wild living. Clearly this would not be an appropriate way to describe the work of the New South Wales Court of Appeal. Determined to avoid repetition, and as merely one of a chorus today, I asked one of your fellow judges what possible tributes could remain to be said, whether in respect of your intellect, your diligence, your knowledge of the law, your contribution to legal education or your achievements on the bench. "There's nothing to add," came the terse reply. My efforts from distant Victoria to discover usable anecdotes ran aground. The inquiries yielded an odd assortment of stories about whispering, about hearing loops, a cardigan and an alleged flaw in your technique at the batting crease. Hardly a rich vein of material. And I suspect it has been thoroughly mined over the years.
As your Honour yourself said a little under five years ago, at my swearing-in as a Federal Court judge, I thought I was making a speech of a kind that I would not have to repeat. But daunting though it may be, it's an enormous privilege to speak this morning on behalf of the Australian Bar Association and to be present at the swearing-in of only the fourth Chief Justice in the history of the Federal Court of Australia. As we have heard, your Honour returns to the court after a successful stint as the eighth president of the New South Wales Court of Appeal and successor to The Honourable Keith Mason AC QC, whom we described as a truly great judge and scholar. By any measure, you were faithful to his legacy. Your Honour strove to make appellate practice and procedure more efficient, most notably in regard to the preparation and drafting of written submissions.
I will leave it to Mr Boulten to elaborate on that subject from the perspective of the local bar. You were restless and energetic in your efforts to shame or cajole Australian lawyers to increase their expertise in international commercial arbitrations. At one point, your Honour couldn't conceal your dismay that a shockingly large proportion of practicing Australian lawyers are ignorant of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. And your Honour has been a leading scholar in the field of ethics in the administration of justice. In particular I wish to mention your address on professionalism and commercialism delivered at the Australian Academy of Law 2009 Symposium Series. It is surely one of the more erudite discussions of the pursuit of commercial gain and the ethic of service to the client and to the public.
In 2008, as your Honour farewelled the Federal Court, you said that you would miss aspects of the work, such as migration and native title. You spoke most eloquently of dealing with the profoundly felt fears and hopes of struggling, decent people, both rewarding and important. I needn't remind your Honour that these two issues in particular have lost none of their relevance during your time away from this court and there is much to be done. It is likely that the Federal Court will soon start hearing applications under the Native Title Act for compensation for the extinguishment of native title rights and interest.
Arriving at a methodology for valuing an essentially spiritual relationship to the land for which there is no market will be an enormous intellectual challenge, but one which your Honour is uniquely well-equipped to solve. Chief Justice Allsop, events have come full circle. You have returned as head of the court in which you served as associate to Sir Nigel Bowen. In the intervening years, your Honour has distinguished yourself both at the bar and the bench. This is a superb appointment, and the former Attorney-General, Nicola Roxon, and the selection panel are to be congratulated for making such a fine decision. On behalf of the Australian Bar Association, I extend to your Honour the warmest congratulations and our best wishes on your return to the court. May it please the court.
ALLSOP CJ: Mr Boulten.
MR P. BOULTEN SC: May it please the court. I am extremely proud and honour to appear on behalf of the New South Wales Bar Association to congratulate your Honour on your appointment as Chief Justice of this honourable court. You are, after all, one of ours. Today's attendance at your third swearing-in attests to the enormous esteem in which your Honour is held by the Bench and the Bar alike, and suggests that yours is an almost more anticipated return than Black Caviar's return to Flemington last month. This is to be expected. During the seven years as a judge of this court, your Honour made an outstanding contribution to the work of the court, particularly the Admiralty jurisdiction.
A little under 12 years ago, the Federal Court Gallery was full to the gunwales with members of Sydney's legal profession, all keen to witness your Honour's first swearing-in as a judge of this court. Then, in 2008, your Honour was appointed as the eighth president of the Court of Appeal. Interest among the profession was no less avid for it being your second swearing-in ceremony. Even so, signs of familiarity emerge. Bar News discarded its normally decorous editorial style and described your appointment as a coup for the Supreme Court of New South Wales. Your Honour's legal roots were here at the New South Wales Bar. After your admission, you quickly acquired a fine reputation as a lawyer and an advocate.
High Court judges sent their associates to do their reading with you. And you were not just an excellent appellate lawyer, you appeared in a number of celebrated, hard-fought trials, including one for a prominent Sydney racing identity. No one was surprised when your Honour was first appointed to this court. Some suggested, though, that your time as president of the Court of Appeal was a deviation. Others compared it to the listening tour, which politicians undertake from time to time. In fact, your presidency was a time of dynamism. You managed commercial appeals, bringing them to their earliest possible resolution.
