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TRANSCRIPT OF PROCEEDINGS

O/N 127740

FEDERAL COURT OF AUSTRALIA

FAREWELL TO

THE HONOURABLE MICHAEL BLACK AC
CHIEF JUSTICE, FEDERAL COURT OF AUSTRALIA

BENCH:
THE HONOURABLE MICHAEL BLACK AC
THE HONOURABLE JUSTICE SIOPIS
THE HONOURABLE JUSTICE GILMOUR
THE HONOURABLE JUSTICE McKERRACHER
THE HONOURABLE JUSTICE BARKER

GUESTS ON THE BENCH:
THE HONOURABLE WAYNE MARTIN, CHIEF JUSTICE OF WESTERN
AUSTRALIA
THE HONOURABLE JOHN TOOHEY AC QC
THE HONOURABLE MALCOLM LEE QC
THE HONOURABLE ROBERT NICHOLSON AO

PERTH

9.31 AM, FRIDAY, 19 FEBRUARY 2010

BLACK CJ:   Justice Siopis, I understand you wish to make some observations.

SIOPIS J:   I do.  I would be grateful if you would indulge me for a short time to permit me, on behalf of the judges and former judges of this registry, and members and former members of staff of this registry, to acknowledge and thank the Chief Justice for the prodigious contribution which he has made to this Court.

An American writer, Jeffrey Rosen, who has studied the United States Supreme Court, has written:

Throughout the history of the Supreme Court, judicial temperament has helped define the success or failure of individual Justices and the Court as a whole.

If I may say so, with respect, Chief Justice, the success that this Court has enjoyed over the last 19 years is due in no small measure to the fact that during that period there has presided over this Court a Chief Justice with a model judicial temperament.

You respect the dignity of all of your fellow human beings.  You have espoused and practised the virtue of courtesy as one of the hallmarks of this Court.  You have treated litigants, lawyers, colleagues and all members of the Court staff in a manner which reflects these values.  You have delivered judgments on some of the most important matters affecting this nation’s history during the last 19 years, which have been imbued with these values, as well as demonstrating legal acumen and scholarship, wisdom, independence and respect for the rule of law.  And when courage was called for in defence of the principles of judicial independence and the rule of law, you have been courageous.

You have presided over a congenial Court.  Not all courts are congenial.  It is said that at certain times in its history, the High Court could not be described as a congenial Court.  It is reported that Sir Hayden Starke once referred to his colleagues on the Court as “worms”; on another occasion, as “parrots”.  There are no worms or parrots on this Court, or at least we don’t refer to each other in those terms.  I cannot, of course, speak for counsel and litigants who appear in front of us.

That we are a congenial Court is a reflection of your temperament, leadership and your personality, Chief Justice.  You are enthusiastic and optimistic.  You have fostered a collegial approach to decision making.  You have led by a combination of charm, humour, sensitivity, rational argument and commonsense, and without resort to overbearing conduct.

Chief Justice John Roberts regarded John Marshall as a successful Chief Justice of the United States Supreme Court.  He attributed his success to his temperament.  This is what he said of John Marshall:

He was convivial...Nothing about the artificial glad-hander type; it was just his nature to get on with people.  I think that that had to play an important role in his ability to bring the Court together…to really create the notion that we are a Court, not simply an assemblage of individual justices.  It was the force of his personality.

Chief Justice Roberts could have been describing you.

You have always emphasised that this Court is a national Court.  We in Western Australia have been particularly pleased that you have not forgotten us.  You have made it your business to visit this registry regularly on Full Court sittings and on other ceremonial occasions.

You have been a visionary and a leader who is open to change.  I know that you have a fondness for electronic gadgets, and so it is not surprising that you have encouraged the widespread use of information technology throughout the Court.  

You also have a great interest in architecture, and the Court has been particularly fortunate to have you as the Chief Justice at this time of its history.  You have presided over the most ambitious program since Pericles’ Golden Age of Athens.  New courts have been built in Melbourne, Adelaide, Darwin and Hobart, and there are major renovations taking place in Sydney.  Like Pericles, you have taken a personal interest in the design and building of these courts.

