Ceremonial sitting of the Full Court to farewell the Honourable Chief Justice Allsop AC
2.23 PM, Friday, 31 March 2023
THE HONOURABLE JAMES ALLSOP, Chief Justice
THE HONOURABLE JUSTICE KENNY AM
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE LOGAN RFD
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE NICHOLAS
THE HONOURABLE JUSTICE YATES
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE KATZMANN
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE FARRELL
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE PERRY
THE HONOURABLE JUSTICE MARKOVIC
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE BROMWICH
THE HONOURABLE JUSTICE CHARLESWORTH
THE HONOURABLE JUSTICE BURLEY
THE HONOURABLE JUSTICE THOMAS
THE HONOURABLE JUSTICE SARAH DERRINGTON AM
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE COLVIN
THE HONOURABLE JUSTICE THAWLEY
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE STEWART
THE HONOURABLE JUSTICE O'BRYAN
THE HONOURABLE JUSTICE JACKSON
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE HALLEY
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE DOWNES
THE HONOURABLE JUSTICE GOODMAN
THE HONOURABLE JUSTICE O'SULLIVAN
THE HONOURABLE JUSTICE MCELWAINE
THE HONOURABLE JUSTICE FEUTRILL
THE HONOURABLE JUSTICE MEAGHER
THE HONOURABLE JUSTICE MCEVOY
THE HONOURABLE JUSTICE HESPE
THE HONOURABLE JUSTICE RAPER
THE HONOURABLE JUSTICE KENNETT
THE HONOURABLE JUSTICE BUTTON
THE HONOURABLE JUSTICE JACKMAN
ALLSOP CJ: May I call on Uncle Michael West to give all of us a welcome to country.
UNCLE M. WEST: Thank you, Justice Allsop. I was going to say bujari gamarruwa Gadigal Eora. G'day and welcome to Gadigal, Eora land. I have been thinking the last few weeks that I know I would be here and I was thinking the law underpins every aspect of our lives when you think about it, and it is so important, when we consider the last 10 years of not only in Australia here, but the world, how the law has been challenged in many different ways. And over time, when you think about it, the law does change and evolve depending on the society, the way the society is going. This beautiful land that we are on is one of the clans of the 29 clans of the Eora nation. We have – across that beautiful harbour, we have, obviously, Cammeraygal. The suburb of Cammeray is named after the Cammeraygal clan. If you have got in a traditional canoe, which is called a nawi, imagine paddling in that beautiful harbour that we have here in Sydney and then turning left and going inland.
Next door to Gadigal, we would see Wanegal. If we kept padding, we would see Walumedigal. That is where Bennelong rests, that the Land Council looks after. If we keep going, we actually hit Burramattagal, burra meaning eel. And there is a whole creation story of the beautiful harbour and waterways being created by an eel and that eel is now resting just off of Balmain and that is at Me-Mel, also known as Goat Island. Those clans and the other Sydney clans would meet on there, so it is a very important part of the culture of Sydney here, which goes back many, many years.
And being the oldest living continuous culture in the world today, more than 65,000 years, it is an honour to be here today. And, also, in New South Wales, we are lucky to have the oldest human construction in the world today, the Brewarrina Fish Traps, which are more than 40,000 years old. And we did trade amongst ourselves for more than 65,000 years, but we traded up the top end with sea cucumbers, with the Makassans up into Indonesia and into China. And we made this point last year, when we had the 50th anniversary of the diplomatic relations opening between Australia and China, where Gough Whitlam went to China, and the Chinese Ambassador and all the consulates were there and he made this point, which I think pointed out that we have a long history. We have a long history of friendship, trade and sharing culture, which is important, in the current world we live, that we remember these things.
And, also, when you think about it, it has been a couple of difficult of years with the pandemic. We have lost people along the way, and I think it is important we do take a moment's silence but not only pay respects to them. They were not just statistics that we saw every day on television. They were people with their own dreams, their own aspirations, belonged to families, belonged to communities. We need to remember those Australians we have lost. And to live our lives to the fullest, to be good citizens not only in Australia, but good global citizens. And we also need to remember paying respects to our ancestors, paying respects to all Aboriginal and Torres Strait Islander traditional owners, Elders and custodians in the past, present and future for looking after the wonderful country we all live on, we all work on and we all play on.
And it is important that we pay respects to mother nature, because she provides us with everything we have. And also reflect on your journey right here, right now in the continuum. So if we have a moment's silence of paying respect and reflection. Thank you. Water, force from heaven, lands on mother earth. It finds its way through rivers and the ocean. We have the Hawkesbury, Nepean and Georges, which are the aquatic boundaries of the Eora Nation. To any of my Aboriginal and Torres Strait Islander brothers and sisters in here in person, or online, we warmly welcome you from country, clan, tribe, nation you come from. And to all our brothers and sisters, and we all are brothers and sisters. We belong to one mob, one tribe, humanity. We warmly welcome you from your family, your neighbourhood, your community and, ultimately, country you come from. We share a little blue sphere floating through the ever-expanding cosmos. On behalf of Metropolitan Local Aboriginal Land Council Elders and our members, welcome here today. Have a safe journey home to your family and loved ones and community.
And it has been a very interesting 10 years. The law has been tested in many ways when you look around the world. We have had indictments of presidents. Who knows where that is going to go? Then we have war crimes – Mr Putin and war crimes – and we have had freedom of navigation being tested and all these other international incidents of the law that are happening. But the law is so important. It sits behind everything. And we do have a very important part coming up in our conversations about the law, when you think about it, about the constitution, about voice, treaty and truth. And remember that voice will only play one part. It is not – it might not solve everything, but it is just one part of moving forward and being respectful of each other and recognising that we are the oldest living civilisation in the world today. So always was, always will be Aboriginal land. Never ceded. And I hope Justice Allsop has a wonderful retirement and fulfils many dreams that he would like to. Thank you.
