Ceremonial Sitting of the Full Court to Farewell the Honourable Justice North

Transcript of proceedings






ALLSOP CJ: Welcome to the ceremonial sitting of the Court to farewell and honour Justice North.

I acknowledge the traditional owners and custodians of the land on which we meet, the Peoples of the Kulin Nation, and I pay my respects to their Elders, past and present.

Sitting today are Judges of the Victorian District Registry, together with Justice Greenwood from Queensland, Justice Barker from Western Australia, Justice Katzmann from New South Wales and Justice White from South Australia. We are delighted also to have present on the Bench the Honourable Michael Black AC QC, former Chief Justice of the Court and, Justice North, your predecessor, I am told, as the Defence Force Advocate.

I acknowledge the Chief Justice of the Supreme Court of the Australian Capital Territory, the Honourable Helen Murrell; Justice Bennett representing the Family Court of Australia; Judges of the Court of Appeal and the Supreme Court of Victoria (one of whom, Justice Richards, was present at your welcome in the Industrial Relations Court 23 years ago as a young lawyer); Associate Judges of the Supreme Court; Judges of the Federal Circuit Court; President of the Children's Court, Judge Chambers; Judges of the County Court; Chief Magistrate of Victoria, Judge Lauritsen; and Victorian Magistrates; former Federal Court Judges, the Honourable Peter Gray AM and the Honourable Donnell Ryan QC; former Supreme Court Judges; the former President of the National Native Title Tribunal, Ms Raelene Webb QC; the former Commonwealth Solicitor-General Dr Griffith AC QC and the current Victorian Solicitor-General, Kristen Walker QC, who are also at the Bar table.

There are a number of apologies and time does not permit me to mention them all, but I mention one, your friend and colleague, the Honourable Rod Madgwick. He has gone back to his roots and is sitting in crime in the District Court at Orange.

I also particularly welcome the many family and friends of Justice North, in particular your wife, Audrey; your children, Andrew, Andrea and Amanda; partners of Andrea and Amanda, David Pritchard and Ray Turnbull; and your grandchildren, Talia and Haddie Pritchard, and Oliver and Rafferty Turnbull; your sister, Robyn, and niece, Zoe, nephew, Ben; and other members of your family.

It is fitting and appropriate to remark at the outset on your many former associates and executive assistants who are here today. Your first associate, Craig Dowling, (now Senior Counsel) is sitting at the Bar Table. The warmth and affection in which you are, and have been always, held by your staff is a measure and reflection of your personality.

You were welcomed to the Court at a ceremony of the Industrial Relations Court of Australia presided over by Chief Justice Wilcox on 5 October 1995, almost 23 years ago. Gavin Griffith was Commonwealth Solicitor-General, the now Honourable Susan Crennan AC QC was then the President of the Australian Bar Association, and a much younger John Middleton had just taken over as the Chair of the Bar Council.

Service on any Court for this length of time is remarkable. In your case, it is not only remarkable for its length, but also for the importance and quality of the contribution you have made to the jurisprudence of this Court and to the development of important areas of law this Court administers. In addition, you have contributed to the working of the Court with your work on the Native Title Committee, the ADR Committee, Judicial Education Committee and the Federal Court Reports Committee.

There are a number of people here today who will speak of your contribution to the work of the Court and I hope I do not trespass on what they wish to say.

May I begin by emphasising at the outset that your contribution has been over a wide range of the Court's work. Our jurisdictional diet is determined by the dead hand of history, the subject matters in the Constitution that the framers of the Constitution considered appropriate for national legislation. Thus, our jurisdiction ranges over a wide spectrum of subjects from public and constitutional law, to commercial law, to industrial and employment law, to taxation, intellectual property and native title, and you have distinguished yourself in work over all these areas.

I wish to say something of your signature contributions in the areas of native title, human rights and immigration, and industrial and employment law. Before I do so, I will refer to a long and difficult commercial case you presided over in 2013 and 2014. It was a difficult case, bitterly fought, over important new provisions of the Australian Consumer Law concerning unconscionable conduct in business. There is no need to dwell on the detail of the subject matter. It is the careful, intuitive and thorough way you dealt with an extraordinarily unwieldy and difficult case that I wish to emphasise. The appeal was resoundingly dismissed. The graceful and elegant economy, and the light and clear method of expression of your judgment, was emblematic of your work.

Your time on the Court has seen important changes sometimes surrounded by highly-charged politics in the areas of migration, industrial relations and native title. It is fundamental that the Court maintain its place in the exercise of judicial power as utterly neutral in such charged controversy. The phrase "strict and complete legalism" is now unfashionable, but it reflects the values of legal culture, not political power.

Your calm, measured and skilful control of two of the most highly-charged cases in this period, the Patricks case and the Tampa case, was likewise emblematic of your skill as a judge. In these two highly-charged cases, evidence was heard, argument had and judgment rendered quickly, elegantly and correctly. Tampa was dispatched in days, and it is to be recalled that, in Patricks, one month only passed from the filing of the notice of motion seeking orders before you to the rendering of the High Court's decision. This was due, in significant part, to your skilful handling of a difficult hearing and the quality of your judgment.

I need not dwell on the detail of those cases, well-known to the people in this room. I have an anecdote, however, that reinforces what I have just said. A Danish ship's captain once collared me at a social function in Sweden in 2004. He learnt I was Australian. He had followed the Tampa affair. A colleague had been a master of Tampa. He had exceptionally strong views about the stance that the Australian Government had taken in what he saw as refusing entry to a port of refuge to those rescued at sea in conformity with international law of the sea. He made sure I understood his views, from close quarters. But he also had deeply-felt words of praise for the judge who had heard the case.

The hard and relentless toil involved in hearing, year-in-year-out, our dockets of human rights cases in the form of migration and refugee cases has been an area where your legal and judicial talent has been obvious. Important cases that you have decided are too many to list and, otherwise meaningless with so many acronyms, but for the cognoscenti, reference should be made to Rajalingam on the correct approach to assessing apprehended harm, VBAP on relocation, SZNSP on corroborating evidence, Minogue on the International Covenant on Civil and Political Rights and the obligation of a judge to assist the litigant person, and Moana on mandatory considerations of harm to the community in character deportation cases.

