Ceremonial Sitting of the Full Court to Farewell the Honourable Justice Barker
TRANSCRIPT OF PROCEEDINGS
THE HONOURABLE JAMES
ALLSOP AO, CHIEF JUSTICE
THE HONOURABLE JUSTICE GREENWOOD
THE HONOURABLE JUSTICE BESANKO
THE HONOURABLE JUSTICE MCKERRACHER
THE HONOURABLE JUSTICE REEVES
THE HONOURABLE JUSTICE BARKER
THE HONOURABLE JUSTICE KERR, CHEV LH
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE BANKS-SMITH
GUESTS OF THE BENCH:
THE HONOURABLE ROBERT FRENCH AC
THE HONOURABLE MALCOM LEE QC
THE HONOURABLE ROBERT NICHOLSON AO
THE HON PAUL FINN
THE HON JOHN DOWSETT AM QC
THE HON ANTONY SIOPIS SC
THE HONOURABLE JOHN GILMOUR QC
4.36 PM, WEDNESDAY, 30 JANUARY 2019
ASSOCIATE: The Court’s farewell to the Honourable Justice Barker.
ALLSOP CJ: Welcome to this Ceremonial Sitting of the Court to farewell our friend and colleague, the Honourable Justice Michael Barker. I would first acknowledge the traditional custodians of the land on which we meet, the Whadjuk People of the Noongar Nation, and pay my respects to their Elders, past and present.
The Judges of the Western Australian Registry, with the exception of Justice Colvin, who is indisposed, and I are joined on the Bench today by a number of other Judges of the Court who have come to honour Justice Barker: Justices Greenwood, Besanko, Reeves, Kerr and Mortimer. We also take great pleasure and pride in having with us on the Bench, the Honourable Robert French AC, the Honourable Malcolm Lee QC, the Honourable Robert Nicholson AO, the Honourable Paul Finn, the Honourable John Dowsett AM QC, the Honourable Anthony Siopis SC and the Honourable John Gilmour QC.
Justice Barker, I acknowledge particularly the presence here today of members of your family: your wife, Sharon; children, Ben and Kate, and their families; your mother, Nora; sister, Jennifer; and other members of your large extended family and friends.
I also acknowledge the presence here today of a number of distinguished guests. I will only name a few given the number, if I may be forgiven: Chief Justice Peter Quinlan of the Supreme Court; Chief Judge Gail Sutherland; President Michael Buss and former president, the Honourable Carmel McLure; Chief Judge Kevin Sleight; Chief Magistrate Steven Heath; the Honourable James McGinty, former Attorney General of Western Australia; judges of the Court of Appeal, of the Supreme Court, the Family Court and former judges of those courts.
There are a number of apologies received of people who wish to be here today but were unable to be: the Honourable Malcolm McCusker AC CVO QC, the former Governor of the State; the Honourable Wayne Martin AC QC, the former Chief Justice; Chief Justice Kiefel AC; the Honourable Justice Keane AC; the Honourable Michael Black AC QC; the President of the Administrative Appeals Tribunal, Justice Thomas; previous and current justices of the Federal Court, including the Honourable Dr Chris Carr, the Honourable John Mansfield AM QC, Justice Jayne Jagot, Justice Richard White. There are many other apologies of people who wish to be here.
And I would also acknowledge at the bar table the presence of Mr Peter Macliver, representing the Commonwealth Attorney General; Vance Hughston SC, representing the Australian Bar Association; Stephen Davies SC, the President of the Western Australian Bar Association; Greg McIntyre SC, President of the Law Society of Western Australia; and Joshua Thomson SC, the Solicitor General of Western Australia.
Ceremonial sittings such as this are important events in the life of the Court. They allow us to reflect upon the contributions made by judges of the Court to the Court, to the law, and to Australia. Justice Barker, you have made a great contribution to all three and the size of the gathering of the people here today illustrates this.
I propose, if I may, to focus on your contribution to this Court. You were appointed first to the Supreme Court of Western Australia in August 2002 and, in December 2004, you also became the first President of Western Australian State Administrative Tribunal. Your appointment to these judicial roles after only six years of taking silk and, indeed, your taking silk after a relatively short period as a barrister, is testament to your skill, creativity and eloquence as a scholar, a teacher, a lawyer, barrister and thinker.
These are the qualities that you have brought to this Court when you joined the Western Australian registry in 2009. In the decade that you have sat on this Court, you have made wide-ranging and important contributions. Your judgments always display your breadth of knowledge, your depth of intellect and your experience. They are marked by a command of legal principle and are underpinned by your fundamentally strong and overriding sense of justice, and all this reflects your ability to discern and deal with the real issues in a proceeding expeditiously. Whilst I will concentrate on your contributions to this Court and its jurisprudence, my comments will be, because of the richness and breadth of your contribution, inevitably too brief.
Your judgments of the Court span the work of the Court, from migration to native title, trade practices, industrial law, corporations law, insurance, bankruptcy, insolvency, competition and economic regulation and consumer law. In addition to your judicial writing, you have been a tireless contributor above and beyond the call of duty to the administration of the Court, which has benefited greatly from your dedication and leadership in areas where you have taken responsibility. Such contributions are essential for the Court’s efficient and effective functioning. No one knows this more than a Chief Justice working with you, and I am personally very appreciative of your insight, hard work and experience.
You have been an integral and active member of numerous committees throughout your time on the Court: the Library Committee, the International Development Committee, most prominently the Native Title Committee, and, in recent years, as a coordinating Judge of the Native Title National Practice Area. Your colleagues in the registry and I have always appreciated your calm wisdom, your warm humanity, your dislike of undue formality, and your humour and frankness, often going together. I still remember the day in which I came to the Western Australian registry to discuss the reorganisation of the Court in 2014. You and Justice Gilmour played a crucial part.
As I alluded to earlier, you have sat on some of the most significant litigation that has come to this Court during your tenure. In commercial and industrial spheres, one of the many CFMEU cases with John Holland concerning the application of enterprise agreements in 2015, the CBA Corporate Services case dealing with the ABC Learning Group, Australian Licensed Aircraft Engineers’ Association concerning general protection claims and Quikfund Australia v Prosperity Group concerning questions of agency, consumer law and credit agreements, just to name a few.
But Native Title matters have been a particularly significant component of your work on this Court. It is work that is central to the work and character of this Court and its role for the Australian people and the Australian nation. It involves this Court in recognising, through its powers given to it under statute, title that has been in existence for tens of thousands of years through custom and traditional owners.