ALLSOP CJ: Thank you, Uncle Michael. These are generous and important words. The welcome given to all people here today, my family, my friends, professional colleagues, guests and public, is gratefully received. You welcomed me and those present to my swearing in 10 years and 27 days ago. I have the message stick and it remains with the Court and it will go to the custody of the next Chief Justice who is sitting here with us today, Justice Mortimer. Thank you for returning. I very much appreciate it, and I too, of course, acknowledge the traditional owners of the land on which we gather, the Gadigal People of the Eora Nation, and pay my respects to you as one of their Elders and all Elders past, present and emerging, and to all first nations people here today. Justice Kenny.
KENNY J: Thank you, Chief Justice. Thank you, Uncle Michael West. I would acknowledge your traditional custodianship and that of the Gadigal Peoples of the Eora Nation and pay my respects to you and your Elders past, present and future. It is important, I think, to acknowledge the significance of what is happening this afternoon. We have had a ceremony which represents 65 thousand years of history and, today, we say farewell to a Chief Justice. Chief Justice, Judges of the Court, distinguished guests and all present here today, it is a privilege to speak on behalf of the Judges at this sitting to acknowledge your Honour's contribution as the fourth Chief Justice of this Court.
Chief Justice, through vision and leadership, you have brought about a significant cultural change within the Court. When you returned to the Court as its Chief Justice in 2013, you saw the need for the Court to adopt a more national, less state based, approach. You made the case for the National Court Framework, and the Judges of the Court affirmed that case. Now, your Honour, you have, I'm told, a fondness for Blackadder, and I would like to say your plan was so cunning you could put a tail on it and call it a weasel, but this would be wrong.
Since its inception in 2014, the Framework has never had a tail and has never been called a weasel, at least not to my knowledge. It has, however, served the Court very well, indeed. The Framework did, indeed, broaden judicial horizons. No longer as state focused as before, we became increasingly nationally oriented, especially with the recognition of national practice areas supported by nationally coordinated registrars. Under the Framework, judges, registrars, and staff across the country became more engaged with one another than ever before, and in consequence they became more sensitive to national needs, as befits a national court.
Chief Justice, from the outset, you managed the Court through a period of intense technological change, which contributed to the success of the Framework and also meant the Court was well-placed to continue its work without substantial interruption during the Covid-19 pandemic. This achievement is testament to your vision and intelligent imagination.
Your Honour, you have also cared for our collective inheritance. The library has enjoyed your active support, and your deep appreciation of the Law Court's library in Sydney and its remarkable collection is well known to those who work beside you. We are mindful, too, that you have adopted a consultative approach within the Court in deciding how to address internal issues and those of more public concern. This led to a Court in which its judges are fully invested, and to better decisions. Your Honour also understood the need for collegiality. This is especially important for this Court, spread as it is across the country. Judges' meetings, with their attention to judicial education, have been productive avenues for fostering learning, mutual respect and friendship.
You have also taken your pastoral responsibilities seriously. More than one Judge has reminded me of your clear concern for their welfare and has referred to your instinctive kindness in time of need. Notwithstanding your emphasis on the national character of the Court, and indeed because of it, you have strongly supported our engagement with other Australian courts, especially the Supreme Courts. Further, you have contributed significantly to maintaining the Court's relationships with courts across the world. Through your involvement, the Court currently has active partnerships and programs with 12 Pacific Island countries and several Asian nations.
Your Honour's intellectual leadership is acknowledged within the Court and the broader legal community. You have enhanced the Court's reputation and the capacity of its Judges.
While you have written important judgments in very many different areas of law, your Honour's particular interest in maritime law is unmistakeable. You have delighted in identifying any ship on the maritime list and in the harbour. Justice Rares, who is sorry not to be here today, drew my attention to Comandate Marine v Pan Australia Shipping, where your Honour held that an arbitration clause ought to be read liberally to cover representations in pre-contractual negotiations so as to facilitate a harmonious and workable dispute resolution system between parties operating in a "truly international market". Justices Finn and Finkelstein agreed with this part of your reasons, and your approach avoided parties being hamstrung by competing claims of different national legal orders. Lord Hope's endorsement of this part of your decision in the House of Lords in 2007 indicates the international influence of your Honour's jurisprudence.
Your contribution to public law has been enormous. You have repeatedly reminded us that good governance and lawful decisions require a careful consideration of context. Your reasons in Hands exemplify this. In a frequently-cited passage, you explain that a lawful exercise of executive power under our system of law entails an obligation to confront the human consequences of its exercise, an obligation born out of our shared humanity, which cannot be discharged by recourse to decisional checklists or formulaic expressions.
Chief Justice, I have been reminded of your unfailing support for the Native Title Practice Area. From the outset, you understood the critical importance of the proper exercise of this jurisdiction for the whole nation and the course of the country's history, and have provided the necessary resources to ensure your Judges can fulfil their frequently demanding responsibilities as the law requires.
Chief Justice, your loyalty to the Court and its Judges is well known in this area. You have applied your considerable intellect and innate sense of decency to the administration of the Court. You have also undertaken a full appellate load, sometimes sat at first instance, and even in case management hearings, and delivered many thoughtful speeches. Your dedication and work capacity cannot be gainsaid. Most importantly, you have reminded us of the human dimension of the law, that the administration of justice is neither a mechanical nor a neat and tidy task. It is never easy. It is about people. By word and action, your Honour, you have always reminded us that we should never lose sight of this, and that your Court and its Judges are here for everyone who seeks its aid. Chief Justice, the Judges of the Court, present and retired, thank you for all you have done for their wellbeing, your extraordinary contribution to the Court and the administration of justice in this country. All our very best wishes go with you, Sandy and your family.
ALLSOP CJ: Thank you, Justice Kenny. Mr Attorney.
