Ceremonial Sitting of the Full Court Welcome the Honourable Justice Lenehan

MORTIMER CJ:  A warm welcome to you all. We’re on Gadigal country. For many generations before colonisation, the ancestors of the Gadigal People walked these lands, cared for their Country and practised their laws and customs in their languages. I recognise and respect the determination of their present elders and communities to preserve their connection to Country, to their laws, to their customs and to their languages.

We’re honoured this morning to be joined by a large number of distinguished guests, including judges of the High Court of Australia, the New South Wales Supreme Court and the Court of Appeal, Victorian Court of Appeal, the Federal Circuit and Family Court and former justices of this Court. It’s indeed a pleasure to see how packed the courtroom is today. Many members of counsel, solicitors, members of the academy and colleagues from Federal and State Tribunals and Courts. Welcome to you all. Welcome especially to those who might not be in courtrooms as much as some of us, members of Justice Lenehan’s family and his friends. No one achieves a milestone like today by themselves, and today is an opportunity to acknowledge all the support and encouragement which has helped his Honour to reach this point in his outstanding career.

A public welcome also enables those who watch it to understand and reflect on the exceptional qualities and attributes which a new judge will bring to their work as a justice of this Court. By the acknowledgement of their achievements, their expertise and their personal qualities, the profession and the community can be confident that the new judge, today Justice Lenehan, will administer justice according to law with independence, fairness, courage and impartiality. Justice Lenehan, on behalf of the judges, registrars and staff of the Federal Court, our congratulations on your appointment. The Honourable Attorney-General for the Commonwealth, I invite you to address the Court.

THE HON M. ROWLAND MP: May it please the Court. I begin by acknowledging the traditional custodians of the land on which we meet and pay my respects to their elders past and present. I also extend that respect to all Aboriginal and Torres Strait Islander People here today. It is a great privilege to be here to congratulate your Honour on your appointment as a justice of the Federal Court of Australia. You are my first such appointment as Commonwealth Attorney-General and the best such one I could make. On behalf of the Government, I thank you for your Honour’s willingness to serve as a justice of this Court. I extend to you my most sincere best wishes for your calling to the Bench.

Your Honour’s appointment to this Court is another success in what I know has been a diverse and eminent career. That so many of your colleagues in the legal profession are here today is a testament to the high esteem in which you are held. May I particularly acknowledge the Honourable Chief Justice Stephen Gageler AC of the High Court of Australia, Honourable Justices Jacqueline Gleeson, Jayne Jagot, Robert Beech-Jones, also of the High Court of Australia, the Honourable Chief Justice Andrew Bell AC of the Supreme Court of New South Wales and all other current and former members of the judiciary and members of the legal profession. I also acknowledge the presence of your Honour’s family, who proudly share this occasion with you, in particular, your partner, Selena, your daughter, Olive, your parents, Brian and Wallis, and members of your wider family.

Time does not permit a full exposition of your Honour’s achievements and the contributions you have made to the law.  However, it is with great pleasure that I speak to a few qualities that have culminated in your appointment to this Court. Your Honour was born in Lismore and grew up in Armidale, where you lived with your parents, younger brother Bruce and a menagerie of dogs, cats and a bird.  While an enthusiastic soccer player and medium-paced bowler, I am told that your Honour preferred the imaginative worlds offered by books and that you often smuggled a torch to bed to continue reading after lights out. I understand your Honour’s love for books continues today and is especially enriched because of the recommendations of your beautiful Olive.

While your Honour is an avid reader, you did not hold the same passion for maths. I am told that on one occasion you even skipped school to avoid your maths class. The attempt was not successful, perhaps, because your father was a maths teacher at Armidale High, who came home to collect you and make sure you attended.  Your different views on arithmetic notwithstanding, I am told that your parents instilled within you a strong sense of social justice and a concern with ensuring genuine equality.

It is clear to see how this influenced your Honour’s decision to pursue a career in the law. Your Honour graduated from Macquarie University with a Bachelor of Science in 1991, and from the University of New South Wales with a Bachelor of Laws with Honours in 1993. Your Honour then started your legal career as a solicitor at Freehills in 1994.  Despite your gruelling hours at Freehills, I am told that your Honour continued to work the volunteer shift at Redfern Legal Centre on Wednesday nights, which was just as well, because it was at a dinner for volunteers that you met Selena.

After eight years at Freehills, your Honour joined what we now know as the Australian Human Rights Commission, where you worked initially as a Senior Legal Officer and later as a Deputy Director. Your Honour signed the New South Wales Bar Roll in 2006, and was awarded the Con Varnavas Prize for the highest aggregate score in the New South Wales Bar examinations. Your Honour accepted an appointment as Senior Counsel in 2019.  As a barrister, your Honour developed a distinguished public law practice specialising in constitutional, administrative law matters and appellate work.

Your Honour’s expertise was reflected in your position as Honorary Fellow of the Gilbert + Tobin Centre for Public Law and your recognition by the Doyle’s Guide as a leading administrative and public law barrister for five consecutive years from 2021, which is each year since this category was included in the Guide. Your Honour also continued to demonstrate your strong interest and advocacy for human rights during this time, noting your long-standing membership in the Human Rights Committee of the New South Wales Bar Association.