You had a great contribution to this as counsel and as Judge you have continued to contribute in this area of the law. You’ve provided invaluable insight as one of the national coordinating judges of that practice area and have presided over a vast number of significant Native Title matters together with countless aspects of case management so important in this area. I cannot hope in the time I have to refer to the many cases of seminal importance in this area for which you’ve been responsible. It is appropriate to begin, however, by saying that you have a deep understanding of the way cultural differences and social circumstance affects evidence and the conduct of cases.
Those factors and those insights are not limited to Native Title, but they are so important in Native Title cases and these insights come from a gift of your humanity and empathy. I will leave to others, in particular, I suspect, Mr Hughston, enough material on Native Title not to repeat anything I say and, as I have said, there are far too many to mention but some should be.
In 2009, not long after arriving, in the Thudgari People’s case, you recognised non-exclusive possession Native Title over almost 11,000 square kilometres of mainly pastoral land.
In the South West Noongar appeal, your decision led to important amendments to the Native Title Act 1993 (Cth).
In the Banjima People’s cases, you wrote a long judgment which is an illustration of your capacity and skill as a judge in a long judgment which is clear, succinct and balancing the need for detail and precision with clarity.
Anyone who has done these cases understands both the richness of them and the important joy they can bring, not only to the litigants but also to the judge in a sense of satisfaction, but they also bring with them in some cases some of the hardest decisions that can be made. Your judgment in the Badimia People’s case, in its careful and dutiful findings, perhaps illustrates this last point better than anything.
You also sat in recent times in the McGlade case, the Yugara People’s case and, if I may finish this inadequate list with one of the most important cases that has been decided in this Court for many, many years, you were one of the judges in the Griffiths case dealing with valuation for compensation for the extinguishment of Native Title. (We still await with interest the views of others on this case.)
You have sat on many significant administrative law decisions since 2009. The list is too long to go through. Your involvement in administrative law matters also extends to migration law. What is to be remarked upon in this respect is that you have always taken great care to record the circumstances of the particular applicants before the Court, reflecting the need to demonstrate that their grievances, even if not capable or fully capable of ultimate legal vindication, can be seen, especially by them, to have been fully recognised and considered by the Court in the exercise of judicial power. A commitment to justice, fairness and the dignity of the individual, so central to any exercise of judicial power, is apparent through your work.
I will end by quoting some words you said on the Rule of Law at your welcome to the Western Australian Supreme Court, words which illuminate the compassion, humanity and sense of responsibility, if may respectfully say, that you brought to your work. You said that:
While sometimes considered an elusive concept, the rule of law is no idle sentiment. Rather, it is a concept that underlies our democratic system of government. The rule of law may be seen as a measure of a society’s commitment to fairness and justice, a society where laws and not individuals govern, a society with an abiding sense of natural law in the sense that certain rights of humans are considered fundamental to the governance of society. They are principles and values I hold dear. As I see it, the courts and the judges who comprise them, of whom I am now one, are the guardians of the rule of law.
Justice Barker, I speak on behalf of the Court and of all your past and present colleagues of this Court and, I am sure, the Supreme Court, when I thank you for being a guardian of the Rule of Law, not only at this Court but throughout your legal career. We are sorry to see you leave the Bench and thank you again for your service to this Court and to the nation and the people of Australia. We wish you and Sharon the very best in the coming years and the next many chapters of your lives.
Mr Macliver, representing the Attorney General.
MR P. MACLIVER: May it please the Court, I would like to begin by acknowledging the traditional owners and custodians of the land on which we meet today, the Whadjuk People of the Noongar Nation, and I also pay my respects to their Elders, past and present.
It is a great privilege to be here today on behalf of the Government and the people of Australia to celebrate your Honour’s time as a Judge on this Bench. Your Honour retires after a decade of dedicated service to the Federal Court of Australia, the culmination of a long and distinguished career in the law. The Attorney General, the Honourable Christian Porter MP, is regrettably unable to attend today. He has, however, asked that I convey the Government’s sincere appreciation for your Honour’s contribution to the work of the Federal Court and pass on his best wishes for your future endeavours.
The high regard in which your Honour is held is demonstrated by the number of esteemed guests that are present here today, including the Honourable Robert French AC, former Chief Justice of the High Court of Australia, the Honourable James McGinty AM, former Attorney General of Western Australia, the Honourable Peter Quinlan, Chief Justice of Western Australia, other current and former members of the judiciary and members of the legal profession. May I also acknowledge the presence of your Honour’s family, including your wife, Sharon, and your children Ben and Kate, who proudly share this occasion with you.
A full exposition of your Honour’s achievements would occupy more than my allotted time permits today. Instead, I will focus on a number of key achievements and personal qualities that have marked your Honour’s distinguished career. Your Honour was educated at St Louis School Claremont, before your admission to the University of Western Australia, where you obtained a Bachelor of Laws with Honours in 1972. Your Honour was admitted to practice by the Supreme Court of Western Australia as a Barrister and Solicitor in 1973, and you later went on to complete a Master’s Degree in Law from York University in Toronto, Canada, in 1980. I am told that from the start of your university career, it was apparent that your outstanding intellect, energy and natural feel for the law, as well as your keen sense of social responsibility, meant that you were destined for great achievements in the law.
Having started as a solicitor for EM Heenan & Co in 1972, your Honour then formed Barker and Allen in 1975, a successful partnership with your long-time friend, Murray Allen, where you were principal until 1978. Following your Honour’s post graduate studies in Canada, your Honour returned to Australia where you were a member of the Faculty of Law at the Australian National University in Canberra. Here, your principal areas of teaching and research were public law, environmental law and Indigenous land rights. Your Honour returned to practise in Perth in 1986 and, as a barrister, your Honour engaged in broad civil law practice, specialising in administrative law, land development, resources law and native title law.
From 1991 to 1992, your Honour was one of the counsel assisting the Western Australian Royal Commission into commercial activities of the Government and other matters. It was no surprise to anyone when in 1996 your Honour was appointed as Queen’s Counsel. Your Honour was appointed as a judge of the Supreme Court of Western Australia in 2002. Following your Honour’s role as chair of the task force responsible for inquiring into the establishment of a Civil and Administrative Tribunal for Western Australia, your Honour was appointed as the foundation President of the State Administrative Tribunal between 2005 and 2009.
I am told that your Honour was committed to – and very successful – at instilling a culture of fairness, efficiency, flexibility and transparency across the whole of the Tribunal. Many of my sources referred to your Honour’s outstanding leadership skills, promoting the mantra, “We’re a Tribunal, not a Court,” motivating the Tribunal to become a solutions-focused non-adversarial organisation, not only highly respected in Western Australia, but throughout Australia. Your Honour enjoyed a prominent national reputation within the Tribunal movement. Your Honour was heavily involved in the establishment of the council of Australia – Australasian Tribunals, and had a lead role in organising leadership courses for Tribunal heads throughout Australia.