Your huge expertise in industrial matters has been displayed in countless other cases besides Patricks, many of which have helped shaped industrial law. Many of these cases are unremarkable in their detail, but each was important to the working men and women and employers involved. You have, by your experience and huge knowledge of the field, helped implement, in an ordered and fair way, the legal framework of the industrial relations system.

Native title, however, has been your passion. You came to the Court along with John Mansfield at around the time of the commencement of the Native Title Act 1993 (Cth). You and Senator Dodson will no doubt say something about this. I know Michael Black would love to as well. I referred earlier to the dead hand of history circumscribing our jurisdiction. This metaphor is not apt for this jurisdictional responsibility of understanding and recognising, through the Court's processes, the living embodiments and expressions of the histories of the peoples of this land. It is the living history and experience of the past and the present that must be comprehended to give voice and effect to long-ignored rights.

Early on in your time at the Court you were given the opportunity by Chief Justice Black to sit on the appeal in Ward. That began your work in this unique area of jurisdiction. Along with people such as Robert French, Malcolm Lee, John Mansfield and Murray Wilcox, and others, you helped forge and construct the case management and hearing techniques for these unique cases. You and they appreciated the challenge and limitations of taking evidence based on the spoken word reduced to transcript; and you appreciated the inexpressible sense of knowing, of glimpsing and of beginning to understand something through place, physicality, presence, emotion and implication that evidence on country brings to an enlivened right hemisphere. In doing so, you helped create this Court's history.

If I may say, your and Justice Barker's and Justice Mortimer's judgment on appeal, and Justice Mansfield's primary judgment, in Griffiths, reflect the process of breaking open European minds to reconstitute ideas and experience and in sufficiently open-textured language to allow the relevant cultural values to live, breathe and be recognised in modern Australian law.

Finally, may I also thank you personally for the way you have always honestly and straightforwardly expressed your views to me. I have always appreciated that very much.

On behalf of the Judges of the Court, I wish to thank you for your contribution to the Court and to the life of the law in this country, and I wish you and Audrey well in the next exciting chapter of your lives. I hope it can include a continuing contribution in the field of native title in some fashion.

MR C. RAWSON: 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 Kulin People, Peoples of the Kulin Nation. I also pay my respects to their elders past and present. It is a great honour to be here today on behalf of the government and the people of Australia to celebrate your Honour's time as a Judge on the Bench. Your Honour retires today after more than two decades 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, regrets that his ministerial commitments prevent him from being here 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 retirement. 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 Justice Helen Murrell, Chief Justice of the Supreme Court of the Australian Capital Territory; Senator Patrick Dodson, Senator for Western Australia; Kristen Walker QC, Solicitor-General for Victoria; the Honourable Michael Black, former Chief Justice of the Federal Court of Australia; other current and former members of the judiciary and members of the legal profession.

And may I also acknowledge the presence of your Honour's family, including your wife, Audrey, and your three children, Andrea, Andrew and Amanda who proudly share this occasion with you. A full exposition of your Honour's achievements would occupy more than my allotted time today permits, therefore I will focus on a number of key achievements and personal qualities that have distinguished your career. Your Honour was educated at Scots College before your admission to the University of Melbourne where you obtained a Bachelor of Arts and a Bachelor of Laws with Honours in 1972. Your Honour was admitted to practice in the Supreme Court of Victoria in 1973.

After completing the bachelor degree, your Honour later went on to complete a Master's Degree in Law from the London School of Economics in 1975. Your Honour commenced your legal career as an associate to Sir Ninian Stephen, then a Justice of the High Court of Australia. From 1976 to 1980 your Honour was a tutor in executors and trustees at the Royal Melbourne Institute of Technology. Your Honour's enthusiasm for mentoring young lawyers extended well beyond the classroom. Admitted as a member of the Victorian Bar in 1976, your Honour has always set the finest example. Barristers and chamber staff alike have benefited greatly from your wise advice and careful tuition.

While at the Bar, your Honour's practice grew mainly, but not exclusively, in the area of industrial law. I'm told that it was apparent from the beginning of your time at the Bar that your Honour not only had an exceptional knowledge and understanding of the law, but also a very highly tuned sense of the justice of each case. It was no surprise when in 1989 your Honour was appointed as Queen's Counsel. Your Honour was appointed to the Bench of this court in 1995. Your keen sense of justice followed you to the Bench where you were always committed to applying the law. One of your Honour's most significant contributions to this court, as has been mentioned, was your Honour's 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 managerial and organisational skills and your deep commitment to justice. News of your working native title claims travelled quickly. Soon you had all manners of guests in your courtroom, including a turtle caught by a group of children during the Gurrajari case, and a crocodile circling just metres away during a witness statement in the Bindabar case. Your Honour's role in the native title context over the past two decades was no more evident than at your retirement ceremony held earlier this year in Broome, Western Australia.

Your Honour was recognised by Indigenous elders, rangers and politicians alike for your impassioned contribution and demonstrated respect and understanding for the First Nations Peoples. We cannot talk about your Honour's significant achievements on the Bench without mentioning the case of Ruddock v Vadarlis, more commonly known as the Tampa case. Many of us here today will remember the intense activity of those events which occurred in this building 17 years ago this week. I understand that the strong public reaction to the case was such that your Honour faced death threats and required a police escort to and from the Court for the duration of the proceedings. Your Honour, you are noted to have exhibited a fearless pursuit of justice, finding against whichever party the law and justice demanded.

Your Honour has also served on the Industrial Relations Court and as an additional Judge of the Supreme Court of the Australian Capital Territory. Needless to say, your Honour was not restricted to the one case for significant judgments. There are many more examples across a number of areas of law that highlight your Honour's contribution to the Federal Court. Indeed, one former colleague of yours has remarked that the Federal Court will be diminished without you as one of its Judges. Your Honour's family and friends have commented that your integrity, honesty and loyalty are central to who you are. Your Honour is known as a hard worker with a meticulous attention to detail.