In the words of one senior counsel at the Commercial Bar, this was a very salutary experience. Your Honour also made important contributions to the work of the Court of Criminal Appeal, where you will be greatly missed. In that context it was clear that you well understood the importance of criminal litigation in the lives of ordinary people. Your interaction with counsel and your judgments demonstrated a remarkable ability to distil and then act upon proper legal principles, but with a rare degree of empathy for the people who were affected by the appeals, both victims and accused persons alike. Mr Catanzariti has already mentioned your recent judgment in Karim, where you ruled against a challenge to the Constitutional validity of mandatory sentences for people smugglers. But in that case, your comments displayed your insight into human nature when you said:
Here, in relation to these offence, an illiterate and indigent deckhand pondering his or her incarceration for five years for a first offence could legitimately conclude that, at a human level, he or she had been treated arbitrarily or grossly disproportionately or cruelly.
But you concluded that:
Once again, existing authority precludes such notions informing reasoning to a relevant legal consequence.
You are a French language scholar. I am told that you have an interest in French idioms. One that seems to suit your Honour is that you mÉnager la chÈvre et le chou; you accommodate the goat and the cabbage. In other words, you treat two apparently irreconcilable parties with respect. Your Honour has never forgotten your skills as a teacher. Many of us have learnt from you in court and your devotion to legal education has continued unabated since your appointment to the bench. The remarkable combination of depth and diversity to your intellectual interests can be gleaned from a quick sampling of the titles of some of your many lectures, for example: The Nature of The Trustee's Right to Indemnity And Its Implications for Equitable Principle; The Malign Influence of Asbestos on English Law; and Inherent Vice in Marine Insurance, a title which excited the interest of the Criminal Bar, albeit briefly.
One should also mention for the benefit of new or interstate practitioners that your Honour pays particularly close attention to matters of practice. Despite your reputation for having an equity whisper, your Honour is nonetheless effective at making your views known. In 2009 you took the unprecedented step of publishing an open letter to the New South Wales Bar regarding the need for practitioners appearing in the Court of Appeal to be familiar with the practice note concerning, amongst other things, the need to file a correct list of authorities. Failure to comply invokes your "no more Mr Nice Guy" persona.
In this year's Australia Day honours you were made an Officer in the general division of the Order of Australia and that was a very well-deserved award. Chief Justice Allsop, you are one of the most outstanding judges in a generation. Your intellectual energy engages everyone around you. You lift the game wherever you contribute. Your family are justifiably proud of you. So too is the New South Wales Bar. Your appointment is a wise one, and all I can do is to congratulate you. The Bar looks forward to the direction that the Federal Court will take with your Honour at the helm. May it please the court.
ALLSOP CJ: Mr Dobson.
MR J. DOBSON: May it please the court. I too acknowledge the traditional custodians of the land on which we meet and may my respects to their Elders, both past and present.
Today is a cause for celebration on several fronts. It not only celebrates the swearing of the fourth Chief Justice of the Federal Court of Australia, but also marks the first ever Sydney-born judge to preside over this court. Furthermore, not only was your Honour the first associate to a judge of this court to become a member of it in 2001, you are now the first to step into the shoes of the same judge. On behalf of the 26,000 solicitors of the State of New South Wales it is an honour and a privilege to congratulate you and to which you well in your new role. I also add my congratulations on your well-deserved Order of Australia for distinguished service to the judiciary and the law.
I know your parents Philippa and John Allsop AM, your siblings Richard and Anne, wife Kate and children William and Julia are extremely proud to be here today and to join in the celebration of your achievements. Perhaps this appointment was sufficient cause for your Honour to repeat a noted dance apparently performed in the Federal Court following the successful settlement of one of your cases. One wonders if you honed your dancing skills under the guidance of your father, whose gait demonstrations to neurology students at the Royal Prince Albert Hospital in the 1970s are fondly remembered.
It is interesting to note, while your Honour and wife Kate embarked on a legal career, neither of your children have presently chosen to follow this path. Kate's father, the late Sir William Forster, was the first Chief Justice of the Supreme Court of the Northern Territory and also one of the first Federal Court judges to serve under Sir Nigel Bowen as Chief Justice.
Throughout your Honour's life you have been fortunate to enjoy a close, supportive family environment, a good education and the benefit of some wonderful mentors. That in no way detracts from your Honour's personal endeavour and distinguished academic record that dates back to the early years at Sydney Grammar School where you later returned to teach history and English. I am advised that you also imparted your love of these subjects to students at my old school Marist Brothers Kogarah. Unfortunately, I didn't benefit from your Honour's enthusiasm and knowledge, having left that school a decade earlier. However, many more young minds have continued to reap the benefits of your Honour's teaching and sage advice.