Your Honour was appointed to the Bench of this Court in 2009. Your commitment to access to justice followed you to the Bench where you always sought to ensure that fairness was extended to all those who appeared before you, particularly self-represented applicants. Your colleagues have remarked with admiration on your capacity to put litigants at ease in your courtroom, developing procedures which fostered informality and accessibility. I understand that on one occasion, during a telephone directions hearing, you introduced yourself to the self-represented litigant as Justice Barker. The phone lines, however, were not altogether too clear and the litigant replied, “Nice to meet you, Justin.”
For the balance of the hearing, the litigant repeatedly referred to your Honour as Justin. Your Honour is said to have demonstrated humility and good humour, seeing no need to correct the litigant, much to the amusement of those waiting for their matters to be called. One of your Honour’s most significant contributions of this Court, I understand, was the efficient management and resolution of native title cases. Much of the Court’s success in dealing with these cases fairly and efficiently has been attributed to your Honour’s deep commitment to social justice. During your time at the Bench, your Honour was one of the national coordinating judges in the Court’s Native Title National Practice Area and the Judge principally responsible for the Native Title case management in Western Australia.
I’m told that your Honour’s effective case management has resulted in a significant number of matters achieving consent or judicial determinations, some matters dating back as far as 1996. Your Honour is said to have contributed to improving Native Title practice in the Court including consideration of the most appropriate means of dealing with oral evidence, the use of concurrent expert evidence and the significant role mediation has in the resolution of Native Title matters. Your Honour’s colleagues, family and friends have commented that your integrity and ability to inspire and lead others is central to the person that you are.
I’m told that your Honour has boundless intellectual energy and is dauntless in the pursuit of something of importance to you. Your Honour has a phenomenal memory and your ability to retain information contains to amaze those around you. Your Honour is said to have a wonderful sense of humour, such that you frequently have your chamber staff in fits of laughter. As your Honour’s hobbies and talents outside of the law, I understand that you’re an enthusiastic sportsman, both as a player and a spectator. Indeed, we cannot talk about your Honour’ s love for sport without mentioning that you have been described as your – what is described as your somewhat masochistic devotions to the Fremantle Dockers Australian Rules Football team.
I hope your retirement brings better joy, your Honour.
BARKER J: There’s always this year, Mr Macliver.
MR MACLIVER: Of course, your Honour’s driving interest outside of your work has been the creation, promotion and understanding of your online lifestyle magazine, The Fremantle Shipping News. The success of this venture is a testament to your energy and determination in achieving all that you set your mind to. Many of my sources spoke to your Honour’s insatiable interest in just about everything a city has to offer, including art, architecture, Epicurean offerings, history and social institutions. I understand that this makes your Honour a very demanding travelling companion. Your Honour, on occasions such as this, one must finally address the question of what life will hold beyond the Bench. I’m sure that you will take times to enjoy your hobbies, such as gold, music, fishing and travel, and that you also spend time with your family, in particular, your beloved grandchildren.
Your Honour has certainly earned the right to indulge in leisurely pursuits, though I have no doubt that you will continue to be active in public life and causes that are dear to you. In concluding, your Honour, it has been a privilege to be here today to celebrate your remarkable career. Your professionalism and dedication to your judicial role and to the broader legal community are an example for us all. Your Honour’s integrity, intellect and pursuit of justice will be dearly missed by those on the Bench today and your peers in the legal profession. Your Honour, on behalf of the Government and the people of Australia, I thank you for your extraordinary contribution that you have made to the administration of justice in Australia and wish you all the very best as you commence a new chapter of your life. May it please the court.
ALLSOP CJ: Thank you, Mr Macliver. Mr Hughston.
MR V. HUGHSTON SC: May it please the court, I wish to acknowledge the Whadjuk Noongar People, the traditional owners of this land, and pay my respects to their elders, present and past. It’s a great privilege to speak on behalf of the Australian Bar Association at this ceremonial sitting of the Court to farewell your Honour Justice Barker. Others no doubt will generally speak of the contribution which your Honour has made to this Court, the Federal Court, generally and to the Supreme Court and to the State Administrative Tribunal. But what I want to concentrate on is the significant contribution that your Honour has made to Native Title Law in this country, both as Counsel and as a Judge.
The enactment of the Native Title Act was, of course, the Commonwealth’s response to the historic decision of the High Court in Mabo (No 2) and his Honour the Chief Justice at the ceremonial sitting of the Full Court for his swearing in spoke of the Court’s native title work in the following terms, and I quote:
The work of the Court under the Native Title Act places the Court at the head of one aspect of the reconciliation of our history as one national, Indigenous and non-Indigenous, and of the reconciliation of the conflict and injustice of the past and present. The resolution and recognition according to law of the long-existing rights of the Indigenous peoples of this country is not only important to them as litigants, but also for the nation as a whole.
Your Honour’s first major contribution to this important area of the law was a trail-blazing one. Your Honour was the senior counsel for the Miriuwung-Gajerrong claimants in Western Australia in Ward. Western Australia v Ward was the first native title claim to be heard and determined under the new Native Title Act. It was the first major test case of the Native Title Act and it was a long and arduous trial, being the first one, with everyone unfamiliar with what was required. The hearing before his Honour Justice Lee was a long one. It took 85 days, and it’s apparent from reading the Judgments that it was fought and fought hard both at first instance, on appeal to the Full Court and on appeal in the High Court. The High Court hearing itself took nine days. It was a huge test case for native title, and your Honour was there at the helm steering that case for the native title claimants.
The Aboriginal evidence was heard largely on country in the Kimberley in what was then a very novel and doubtless somewhat difficult procedure. Ward at first instance and later on appeal both to the Full Court and to the High Court created much of the jurisprudence of Native Title Law. The High Court’s Ward decision remains the leading case on extinguishment of native title, and paragraph 14 of the majority Judgment where their Honours speak about the deep spiritual connection which Aboriginal people have with their lands is a passage which has been cited and followed on numerous subsequent occasions.
Importantly too for native title claimants, the practices that were put into place during the Ward trial to lessen the well-known difficulties which Aboriginal people have in giving evidence in formal situations and to take account of their cultural and customary sensitivities became a template for how future native title claims could be run. That procedure, which no doubt your Honour urged on Justice Lee and Justice Lee adopted, has been taken up and adopted in virtually all subsequent native title cases. It includes what would then have been ground-breaking techniques involving taking evidence on country, taking evidence in groups, taking evidence in the form of the performance of traditional ritual, dance and ceremony, and, importantly, the giving of gender-restricted evidence. All of these innovations and developments came from that trail-blazing case of your Honours.