I have it on good authority that this attention to detail shared by your children often comes at your own detriment, particularly when it comes to considering a takeaway dinner. I understand that due to the North family's need to consider every possible variable, the simple act of ordering a pizza almost always ends up as a boisterous and drawn-out affair and most often ends up with everyone eating canned soup. Your Honour has been a successful family man in every sense. I'm told that you and Audrey have done a first-rate job of raising a family. I'm also told and aware that your Honour keeps an active interest in the personal and professional lives of your past associates, providing them with the necessary advice and guidance long after they have left chambers. It is unsurprising, then, that so many of them have travelled from interstate and overseas to be here today.

As to your Honour's hobbies and talents outside of the law, I understand you have a passion for the outdoors and you have often taken your family camping in the outback where they are subjected to 12-hour long car trips spent listening to the entire Slim Dusty collection. Your Honour, I understand, is happiest out on your late father's tractor, slashing the grass in the paddock or planting native trees on your property located in bushland on the outskirts of Melbourne. Many sources have attested to your Honour's cheeky and dry sense of humour and, in particular, your penchant for dad jokes.

On a personal level, this comes as no surprise to me as I recall being the punchline of one such joke from your Honour many years ago. It occurred during a hearing in which I was instructing counsel who sought to refer your Honour to an exhibit to an affidavit which I had made in the proceeding. He did so by directing your Honour to CLR9. Your Honour responded that you did not recall the volume of the Commonwealth Law Reports appearing on our list of authorities. I am sure retirement will allow your Honour, a voracious reader, to combine two of your hobbies and spend plenty of time reading books and researching your family history.

Retirement will also mean that your Honour will have ample to spend with your growing family. 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 to all of us. Your Honour's integrity, compassion and pursuit for 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 the extraordinary contribution you have made to the administration of justice on this bench, and wish you all the very best as you commence a new chapter of life in your retirement. May it please the Court.

ALLSOP CJ: Thank you, Mr Rawson. Senator Dodson.

SENATOR P. DODSON: Your Honours, I acknowledge the traditional owners of the country upon which we stand, the Kulin Nation and their descendants. I acknowledge the family of Justice North and the friends of Justice North. And I acknowledge those that I've had the privilege of working with over the years, particularly, Mr Bell, who was my counsel in my own native title claim of the Yawuru in Broome. The day the Federal Court decided to hold hearings about native title on country for First Nation applicants was indeed a true act of respect for First Nation peoples and brought great honour to the Court itself. And I want to thank all those who have worked under such conditions and in such locations. We're truly appreciative.

This is the ground upon which the two traditions of laws meet each other – the western law from England the ancient First Nations law from this country. It is the calibre of Judges and their humanity as much as it is their legal expertise that makes these encounters truly transformative and enriching. It has always saddened me, however, that the western tradition has always clung to its principle of extinguishment while being challenged and informed by concepts like the broogurrigurra, the ongoing dynamism of creation that influence all of creation and even its influences upon our own beings.

Our connection to country as indigenous First Nations people cannot be extinguished except in the mindsets of western law. My encounter with Justice North was first in the Karajarri claim in 2002. It was the first litigated claim in the West Kimberleys. The claimants previously experienced court that was special police courts or courts of petty sessions in front of JPs and gradually magistrates and, on odd occasions, Supreme Court Judges. So the notion of the Federal Court dealing with native title on country was something totally unknown to many of the claimants. Mr Ross Howie and I think Mr Ian Irving and the late Christie Guest represented the Karajarri People in that matter. And as the Court opened, Justice North was seen amongst trees and amongst the claimants and gradually a discussion was taking place with him and some senior men.

And I was summoned by Mr Howie to join this group of senior law bosses. We were sitting on the ground discussing some matter with Justice North. In my understanding, it was about the importance in telling the Judge about aspects of customary law and that it couldn't be made available to an absent third party. This was our first brush up against the procedures and practice of western legal protocol. Our position was when very important customary law matters are to be discussed, you should or you must be present as a witness to those discussions in situ. There was no privilege extended to absent third parties if they weren't present. This took time and much backwards and forwards explanations to the law bosses. And someone with lesser patience or a miniscule of interest in how serious this matter was for the applicants would have demonstrated that frustration and considered this to be some kind of procrastination or failure of counsel to remain in charge of his clients.

Justice North won our respect and trust in the way he listened, the way he learned of the importance, not just of the subject matter, but of the need for correct procedure and protocols from the applicants' point of view in such serious matters as witnessing discussions about such serious matters and customary law. He demonstrated clearly he wanted to listen, learn and understand these genuine matters. There are other sides to Justice North and some of that has been mentioned. In another bush court setting, I'm told a claimant turned up to Justice North's dirt floor and dropped a freshly killed goanna on the Court floor which was submitted as evidence by counsel of the applicants' use and the continuity of that use on their country. The Judge maintained his calm and proceedings continued as if another exhibit had been delivered to the Bench.

He also made time and accommodated the claimants. After travelling and sitting in a Toyota, being bounced around in the bush, a long day, the Judge was prepared to sit at night after such a long day to listen to and witness the song and the dance and the stories that the Karajarri People wanted to share with him and the Court. He fitted into a timetable again that accommodated the claimants. His skill was to also get those on the bar floor to come along, as well. At his last native title hearing in Beagle Bay, I had the privilege to be present at that. It was good to see how far the legal representatives, particularly from the State of Western Australia, had come in their approach to complex legal issues and historical facts and how much pride the community took when Justice North read out his findings where he made it clear it was their stories and their voices which had convinced him. The evidence about their native title had won the case.

He was not giving native title to them. They won it by convincing him of their strong stories through their own voices. At the end of that hearing, he was kind enough to tell us and show us the pride he took in his father's hat. The hat had feathers from all of the various claims he had heard, so immediately one of the newly determined native title holders found a feather and presented it to him on behalf of the Bindunbur, the Nyul Nyul, the Jabirr Jabirr, the Nimanburr and Ngumbarl Peoples of whom some of – counsels present here today. Our two laws can find outcomes on occasions and in the case of native title, it can find justice and recognition and that can be achieved. Today I am a law carrier of the Yawuru People, my people, and I'm also a law maker for all peoples of Australia in my role as a Senator for Western Australia.

Yesterday when I told one of the senior women my – I call her "Dad" – I told Aunty Sissy – Dad Sissy – Dargun – the Judge would know her very well – that I was coming to this event and she immediately said, "I want you to take something to him from us in the Kimberley in our appreciation" and here it is, Judge. I've kept my word to hand it to you. Thank you, Justice North, for your leadership, your friendship, your courage in this journey with First Nations peoples. Travel well .....