MR M. DREYFUS KC MP: May it please the court. I would like to begin by acknowledging the Gadigal People of the Eora Nation, the traditional custodians of this land, and pay my respects to their elders past and present. I would like to extend that respect to any Aboriginal and Torres Strait Islander Peoples present today. It is a great privilege to be here today on behalf of the Australian Government and the people of Australia to celebrate your Honour's service as Chief Justice of the Federal Court of Australia. On behalf of the Australian Government, I sincerely thank you for the significant and lasting contributions that your Honour has made of Chief Justice of the Federal Court of Australia.
Your Honour retires after a total of 17 years of dedicated service to the Federal Court of Australia. Today is the culmination of a long and distinguished career on the Bench. You have devoted yourself to the improvement of the justice system, the law and the legal profession, both within Australia and within our region. That so many of your colleagues in the judiciary and the legal profession are here today shows the high regard in which you are held. May I particularly acknowledge Her Excellency, the Honourable Margaret Beazley AC KC, the Government of New South Wales, the Honourable Justice Susan Kiefel AC, Chief Justice of the High Court of Australia, the Honourable Chief Justice Will Alstergren AO, Chief Justice of the Federal Circuit and Family Court of Australia, Chief Justices of the State and Territory Supreme Courts, the Honourable Julie Ward, President of the Court of Appeal, Supreme Court of New South Wales, the Honourable Murray Gleeson AC KC, former Chief Justice of the High Court of Australia, the Honourable Michael Black AC KC, former Chief Justice of the Federal Court, the Honourable Michael Daley, the newly-appointed Attorney-General for New South Wales, the Honourable George Brandis, my former parliamentary colleague and former Attorney-General of the Commonwealth, and the Honourable Mark Speakman, former Attorney-General for New South Wales, and, of course, other current and former members of the judiciary, members of the legal profession, and distinguished guests.
May I also acknowledge the presence of your Honour's family, who proudly share this occasion with you, in particular your partner Sandy, your children William and Julia, your parents John and Philippa, and other members of your family. I feel a certain sense of symmetry about today's occasion. In March 2013, during my first term as Attorney-General, I had the privilege of speaking at your Honour's swearing in as Chief Justice of this Court. It is somewhat bittersweet to be back in this room to farewell you a decade later. Your Honour has been an outstanding Judge and leader of the Court during what has been at times a turbulent period in our history. Your departure will be deeply felt.
Speaking again here today offers me a renewed opportunity to embarrass your Honour by reciting, as is customary, some of your many achievements over a long and distinguished career, and there is a certain symmetry here, too, that you started that career serving as Associate to the late Sir Nigel Bowen AC KBE QC, the first Chief Justice of this Court. Your Honour's promise as a future leader in the profession and on the Bench was evident even then. I'm reliably told that at the completion of your Associateship with Chief Justice Bowen, other Judges of this Court remarked that you yourself one day would become Chief Justice of this Court.
Having said that, your Honour's path into the law as not as traditional as might be expected. While your Honour commenced combined degrees in arts and law at the University of Sydney in 1971, you soon abandoned your legal studies. Surprisingly for a future Chief Justice of this Court, I am told that you had an initial distaste for administrative law in particular. In 1974, having graduated with a Bachelor of Arts, you began your working life as an English and History Teacher. Fortunately for the Australian community, your Honour returned to university in 1977 to complete your Bachelor of Laws, graduating in 1980 with first class honours and the university medal.
After completing your Associateship at this Court, you proceeded to join the Bar in 1981. There, your Honour, honed your expertise and practice in many fields, including tax, trade practices, bankruptcy and insolvency, maritime law, intellectual property and administrative and constitutional law, to name a few. During this period, your Honour also found time to tutor and lecture in equity, real property, bankruptcy and insolvency at the University of Sydney Law School.
Your trusted Clerk from this time told me of one memorable occasion where you accepted a workers' compensation brief. After cross-examination, you queried the deadline for providing your written submission and were told by the presiding Judge, "We don't do written submissions." Nevertheless, your Honour was quite insistent on putting forward your written submission. When the Court was reconvened later that afternoon, I am told the Judge merely stated, "I adopt Mr Allsop's submission." This was no doubt a reflection, albeit an unconventional one, of the effectiveness and persuasiveness and your written advocacy and persuasiveness.
Given that your passion for the written word almost won out over the law in the first place, it is not surprising that your time on the Bench has continued to be defined by your Honour's scholarship and cogent written judgments. Your Honour took silk in 1994. In 2001, your Honour was appointed as a Judge of this Court, where you served for seven years before moving from the Federal Judiciary to take up your appointment as the President of the New South Wales Court of Appeal. In 2013, you returned to this Court, this time as Chief Justice, and, as I remarked at the time, we were very pleased to have you back.
Your Honour has always understood and had a deep appreciation for the role of the Court and the foundational role it has in administering justice, protecting the rule of law and ensuring a just society. Throughout your time at the helm of this Court, your Honour has been a vocal advocate of the human experience of the Court system and how the law is "to a significant degree built on abstractions, but necessarily human in character".
I'm told your Honour recently spoke to the New South Wales Supreme Court at its commencement of law term dinner, where you encouraged your Judicial colleagues to appreciate the significance of the exercise of Judicial power and its capacity to both cause harm and protect the individual and society more generally. Always one to practise what you preach, in your swearing-in as Chief Justice, I recall the undertaking your Honour gave to working with your colleagues "to entrench the reputation of the Court as the national superior Court, characterised by civility, courtesy, innovation and businesslike hard work in the service of the Australian community."
Your Honour has certainly achieved this. The Judiciary and the Court system are all the better for your service. Your Honour's friends and colleagues have told me that throughout your practice at the Bar and during your time on the Bench, you have always generously assisted your colleagues and peers, providing advice, guidance and insights. In turn, I am told that you are also prepared to seek counsel and guidance from others whose opinion you trust, reflect on their advice and, indeed, act upon it. I am also told of your Honour's remarkable ability to lead by example by balancing your core day-to-day Judicial activities with other intellectual pursuits. One friend commenting on your Honour's demanding travel schedule, including visits to build the capability of Judges in Papua New Guinea and further abroad, noted:
He will be flying all around the country and will still find time to finish off the day with a French lesson.