Shortly after the opening of the new Melbourne Court, you were interviewed by the ABC about the new Court building.  You disclosed that you had been consulted about the design of the Court building.  You then went on to describe with your usually ebullient enthusiasm the way in which the Court had been designed so that, by the use of mirrors, views of the neighbouring Flagstaff Gardens could be seen from the Number One Court.  The interview was broadcast as part of the program called The Law Report.  At the conclusion of the broadcast of the interview, the presenter, Susanna Lobez, said, “Well, that was Michael Black, Chief Justice of the Federal Court and Building Design Consultant.”  I think you would have been pretty chuffed to have been described in that way.

You have served the Court well in another respect – well, in many other respects, but I am going to mention this one.  You have got on well with all the Attorneys-General with whom you have dealt.  The current Attorney-General has described you as “an exemplary Chief Justice”.  We concur, but we would add a well-respected and well-loved Chief Justice.

We are pleased to be part of what for you is your lap of honour.  You have run a long and gruelling race and you have triumphed with grace and style.  I see you now in my mind’s eye circling the stadium.  You have the victor’s quiet smile of satisfaction on your face and you are striding out well with the septuagenarian vigour which defies the wisdom of the makers of the Constitution.  We wish you and Margaret well in retirement.

BLACK CJ:   Thank you very much, Justice Siopis, for those moving and very generous remarks.  Dr Kendall, do you move?

DR KENDALL:   May it please the Court, thank you.  It is my very great pleasure today to extend the very best wishes and the sincere thanks of the Law Society of Western Australia for all that has been done by a true innovator on the Australian legal landscape, one whose time on the Bench has given us the “rocket docket”, the specialist panel system and, I think it is fair to say, a best practice mentality that is the envy of other courts nationwide and, dare I say, internationally.  Recently, his Honour was asked to detail his greatest professional and personal breakthrough.  His response is worth repeating today.  His Honour stated:

As a sitting judge, you are quite constrained by what you do.  I don’t believe in activist judges, but as a thinker, you have a much bigger canvas in which you can work, and one of my breakthroughs was realising how things could be changed through architecture.  I realised this when I was thinking about the brief for the Federal Court in Melbourne and writing it down.  I did all the original thinking, taking the view that what you do is work out the fundamentals of what you really, really want as a set of basic principles and then you go for it and just push the envelope.  The new Court was built on the philosophy that the building should be egalitarian; the light, views and everything should be shared.  It should be transparent and welcoming.  The notion of an egalitarian building actually works.

Let us focus on some of those key words, “transparent”, “welcoming”, “egalitarian”.  Those words say a great detail about the philosophy of the Chief Justice.

That philosophy, while obviously relevant to his Honour’s widely respected role as the driving force behind the design of the Melbourne and Adelaide Federal Court buildings and, as we have just heard, the refurbishments of the Hobart and Sydney buildings, also, I think it is fair to say, personifies his Honour’s commitment to introducing a service-orientated culture within this Court that has set the Bar for other Australian courts to inspire to, and indeed they do.  It says much about access to justice and how best to treat those who are in search of it.  It is fair to say that because of his Honour’s philosophy in that regard, those of us who practise in this Court are greeted with courtesy and attention to detail and a level of professionalism that makes our tasks as advocates clear, focussed and much less stressful.

Perhaps more importantly, however, this Court’s commitment to efficient administrative structures allows our clients to feel less alienated knowing that they are being served by a Court that has their best interest at heart and that I think everyone here will agree today is no small feat.  Your Honour, we have you to thank for all of that and thank you we do.  Your achievements as the head of this Court will be fondly remembered and forever appreciated; achievements that have been well documented and which will undoubtedly inspire similar reform initiatives throughout the legal system as a whole.  

Your Honour, you have been a leader who inspires the best from your staff and all of us who appear before you and this Court and there can be no doubt amongst those of us here today that your absence from this Court will be felt for a very, very long time.  I trust that whatever direction you choose in retirement, it will bring you the same satisfaction that your time as the head of this Court has brought you.  We thank you for all that you have done and on behalf of the Law Society of Western Australia, I wish you all the very, very best in the years ahead.  May it please the Court. 

BLACK CJ:   Thank you very much, Dr Kendall.  Mr Donaldson? 