Not content with your Honour’s success in Ward, your Honour went on to represent the Ngarluma and the Yindjibardi People of the Pilbara Region in another long and hard-fought and, again, ultimately successful native title claim before his Honour Justice Nicholson. I refer, of course, to the Daniel case. By this time, with a little experience under your belt, your Honour picked up some speed and this trial, I’m told, took only 81 hearing days. One of your former Ngarluma Yindjibardi clients, Michael Woodley, who was the grandson of Woodley King, an important Yindjibardi elder who has unfortunately now passed away, but with whom I understand your Honour had a very close relationship, is present in Court today to represent the community and on behalf of the community to thank their Counsel for his representation of them in that very difficult claim.
Working for Aboriginal claimants in some of the State’s more remote regions and instructed by an underfunded Aboriginal Legal Service must have been worlds away from your Honour’s more usual practice as a leading silk well-known for your expertise in Administrative Law and in Environment and Planning Law. I’m informed reliably, however, by those who worked with you at the time that you turned out to be not your average city silk. In Ngarluma Yindjibardi, for example, your Honour often stayed in the house that the Aboriginal Legal Service rented in Karratha with a makeshift office set up in the living room. It was hot, crowded with solicitors and field officers and often too with clients. Yet your Honour was meticulous with your work and generous with your time.
I’m told that in-between reviewing witness statements, preparing opening submissions and the like, that your Honour could be found cleaning out the fridge or walking a stressed out junior solicitor around the block to calm them down. Your next and perhaps most important contribution to Native Title Law has, of course, been as a Judge of this Court, both at first instance and as a member of a number of Full Court Benches which have overseen the proper interpretation, the development and the just application of Native Title Law in this country. In that capacity, your Honour, has dealt with many difficult, complex and often quite novel native title issues over the years.
From my research, it would appear that none of your Honour’s Judgments, whether at first instance or as part of the Full Bench, has been successfully appealed. That speaks volumes for your Honour’s undoubted expertise in this area of the law, but it also is a testament to the fact that your Judgments are always comprehensive, erudite and clear. Those Judgments never fail to demonstrate your ability to distil and act upon proper legal principles, but with empathy for those Indigenous peoples whose lives will be affected by the Judgment. It has been my privilege to appear before your Honour in a number of lengthy native title trials and an even greater number of appeals, not to mention the many contested interlocutory applications that your Honour has had to deal with.
I know that my experience of your Honour’s conduct on the Bench has been shared by other Counsel who have appeared before your Honour. Your Honour has always displayed great patience and courtesy to those who appear before you and that is important, your Honour, that justice is not just done but justice is seen to be done. And in your Honour’s court, everyone knew that they were getting a fair hearing. Your Honour has a genuine interest in and a respect for Aboriginal people and their culture. I note that as a trial judge, your Honour was always prepared to take whatever steps were necessary to ensure that the Aboriginal witnesses felt comfortable and felt that their evidence would be valued. I do recall in the Gibson Desert Nature Reserve hearing that your Honour was prepared to have yourself deemed a woman for the purposes of hearing restricted women’s evidence and to go through a particular ritual of which I have not been told in order to allow those women to relax and feel that you truly were someone that they could trust in giving that evidence.
In your judgments, your Honour always gave particular and careful consideration to the indigenous evidence but always that evidence had to be seen in the context of the evidence overall historical and anthropological and always your Honour would apply the law. With the passing of what your Honour has referred to in papers as the pioneering phase of native title litigation and the development by this court and by the High Court of the relevant legal principles to be applied in native title litigation, your Honour’s third important contribution to native title law in this country has been through your role at the forefront of the court’s largely successful strategy to facilitate and encourage the early and just resolution of native title claims.
Your Honour’s imaginative implementation of that strategy using case management procedures has led to the early resolution of cases which would have otherwise appeared to have been intractable. And, in this state, in particular, there have been a significant number of consent determinations which can be attributed to your Honour’s case management role. Part of the strategy, of course, in case management that your Honour has been particularly fond of has been to ensure that the anthropologists are brought together as early as possible without the lawyers before a registrar of the court so that the real issues in dispute can be identified right at the outset. And it’s apparent to anyone who has read your Honour’s judgment and it’s apparent to anyone who has seen your Honour taking anthropological evidence that your Honour has a great interest in native title anthropology.
In the papers that your Honour has written and the conferences that your Honour has attended, you’ve done a great deal to bridge that gap in understanding between native title lawyers and native title anthropologists and that interest perhaps culminated in the important role that your Honour played in 2017 in organising the conference 25 Years of Native Title Anthropology, which was jointly hosted by the court, the National Native Title Tribunal and the Australian National University. And your Honour organised that conference and the speakers in order to pay tribute to the contribute which anthropologists have made to the development of native title law over the past 25 years.
I recall also that during the Badimia hearing that your Honour’s interest and intricate knowledge of native title anthropology became palpable. Your Honour had directed that the anthropological evidence be given concurrently. And when that evidence commenced, the bar table was full. Your Honour commenced by identifying for the anthropologists what the issues were, what issues they agreed upon, what they disagreed upon and then your Honour more or less chaired a discussion between the anthropologists on the various issues that remained in dispute. That discussion went on for most of the day. I remember sitting there as counsel wondering what on earth I was there for but at the end of that discussion, which did take most of the day, your Honour invited cross-examination from counsel and, frankly, there was very little left to cross-examine on. The issues had basically been resolved. And although as counsel, I may have been disappointed at the lack of opportunity to demonstrate my adversarial skills, I have to acknowledge that the interests of justice and the fundamental principle in section 37M of the Federal Court of Australia Act had been much advanced by the procedure which your Honour adopted.
Your Honour, on behalf of the Australian Bar Association, I extend to you the Association’s best wishes on your retirement and I note that your presence on the bench will be sorely missed. May it please the court.
ALLSOP CJ: Thank you, Mr Hughston. Mr Davies.
MR S. DAVIES SC: Your Honours, on behalf of the members of the Western Australian Bar Association, may I present our compliments and congratulations to your Honour on the occasion of your Honour’s retirement as a judge of this court. Much has already been said about the very significant contributions that your Honour has made and I wish to associate the Bar Association with each and all of those complimentary remarks. A very significant matter for which your Honour will be remembered, and rightly so, is of course the initiative to create the State Administrative Tribunal, your Honour being the chair of the task force that prepared the report on the establishment of the SAT. But not only was your Honour a very material initiator of the SAT, your Honour was also charged with the task of actually setting it up.