It is also well known that your Honour is an avid reader and extremely well read and in possession of an enviable library in chambers. Indeed, anyone who has had the pleasure of dialling in to a virtual meeting with your Honour over the past few years may have had the opportunity to catch a glimpse of this beautiful library, the quintessential Zoom background for a Chief Justice.
Your Honour, your significant contributions to our nation's justice system began well before you first took up your post as Chief Justice, and it is safe to assume this will extend to life beyond the bench, as well. I am sure that you will also take the time to enjoy your many interests, perhaps some more time studying French and reading for pleasure, and spend time with your family in regional New South Wales. Your Honour has certainly earned the right to enjoy these pursuits, though I have no doubt that you will continue to be active in public life and the many causes dear to you.
Your Honour, it has been a privilege to be here today to celebrate your remarkable career and contributions as Chief Justice of this Court. At the commencement of your appointment in 2013, I shared my expectation that this Court was in safe hands and would flourish under your leadership. I can now say with confidence, and I am sure those here will join me, that your Honour has exceeded those expectations. Your professionalism, your dedication and your commitment to the improvement of the justice system, Judiciary and the legal profession, both within Australia and abroad, are a truly wonderful example for us all.
Your Honour, on behalf of the Australian Government and the Australian people, I thank you for the extraordinary contribution you've made to the Judicial branch of government and I wish you all the very best as you commence this new chapter in your life. May it please the Court.
ALLSOP CJ: Thank you, Mr Attorney. Mr Dunning. Mr Peter Dunning KC, President of the Australian Bar Association.
MR PETER DUNNING KC: Chief Justice Allsop, Justices of the Federal Court, Chief Justices and Justices of other Courts, the Commonwealth Attorney-General and Solicitor-Generals, distinguished guests, it is my pleasure and privilege in equal measure to speak today on behalf of Barristers of Australia to offer our congratulations and best wishes on the retirement of Chief Justice Allsop. Today is an important day in the history of this large national Court which is fundamental not only to the third arm of our Government, but also because of its broad jurisdiction which touches on the lives of many Australians. We gather here today to mark more than two decades of exceptional public service to the Judiciary by Chief Justice Allsop. A decade ago, Chief Justice, at your swearing-in, amongst other things, you said this:
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 servant to 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.
That last sentence is the only topic I will take issue with your Honour on today. Your Honour has been the most courteous of Chief Justices and the Bar is most grateful for the manner in which your Honour has not only dealt with our members but led by example for the Judges of your Court. If not today, in the next couple of days, your Honour will join the pantheon of former Chief Justices of this Court that you spoke so eloquently of on that day.
It is customary on days like today to briefly mention some cases that the retiring Judge has been in, not only to record the Judge's contribution to the law but to give some insight into that judicial career. I will limit myself, very briefly, to just three, but they are only a fraction of your Honour's legacy, a durable metric of your Honour's contribution to the life of this Court and, indeed, the Supreme Court of New South Wales when you were President. Early on, or relatively early on, in your career, your Honour, at first instance, gave judgment in a matter called Walter Rau v Cross Pacific Trading. Your Honour gave a pithy explanation of the obligation of candour on an ex parte application. That erudite exposition has been adopted, without qualification or expansion, by intermediate appellant Courts across this country.
Your Honour's judgment in Caltex Refineries v Stavar in 2009 in the New South Wales Court of Appeal and its distillation of the salient features test in novel negligence case has become the standard instruction for the discernment of duty in such cases. Your Honour's judgment in Hands v the Minister for Immigration and Border Protection merits special mention. It was a decision of the Full Court of this Court in which Justice Markovic and Justice Steward concurred in the reasons that your Honour had offered. Having described the appellant in that case, in your own words, as "far from perfect", your Honour then went on to record the manner in which this gentleman had been dealt with in the assessment of his matter. Having said that the submissions put forward on behalf of the Minister were much too definitional in character, your Honour said this:
That said, nearly 30 years after the Royal Commission into Aboriginal Deaths in Custody, two decades after the Stolen Generations Report … it is surely now part of Australian society's cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour.
Your Honour went on a little later:
If modern Australian society's cultural awareness and appreciation should be taken to be as I have stated, surely that should be at the very foundation of a decision which affects Aboriginal family and community. The appellant's place in that community and the effect on the Aboriginal community of his removal were matters of significant importance. They were not considered or barely considered.
On behalf of the barristers throughout Australia today, I acknowledge the First Nations People of our lands, and it is appropriate that I note your Honour's distinguished contribution in this area of jurisprudence. It stands as an elegant reminder to all of us that we must each do what we can to address that matter. Moreover, the case stands as an icon that fidelity to principle and a just outcome are not incompatible; indeed, the opposite. They are entirely compatible. Your Honour has had a judicial life that has been a life well lived. Your Honour is joined today by many members of your family. They should have justifiable proud in your Honour's extraordinary contribution to the law and the community in Australia.
They should share the accolades that are rightly delivered to your Honour on this day. The sheer number of them speaks, itself, to the warmth of your Honour's personality and the depth of your humanity. Your Honour, as a Judge, was, in equal measure, decent, compassionate, brilliant, humble and incisive. The Bar salutes your service, Chief Justice. Those of us, myself included, who had the privilege, and that it was, to appear before you, were better Judges before it, and that was not just because of the anxiety in the lead-up to pitching ourselves against your Honour's intellect. It was because an appearance before your Honour was this elegant, challenging viva that you came out better for as a barrister if not necessarily successful. Can I also, particularly, note the assistance of your Honour and, indeed, all members of the Court during the COVID pandemic which so significantly affected the lives of our members. We will never forget the effort that your Honour and all of the Judges put in to addressing those difficult circumstances.