ALLSOP CJ: Thank you, Senator. Dr Collins, President of the Victorian Bar.

DR M. COLLINS QC: May it please the Court. I, too, acknowledge the traditional owners and custodians of the land on which we meet, the peoples of the Kulin Nation. I pay my respect to their elders past and present and to the elders of other nations here today. It is a great privilege to appear with my learned friends, Mr Anthony Neal and Mr Herman Borenstein, on behalf of the Victorian Bar and the Australian Bar Association, to pay tribute to your Honour's more than 45 years' service in the law since your admission to practice on 1 March 1973, of those, just under 20 years at the Bar, including just short of six years as one of Her Majesty's Counsel, and then nearly 23 years as a Judge of this Court. I am delighted to be here as President of the Bar and representing the Australian Bar Association. I ask Mr Neal and then Mr Borenstein to address the Court on behalf of our mutual Bars and the Independent Bars of Australia. May it please the Court.

ALLSOP CJ: Thank you, Dr Collins. Mr Neal ?

MR A. NEAL QC: May it please the Court, I also wish to recognise the Peoples of the Kulin Nations on whose traditional country this event takes place. Your Honour Justice North, given our particularly long personal association, I am particularly pleased to have the opportunity to address the Court today on this happy occasion. Your Honour, I can say that it is an occasion that, I am aware, perhaps wasn't always going to happen. Your Honour at some stage saw the prospect of a long and formal farewell extremely benign recitation of your Honour's attributes in a public forum such as this as being not your Honour's cup of tea. Your Honour is, of course, comfortable with teacups in other contexts, but not this one apparently.

Fortunately, your Honour, you did see the wisdom of allowing the legal profession, and your family and friends to farewell you on this occasion, but there was something of a caveat, which was that you requested that people who addressed the Bench be people who knew your Honour or who had professional dealings with your Honour. I am assuming the logic of that, your Honour, is that, if one wishes to avoid fulsome praise, it is best to invite people who actually know you. For my part, your Honour, I have known you as a colleague in Chambers. I think it is going back about 35 years or more. I have known your Honour as a sometime leader in cases. I will call them notable, in retrospect at least, your Honour.

I have known your Honour as the presiding Judge in a number of very long-running Native Title cases in Victoria and, most importantly, I have known your Honour as a friend and as a confidant for that very long period of time. Although I am wishing to be deferential to your Honour's desire not to be unduly eulogised, I do need to say something, I think, about your Honour's contribution to the work of Native Title. It is, your Honour, I think, clearly an area of the law which has unique legal, social and cultural ramifications, and, to my observation, it was an area of the law which engaged your Honour as no other area of the law did or perhaps could.

In recent times, your Honour has made contributions to the Law of Native Title in respect of compensation, which has already been mentioned in the case of Griffiths, which the High Court is yet to grapple with. I actually wanted to make particular reference to a case long ago now, the 2000 decision of the Full Court in Ward, in which your Honour was a dissenting Judge. It is difficult, your Honour, in this forum to do justice to the complexities of that case, but suffice to say that the Court, at that very early stage of the development of Native Title jurisprudence, was trying to grapple with the problem of what to do in the event that non-indigenous rights granted by Governments over land were in conflict with or inconsistent with Native Title rights.

There was no doubt in the Court that the non-indigenous rights needed to be given priority, but the question was what was the mechanism by which that would be achieved. To risk oversimplifying it, your Honour, there were two options before the Court, one of which was to suggest that the Native Title rights, to the extent that they were inconsistent, needed to be effaced, extinguished permanently, either in a partial sense or a whole sense. The other option was that the Native Title rights could coexist, albeit in some state of suspension for so long as was necessary to give effect to the non-indigenous rights.

As it happened in that Full Court, the view that extinguishment, the effacing of Native Title was the necessary resolution, was the one which prevailed and, indeed, it prevailed in the High Court. In that case, your Honour gave a powerful dissenting judgment. You favoured the idea of suspension over extinguishment. You looked particularly to the purpose behind the concept of extinguishment, which was simply that there should be certainty given to the non-indigenous rights. Your Honour saw it as entirely disproportionate that, to give effect to the non-indigenous rights, one needed to efface the Native Title rights. Your Honour also, I think, perceptively remarked that extinguishment was a technical finding of a non-Aboriginal body, a Court, which had little or no resonance in the Aboriginal world.

Your Honour, that, to my way of thinking, constitutes a great dissenting judgment, but I am not the only one who things so, your Honour. There is, in fact, a recent publication dedicated to Great Australian Dissents I have in Court. It is not apocryphal. In that work, which is something of a pantheon of great Australian dissents, your Honour, not a rogue's gallery at all, the author, Associate Professor Sean Brennan, devotes an entire chapter to your Honour's judgment in Ward and the general author of the work says this about great dissenting judgments:

To be a great dissent, an opinion must hold some future importance. It may not be agreed with, but it cannot be ignored.

If I could quote briefly from that chapter. The author suggests the following criteria that marks this as a great judgment. First of all, he notes that your Honour:

…recognised the social and moral dimensions to the extinguishment inquiry at a critical early stage in the evolution of Native Title Doctrine.

Secondly, he notes that your Honour asked a legal policy question that was otherwise unacknowledged, which was:

What purpose should the extinguishment doctrine serve?

And, lastly, he notes that your Honour:

…crafted a technically sound doctrine that better answered the demands of justice, fairness and the nature of the issue.

Your Honour, I happily chose that as the subject of my address, because, to me, it does exemplify the qualities that your Honour brought to the Law of Native Title. It, in this instance, demonstrates an exemplary legal rigour, but also a very important bicultural awareness, and a sense of perspective and justice. It also, to my way of thinking, demonstrates your Honour to be a person who recognises that the law exists within society as its servant rather than a thing apart which dictates terms.