Your Honour maintained throughout that process a steadfast hold on the principles first that the SAT was a tribunal not a court and that so far as possible, the SAT was to adopt procedures that were informal and, in that way, accessible to the public. And, secondly, that the SAT was to be solutions-focused, not adversarial. This is illustrated to me in a personal capacity. Not long after the establishment of the SAT, I had occasion to bring an application against the town of Claremont in relation to a front fence that I had caused to be constructed in front of a property that was on the Heritage Register. Now, despite me attending in person on the heritage officer before the construction and showing photographs of what was proposed to be built, after completion of the fence, the town had second thoughts about the fence I had built made of limestone and wrought iron and decided that a timber picket front fence would be much more in keeping with the property and thereupon issued a demolition order.
The day after I filed the application, which I think was a Wednesday – so on the Thursday, I received notification from SAT that a mediation had been listed for the following Tuesday and that this mediation would be held on the site. And by 11.30 am on the Tuesday, the matter was resolved. Happily, and I thought most appropriately, the town was persuaded to agree to being sent off with its tail between its legs. And as a consumer, the speed and economy with which that dispute was dealt with was truly extraordinarily impressive. Your Honour was also instrumental in the SAT being technologically advanced. In an age where hearings by telephone and video are now commonplace, it has to be remembered that this is, in fact, a very recent innovation.
Younger practitioners are entirely surprised to learn that until in this state your Honour provided for those procedures in the SAT, they were practically unheard of and, indeed, when introduced were regarded with a fair degree of suspicion. In practice, as your Honour had clearly foreseen, the procedures were entirely sensible and practical. They were not, however, without their challenges. I recall at an early hearing in the SAT, the side that I represented sought to call by telephone a witness in New York. It was midnight in New York and the witness was staying in a hotel. Your Honour attempted to initiate the call. As it turned out, your Honour had to attempt to initiate the call four or five times before we got through to the witness’ hotel room. On each occasion, your Honour announced politely for the telephonist that your Honour was Justice Barker of the SAT and on each occasion, your Honour’s introduction was entirely ignored and instead your Honour was aggressively interrogated by the telephonist with the words, “How may I direct your call?” And at the bar table, we all waited with baited breath to see how your Honour would react to what seemed to us to be a repeated and egregious trampling upon the dignity of a superior judge.
But your Honour was entirely unflappable, and characteristically so. We all relaxed as we got through to the witness, but we sort of spoke too soon, because, once we got through to the witness, the witness, in response to a very polite inquiry from your Honour as to whether he had a Bible, responded again, pretty aggressively, that of course he didn’t have as Bible on which he could be sworn. Your Honour dealt with this by very calmly guiding the witness – telephonically, of course – to the location the bedside table and the Gideons Bible with the very efficient result that the calling of the evidence did not have to be summarily abandoned.
That demeanour – that type of demeanour – was characteristic of your Honour as a Judge. Your Honour was always polite and courteous – sometimes exceedingly courteous to Counsel appearing before your Honour. Appearing before your Honour was always a very civilised event, your Honour’s concern being to draw out the best of Counsel, to ensure that the available arguments were put properly and as advantageously as they possibly could, and in that way recognising and respecting the importance of the process with the result that litigants understood that their arguments have been put and properly considered, that understanding that your Honour had being, of course, central to the success of our Courts and Tribunals in actually quelling, and successfully so, disputes between the parties.
In all the ways in which your Honour conducted proceedings, your Honour demonstrated a very deep understanding of this central function of our Courts and Tribunals. Your Honour’s politeness and consideration and unflappable and calm nature was also central to the success of the establishment of the SAT. It was a central characteristic of your Honour’s leadership of the SAT, which required your Honour to bring together what might fairly be described as a rather disparate group of people as Members of the Tribunal and forging that diverse group into a Tribunal that was truly a leading light among Tribunals in Australia.
Your Honour’s empathy with others and, indeed, the nature of the human condition generally is also evidenced by your Honour’s long-standing concern for and unquestionably real interest in our Indigenous peoples, long before that concern and interest could be regarded as either fashionable or de rigueur. These matters that I’ve mentioned are the things for which your Honour will be remembered, and properly so. They are matters truly tangible and they amount to a legacy that is unquestionably impressive and, but for your Honour’s characteristic modesty, your Honour would justly be entitled to be quite proud. On behalf of each member of the Bar Association, I wish your Honour a very happy and fulfilling retirement. May it please the Court.
ALLSOP CJ: Thank you, Mr Davies. Mr McIntyre.
MR G. McINTYRE SC: May it please the Court, I will commence with an acknowledgement to country in the Noongar language.
THIS TRANSCRIPT IS ONLY OF PROCEEDINGS IN THE ENGLISH LANGUAGE
MR G.McINTYRE SC: 2019 is the UNESCO year of Indigenous languages, so it was appropriate, given your Honour’s career, history and interests which have been expressed by others that my address commenced in that way on behalf of the Law Council of Australia and the Law Society of Western Australia, and I thank Professor Len Collard from the School of Indigenous Studies at the University of Western Australia for linguistic assistance. The man also is a Whadjuk elder and traditional owner. Since your Honour advised me over a coffee in the first half of 2018 of your planned retirement, I’ve been looking forward to making this speech, seeing it as an opportunity to reflect on your Honour’s career, some significant parts of which I’ve had the opportunity and pre to observe.
I first calculated that this event might occur late in 2018, so I spoke to my predecessor, Ms Cormann, the President of the Law Society last year, about whether she might relinquish the task to me, and she readily agreed. Late last year your Honour the Chief Justice wrote an ever so polite letter to Ms Cormann and to Mr Bailes of the Law Council of Australia asking whether we might consider a joint address. My CEO on the day when my election was first announced sent me a quick email saying:
That’s good. That’s one speech you won’t have to do. The President-Elect, from Konrad de Kerloy can readily take over the task.
It was within 24 hours that I had found Mr Konrad de Kerloy and secured his relinquishment of the task to me, as well. My first professional interaction with your Honour was in 1989 in relation to the case of Bropho v Western Australia. Your Honour had taken on pro bono the argument at first instance, that the Crown is bound by the Aboriginal Heritage Act of Western Australia by implication, because the Aboriginal Heritage Act of Western Australia does not specifically say so.
Master White, unsurprisingly, did not accept your Honour’s argument and adopted the traditional view of the Province of Bombay case, that the Crown is only bound by express words and by implication if the legislative purpose would otherwise be wholly frustrated. Your Honour and I then discussed the matter and, with the advantage of be being a salary lawyer at the time with the Aboriginal Legal Service, I took on the appeal in the Full Court and the High Court. I remain unclear as to how much of your Honour’s relinquishing of the case to me had to do with the fact that, having taken the matter on pro bono, your partners at Keall Brinsden may have also incurred the cost of replacing the office furniture in the firm’s reception area after Mr Bropho’s grandchildren expressed their artistic skills on it.