Throughout your career, your Honour has been known for that far too rare blend of extraordinary intellect and deep humility.  Your colleagues speak of these characteristics being accompanied by a kindness and generosity that sees you nurture the talents of others and contribute to the betterment of Australian society, particularly through your extensive pro bono work. Your Honour has been described as someone with an unwavering belief in the primacy of the rule of law and a willingness to take on cases where there is an important principle worth fighting for. Your Honour is an avid cyclist, and can be seen bringing your bike everywhere, even into chambers. While the bike may be the best way to get around, it might also reflect the unreliability of the Lenehan family VW Kombi van, or the quirks of your first car, which I am told was generally started by your schoolmates jump-starting it by pushing it down a hill that led from the Armidale High School car park.

I understand that you now enjoy taking long bike rides with your son, Sebastian. I am told that, to celebrate Sebastian turning 18, your Honour took him on a five-day camping bike ride, which involved reliving all the best aspects of childhood camping. Your Honour also has a passion for music, with a talent for improvising on the piano and guitar. As a teenager, I understand that your Honour was in a number of bands, none of which quite managed to escape the garage. This love of music is now shared with Olive, alongside a fascination with whimsical trinkets, figurines and pots that you search for together at markets.

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 all the exceptional dedication to the law as you have demonstrated. On behalf of the Australian Government and its citizens, I extend to you my sincere congratulations and welcome you to the Federal Court of Australia. You will be an adornment to it. May it please the Court.

MORTIMER CJ: Thank you, Attorney-General. Mr Toomey SC, President of the New South Wales Bar Association, and representing the Australian Bar Association.

MR D. TOOMEY SC: May it please the Court. May I respectfully adopt your Honour the Chief Justice and the Attorney-General’s acknowledgement of the Gadigal People, on whose traditional lands we meet today. The New South Wales and Australian Bar Associations congratulate your Honour on your appointment. Your fellow judges are of course delighted by your presence on the Court, and they and the Bar are confident that you will bring to the Court the same integrity and acumen that have long been your hallmarks in practice. As we have heard, in 1991 your Honour graduated with a Bachelor of Science from Macquarie University.

During those studies, you were recognised through awards such as the Le Fèvre prize for physical chemistry and the final year physical geography prize. In 1994, your Honour was awarded a Bachelor of Laws with Honours from the University of New South Wales, in which you were ranked in the top five per cent in your graduating year. While still studying, you were awarded the Corrs Chambers Westgarth Scholarship in Law. Your Honour was admitted as a solicitor in 1994 and called to the Bar in 2006. As we have also heard, before you even stepped into chambers, you had already distinguished yourself by being awarded the prize for the highest aggregate score in the Bar exam.

Throughout your career, you have been an active contributor in the areas of human rights law and public law more generally.  Before your Honour was called to the Bar, you worked as a solicitor at Freehills and as a Senior Legal Officer and Deputy Director of Legal Services at the Human Rights and Equal Opportunity Commission, now of course the Australian Human Rights Commission.  During your time at the Commission, commencing in 2001, your Honour was involved in the exercise of many of the Commission’s various functions. These included intervening and appearing as amicus curiae in proceedings involving human rights and discrimination issues. In this role, your Honour had the carriage of several significant cases in the High Court and the Full Federal Court. That saw your Honour actively involved in the drafting of written submissions and the preparation of oral argument, equipping you well for your transition to the Bar.

At the Bar, your Honour specialised in public law, specifically constitutional and administrative law, and appellate work.  Your experience in these areas was recognised by colleagues and was objectively undeniable. Your time at the Bar, however, as for most, began in somewhat less glamorous surroundings than those in which you ultimately found yourself.  You commenced in the photocopy room at Fifth Floor St James’. As your Honour will recall, the photocopy room was a small hideaway which contained the printer, photocopier and a small desk for the reader. Your colleagues recall that for a while that space also contained your cycling gear, which you would hang around the room to air. This continued until you were gently told that others may not appreciate having to navigate their way around your lycra shorts in the height of a humid summer to collect their printing.

In 2019, your Honour’s contributions and recognised expertise, particularly in the field of public law, saw your appointment as Senior Counsel. In your time at the Bar, you have appeared in over 50 appeals or original jurisdiction matters in the High Court. As an advocate, your Honour was known for being calm, well-prepared and considered.  These attributes will undoubtedly serve you and those who appear before you well in your role as judge. A former colleague described you as simply a very nice man, with the only vice to speak of being your caffeine dependency. Your Honour recounts a time during an interstate hearing where you might be said to have overindulged. You had ordered such a quantity and array of coffee to your sole occupancy hotel room, including long blacks, cappuccinos and piccolos, that the room attendant eventually queried whether you were harbouring a second guest.