MR G. DONALDSON:   May it please the Court.  It is a great privilege for the Bar Association to be represented to address the Court to mark the imminent retirement of your Honour the Chief Justice.  Regrettably, your Honour is not as well known as some other members of this Court to the profession in this State or should I say in this registry of the Court.  Sightings of your Honour in this registry have seen your Honour more often in red than in black.  That being said, your Honour is of course well known in the West.  Your Honour’s early work in the Native Title area which was at one time a large part of the work in this registry, has had a profound impact on the manner in which that important and difficult body of law developed and came to be applied and the history of Western Australia dictated that Native Title law had great prominence in the West.  So your Honour’s work in the Native Title area has been pored over eagerly here.  

Your Honour led this Court in its important work in the immigration and refugee fields.  In this country where boat arrivals are a large part of our post-European settlement history, immigration has ever been the subject of intense community interest.  Matters relating to immigration and refugee law have occupied a great deal of the time of this Court during your Honour’s time as Chief Justice and the community has been fortunate indeed that this Court, led by your Honour, has been steadfast in requiring observance of the rule of law and resolute in the application of the law to matters that could otherwise have degenerated into unreviewable administrative dictate. 

Although none of us in the practising profession are in any real position to know, it is doubtless the case that your Honour’s influence in the administration of this Court has been profound.  Virtually all of this work is done in places beyond the peer of the profession and indeed to everyone except the judges of this Court and although no doubt your Honour would not claim that the smooth running of this most complex of courts is due to your Honour’s single handed efforts, it is obvious that the lion’s share of the credit for what is an astonishingly well-run Court is your Honour’s.  Of course your Honour leaves at a time at which this administrative task is to become greatly more complex and we are all keen to see how this Court is to be administered in the new world of joint Supreme Federal Court Judicial offices and although these new juggling acts will be for another, no doubt it would have been a challenge that your Honour would have met somehow but quietly and unobtrusively. 

It is, if I may say, your Honour, astonishing to recall that your Honour’s predecessor of Chief Justice was Sir Nigel Bowen and that this famous Court has been presided over by two Chief Justices only.  Justice Gummow not so long ago reminded us of the many gifts which Sir Nigel Bowen brought to bear in his work as Chief Justice of this Court.  Principle among them, as recounted by Justice Gummow was that Sir Nigel Bowen had been around.  I’m not quite sure how Sir Nigel Bowen had been around or around what he had been but quite evidently your Honour has been there too.  It is a testament to Sir Nigel Bowen and to your Honour that the many and various calls from the most senior judges in the 1980s with challenges of the most dramatic kind to the role and jurisdiction of this Court are now never heard.  Sir Francis Burt’s famous proposal for the abolition of the Federal Court now seems somewhat dated, even in Western Australia. 

That this is so is largely because of the reputation that this Court has attained.  In this country, outside of New South Wales, we are often times too reticent to acknowledge that many of our public institutions are the envy of the world.  Certain of our courts fit this category, as Justice Heydon reminded us upon his retirement from the New South Wales Court of Appeal.  The New South Wales Court of Appeal is among the finest courts in the common law world.  This is an important truth which, obsessed – as we tend to be – by small failings or difficulties, and faithful as we are to our national characteristic of self deprecation, tends to be forgotten by members of the Court, the profession and the public and three or four or perhaps more of its members would stand out in and adorn any tribunal in the world no matter how illustrious. 

Well, what Justice Heydon said of the New South Wales Court of Appeal can equally be said and no doubt would be said by his Honour of this Court.  The judgments of this Court are keenly read throughout the common law world and in areas of this Court’s exclusive jurisdiction in certain specialised fields of law of international aspect and importance.  Its judgments are read well beyond the common law jurisdictions.  The judgments of this Court are read and absorbed because the work of this Court has been, from its inception, of the highest quality across the full breadth of its wide though regrettably no longer unlimited jurisdiction.  No doubt this Court is among the finest courts of the common law world and although I have no qualification to express an opinion as to whether any judge of this Court would adorn any tribunal in the world, the proposition that there have been at least three or four judges who have served on this Court who would sit comfortably on any Court in the common law world at any time, is one that would not be sensibly doubted. 