Your Honour may have noticed that the case recently provided a substantial basis for the High Court’s decision in Commission of Taxation v Tomaras, which was delivered on 13 December 2018, so it’s still good and substantial law. On 17 October 1989, your Honour presented to a Law Society seminar on prerogative relief in Western Australia, a paper which made reference to the concept of the juridical gorilla, which you described as the individual seeking prerogative relief as a means of politicising an issue to force an incumbent administration to come to its senses before it’s too late, a person engaging in an act which is calculated to embarrass the administrator, or bide time to fight the real battle on another day, or to fight the real battle on another day or fight the real battle on another battlefield more advantageous, or simply to have a rematch, a freedom fighter, an urban terrorist, a naïve theorist or dilettante with nothing better to do with his or her time.
Overlooking the prerogative aspects of the description, I embraced the notion your Honour had introduced to me. After the High Court’s decision in Bropho, the then WA Attorney-General, the Honourable Joe Berenson, announced that the legislation would be overturned – the effect of the High Court’s decision would be overturned by legislation, which prompted me to present a paper at the 1990 Law Society Winter Conference on Bropho v The Aboriginal Heritage Act, which I subtitled Death of the Juridical Gorilla. The presentation included a slide entitled The Gang of Four Juridical Gorillas, a slide which I’ve managed to find in my archives which depicts Barker, Churches, Le Miere and McIntyre as various species of primates, referencing the role of your Honour and Dr Churches in the Bropho case and then Rene Le Miere, the then President of the Law Society and now a senior retired Judge of the Supreme Court of Western Australia, and other judicial review cases relating to the Old Swan Brewery.
I was so honoured – I was so wedded, I should say, to your Honour’s analysis that I subsequently delivered more seminar papers of juridical gorillas – so The Return of the Juridical Gorilla, the Juridical Gorilla Rides Again. Your Honour was not adverse to catchy titles yourself. When I interviewed you for Brief Magazine shortly after your appointment to the Supreme Court in 2002, you drew my attention to an article you had written for Brief in 1999 entitled Bagging Judges: Good Sport or a Dangerous Game. In the article you reference Western Australia’s first resident Judge of this Court, the late and Honourable John Toohey AC QC, as saying that the independence of the judiciary cannot be used as an excuse for saying that judges cannot be criticised and you expressed the view that our community develops its values from informed and robust criticism of legal principles. When delivering the Sir Ronald Wilson Lecture in 2010 on the topic “On Being A Chapter 33 Judge”, you emphasised the difference between the function of a judge in declaring the law and that of a legislator and your subscription to the ideal that a government of laws is better than one of the people.
His Honour was Vice President of the National Environmental Law Association when it was first established in 1982 with his colleagues who, like his Honour, remain national leaders in that field: Simon Molesworth, now a Judge of the New South Wales Land and Environment Court; Ben Boer, now an adjunct Professor of the University of Sydney; Rob Fowler, an adjunct Professor of the University of South Australia; and Dr Gerry Bates, an adjunct Professor of the University of Sydney and the ANU. That group was famous for forming a barber’s quintet at each National Environmental Law Association conference dinner and would render a ditty composed during the conference which drew attention to controversial environmental issues of the day. Despite my extensive inquiries, regrettably or perhaps advisedly, none of the words of those ditties have been recorded or kept for posterity.
Your Honour was the inaugural convenor of the Environmental Defender’s Office of Western Australia between 1996 and 1998 which attests to your adherence to the significance of conservation. Your Honour was Chair of the Town Planning Appeals Tribunal of WA between 1989 and 2004 and as has been mentioned you were the inaugural President of the State Administrative Tribunal between 2005 and 2009 which was set up based on the 2002 report which you chaired of the WA Civil and Administrative Tribunal Taskforce, as was acknowledged by the then Attorney-General, the Honourable Jim McGinty who is with us today and at your Honour’s welcome to the Supreme Court of Western Australia.
I know your Honour’s only regret is that you were not able to persuade the government of the day that the Tribunal should include a jurisdiction relating to environmental matters which would have mirrored the role which the Land and Environment Court of New South Wales plays. It has been the practice of the Australian Environment and Planning Law Group of the Legal Practice Section of the Law Council of Australia over several years to conduct an annual or biannual professional development event which we choose to invite leading lawyers in the field of environment and planning law to honour the contribution they’ve made to that field over the years.
Over the past few years, I’ve been simultaneously speaking to your Honour, the Honourable Christine Trenorden, formerly of the Environment, Resources and Development Court of South Australia and another much admired former judge of this Court, the late Honourable Murray Wilcox AO QC about your respective availability to attend such an event. As it has turned out, we were able to have the Honourable Murray Wilcox in attendance in March last year. I know your Honour and the Court will join me in commemorating his gigantic contribution to the law, particularly in the field of environmental and planning law.
He, as we know, was President of the Australian Conservation Foundation between 1979 and 1984 and he is most fondly remembered in Western Australia for his decision in Bennell v State of Western Australia in which he concluded that the Noongar people comprised a single society and in Bropho v Tickner relating to the Aboriginal Heritage Act and the Old Swan Brewery site which led to Tickner v Bropho in which a Full Court of this Court presided over by former Chief Justice the Honourable Michael Black AC QC relied on the express objects of the Aboriginal and Torres Strait Islander Heritage Protection Act to identify the beneficial purpose of the legislation as an important factor in its interpretation.
The Australian Environment and Planning Law Group is now planning to honour your Honour Justice Barker and the Honourable Christine Trenorden in March this year in Sydney in the course of an event in which the Mahla Pearlman Oration will be delivered by Professor Megan Davis on constitutional recognition of Aboriginal and Torres Strait Islander people, a very good fit for your Honour. Mr Hughston has referred extensively to your Honour’s role in the Miriuwung Gajerrong case which I was privileged to be alongside your Honour representing one of the other applicants in the case. The only thing I would add is that I recall that your Honour found the advocacy in that particularly stressful and difficult.
At one point, you commented that you thought that you were doing well when you started with general propositions and then they wanted you to be specific and as soon as you went specific, they wanted you to be general again. But as it turns out, your advocacy was highly successful and what had been a very helpful decision for the Miriuwung Gajerrong People by his Honour Justice Lee which was somewhat pulled apart by the Full Court was restored to a large extent by the High Court’s decision. That case, as Mr Hughston mentioned, covered the period from the commencement of the Native Title Act until the day before your Honour was elevated to the Supreme Court, so it covered the whole of your career as a barrister practicing in that field.