Chief Justice Allsop, simply put, you are one of the great Judges the Bar has ever produced, and it is my privilege to congratulate you and thank you for that today. The Bar wishes your Honour and your family many happy years in the next stage of your career. May it please the Court.
ALLSOP CJ: Thank you, Mr Dunning. Dr Higgins as the Senior Vice President of the New South Wales Bar Association.
DR RUTH HIGGINS: May it please the Court. I acknowledge the Gadigal of the Eora Nation, the Traditional Custodians of the land on which we meet. I pay my respects to their Elders, past and present. I extend that respect to First Nations People present today.
Chief Justice Allsop, it is such a privilege to speak on behalf of the New South Wales Bar Association today, to mark your Honour's retirement as Chief Justice of this Court and, more broadly, from a distinguished judicial life. The President, Gabrielle Bashir SC, is in Court today and regrets that she cannot attend. She asked me to convey her sincerest best wishes.
Your Honour's path through the law has been, as we have heard, singularly linear. Despite or, perhaps, because of this, the characteristic movement of your Honour's reasoning on the bench has been to view things in the round in a way that facilitates the coming together of opposites. In this, you have been influenced by the psychiatrist and philosopher Dr Iain McGilchrist. As he observed in The Master and His Emissary:
Our talent for division, for seeing parts, is of staggering importance second only to our capacity to transcend it in order to see the whole. We need the ability to make fine discriminations and to use reason appropriately, but these contributions need to be made in the service of something else.
Vocationally, the "something else" which your Honour has served includes this Court and the New South Wales Court of Appeal. You have presided over and brought unity of purpose to each of those institutions. That is perhaps best captured by the image of your Honour coming into chambers during the COVID lockdown, calmly accompanied by your dog Zac, while leading the Court, unexpectedly but swiftly, into virtual trials conducted across states and time zones, maintaining the administration of justice through a pandemic. The life of the law is relational. It is a man and his dog and his colleagues working in a building with a troubling tendency to flood, but the law's functioning must be formal and effective and uninterrupted. And so it was.
The introduction of concise pleadings was a significant initiative of your Honour's time as Chief Justice. As you observed in ASIC v ANZ Bank Group Limited, the statement and the answer are to be viewed as the combined narrative which encompasses the case. Not in a rigid or overtechnical way, but in a way that, through its narrative, coherently expresses the respective cases as to the conduct that is said to contravene or not contravene the provisions. That initiative was a genuinely original one. It returned the form of pleading in this court to the origins of a bill in equity, while fitting it to modern disputes and avoiding the perils of prolixity and endless particulars. It recognised the call for a coherent narrative in law, and that law ultimately writes itself upon the pages of the lines of people, as your Honour has put it, offering those people finality of resolution in accordance with settled principle.
Intellectually, there is something else which your Honour has served in your judicial and extrajudicial writing is the pursuit of the often ineffable but always necessary human element in law. That is a subject which can seem elusive because we are the subject. As your Honour observed last year in your address "thinking about law, the importance of how we attend and of context", law is not all about taxonomy, systems, rules and definition. It is not all about short answers to simple questions. If it were, we would not have Moses v Macfarland, or an insistence on individualised justice in sentencing, or an insistence on fairness in the exercise of public power, or mercy, or unconscionability at the thematic force of equity, or the countless other manifestations of values in the law.
These kinds of concerns have animated your Honour's contribution to this country's jurisprudence across many fields of law. In a further page from Hands v Minister for Immigration and Border Protection, while discussing the consequences of failing the character test under the Migration Act, and the reach of executive power, you observed genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from – indeed, they reinforce – the recognition in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision making required by parliament.
Your Honour has also found this humanity in perhaps less obvious places. The Court's insurance list is another significant achievement of your time as Chief Justice. In ASIC v TAL Life Limited (No 2), you said this: "The second insurer was not just a contracting party, viewed in a disembodied way, with rights and obligations and law, but a person to whom and to whose financial security the policy was important". Your Honour captured the fact that risk is a pervasive source of human uncertainty and vulnerability, which the law principally allows us to manage through contracts of insurance. So, too, your Honour has observed that bankruptcy is not just about debt collection, but also about how that status changes a person, how it marks and alters a life.
Before your Honour turned to the law, you briefly taught English and history, as we have heard, but, in truth, your Honour never ceased being a teacher. You have, for some time, taught our legal community through living the thing that you wished to teach. You have an exemplary Jurist, Judge and leader. There has been no delusive exactness, but there has been great clarity of purpose. Your Honour has always been profound, if not always audible. Chief Justice Allsop, on behalf of the New South Wales Bar, thank you for your service to the administration of justice. That gratitude is manifest here today. Phil Boulten SC, speaking 10 years ago to welcome you as Chief Justice of this Court, observed that when you were first sworn in as a Judge of the Federal Court, the Court was filled to the gunnels. Today we have spilt over the gunnels and are washing down the AVL links that connect the various rooms of this truly national Court. I hope that Zac is somewhere in the building. I know that your multigenerational family is. We wish you fulfilment, your Honour, in everything you now choose to do. There are so many poems still to read and hungry chickens to feed. Nevertheless, Chief Justice, the New South Wales Bar will miss you. May it please the Court.
ALLSOP CJ: Thank you, Dr Higgins. Mr Murphy, President of the Law Council of Australia.
MR LUKE 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 elders from other communities who may be here today. I acknowledge the Attorney-General, the Honourable Mark Dreyfus KC MP, the Honourable Michael Daley MP, President of the Australian Bar Association, Mr Peter Dunning KC, vice-president of the New South Wales Bar Association, Dr Ruth Higgins, president of the New South Wales Law Society, Ms Cassandra Banks, all judicial officers, dignitaries, family, friends, and most of all, your Honour, Chief Justice Allsop. I am honoured to appear on behalf of the National Legal Profession to congratulate you on an exemplary career.