Your Honour, I noted earlier that the Doctrine of Extinguishment prevails as the orthodoxy, but your Honour will note, I think, with some comfort that, in recent decisions of the High Court, some four in number, there has been a very distinct inclination to shy away from the extremes of extinguishment in favour of the concept that your Honour championed some 20 years ago, that is, the idea of regulation and coexistence rather than extinguishment. I hope your Honour takes some comfort from that fact. If a great dissent must, indeed, hold some future importance and if it may not be agreed with, but it cannot be ignored, then your Honour's judgment isn't truly a great dissent.

Once again, your Honour, I hope that the accolade of a great Australian dissenter rests easily on your shoulders. On a personal note, your Honour, given that we have known each other for a very long time, I also wish you a very happy retirement. Knowing your Honour as I do, the fact that your retirement will be spent in the company of your family and your friends assures me that your retirement will be a happy one. My only other hope is that the record that we share of the longest ever Friday lunch, which is about 35 years and alcohol-free, continues well into the future. May it please the Court.

ALLSOP CJ: Thank you, Mr Neal. Mr Borenstein?

MR H. BORENSTEIN QC: If the Court pleases, I join in Mr Collins' acknowledgment of the traditional owners and custodians of this place. Having worked with your Honour, Justice North, for many years at the Bar, and having appeared before your Honour on many occasions in this Court, and having maintained a strong friendship over that time I'm grateful and I'm honoured for the opportunity to address the Court on this bittersweet occasion. Your Honour, as we've heard, was appointed to the Bench in October of 1995, and your Honour's appointment was accompanied by a dual appointment to the Industrial Relations Court of Australia which clearly was in recognition of your Honour's position as a preeminent barrister in the field of industrial law.

Your Honour was one of eight Judges appointed to the Industrial Relations Court and today your Honour is the last of those Judges to leave the Court. My remarks this morning are directed to your Honour's work on the Bench in the field of industrial law, and in the limited time available to me I would want to make mention of just a few of the highlights of that work which, although perhaps not as emotive as the native title matters that we've heard about, were nonetheless of significant public importance generally. The first of the examples that I wanted to refer to, your Honour, occurred in February of 1996 not long after your Honour's arrival on the Court.

You were drawn into an industrial dispute which was unique in Australian industrial history, but it's one that may come to the fore again in the near future if recent newspaper reports are to be believed. The dispute arose in the aftermath of the federal deregistration of the BLF and Victorian legislation which dissolved the resulting unincorporated association. To add insult to injury, the Victorian Act also provided for the seizure of the union's assets. That led to significant litigation for the retrieval of those assets. The litigation commenced before Justice Wilcox at first instance and he found for the union.

Your Honour became involved as a member of a Full Court sitting on appeal from Justice Wilcox together with Justice Spender and Justice Ryan, and the Full Court dismissed the appeal, but the saga continued and the State, which was unsuccessful before the primary Judge, appealed to the High Court. That appeal was successful and the matter was remitted to the same Full Court of this Court to be reheard. That occurred a full three years later. On this occasion the union lost, and it took the matter back again to the High Court. To complete the story, the matter was ultimately settled and the assets were returned to the CFMEU by agreement, but the case may hold some valuable lessons for present-day protagonists.

Another interesting highlight of your Honour's time in the Court involved the case of Re Dingen. Not long before your appointment to the Court, your Honour had appeared before the High Court in Re Dingen. That was a case which involved a dispute about the proper characterisation of powers that had been given to the Industrial Relations Commission to deal with unfair contracts. Were they judicial or were they arbitral? The High Court handed down its judgment in March of 1995 and found in your Honour's favour, holding that the unfair contracts provisions did not confer judicial power on the Commission. According to the Court, one of the factors influencing the characterisation of the power was the nature of the body to which the power was given.

I mention this case in particular because within a year of the judgment your Honour, newly appointed to the Court, was called upon to deal with the same issue, but from the other side of the Bench. This was the case of Finch v Herald & Weekly Times. By the time this case came on the legislation had been changed and the power to deal with unfair contracts, which was previously given to the Commission, had been moved to the Court so that the power previously characterised by the High Court as being not judicial now fell to be exercised by the Court. Did that change the legal character of the power? Dr Jessup urged upon your Honour that the powers were to be characterised in the same way as they had been by the High Court in Dingen, that is, not judicial.

Your Honour had to undertake a detailed examination of the legislative amendments and held consistently with the Dingen judgment that the power was now judicial. Lord Denning would have smiled. The next and perhaps preeminent highlight came in 1998. No one could seriously dispute that the litigation arising out of the waterfront dispute in 1998 was a seminal event in contemporary industrial relations law in Australia. Your Honour was given the case and you were quick to recognise its importance. Your Honour heard the union's application for an injunction at short notice over a period of four days in April 1998.

It was a matter of considerable complexity both factually and legally. Your Honour had to deal with these matters with considerable urgency and your Honour produced a judgment on 21 April of 1998 just four days after the end of the hearing. The high public importance of the matter may be seen to have been reflected in the speed with which the Courts dealt with it from the initial hearing through to the apex of the Australian appellate system. Within 13 days of your Honour's judgment the case had been heard by a Full Court of this Court and by the High Court, and the High Court had delivered its judgment.

Your Honour's judgment was upheld by six of the seven High Court Justices, and through the process your Honour's judgment was endorsed by nine of the 10 appellate Judges who had to consider it. Truly a large feather in your Honour's cap, and perhaps a metaphorical precursor to the feathered Akubra to which Senator Dodson referred. Although later cases that came before your Honour were not of such high profile, your Honour was always concerned to consider the disputes and controversies before you in terms of their personal impact and effect on the individual people involved. Your Honour was concerned that any judgment addressed the need to do justice in a way that would be understood and accepted at a personal level by the people involved.

By way of example, I would mention just one judgment of your Honour that demonstrates your Honour's concern for the human element in the cases that came before you. In a recent case known as the Cup of Tea case, the judgment which your Honour delivered in March of this year, your Honour dismissed the regulator's case against two union officials who had been sued for their actions in visiting a worker on a site. Your Honour found that their purpose was not sinister, but nothing more than a social visit for the purpose of catching up with an acquaintance of a cup of tea. The human element of interaction between acquaintances was not to be overlooked. Over the period of your Honour's time on the Court, your Honour's contribution to industrial law has been substantial and important and fully justifies this public acknowledgment and thanks to your Honour for the time on the Court. I wish your Honour an enjoyable and satisfying retirement. If the Court pleases.