I interviewed your Honour for the Law Society’s Brief magazine in August 2002, a week after your appointment to the Supreme Court of Western Australia on 9 August. You commented that you had been lucky to be involved in the vanguard of native title litigation soon after the enactment of the Native Title Act in 1993. I would regard it as more than luck and I concluded in the article with the comment, “his Honour’s elevation has left a significant gap nationally in the ranks of senior counsel experienced in the complexities of conducting native title trials.” It may be that the then Chief Justice the Honourable David Malcolm AC read that article. In any event, I received a call from him on 13 December 2002 advising me that he had accepted my application for silk so I thank your Honour for creating that gap.
It appears to me that your Honour has been deliberately transitioning from judicial office into the next phase of your life over the past few years. I have been a Facebook friend of your wife Sharon based on a mutual interest in indigenous affairs some years before she became your wife, before I knew that the two of you were acquainted and before I met her in person. She first mentioned you on the related medium Messenger when we happened coincidentally to be both travelling in Spain two years ago and posting our holiday photographs. It took a moment for the penny to drop that you were the Michael that she said had suggested we catch up during our travels. As it turned out, we were doing the circuit of Spain in opposite directions.
After that, I started noticing Sharon’s postings in company with a certain Mike Bee, spelled B‑e‑e, and photographs of a person bearing an uncanny resemblance to your Honour. Facebook postings do tend to overemphasise the recreational aspects of one’s life, however your Honour is giving the appearance of having fully grasped the concept of enjoying life outside of the law and judicial office. Indeed your Honour has another mass media persona, the freeview.wordpress website in March 2017 described you as Fremantle local Michael Barker running the online Fremantle Shipping News Lifestyle magazine which has been referred to. Your Honour has also regularly attended and presented papers at the annual national Native Title Conference.
In Broome last June, you addressed the topic Not So Fragile A Thing: The Evolving Character of Native Title 1993 to 2018 in which you put an optimistic view about the future value of native title for native title parties. When I interviewed your Honour during the course of that conference for a video now posted on the website of the Australian Institute of Aboriginal and Torres Strait Islander Studies, we reviewed your involvement as a barrister, a judge in the area of native title over 25 years and you expressed a desire to continue to make a contribution in relation to indigenous issues. True to your word, I note that the Council of the Law Society at its December meeting endorsed the fact that you volunteered to be convenor of its Indigenous Legal Issues Committee and I look forward to working with your Honour in that arena in the coming year.
I will conclude as I started, this time in Meriam Mer, noting your Honour’s respect for indigenous peoples’ rights and the environment. I leave you with the commandment of the god Malo the octopus who created the eight tribes of Mer:
Malo tag mauki mauki,
Teter mauki mauki.
Malo tag aorir aorir,
Teter aorir aorir.
Malo tag tupamait tupamait,
Teter tupamait tupamai.
Which translates as:
Malo keeps his hands to himself;
he does not touch what is not his.
He does not permit his feet to carry him
Towards another man’s property.
His hands are not grasping He holds them back.
He does not wander from his path.
He walks on tiptoe, silent, careful,
Leaving no sign to tell that
This is the way he took.
Loosely translated, Malo’s command is – which I leave with your Honour in your retirement – is that you will continue to do what is right while walking lightly upon the earth.
ALLSOP CJ: Thank you. Justice Barker.
BARKER J: Thank you, Chief Justice. Distinguished guests, ladies and gentlemen:
May I commence by thanking all of you, colleagues and former colleagues in the courts and tribunals, colleagues in the profession, friends, and family, for honouring me with your attendance today at this farewell ceremony. I appreciate it very much. Many of us go back a long way.
I am also pleased to acknowledge the Whadjuk People, who are part of the wider Noongar Peoples of South Western Australia, who hold traditional Aboriginal responsibility for the place on which the Court sits today. I admire the commitment of their elders, both past and present, and emerging, as I do the commitment of all other Indigenous communities throughout Australia, to the maintenance, protection and advancement of their ancient cultures in this contemporary world.
May I thank you sincerely, Chief Justice, Mr Macliver, Mr Hughston, Mr Davies and Mr McIntyre, for your kind, indeed generous words. While we know the truth, occasionally it doesn't hurt to varnish it a little! I am sure what you have said will have raised my standing among my family and friends, and for that I will remain eternally grateful!
I have enjoyed my career in the law. I know how privileged I have been to hold judicial office in the State of Western Australia and the Commonwealth these past 16 and a half years. To have served the people of this great State and our wonderful Commonwealth, in these roles, has been an honour.
Last year, 2018, was the 50th anniversary of the year I commenced law school at the University of Western Australia. A number of those who started out with me then are here today. I am really pleased we have remained such firm friends over the years.
As you know, following law school, my career in the law had a number of distinct phases: legal practice; academia; practice as a barrister; finally as a judge.
Along the way I have been fortunate to have been guided by fine lawyers, practitioners and academics alike, who have mentored me, widened my understanding of Australian law, and expanded my appreciation of the role Law plays in the proper functioning of our Australian democracy. I am so pleased that two of these lawyers, the Hon Eric Heenan QC and the Hon Paul Finn, could be here today.
The involvement I had with the WA Inc Inquiry, with which both Eric and Paul are familiar, in different ways, was a once-in-a-career event. The opportunity I was given by the Solicitor General of the day, now the Hon Kevin Parker AC QC, to reflect on how government should be practiced in an ideal Australian world, is something I will never forget.
Then I became involved in native title, at the Bar, following the landmark 1992 decision of the High Court in Mabo. The years I spent acting for claimants in the Miriuwung Gajerrong claim, the Ngarluma Yindjibarndi claim, and in part of the Wongatha claim, were among the most formative of my life, both professionally and personally. The elders and the professionals involved in these claims were among the most committed and professional of people with whom I have had the privilege of working. I learned so much from so many of them.
I am pleased that one of them, Anne Sheehan, a lawyer who worked with me on the landmark Miriuwung Gajerrong claim, and who is now a barrister in Melbourne, is here today and thank her for make the journey West.
I am also particularly pleased that Adjunct Professor Dennis Eggington, a proud Noongar man and CEO of the Aboriginal Legal Service of WA, the organisation that first briefed me in native title claims in the mid 1990s, and Michael Woodley, a proud Yindjibarndi man from the Pilbara, whose late grandfather was one of the finest men I have ever met, are here today.
As it turned out, I had a sabbatical from native title when I was appointed to the Supreme Court and then to SAT. The opportunity to set up SAT and to guide its early life has been a highlight of my public life. I have the State’s former Attorney General, Jim McGinty, to thank for that singular honour. His political skill and determination in seeing the SAT legislation pass the State Parliament was something to behold. He has been rightly recognised as the Parliamentary Parent of SAT. May I say how proud of SAT, and its members, I have been, and remain. SAT plays a very significant role in providing administrative justice to the people of Western Australia.