One of my colleagues, when deliberating over whether to leave a job about which they were particular stressed about leaving their current colleagues and employer, was given some advice that has stuck with them. They were told to think of choosing to leave a job like lifting your hand out of a bucket of water. In the immediate aftermath, the departure leaves ripples, but they quickly disappear, and the water or workplace returns to its former resting state, as if you were never there. My experience tells me that that is a good descriptor that is apt in probably 99 out of 100 cases. There are a few, however, very rare exceptions, and your Honour's departure is one that I will have no doubt will leave a long and lingering impact.
On the bright side, though, you do not just leave a hole in our justice system. You leave behind a legacy for which we will always be grateful. Your Honour's legacy was recognised in the awarding of your appointment as a Companion of the Order of Australia earlier this year. Your Honour's AC was awarded for eminent service to the judiciary and to the law, to organisational and technological reform, to legal education and to insolvency law. As we have, you have led this court for a decade, and this has included a period of time where we have experienced some of the most significant challenges to the traditional operation of our judicial system, and we needed to introduce substantive changes in order to adapt and survive. Under your guidance, the Federal Court not only survived but its response ensured the principles of continued access to justice for all was at the heart of decision making and significant efficiency gains were achieved. A few weeks ago when welcoming a new Justice to this Court, I quoted from a speech that your Honour gave entitled Being a Judge. As you have in many speeches, and in your actions, you reminded us in that speech that the purpose of judicial power, the purpose of the law itself, is or should be to protect people. I will not quote from that speech again today because we do not need words to show all of us present what being a judge means. You have been a shining example each day since your elevation in 2001. Your actions have spoken most loudly. On behalf of the Australian Legal Profession, I thank you most sincerely and deeply for the contributions you have made and wish you well for your retirement. May it please the Court.
ALLSOP CJ: Thank you, Mr Murphy. Ms Banks, President of the Law Society of New South Wales.
MS CASSANDRA BANKS: May it please the court. I would also like to acknowledge the traditional custodians of the land on which we stand today, the Gadigal of the Eora Nation, and I pay my respects to their elders: past, present and emerging. I acknowledge and welcome all Aboriginal people here today.
Your Honour, today I appear on behalf of the Law Society of New South Wales and the solicitors of New South Wales. I am honoured to come before the Court for this farewell sitting in order to thank you, on behalf of the solicitors of this State, for your enduring contribution to the law. As promised, your Honour, I will be brief, but that is certainly not a reflection on your esteemed career.
Your Honour has been a distinguished servant of the law for many years and a Chief Justice of the Federal Court of Australia for just over 10 years. Your humility and humanity have been matched only by your intelligence and ingenuity. In meetings with me and my predecessors over the years, you have demonstrated a deep understanding of the challenges that solicitors face and a keen interest in fixing problems before they arise. Your Honour's understanding that the use of technology in the justice system was something to be embraced has led to a jurisdiction being arguably best in class when it comes to managing large and complex matters spanning different jurisdictions in the most fair and efficient manner. This has been a hallmark of your decade leading the Court.
In 2019 you spoke of the importance of Courts taking a lead role in the responsible implementation of technology in the law and in legal practice, with a specific emphasis on problem-solving and the facilitation of the just resolution of disputes in a quick and inexpensive manner while still maintaining the fundamentally human character of the Courts. It was no accident, then, that the Federal Court led the way in managing the response to the pandemic just one year later, ensuring that the business of the Court was maintained with the least disruption as possible. Since the pandemic restrictions have eased, you have championed the opportunity to learn from the practices that were forced to change and to harness those that can deliver long-term benefits. You noted that this is a challenge about which our system had to be open-minded, honest and thoughtful. In a speech on the impacts of COVID-19 on the justice system last year, you said, and I quote:
Neither the law, nor the Court process is all about abstractions, systems, rules and definitions. At the heart of the law, the courtroom and Court process is the human element shaped by human experience.
For your foresight and leadership on these issues, the Law Society expresses its deep respect and gratitude. You have repeatedly stated the Courts are human institutions, and you have lived this value, showing compassion, understanding and strong desire to see justice done, particularly in relation to vulnerable cohorts caught in the justice system. Your interest in and empathy for Aboriginal and Torres Strait Islander people, in particular, stands out as a sign of your abiding commitment to justice.
You have noted that native title cases provided you with an insight into the complex task of reconciling history and injustice with present day realities, rights and responsibilities; that the resolution and recognition according to law of the long-existing rights of the Indigenous peoples in this country is not only important to them, as litigants, but also for the nation as a whole. It is an extraordinarily difficult national task, involving the need for goodwill, patience and determination. Your Honour has been a model of those admirable traits, and we thank you for your service. On behalf of the Law Society of New South Wales and the solicitors of New South Wales, we wish your Honour a happy retirement and our best wishes to you and your family. May it please the Court.
ALLSOP CJ: Thank you, Ms Banks. Thank you all for coming today. I am humbled by the presence of so many friends and colleagues. I am very touched, and you do the Court great honour. Thank you to the speakers: Uncle Michael West, Ms Banks, Mr Murphy, Dr Higgins, Mr Dunning, and Mr Attorney. I acknowledge at the bar table the new Attorney General of New South Wales, the Honourable Michael Daley; the Solicitor-General for the Commonwealth, Dr Stephen Donoghue KC; my former Attorney, the Honourable George Brandis KC, and Dr David Bennett AC KC, the former Solicitor General of the Commonwealth of Australia.