The only Chief Justice not to have sat in this recently refurbished courtroom is Sir Nigel. Nevertheless, his portrait graces these walls. He is here in spirit. One wonders if, in your new role, your Honour will see fit to reinstate Sir Nigel's legendary visitations to the back of the courtroom of new judges to observe them at their work. What is more certain is that your Honour will uphold the vision of your mentor presiding over a court of excellence, innovation and courtesy, continue to push for reforms that will facilitate access to justice and streamline administration, build on your work with international jurisdiction, to cement Australia's place as a preferred centre for commercial arbitration, dispute resolution and a highly competitive force in the global legal market, actively support and promote the realisation of a truly national legal profession.
As your Honour told the 36th Australian Legal Convention in Perth last year:
Australian must ensure that its law has both clarity and a resonance with international standards and practice … If Australian law is unclear or opaque, it will be less likely that it will act as a reference point for courts of other countries, thereby diminishing the standing of the jurisprudence of this country.
Your Honour, the solicitors of New South Wales commend and welcome your Honour's appointment. We look forward to working again with you in the federal arena. May it please the court.
ALLSOP CJ: Your Excellency, Chief Justices French and Bathurst, former Chief Justices Brennan, Gleeson, Black and Spigelman, Justices Kiefel, Bell, Gageler and Keane, former Justices McHugh and Kirby, Mr Attorney, Mr Attorney Smith, Shadow Attorney Brandis, former Attorney McClelland, Mr West, judges, former judges, colleagues, former colleagues, friends and family, ladies and gentlemen, on behalf of the court I thank you all for coming today. You do the court honour by so doing. And thank you, Mr Attorney, Mr Catanzariti and Mr Colbran, Mr Boulten and Mr Dobson for your kind words.
I should not let Justice White, who is here, think that I told anyone that I was Sir Nigel's first associate. I was his fourth. Justice White was his first.
May I commence by thanking the Governor of New South Wales, her Excellency Professor Marie Bashir, for doing the court the honour of being here. It has been a singular delight of my last four years and nine months to have had the opportunity, as sometime administrator of the State of New South Wales, to see the epitome of vice regal authority in a democratic state work at close quarters.
I am privileged to undertake the office of Chief Justice of the Federal Court of Australia. This is a court of great importance to the nation and I am conscious of the responsibility that I carry in undertaking the duties first fulfilled by one of Australia's greatest modern day servants of the law and the community, Sir Nigel Bowen, and later so remarkably undertaken by Chief Justices Michael Black and Patrick Keane. I will not always be able to exhibit the calm, almost serene, patience of Sir Nigel and his two successors, but their example in that regard will be a constant discipline for me.
At the first ceremonial sitting of the court on 7 February 1977, the setting up of the court was said by the then Attorney-General, Robert Ellicott QC, to represent a distinct stage in the development of the federal judicature and as part of the ongoing process of reform of the judicial system of Australia. The Attorney referred to the comment of Quick and Garran that the judicial department of the Commonwealth was more national, and less distinctively federal, in character, than either the legislature or executive departments. The Attorney expressed the desire that the establishment of the court be seen as a step towards the establishment of one system of courts in Australia.
On the same day, Sir Nigel Bowen presiding, echoed the hopeful one-system of courts on Australia. He also remarked that, as at that day, the court had no history or tradition, but he said it had fine examples, referring to the Supreme Courts of the states and the territories. He hopes that the court would quickly establish itself as a court of high standing in the eyes of the profession and the public. It did, through the quality of its judges and the high standard of judicial work produced in the exercise of jurisdiction. Whether the process of unification in the Australian judicial system comes to pass is a matter for the future. In the meantime, this is an occasion to recognise an important feature of the present judicial system, being the mutual respect and comity of the State, Territory and Federal Courts and judges.
The development of that comity and respect to a stage of shared utilisation of judicial talent may be a step for the future, although it is a step that has already been taken, albeit hesitatingly. The court has grown significantly since 1976 in scope of jurisdiction and numbers of judges and registries. It has seen many changes. But it has also established themes of constancy in the Australian legal and public life. The court remains marked by the personality of Sir Nigel; courteous, business-like, hard-working and, where necessary, commanding so as to exact obedience. Each of these qualities reflected his personality. They also laid the foundations for the development of the court's jurisdiction and authority.
As I recall, litigants and lawyers, especially young ones, rather like to attend upon a courteous and business-like judge. The necessity for courtesy, just and fair process, efficient production of high-quality decisions through hard work remains. These qualities are essential foundations for support and confidence in the institution of a court from the public and from the other arms of Government. The court has developed as a central arbiter on subjects at the head of Australian and international commercial law, taxation, patents, trademarks, copyrights and designs, corporations, personal securities, insurance, trade practices, consumer protection, anti-trust, maritime law and international commercial arbitration, amongst others. Most but not all of these subjects are undertaken concurrently and efficiently by State and Territory courts.