Of course it is the case that your Honour would not claim responsibility for the whole of the judicial work of this Court but your Honour has guided this Court for much of its history where much of this work has been done and your Honour has no doubt contributed more than a fair share.  For that the profession and the community of this registry is and shall be grateful.  We wished that we had seen your Honour a little more but alas our chance has passed but the Bar wishes your Honour well in what will doubtless be a busy and vigorous retirement.  May it please the Court.  

BLACK CJ:   Thank you very much, Mr Donaldson, and thank you all, for those very generous remarks.  I appreciate them very much.  

I wish to recognise the presence on the Bench with us of some very distinguished people but before I do so I would like to say how moved I am by the leaders of the Bar of this State being at the Bar table, and by the presence of the others who will become leaders of the Bar. 

The Court is greatly honoured by the presence on the Bench with us and as our guests of the Chief Justice of this State, the Honourable Wayne Martin and three very distinguished former members of the Court, the Honourable John Toohey, the Honourable Malcolm Lee and the Honourable Robert Nicholson.  We are honoured too by the presence in the Court of an old friend, the former Chief Justice of the State, the Honourable David Malcolm.  I am particularly delighted that he has been able to join us.  I am also honoured by the presence of judges of the Supreme Court of Western Australia, the Family Court, the Chief Judge of the District Court and other judicial colleagues, State and Federal, including our resident Federal Magistrate. 

I would like to respond to the kind remarks of the speakers by recognising first of all the excellent work of our staff here in Western Australia, without whom of course, the Court would not function at all.  We have been extremely fortunate by having in our Perth registry excellent and highly valued staff, many of whom have served the Court for more than a decade, some for 20 years and some for even longer.  I want to recognise them even though I cannot mention them all individually. 

Mr Jan, our District Registrar, has served the Commonwealth for nearly 30 years.  He has been the District Registrar here for longer than I have been Chief Justice, and we appreciate his work very much.  Also the work of our Deputy District Registrar, Mrs Stanley, who has been with the Court for over 20 years.  The other Deputy District Registrar, Mr Gilich, has been with the Court for a shorter time, but his service, particularly in the specialised field of admiralty and maritime law, where he is responsible for the registry work for all waters west of Spencer Gulf, has been invaluable.

Others who have served the Court for over a decade, and served it very well, are Brendan Mitchell, Janet Musker, Robert Clements, Elena Zorzut, Fiona Archibald, Eydis St Clare.  Our two Court officers, Mrs Jonker and Mrs Bryant, have each served more than 15 years.  As I have said, I cannot recognise everyone individually, but I know you will agree that it was right to take a few moments to refer to some of them by name.  I also thank our especially talented director of Court services, Mr Pannell, to whom I am particularly grateful for his assistance to me whenever I have visited Perth.  Also there are some outstanding executive assistants in this registry.  They should certainly not be taken for granted; Mrs Bond has been with us for 15 years, and Judy Sulcs has been with us for longer and is now one of the Personal Assistants to the Chief Justice of Australia.  And thank you also to Lee O’Connor.

I thank you all, and a special thank you on behalf of the judges in this registry.  That is one of the pleasant tasks that falls to a Chief Justice, and it gives me great pleasure to do so on the occasion of my final sitting in Perth.  

One of the most noteworthy developments in Australian jurisprudence, and indeed in Australia as a nation that has a view of itself, during my time as Chief Justice has been the recognition by the common law of Australia – that concept itself is quite recent – of native title.  That came with the decision of the High Court of Australia in Mabo No. (2), and the subsequent enactment of the Native Title Act 1993, which conferred jurisdiction in native title matters upon this Court.

It was an entirely new jurisdiction which brought entirely new challenges to the Court, to my colleagues and to the staff and also a significant increase in the Court’s size and its budget.  To exercise that jurisdiction, my colleagues developed procedures especially adapted to the unprecedented requirements for the just resolution of cases in which a determination of native title is sought.  Following and building upon the earlier practices developed by Justice Toohey and others in their work as land rights commissioners under the Land Rights legislation of the Northern Territory the judges of the Federal Court decided to conduct hearings on-country, and in some of the most remote and inaccessible country in the world, certainly in Australia.