There is so much and, in a sense, so little to say when you are on your way, but I wish to take this opportunity in this magnificent courtroom that my Chief Justice the Honourable Michael Black created to thank those to whom I owe a debt of gratitude. I also wish to reflect very briefly upon the Court, recognising as I do that time has moved and the next Chief Justice is sitting with me, Justice Mortimer, who has my congratulations of the warmest kind and the congratulations of all the Judges of the Court.
First, not last, is my family. I am blessed by having my mother and my father here today. Words cannot fully express my gratitude to and love for them. They are two quite remarkable people who have loved, supported and cared for Richard, Ann and me and still do. Through their sacrifices, they ensured that we all obtained a first-class education, and they gave us a happy and loving home. Never did they require us to conform to their view of our future. They allowed us, through their wisdom and love, to make our own mistakes and make our own paths. They saw me enter the judiciary in this approximate space in the old Court 21A in 2001, and like Mr Attorney, they are here to see me out.
My son William and daughter Julia are both here. I love you very much. It gives me the greatest pleasure to see you here with Emily and Sophia, and it is also hugely touching to have most of the rest of my family here. My sister Ann, the glue of the family, and her partner, John Cotterill-Dormer, have a beloved Ring Cycle in Bendigo. I cannot compete with the power of Wagner. She will listen to Wagner live and me on recording – a fair exchange. Julie Cotterill-Dormer, John's sister, is here to represent his family.
Richard, my brother, and wife Judy are here with his daughter Katherine and grandson – and they have left, and if someone could go and get them, I would appreciate it very much, if they are outside – Alexander, or Sandy; Richard's son James and fiancée Barbora. Roslyn Wilson, James and Katherine's aunt, is also here as well as Judy's children, Sarah and Alexander Swan; and my dear cousin Susan, my late uncle's daughter, is here. Thank you all for coming. On such a day as this, the importance of family emerges. Here too is Sandy, my partner, whose love and support for the last six years has enriched my life and supported me. I love her very much. Here also are her sons, Byron and Charles – or Charles was, but they had a wedding to go to. Wagner and nuptials are more important. And Byron's wife Rachel is here, and Charles' wife Jasmine was here with him. Thank you all for coming.
There are too many people to acknowledge individually, but a mixture of protocol, affection and duty demands that I make an effort. Your Excellency The Governor, the Honourable Margaret Beazley, formerly a colleague on the Court of Appeal and friend of the Bar, thank you for coming. My fellow Chief Justices, Justices Kiefel, Kourakis, Blow, Grant, Ferguson, Quinlan, Alstergren and Bell, thank you for coming. Justice Gageler and Justice Gleeson and Justice Jagot of the High Court, I am honoured by your presence.
(I now have to read my own writing).
And former Chief Justice of the Family Court, the Honourable John Pascoe; the Honourable Keith Mason, my predecessor as President of the Court of Appeal and long-time friend; former High Court Chief Justice, the Honourable Murray Gleeson; my Chief Justice, as I said, the Honourable Michael Black; former Justices of the High Court, the Honourable Mary Gaudron, the Honourable Michael McHugh, the Honourable William Gummow, and the Honourable Michael Kirby; my former Chief Justice on the Supreme Court, the Honourable James Spigelman; so many other colleagues and friends from the Court of Appeal and the Supreme Court, including President Julie Ward, also a former associate of Sir Nigel, and other judicial officers, friends and colleagues from the bar; former colleagues from the Federal Court and the Supreme Court.
There are friends for life from school days here and many, many others, including Tim and Marj McMullen, who taught me about teaching history to teenagers, lessons that I later deployed in explaining things to attention deficit disordered Judges. Speaking of teaching and school, my former colleague on the Court of Appeal and friend, and with whom I read, the Honourable Roger Giles, is here. He taught me lots – more than lots – about quietly getting one's way in Court. My clerk, Paul Daley, who taught me many things about the operation of the law that are best not discussed in a circumstance such as this. And I am honoured also to have present the Honourable Andrew Rogers. Thank you for coming. You taught me and my generation, through a mixture of fear and flattery, how to run a commercial list and how to behave in one. We did not forget, and your ideas were the foundation of modern case management. And the concise statement to which Dr Higgins referred was nothing new. It was in your practice note in 1983.
I thank the Attorney for his kind words. We worked together in 2013 and have done since last May. May I now, on leaving, thank you for your courtesy and attention to the important conventions of the relationship of the two offices we hold in the two branches of government which we inhabit. I have enjoyed our working relationship. Former Attorney Brandis, thank you for coming and thank you for the very same things: your courtesy and attention to the important conventions of that relationship. I enjoyed working with you very much. And, unfortunately, the Honourable Nicola Roxon, the Attorney-General in office at the time of my appointment, could not be here today, and she asks that apology be especially noted.
In other, shorter sittings in other cities, I have thanked the profession of each state. I do so again in New South Wales. Their independence and quality of advocacy is a hallmark of the administration of justice in this State. The power of executive government, the power of wealth and privilege and the power of popular sentiment and opinion cannot be faced effectively by courts without an independent and learned profession to stock its numbers and to give fearless advocacy. In those other sittings in other cities, I have thanked the Chief Justices and Supreme Courts for their friendship, collegiality and assistance. I do so again today, particularly to Chief Justice Bell and Former Chief Justice, the Honourable James Spigelman and the Honourable Tom Bathurst, who cannot be here today.
Our federal judicature, that is, Commonwealth and State Courts, requires a daily process of mutual respect, friendship, collegiality and a proper rejection of institutional hubris. This is drawn from the essential humility that we must display, that is demanded of us on a daily basis, by the apparent skill and talent of those around us in our own and other Courts. Australia is fortunate to have a judiciary of great quality, which navigates and mediates the not easy path laid by a federal structure by the use of tact, mutual respect, collegiality and friendship. These are not just good professional manners. They embody a demand of the Constitution.