It is vital, however, that these responsibilities of the Federal Court remain recognised by Parliament and the Executive as critical to the commercial life of the nation. The court is at the heart of fostering efficient and fair commerce across Australia, and the protection of consumers therein. This is vital to recognise, and such recognition should be one of the foundations of policy affecting the court. The court remains, as it commenced, the institution overseeing the legality of conduct in Commonwealth industrial relations and the exercise of public power in Commonwealth administrative law. These areas, industrial law and administrative law, are central concerns for the community.
Power is not only to be appreciated, understood and controlled by reference to contentions as to who is entitled to wield it and to what extent, power is also about people, those the subject of its exercise. That is why it is not to be understood by linear or mathematical or strictly logical models only. The court is thus placed at the centre of the review of exercise of public and private power of the people. The work of the court has, in recent years, extended to the vindication of human rights enacted into Australian law. Such laws have both national and international significance. They help mark our and illuminate Australia's position in the community of nations.
The court has developed in the area of administrative law a body of jurisprudence on immigration and refugee law. The court is not infrequently cited by other courts in the English-speaking world on these subjects, as in other areas. The importance of this body of law should be recognised not just for its international character and what it tells other nations of our system of law and justice but also for its profound importance to the litigants who come before the court. Their cases might sometimes seem threadbare, but so, quite often, are their lives and the lives of their families.
The court and its judges have always had the reputation of dealing with these cases with the care and despatch that such litigants deserve. No one should think that these cases are not of fundamental importance. And how the court deals with them reflects the true character and soul of the court, and of its constituent judges. Another area of constancy of theme, now also undertaken together with the Federal Magistrates Court, is the law of bankruptcy. As Sir William Deane said in Kleinwort Benson v Crowl, with his customary insight into human affairs and lucid prose:
In the bankruptcy lists of this country, creditors generally seek the bankruptcy of honest, albeit unbusinesslike or naive, people to whom bankruptcy represents a pronouncement of failure and humiliation attended by the fear of unknown consequences and punishment. The lives of many such people are affected by the efficiency, competence, civility and justness of the work of the Federal Magistrates' Court and the Federal Court of Australia. It is a heavy responsibility.
I did not commence with a recognition of the traditional custodians of this land. I did not do so because I wanted to finish by saying something about the role of the court in the resolution of Indigenous title under the Native Title Act. It is thus at this point that I recognise the custody of this country since ancient times by the first peoples of the nation. The work of the court under the Native Title Act places the court at the head of one aspect of the reconciliation of our history as one nation, Indigenous and non-Indigenous, and of the reconciliation of the conflict and injustice of the past and present. The resolution and recognition according to law of the long-existing rights of the indigenous peoples of this country is not only important to them as litigants but also for the nation as a whole.
It is part – only one part – that must be said of the creation of a new national legacy built on justice and respect within the framework of the laws of Australia and not upon dispossession. I do not suggest that this has been achieved; far from it. But the court has an important role to play in the just application of the laws of the Commonwealth in this ongoing process as part of the attempt by the people of this nation to create and maintain the bonds of a just society. Such a society is one in which the court is looked at by all Australians as their court, where they will receive justice that is conformable with their conceptions. The court's responsibility is therefore a heavy one in that national task.
This brief, and no doubt inadequate encapsulation of the national importance of the work of the court after 36 years of its existence, in such a wide range of subjects, being those that the framers of the Constitution thought were appropriate for national law and authority, shows that the court is not narrow or skinny in its jurisdiction. The efficient dispatch of business over this broad range of matters is important to the development of the life of the nation, and I recognise that responsibility in facing the challenges of leading the court. The court is not an agency of the Government of the day, merely delivering services for a fee. At times, this plainly wrong framework of thinking affects how some see the place and work of the court.
The court is part of the third branch or department of Government, the Judicial branch, constituted by the courts created under Chapter III of the Constitution, standing with the other two branches or departments, Parliament and the Executive. The court is there for all Australians and all those within Australia, the ability to approach the court, it having been created as a Constitutional entitlement. As I said at my ceremony of farewell to the court of Appeal, I left the Supreme Court with a degree of sadness. But I come to this court happy and eager to work with my colleagues to entrench the reputation of the court as the national superior court, characterised by civility, courtesy, innovation and business-like hard work in the service of the Australian community as part of the Judicial branch of Government. Once again, thank you all for coming. I appreciate it very much. The court will now adjourn.