ALLSOP CJ: Thank you, Mr Borenstein. Mr Manne, representing the Law Council of Australia and the Law Institute of Victoria.

MR D. MANNE: Yes. May it please the Court, I join in acknowledging the traditional owners and custodians, the Peoples of the Kulin Nation, and pay my respects to their elders past and present. And can I start by saying that I'm truly honoured to be addressing this Court for your Honour's farewell on behalf of the Law Council of Australia and the Law Institute of Victoria. For your Honour, it is clear that at its heart the law is a social instrument, a social instrument that not only can but must seek to do justice. For your Honour, it is clear that judicial decision-making is not merely a theoretical or technical exercise; it must respond meaningfully and with flexibility to the plight of people whatever their station, and regardless of their race, their religion, their political opinion, membership of a particular social group or their nationality.

I will briefly focus on your Honour's extraordinary contributions in refugee law, an area in which the ideas, the spirit, the values and the actions which are the golden threads of your brilliant judicial career are exemplified. I know I speak for so many in saying that your Honour's contribution and achievements have been momentous, which brings us back to the events that unfolded in August and September 2001 in waters northwest of mainland Australia. Notoriously, 433 mainly Afghan people seeking asylum en route to Australia by boat were rescued by a Norwegian cargo vessel, the MV Tampa. The government refused the vessel and its people permission to enter Australia.

These men, mostly fleeing the Taliban's violence and tyranny, were transferred by Australian troops to a naval vessel. The matter soon reached your Honour's Bench. The legal challenge on behalf of the asylum seekers was heard amid a public atmosphere of fear and political hostility toward those seeking asylum. We were told that they were not people with problems, but people who were a problem. At the hearing counsel for the Commonwealth, the then Solicitor General David Bennett QC submitted that they were not detained or falsely imprisoned because they were free to go anywhere in the world except one place: Australia.

At hearing, your Honour famously referred to this as the cruise ship argument. Your Honour delivered judgment on the morning of 9/11, finding that the asylum seekers had been detained and expelled unlawfully, and ordering that they be released and brought to Australia. Despite the Full Court overruling by majority, Chief Justice Black dissenting, some fundamental points stand. Your judgment represents a classic example of fine legal reasoning in which you applied orthodox methods and sources to unorthodox circumstances. It also epitomises an approach determined to consider these people not primarily as problems, but people with problems, with a case to be heard, people who have rights to be enlivened and who may well engage our protection obligations enshrined under international and domestic law, laws with a protective purpose. Your judgment stands as a model of judicial courage at a moment of national crisis.

Now, your Honour's work has also been underpinned by passionate commitment to the principle of a fair hearing as part of the very fabric of the law. Your vision here has been expansive. As observed by others today, this interest drove you to expand the perimeters of a hearing beyond the slavish adherence to technical rules to demonstrate how courts could, and should, engage meaningfully with, and understanding all, and respecting all. Faced with unrepresented asylum seekers who felt that they had not been heard by the tribunal, on more than one occasion your Honour has examined the audio recordings, finding serial ridicule and belittling of an applicant, amounting to a denial of procedural fairness and apprehended bias.

These are, of course, profoundly important decisions. The gravity of what is at stake cannot be underestimated: they frequently involve no less than genuine threats to life or liberty. Correspondingly, you have consistently approached these matters with utmost seriousness. As Professor James Hathaway has stated, you epitomise the humanist jurist who cares as deeply for the subjects of law as for its rules. At the heart of your Honour's approach has involved a rigorous application of traditional tools and principles of the law which can and should achieve just outcomes for all, including the most vulnerable and marginalised within our community.

And, time and time again, we have seen your judgments demonstrate the truth of this: the capacity of the law to be a bastion of protection and hope in the face of executive overreach, underpinned by a conviction that the true test of the law as a social instrument is that it does not just serve the powerful and privileged but that all, including those on the margins, are on equal footing before the law, no matter who you are or where you're from. Justice North, your Honour elevated your judicial role well beyond daily decision-making in two key areas, both refugee related: legal education and international judicial leadership. They both reflect an enduring enthusiasm for the rule of law borne of the belief in its capacity to do justice.

This is evident in your deep interest in legal education. You have been enormously supportive to refugee law students over the years, and by all accounts have an extraordinary gift for teaching and engaging law students, including holding moot trials at law school. I have also had the privilege personally of speaking with your Honour in one of these classes, held in the Tampa Court, where you offered riveting insights into the anatomy of the law in action, so it comes as no surprise to me that some have reportedly described your classes as the best experience they ever had in law school. You have, put simply, inspired a generation of law students.

Your Honour has also made an extraordinary contribution to the development of refugee law and decision-making beyond our boundaries. As president of the International Association of Refugee Law Judges for eight years, your Honour engaged almost singlehandedly in a remarkable transformation of a notoriously Eurocentric association into one with a genuine regional diversity, inspiring active participation from Asia, Latin-America, and particularly Africa. One tangible result, and a source I know of great personal pride to you, your Honour, was the creation of what's now a dynamic Africa chapter.

A not insignificant development, given Africa is where most refugees on the planet are produced, received, and reside. Your Honour's leadership in expanding resourcing and mentoring of Judges across the globe is testament to your unwavering dedication to a principled and genuinely international approach to refugee protection. I will conclude with one of the refugee cases which I know to be most important to your Honour, the case of X and Y of 1998. An urgent injunction was brought by lawyers for two unaccompanied Kenyan boys, aged 15 and 16, who had been refused refugee protection and removed from this country.

There were still fears for their safety. The case came to court with the boys already aboard a plane in the air, heading for Singapore. Her Honour Debbie Mortimer was counsel. Under threat by your Honour that you would order that the Singapore Airlines plane be turned around in the air, agreement was struck that the boys would receive legal advice in Singapore and be brought back to Australia, and that's what happened. Soon afterwards, they were returned here. The Commonwealth then proceeded to take every legal point under the Sun. On one of these points the late, great Ron Castan QC was brought in for the boys. Eventually, they prevailed. In the meantime, both boys fell madly in love with Geelong girls. They married and later became Australian citizens.