Much of the administration for the native title work of this Court is and was carried out in this registry, and I especially recognise the excellent work of our native title coordinator, Ms June Eaton, and the work of her assistant coordinator, recently retired, Ms Merryl Alexander.  I also want to recognise two remarkable people who have looked after many of us in remote and potentially really hazardous conditions.  They are Mr Bob Shepherd, who after distinguished service to Australia in the Armed Forces worked for the Court for some 15 years as our remote hearings coordinator and native title trials logistics manager until his recent retirement.  

I likewise acknowledge the excellent work of Mr Oldland, who like Bob has looked after me and many others in the desert.  And I mean desert – desert desert, West Australian desert, red and dry, and also very beautiful.  He – David – was Mr Shepherd’s assistant for some years before taking up his present position as remote hearings coordinator.  

The business of a Court such as ours is a complex affair, resting these days upon the work of a large team of people, some 350 of them, who support the judges when they exercise the judicial power of the Commonwealth.  The importance of the supporting team is especially evident when native title cases are being heard.  It would have been quite impossible to have done what we have done and to have conducted these cases in extremely remote areas – impossible even to get there – without the assistance and experience of Mr Shepherd and Mr Oldland.  

By way of illustration, and it is one of my favourites, there are cases in which the first item of recorded evidence on the transcript is the reading of the GPS coordinates so that we might identify the place where the hearing is taking place.  These are places that are not on whitefellow’s maps.  I thank all our native title people here and elsewhere for their excellent work.  

The Court has had the great good fortune to have been served in Perth by outstanding judges.  As we all know, Justice Toohey left us to become a justice of the High Court.  He was our first resident judge.  And likewise Justice French left the Court to become Chief Justice of Australia.  But all the judges have served the Court and Australia with great distinction.

The composition of our Court in Perth has changed quite rapidly in recent years, and I am particularly happy that my former colleagues, the Hon Malcolm Lee and the Hon Robert Nicholson, are able to be with us.  Chris and Jenny Carr are on the other side of the continent, but they have been kind enough to write to me, and I thank them for their good wishes.  Although there have been great changes in the Court in Perth, such that all our resident judges have joined the Court within the last five years or thereabouts, we have been exceptionally fortunate that appointments have been of a very high calibre.  And, moreover, the teamwork of the new judges in this registry has been of such a high measure and the work of the Court has not only been efficient, but has also been harmonious.  Indeed, to my mind, there is a great sense of continuity despite the changes, and that is a matter of very great satisfaction to any Chief Justice.  I am grateful to all my colleagues here.  

Mention has been made of architecture.  I want to pay particular tribute to the contribution of the Hon Malcolm Lee QC, especially for his work in the establishment of our permanent home here on Victoria Avenue.  From the time that the Court was founded until February 1993 the Federal Court in Perth had to make do with premises in an office building.  The resident judges of that time – not many of them, two as I recall, yes only two – did the best they could, but the premises were inadequate and inappropriate for the long term home of the Federal Court.  Fortunately, the Commonwealth had a vision for all its courts to be located in purpose-built courthouses, a vision that came under attack during my time, and I might add, in the time of Attorney-General Williams, who repelled it.  Eventually truth and justice prevailed – every member of the Bar will be pleased to know that – the vision was re-established, and the other forces repelled, and what became known as the Commonwealth Law Courts Project continued.  

A courthouse in Hobart was opened as early as 1984, and attention was then directed to Perth and subsequently to Brisbane.  The process, however, was not speedy and at times even the continuation of the Perth project was in doubt.  Fortunately for all of us, the Federal Court had, in Justice Lee, an advocate with a creative mind of unusual breadth – reflected in some of his superb jurisprudence I might add – and a person of great tenacity.  The story is a long one, but eventually, aided greatly by Malcolm’s vision and persistence, the Perth courthouse was completed, and I had the great privilege of being present at the opening – in this very courtroom – on 18 February 1993, exactly 17 years ago yesterday.

I have a note of what was said on that occasion.  As you would expect, it included a tribute to Mr Justice Lee, as we said in those times, and to the Registrar Mr Jan and the staff.  In retrospect, I believe I understated that contribution.  It is a rare chance to say what one ought to have said in the past; l'esprit d'escalier is something you generally do not have the chance to do anything about. 