I must also thank my staff who, over the years, have put up with me. My kindness is exaggerated at times. My EAs, Marie Miller, Ann Tarragano, Fiona Piercy and Nicole Sinclair, have given me more assistance than I sometimes deserved. They have been loyal, patient and attentive, for which I am very grateful. May I especially thank Fiona, who has been with me on and off as a either secretary or EA since 1992. My current staff, Amy Lee and Lucy Nason and Vic Ulberg, join a long list of associates, too many to name, many of whom are up there in the last two rows in the dress circle. Without exception, they were remarkable young people whose talents enabled me to appear more learned than I really am.
I have been, and the Court has been, more than fortunate to have had, and to have, two of the finest Principle Registrars and CEOs that a Court could have, Mr Warwick Soden and Sia Lagos. Very different people and styles, but both instrumental in the efficient and innovative working of the Court. Warwick Soden, working with Chief Justice Black, always sought to achieve technological excellence in the Court. His guidance of the ECF, the electronic Court file, that is, the digital record, not paper record, of the Court, to launch in 2013, not long after I arrived, was seminal in the growth and efficiency of the Court since then. He handled Canberra and those in it as would a conductor of the Berlin Philharmonic Orchestra. As well, he administered, when necessary, any one or more of the three types of operation taught to him by his first Chief Justice, the Honourable Murray Gleeson, when he was, that is, when Warwick Soden, was CEO of the Supreme Court. The three operations were, first, the operation one has with an anaesthetic; second, the operation one has without an anaesthetic; and, third, the operation one has when one does not know one is having an operation. If I may respectfully say, I think, then Chief Justice Gleeson may have specialised in both the second and the third of those operations. Certainly, Warwick specialised in the third.
Sia Lagos, Athanasia Lagogiannis, when she came to this country at 12, is a little like Mary Gaudron, a force of nature. She has understood this Court intuitively. She understood the people in it. Without her, the last 10 years of reform, change, that have been, apparently, driven by the Judges but significantly by her, would not have been possible.
The Registry and Registrars that Warwick Soden and Sia Lagos have led deserve praise that time does not permit. The Court could not operate without every cog in the Registry who serve the Judges with diligence and distinction.
To my colleagues, former and present, there are more thanks to give than is possible today. It has been a privilege to be your colleague and, for some of you, your Chief Justice. No one could find a happier Court to work on or to lead, and for those with whom I served in the Court of Appeal who are here today, thank you for your friendship on that wonderful Court. It is important to mention both Courts. The first Chief Justice of this Court, the remarkable Sir Nigel Bowen, had been a member of the Supreme Court as a member of the Court of Appeal and then as Chief Judge in Equity. He had a great affection for that Court. He led this Court to its teenage years with an expressed loadstar for its direction: the development of a national Court of learning, intellectual rigor and civility in collegiate partnership with the great Supreme Courts of the country whose standards he wished to emulate. He said as much on the first sitting of this Court in February 1977 in this approximate place. I venture to say, and I hope, that such has come to pass in no small measure from his legacy of tact, patience, decency and insight, shared and carried on by later Chief Justices of the States and of the Courts in the federal judicature.
So, what is this Court now? It is a truly national – indeed, it is a continental Court – of plenary, federal, civil jurisdiction soon, according to published policy of Federal Governments, to be a federal criminal Court in important, white collar crime. It has grown from a small particular jurisdictionally based court to one of general federal jurisdiction, based on section 76(ii), in section 39B(1A)(c) of the Judiciary Act 1903 (Cth), slipped into a Miscellaneous Provision Act after Gould v Brown and as Wakim loomed.
The Court has come to terms with Wakim. The Court embodies, within one Court, the seamless operation of multiple jurisdictions or multiple Courts without formal division. It is a national commercial Court, based on Commonwealth legislation, within the whole controversy. It is a national intellectual property Court of great distinction. It is a national tax Court of great distinction. It is a national industrial relations and employment Court based on the corporations power, therefore, now covering almost all workers in the country. It is a national administrative and constitutional law Court, supervising all decisions of officers of the Commonwealth. It is a national Admiralty and maritime and shipping Court recognised around the world, and it is national Native Title Court, dealing with one great pillar of reconciliation, the rights of First Nations People to the land they have inhabited for 60,000 years.
The challenges and difficulties of organising and maintaining coherence and consistency in such an interlocking body of jurisdictions are challenging for a Chief Justice, but also for the Judges of the Court. But they are challenges defeated daily by good organisation and the attention to detail of the Judges of the Court. The governance of these internal seamless Courts requires development, but this will come naturally and incrementally as the Court, in its organisation, settles down. The organising coherence of the jurisdiction of this Court is a series of subject matters upon which legislation is passed. They are the legal specialities, or subjects, that the framers of the Constitution and the people of Australia considered appropriate for national legislation and, through the notion of matter, for administration by the judicial power of the Commonwealth by any Federal Court created or by the great Supreme Courts and lower Courts of the States, as invested.
Let me say something that is not intended to be controversial, but emblematic of those things, and why the Court is somewhat different from Supreme Courts. Some refer, at different times, in a wave-like pattern, to the need for a Federal Court of Appeal. In my respectful view, that is problematic. Why? Because the areas of which I speak, the great subject matter areas of the Court, are more than often complex and truly specialised areas – not all, but many, such as intellectual property, tax, admiralty and maritime, Native Title and others – that requires the very best Judges in those areas to hear first instance matters and the same very best Judges in those areas to hear appeals. A well organised Full Court system can bring about the focused experience in those different areas for consistent quality jurisprudence.
To all my colleagues of the last 10 years, thank you. A Chief Justice could not have received more support and guidance than you gave me. Everything – everything – that has been done has been done by you as a group and with the invisible guiding hands of Mr Soden and Ms Lagos.
Finally, to my successor, soon to be Chief Justice Mortimer, my warmest congratulations. You will be a wonderful Chief Justice. I wish you a successful and enjoyable body of years leading a wonderful Court with wonderful colleagues.
The Court will now adjourn.