The cases assume such importance for your Honour, I think, because it illustrates how the law can respond flexibly and justly to such a compelling human plight. But it also reveals your Honour's driving generosity of spirit, your deep interest in, and empathy with those before you. There may be many measures of a judicial career. To my mind, the greatest is the extent to which even the most vulnerable, the most marginalised, including those with unpopular causes, are meaningfully listened to and heard, treated with respect and dignity, and given justice. That's the true test. Your Honour, the legacy you leave is profound. It will endure, and it will inspire others to meet that measure, and in doing so to follow the path in which you have changed the course of so many lives immeasurably for the better. May it please the Court.

ALLSOP CJ: Thank you, Mr Manne. Justice North.

NORTH J: Thank you, Chief Justice.

I also pay my respects to the traditional custodians of the land on which we meet. I have been occupying courtrooms for 40-odd years, in different capacities, and I thought this morning would be just another one of those occasions where I would walk in, and hear persuasive arguments, and go out and that would be it. But I am so moved by today that I wonder why I ever resisted the notion of having a farewell. I cannot thank you all enough for being here. It is an incomparable feeling to look out across the courtroom and to see in every single face, I think without any exception, a story linked to my 23 years on the Court if not, in many cases, much longer. So I don't know how else to say it but to thank you, deeply, for coming along to this occasion.

Some of you have made a particular effort, and although time is getting on and I should not extend this too much longer, but I really must mention the extraordinary efforts made by some, and the warmth that that projects to me and the way it moves me on this occasion. Primary amongst those people is, our son Andrew, who lives and works in London and whose son was, yesterday, starting school for the first time. He was conflicted enormously, and I'm very grateful to him and for our daughter-in-law Francesca that, ultimately, he saw the importance of this occasion to me and has come out for a few days just for the purpose. That means so much, Andrew.

My 1996, associate, Wai Quen Chan, who lives in Hong Kong, has come from Hong Kong today. Thank you. My 2017 associate, Nicola Caon has come from New York. My brother-in-law and sister-in-law Max and Anthea Bastiansz have specially come from Sri Lanka. And, closer to hand, my daughter Amanda and her family have come from Perth, as have our good friends Tony and Anne Bloemen – Tony, the retired Broome magistrate about whom you will hear later – and Peter Sharkey, the retired president of the Western Australian Industrial Relations Commission.

My cousin Lorraine Levy and her husband Phillip have come from Sydney; they have been part of our life as travellers on circuit with the Court. We are very close to them and have visited them each time, and, this would not be an occasion without them being here. Alan Boulton and Pat Leary, who were both members of the Bench of the Defence Force Remuneration Tribunal when I was a humble advocate, are here – have remained friends all that time. I'm really grateful that you made the effort to come, Alan from Sydney and Pat from Hobart.

One of the real treasured moments was to hear that Sue Zelinka has come from Sydney. Sue and I collaborated in the International Association of Refugee Law Judges. I particularly acknowledge the fact that you took this special effort to come today, Sue. Then there's John McMillan, who has come from Canberra. John and I met when we were both associates in the High Court, he an associate to Sir Anthony Mason. He has had an outstanding career, ending up as Commonwealth Ombudsman and our friendship has been maintained over those 40-something years. So, again, the occasion would not be perfect without you here, John.

From Canberra, our much loved and missed Registrar, Angela Josan has come specially as has, the Chief Justice Helen Murrell with whom I've shared so many happy sitting hours in Canberra with her and her warm-hearted and welcoming Judges.

I was reluctant to have a farewell, wanting to avoid, sort of, the generic, "Isn't the Judge fantastic?" – although I don't actually mind that – I've come to see and so I asked the speakers who've spoken today specially and I think you can see that they've come from long, long friendships and from interest areas that I have a passion about. Again, it's difficult to express in words how grateful I am that you all agreed so readily and generously and warmly to do this, which I know is a bit of pain in the backside for busy people.

I was concerned not to tread on the toes of the President of the Bar, Matt Collins, and the President of the Law Institute, Belinda Wilson, who are both here and I thank you for allowing me to follow my own path whether for good or bad.

Now, I don't want to contradict the picture painted by the speakers, but I think this is a moment for me to seek some forgiveness for some of my mischief on the Bench. It was about 2001. You may recall there was political resistance to the making of an apology to the Aboriginal People. I was about to start the Karajarri case, the first native title trial in the Kimberley. Tony Bloemen had lent me his historic courthouse in Broome for the occasion. The start of the hearing was delayed because I was still writing some opening remarks.

The Courtroom was packed when I came on to the Bench. I began the proceeding by saying, "I apologise – for the delay in commencing proceedings". I knew that the pause would not be recorded in the transcript, however, later that day, I received a fairly anxious call from Chief Justice Black, who I'm so glad is here, saying that he had heard that I had delivered an apology from the Federal Court to the Aboriginal People. "No, Chief Justice, I explained. I apologised for the delay".

Chief Justice Allsop, however, took proper precautions. On one occasion, he was about to hand me the reins of Acting Chief Justice. I said to him, "James, you never know what I might get up to when you're away." He replied with a wry grin, "Tony, I've pulled out the plug."

For me, the main purpose of this farewell is to acknowledge the contributions of all those who have been part of my life as a Judge. Awkward moment. The starting point must be the love of my life, my wife of 45 years. Sorry, honey. I know you hate this, so I will make it shorter than it should be. Words cannot do justice to her love and support. She has always been the counsel of patience and tolerance, qualities which are reflected in the way she lives her life. Audrey is just the sweetest person you could ever meet. To her, I owe much of my happiness over the past 23 years on the Court.

For my first five years on the Court, Brenda Bacon was my executive assistant. She was followed by April Lombardo, and I'm so glad they're here today.

For the past 18 years, Tarwin Shiel has been my executive assistant. She has fulfilled that role with great efficiency and expertise. She has adapted easily to changes in the Court system which has largely taken us from a paper-based system to an electronic system. In the course of her work, she acquired a knowledge of case management. So adept did she become, that she was able to anticipate the approach North J would take, indeed, she christened herself "Practically J".

What made for the very comfortable atmosphere in chambers was that Tarwin was interested in the cases and participated in discussions with the associates and myself. It was obvious from those discussions that she has a keen intelligence and analytical skill. She came to share my enthusiasm for native title and employment law cases.