It was then an honour to be appointed to this, the Federal Court in 2009. As it transpires, I was one of a handful of judges appointed to this court during, what turned out to be, a short-lived expression-of-interest appointment process introduced by the then Commonwealth Attorney General, Robert McClelland. I am grateful to those who supported my expression of interest in being appointed.
On this Court, I have enjoyed exercising the Court’s wide and significant national jurisdiction in so many areas. I have enjoyed sitting as both a trial judge and with my colleagues on full court appeals. Much of my work has involved industrial, administrative and commercial law, and of course native title.
The High Court’s Mabo decision recognising native title was a long time in the coming. I had never thought there would be such a day when native title would be recognised in Australia. But due to the magnificent efforts of Eddie Mabo and his lawyers, including Greg McIntyre, Mabo happened! The subsequent passage of the Native Title Act in late 1993, was a momentous legislative event. The role of the Federal Court in applying the Native Title Act, with occasional overview from the High Court, has been and remains of the highest importance in rectifying the historic wrong that Mabo righted. I will always be grateful for the opportunity I was given, at the Bar and on this Court, to play a role in this historic process.
I also wish to acknowledge the fine work of those who manage native title representative bodies throughout the country, and the professionals in law and anthropology who act for both claimants and respondents. The dedicated, professional work they undertake makes the native title system work to the lasting benefit not only of Indigenous peoples, but the nation as a whole. It is an important part of the process by which a new and mature relationship between Indigenous Australians and non- Indigenous Australians is being conciliated.
I am also indebted to my Chief Justice, James Allsop, and my judicial colleagues on this Court, present and past, for their generous support, and friendship, over the past 10 years; as I am to those women and men who were my colleagues on the Supreme Court, and at SAT, in the period before that. I have the utmost respect for my judicial and Tribunal colleagues. Their commitment to the Rule of Law is unquestioned. It helps to make Australia the wonderful country it is.
I am particularly indebted to the various registrars of the Federal Court, the unsung heroes of the Court's operations, for making my job as a judge - especially in the native title practice area - so much more effective than it might otherwise have been.
In that regard, I record my thanks to a number of current and former registrars of the Court, including Sia Lagos, Martin Jan, Russell Trott, Elizabeth Stanley, June Eaton, Rainer Gilich, Chris Fewings, Ann Daniel, Tessa Herman, Laurelea McGregor and Katie Stride.
I also thank chambers staff, WA Registry Staff, Court Officers and the Court’s security officers, for making the work of a judge easier and safe. I should make special mention of the court officers Dave Oldman, Brendan Mitchell and Donna Friedl who regularly accompanied me on country on native title hearings, they were always fun to be with, and made the occasional very long days seem a whole lot shorter.
As enjoyable as I have found the job of a judge to be, there are times when it reflects aspects of solitary confinement. Without the company and assistance, day to day, of my personal staff I would not have survived and enjoyed it as much as I have.
My associates, 16 in all (counting an important research associate along the way), a number of whom are here today, have all been smart, highly talented individuals who have excelled at law school. Their research skills have always been of a high standard, and their proofing of my inelegant prose in draft judgments has saved me from many embarrassments. Occasionally, they have had the temerity to correct my punctuation. I am sure, as the years go by, they will enjoy, as much as I have, engaging with the humble comma, the mystifying semi-colon, and the testy colon; not to mention the confusing en dash, em dash and hyphen!
Whenever I have felt a little jaded, or despairing about the state of the planet, my Associates zest for life, their intelligence, and their commitment to the law, but also their engagement in the life of our community beyond the law, has always regenerated my enthusiasm for life. I hope I can survive without them. I like to think that they have kept me young.
There is another person, however, on my personal staff – against whom all of my Associates have had to measure up – and that is Anna Courtman. Anna, who is seated immediately below the bench today, has been with me for the best part of the last 14 years. She joined me as my executive assistant at SAT - where she effectively ran the Tribunal - and then became my executive associate here on the Federal Court, having acquired a law degree and been admitted to legal practice along the way.
In addition to her and her husband, Richard’s busy family life, breeding Labradors, and sometimes operating something akin to a veterinary clinic in our Chambers, Anna has organised my office, my calendar, the Associates, my judgment writing - well, pretty much my entire life - these past 14 years!
Anna has been the most loyal of colleagues and an absolute pleasure to work with. We’ve been a great team. And I am sorry, Anna, to be breaking it up. I am very pleased, however, to know Anna is going to greener pastures. As the soon-to-be Manager of the Court of Appeal of the Supreme Court of Western Australia, she will have half a dozen appeal judges to manage, a much more satisfying task, I’m sure, than having just one Federal Court judge to direct!
All that said, Anna, I will miss you.
Finally, I would like to thank my immediate family, and those I have been close to over the years, for their unconditional love and support, including:
- My mother, Nora Barker, who with my late father Laurie, was at my welcome as a judge in 2002, and is here today.
- My sister Jennifer and her partner, Lynley.
- My son, Ben, and my daughter, Kate, who have been model children, seeing me through various career and life changes. I include my daughter-in-law, Kate, in that; as I do Paul.
- My granddaughters Amelie and Charlotte, and Klara and Freya, who know I love them dearly. They give their Poppy so much joy.
- And last, but certainly not least, Sharon, to whom I was married just over a year ago, and with whom I am looking forward to sharing my retirement.
In that regard, and in response to the question I have been asked most often recently: No, I do not intend to retire from life. And, yes, I hope to remain engaged, in one way or another, in our wonderful Australian community. I have great plans for the Fremantle Shipping News – of which some mention has been made today! Travel is certainly on the agenda. And I need to find the time to rebuild my golf swing!
It seems, however, that these responses don't satisfy all inquirers. Because I am retiring some 15 months earlier than the Australian Constitution requires, many have pressed me for the “real” reason I am retiring now. Well, it's time to 'fess up.
Following the recent retirements of my long time colleagues, Justices Siopis and Gilmour, I soon came to realise there was something of a tectonic shift in the musical talent of the WA Registry of the Court. First, Justice Banks-Smith arrived, she being an all round musician and vocalist. Then Justice Colvin followed, he being a recording artist in his own right. When I then took into account the rock and roll talents of Justice McKerracher, and reflected on my own meagre musical abilities, I saw the writing, writ large, on the wall - ‘Michael, you can’t cut it musically with these guys - it is time to go!’
And so, ladies and gentlemen, it is - time to go.
Thank you for seeing me off.
ALLSOP CJ: The Court will now adjourn.