The reason may be that back in 1993 I had not myself been involved in the lengthy process of design and attempts to get new courthouses and was not fully aware of the difficulties and challenges involved.  Be that as it may, the result has stood the test of time.  I would add that elements of the design here, including the views of Swan Water from this principal Court, the way in which the judges and staff alike share the views on the judicial floor and the encouragement the design gives to the collegiate life of the Court were influential in later buildings, including to a considerable extent, in Sydney.  I have always had good memories of this building, I have to say, including memories of the August pruning of roses on our terrace.  But my most endearing memories will be of our outstanding staff and the privilege of working with judges of the highest calibre who became, each of them, valued friends.

I now want to make brief reference to the role of the Attorney-General.  I am prompted to do so by the presence in Court today of the Honourable Daryl Williams QC, one of five people who have held the Office of Attorney-General for the Commonwealth during my own term.  The Court has been well supported by the Attorneys-General of the Commonwealth for the whole of my time in office.  There are inevitably occasions of tension, sometimes very considerable tension, between the judicial and executive branches of government and that was certainly the case during Mr Williams’ term.  The tensions were not of his making, but they were evident.  The point I wish to make is that even when those tensions were at their most evident (and Mr Williams, in a paper, referred to my “robust defence” of the Court as something that was to be encouraged) the fact of the matter is that never once – never once – did those tensions intrude upon our relationship or upon the supportive role of the Attorney-General of the Commonwealth.

The maintenance of that relationship is essential, given the Attorney’s role as the Minister for State responsible for the provision by the legislative and executive branches of the resources and facilities ultimately necessary for Federal Courts to discharge the duties imposed upon them by the Constitution.  The office of Attorney-General was one of the five great offices of state established on 1 January 1901 when our Commonwealth came into being and it has continued with undiminished importance ever since.  

I would now like to make some observations directed to the members of the Law Society and the Bar Association.  The first sitting was held here, as I have mentioned, exactly 17 years and one day ago.  I made a speech as Chief Justices, and Attorneys-General for that matter, are wont to do on such occasions.  The Bar and the Law Society and the Law Council had offered their good wishes and my response, on behalf of the Court, was to thank them but also to note that the Court had long been served by them, and by their members, in accordance with the highest standards of their profession, both branches of it.  I said that with some experience as a judge, but also because in my federal practice I had come to the West over a period of some 10 years before that time, and I knew the profession here and what I said I really meant.  And I mean it just as much today.  Nothing has changed.  The standards remain and we are very grateful to you for maintaining them and for the excellence of your work.

It must be recognised that both branches of the profession face substantial challenges.  We must all continue to focus upon the twin problems of cost and delay.  These problems must be confronted and brought under better control.  This Court’s reforms in case management include its reaffirmation of the fundamental purposes of case management.  That affirmation was adopted nationally by this Court last year and the Court is committed to those purposes and continues to be so.  They require not just cooperation, but the enthusiastic support of the profession, and that is a continuing challenge.

Another reform which represents a step, a large step, along the road in the use of technology – a journey which the Federal Court has been taking since the Court came into being – is the introduction later this year of mandatory lodging of all documents electronically.  This will offer large benefits and large savings in cost to all practitioners and to the community.  It will be an Australian first and it will work.  The pilot projects, which are extensive, demonstrate that.  Of course, facilities will be made available in the registry for those, mainly litigants in person, who do not have internet access.

Whether it will be desirable for members of the profession to be able to lodge documents from remote areas, from Cottesloe beach for example at six o’clock in the morning (which seems to be a habit here) remains to be seen, but the facility will be available.  Here again, we greatly value the cooperation of the profession.  

A final comment, a comment that I made in Adelaide too:  there is no reason why fundamental reform should be left to Sydney or Melbourne.  A city such as Perth can show the way, as it has in other areas.

Thank you all for your attendance and thank you all for your contributions in so many ways to the work of the Court and to the cause of justice according to law.  

There is one matter of special thanks with which I must conclude and that is my thanks to my spouse, Margaret, whose support and inspiration have been constant and fundamental in all that I have done.  She has been my companion in many journeys.  

Adjourn the Court, please.

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