Throughout your Honour’s career, you have made many pro bono contributions. As a solicitor, as we have heard, you volunteered at the Redfern Legal Centre, for which you were awarded the Pro Bono Community Legal Centres Award in 1998. As a member of the Bar, you served on the New South Wales Bar Association’s Human Rights Committee and as the Chair of the Australian Bar Association’s Ethics Committee.  Your Honour has also been a Fellow of the Gilbert + Tobin Centre of Public Law at the University of New South Wales and has contributed to the profession’s discourse on public law through your involvement in several legal publications and seminars. Your Honour will bring your many qualities to the Bench, not least of those are that you are consistently well prepared, unfailingly polite and exceptionally well versed in the technicalities of the law.  The New South Wales and Australian Bar Associations welcome your Honour’s appointment. May it please the Court.

MORTIMER CJ: Thank you, Mr Toomey. Ms Dawson, Senior Vice President of the Law Society of New South Wales and representing the Law Council of Australia.

MS J. DAWSON: May it please the Court. I too acknowledge the Gadigal of the Eora Nation, the traditional owners of the land on which this Court stands, and pay my respects to their elders past and present.  I acknowledge and extend my respects to all Aboriginal and Torres Strait Islander Peoples who are with us today.  It is my privilege, in the presence of your friends, colleagues and family, to offer congratulations on this momentous occasion. I am privileged to do so both on behalf of the solicitors of New South Wales and the Law Society of New South Wales, and on behalf of the whole legal profession and the Law Council of Australia.

The bench of the Federal Court is strengthened considerably by your Honour’s warmth and breadth of legal knowledge. Those who spoke to the Law Society recalled a barrister who was sharp, kind and truly a pleasure to work with. The clerk at Fifth Floor St James’ Hall referred to your Honour as “our hippie”. That’s in quotes. Whether this is more to do with your Honour’s long-held interest in human rights or your Honour’s enviable ponytail, our informant did not make clear. What she did make clear, however, was that your Honour will be greatly missed by the chambers where you made your home.

But long before that, as we have heard, your Honour worked as a solicitor at Freehills in commercial litigation. While the firm had not yet introduced a senior associate system, the Law Society is reliably led to believe that the partners considered your Honour to have been at the senior level. While at Freehills, your Honour also instructed in a Federal Court matter which lasted for three years. Good preparation, possibly, for some of the shorter matters ahead.

Your Honour left the law briefly to look after your two children. Your Honour told the Law Society that this was the best thing you have ever done.  Your Honour holds your family dear, and today, I am sure they are enormously proud of your elevation to this Bench. Abundantly clear from the Law Society’s research is that across all levels of the profession, your Honour is held in high esteem for your warmth, your guidance, your strong held values and your depth of legal knowledge. One of the Law Society’s informants said your Honour was, and I quote:

The kindest silk at the Bar.

To those silks present this morning, that title is now up for grabs. The Law Society has heard from more than a few sources that your Honour is known and indeed loved for your softly spoken nature. To quote one source, your Honour was loved by clients for what was called “a lack of bombast”. Your Honour never felt the need to talk over others, although when it came your turn, your Honour was frequently proved correct.

One former colleague described meeting your Honour while he was a young solicitor at the beginning of his career. You were the first barrister he met, and you were, and I quote, not at all what he expected of a barrister. Your Honour was, we are told, “friendly”. I don’t know what they must teach in law school these days that this came as a surprise. Those who have had the opportunity to learn from your Honour feel indebted to you. A junior barrister who read for your Honour described you as very, very, very – and there were three verys – good at his work. But your Honour’s work ethic is particularly well regarded. This barrister told the Law Society that your Honour is, and I quote:

A crammer. He would be crazily preparing for court until the early hours of the morning.

Your Honour would then rely on surely and apparently a notable unhealthy volume of coffee when the sun came up. But your junior would never have been able to tell if she hadn’t seen it for herself, since your Honour remained unfailingly calm. The act of cramming is unfairly associated with the under-prepared, but in this instance, I believe it should be seen as fastidious care. Your Honour is known to always be exceedingly well-prepared, and your dedication has made you one of Australia’s most accomplished silks in constitutional and administrative law. And within the Court, your Honour is trusted, thanks to your straightforward style and, as we have heard, your thorough familiarity with the matters at hand, as well as your extensive pro bono work.

As we have heard, there is no shortage of significant cases in your Honour’s illustrious career at the Bar. I would like to mention Vanderstock v Victoria of 2024, which was heard in the High Court. Your Honour acted for the plaintiffs and successfully argued that the Zero and Low Emission Vehicle Distance-Based Charge Act 2021 was invalid because it conflicted with the Federal Parliament’s exclusive power to impose excises, as established in section 90 of the Constitution. It was the first time in the 21st century that the need arose for the High Court to examine section 90, and your Honour’s work helped ensure people were not unduly but accurately taxed when purchasing low-emission vehicles. Also to your Honour’s credit is a robust legal bibliography, including constitutional law and administrative law. And you have addressed conferences on constitutional and human rights law. I would like to sincerely thank your Honour for your contributions in guiding the profession around these matters.