In only one instance did we disagree over a result and in that case the Full agreed with her. It was no surprise that a few years ago, Tarwin undertook a law degree and was admitted as an Australian lawyer last December.

Over 18 years, Tarwin and I have shared the experiences of both our families. The day in chambers normally started with an exchange about recent family happenings. She has become a cherished friend. Thus it is so fitting that her twins, Orlando and Archer, her mother Pirrie and her sisters Amanda and Kylee, all who figured in these discussions, are here today. Indeed, it is a mark of that friendship that both families chose to mark my retirement by travelling to Beagle Bay in Western Australia in May to attend my last native title determination and then spend a week together four wheel driving in that beautiful country.

Tarwin, thank you for making my chambers a place I looked forward to coming each day.

Apart from Tarwin and myself, the third element in the small world of chambers has been the associates. Each of my 23 associates have brought their own personality to the position. Many of them are here today. Their talent has been electrifying. That can be seen in many cases from their post-chambers career which, as has been mentioned, I have followed with a, sort of, fatherly interest and great pride.

Craig Dowling, at the Bar table, my first associate, took silk in Victoria last year. Deb Siemensma and Tim Goodwin, both here, practise at the Victorian Bar. Juan Munoz, who is also here, is in-house counsel. Wai Quen Chan, who travelled from Hong Kong, is vice-president, human resources, of Hong Kong Disneyland – very useful as we pass through. Nehal Bhuta, my 2000 associate, has just been appointed to the Chair of International Law at the University of Edinburgh. Alistair Webster, who was to be here, is the policy director for the Federal Leader of the Opposition, and Jess Howard, who is here, is the chief of staff of the Victorian Minister for Transport. That is just a quick selection because time is running short.

I have loved the interaction with and contributions made by my associates. Many stories could be told but perhaps the greatest irony comes from the time Jess Howard was my associate. Each judgment is signed off with a certificate by the associate verifying that it is the judgment in question. In the case of the Tampa judgment, that certificate was signed "J. Howard".

I am grateful for the firm and longstanding friendships with a number of my colleagues. I am sad that Cathy Branson is not here today, but she has been called to Canberra to receive an AC, a singular honour, I think the first for a Federal Court Judge, other than a Chief Justice.

The Court is a hothouse of contending views held by strongminded people. It might be thought that, as such, it is a fertile ground for the growth of animosities, but that has not been my experience. The Court has developed a different culture. When differences in views have arisen, whether sitting on an Appeal Bench or as a single Judge subject to an appeal, I have been struck by the way in which the different perspectives have been treated with generosity, kindness and respect.

I want to pay particular attention to the Bar generally, but particularly the Victorian Bar, which has a special place in my affection. I have gained enormous assistance from Counsel and, whilst robust exchanges are part of the process, I have appreciated that Counsel have behaved with politeness and courtesy, conduct which enhances the reputation of the legal system as a whole.

Today would not be complete without mention of my long-standing friends: Tony Neal who spoke; Lou Papaleo; Peter Gray; David Habersberger; and David Ashley. I really wish I could address every single one of you because I know that there are stories to be told relating to each of you, but time will not permit that.

I have told of my good fortune in having the support of wonderful people around me during my time as a Judge of the Court. I am also grateful for some rare opportunities which have come my way. I want to share three examples – they will be shorter than I intended, because time is getting on – and some of those examples have been touched on already.

First, in Native Title. I have been enormously privileged that Chief Justice Black and Chief Justice Allsop have put me into cases which have been pivotal in the development of Native Title jurisprudence. I have a passion for the area and a great appreciation of the way the Court has responded to the challenge of this, new jurisdiction by supporting Judges going out on country. Some of the amazing moments of judicial life have been when sitting down in the sand listening to old people who are prepared to share their most intimate beliefs and histories with someone from a culture so far away. I also want to especially acknowledge the logistics staff: Bob Sheppard, Dave Oldland, Brendan Mitchell, and Nick Lonick, who have been exceptional in the way they have transported and arranged the movement of the Court. Similarly, a close bond has developed between the lawyers appearing in those cases, including Chief Justice Peter Quinlan just appointed to the Western Australian Supreme Court, and to the leading Australian anthropologists who have assisted me enormously in that work.

The second great good fortune arose in relation to the Waterfront dispute when Bruce Phillips, the Court's Director of Public Information, came to me and said, "Will you allow cameras in court?" This was not the practice before that time. He was very persuasive, but cautious at the same time. Because of the public interest in the case and his background as a journalist, he saw the opportunity of advancing this agenda. I agreed and it was one of the early steps in bringing the TV into the Courtroom. Chief Justice Wilcox, shortly afterwards in the appeal, allowed a live broadcast of the delivery of judgment in that case and I think that, after about five minutes, it attracted about as much attention as this has attracted to my youngest grandson.

Bruce has been a driving force of these developments. I have benefited from his wise advice, his deep understanding of the way journalists operate and, indeed, from his friendship. In fact, he delayed his departure on leave this morning to attend only on condition, which I have breached, that I would finish by 10.30.

The final example is alternative dispute resolution. When I first joined the Court, mediation was not embedded in the process of the Court. I learnt about it on a trip to the US. I came back and Chief Justice Black was very supportive, but the institution was really founded by vigour of the Registrars, John Efthim and Jamie Wood.

That was a dynamic time and is the genesis of the reputation of mediation in this Court which is one of the outstanding achievements of the Court in my time as a Judge.

Before I conclude, I want to congratulate the four best behaved grandchildren in the Court today, Oliver, Talia, Rafferty and Haddie, most of whom are awake.

I would like to thank Stephen Williams, one of the few people who have been at the Court longer than me, for his impeccable organisation of this ceremonial sitting.

The time has come to bid farewell to my life as a Judge of the Court. As I reflect on the moment, I think of my father whose life was not as fortunate as mine. He arrived as a 21 year old in 1937 as a refugee from Nazi Germany. His spirit forever burned with a sense of injustice at the abuse of Government power, which he had experienced. He passed on that sense to me. I leave the Court with the hope that I have been true to his memory.

Thank you.

ALLSOP CJ: The Court will now adjourn.