Swearing In Ceremony of The Honourable J J Spigelman QC as Chief Justice of The Supreme Court of New South Wales
THE SUPREME COURT OF
NEW SOUTH WALES
BANCO COURT
MASON P AND THE JUDGES
OF THE SUPREME COURT
Monday 25 May 1998
SWEARING-IN CEREMONY OF
THE HONOURABLE J J SPIGELMAN QC
AS CHIEF JUSTICE OF THE SUPREME COURT OF
NEW SOUTH WALES
SPIGELMAN CJ: Justice Mason, President of the Court of Appeal, I have the pleasure to announce that I have been appointed Chief Justice of this Court. I present my Commission.
(Commission read)
MASON P: Mr Wescombe would you please read the Commission. Chief Justice, I ask you to take the oaths of office.
(Oaths of office taken)
Sheriff, I return the bible and the oaths so that the oaths may be filed in the archives of the Court and the bible may have the customary inscription inserted therein in order that it may then be presented to the Chief Justice as a memento of the occasion.
Chief Justice, on behalf of the Judges of this Court I congratulate you and welcome you to the Court.
THE HONOURABLE J W SHAW QC MLC ATTORNEY GENERAL OF NEW SOUTH WALES: May it please the Court, on behalf of the Bar it is with great pleasure that I congratulate you on your taking up the office of Chief Justice of New South Wales. Your Honour brings to this high office of State an intellect informed, not only in the service of the law, but also by insights gained from experience in a wide range of activities outside the limits of legal practice.
It is fortuitous that you are the first Chief Justice of New South Wales to have been born in Europe. Those who know you have never detected any attraction to rural life, so it is perhaps fitting that you chose to be born in the Polish Silesian city of Sosnowiec, a coal mining and steel city, perhaps the equivalent of Wollongong, without the surf.
You were admitted to the Bar in 1976 and became a Queen's Counsel in 1986.
In practice as a barrister your experience has been broad: Constitutional and Administrative Law; Commercial; Corporate Crime and Fraud; Defamation and Media Law, being your major areas of interest. I would like to briefly touch upon some of your more prominent cases.
In Kartinyeri v The Commonwealth of Australia (1998) 195 CLR 337 (the Hindmarsh Island Bridge case) you represented the plaintiffs. The case required the High Court to consider the race power contained in the Constitution, on your submission, in light of the 1967 referendum. In particular, the Court was asked to decide whether the race power could ground legislation which was detrimental to indigenous Australians. While your clients were unsuccessful, the case posed further questions of great significance to race relations in Australia which may need to be resolved in subsequent cases.
In Ha v State of New South Wales (1997) 189 CLR 465 (the Excise case), your Honour put an innovative construction of s90 of the Constitution before the Court. As Acting Solicitor General for New South Wales, your submissions were widely admired as forceful and replete with economic expertise. The majority rejected your reading, and also took the opportunity to close what some had argued as a loophole in the regulation of excises. It was an expensive day for your client, the State of New South Wales.
Your Honour's advocacy skills are illustrated by the remarkable results you had in two very recent cases before the High Court. In Newcrest Mining (WA) Limited v The Commonwealth (1997) 190 CLR 513 your Honour represented the mining company. You successfully argued that the extinguishment of mining leases, as a result of the proclamation of Stage 3 of Kakadu National Park was an acquisition of property by the Commonwealth and therefore subject to s51(xxxi) of the Constitution, that is the Commonwealth was obliged to acquire the property on just terms. Just months later, in The Commonwealth v WMC Resources Limited (1998) 194 CLR 1, your Honour appeared before the High Court on behalf of the Commonwealth and successfully argued that the extinguishment of oil exploration permits in the Timor Gap did not constitute an acquisition of property. Such a juxtaposition of advocacy is, of course, part of the attraction of life as a barrister.
From 1976 to 1979 you acted as a part-time Commissioner with the Australian Law Reform Commission, where you completed a report on "Unfair Publication" and a monograph on "Sanctions, Remedies and Law Reform".
In 1997 you served this State as Acting Solicitor General for three months.
You came to Australia in 1949 and were brought up in Maroubra, so it follows that your commitment to Souths, the South Sydney Leagues Club, was inculcated decades before you took a brief for the Australian Rugby League, of which Souths had stayed a loyal member. Maroubra Public School provided your primary education, then you went on to Sydney Boys' High, now providing that distinguished public school educational institution with its first Chief Justice.
When you appeared for Commonwealth and State governments, you brought to the conduct of the cases your breadth of experience in public administration gained from your experience as a Senior Advisor and Principal Private Secretary to the Honourable Gough Whitlam, during his Prime Ministership and then as Permanent Head of the Department of the Media. I might that say that Mr Whitlam is overseas and is not able to be here today.
In 1972 you published a pioneering work for this country "Secrecy-Political Censorship in Australia". In 1981 a substantial work on world nuclear policies "The Nuclear Barons", co-authored by you, was published in the United States to critical acclaim.
Your capacity as a lawyer has been reinforced by your experience on the boards of public cultural institutions. You are now serving as President of the Powerhouse Museum and as a member of the Council of the National Gallery of Australia. In the past you had been Deputy Chair of the Art Gallery of New South Wales and Chairperson of the Australian Film Finance Corporation. Your interest in film pre-dated your appointment to the Corporation. In the days before government funding you were involved in a company which raised money for George Miller's first film which, given his later career, showed good judgment.
One essential part of your character is your Jewish heritage, which you have always carried with a robust, easy and unaffected style. Your loyalty is firm enough to allow you to engage in Jewish jokes, long before Woody Allen's rise to fame. As with another Australian minority, the Irish, Jews can be tough with the jokes about themselves. But Jim Spigelman has always been able to turn Irish jokes to his own purposes. Many have heard you tell the story of how you were staying at the same hotel in New York as Mick Young and Eric Walsh, names not unknown in politics. On returning to the hotel Mick Young rang the switch to enquire if there were any messages. The operator asked him to spell out his name, then Eric Walsh took the phone and he, too, was asked to spell out his name. You followed and, having heard the others, without prompting, started to spell out the name, but were interrupted by the operator "I know how to spell Spigelman". Such spelling out was redundant in New York.
You are our second Jewish Chief Justice, and the welcome you have received is eloquent testimony to how far we have become an open, tolerant society since the time of our first, more than a century ago. When Julian Salomons was appointed the fifth Chief Justice of New South Wales, his appointed was gazetted on 13 November 1886, but hostility from his colleagues led him to resign six days later, before he had been sworn in. In his professional life, it was not the only time that he came under attack for his race. But that is long past history.
On a happier note you have followed your predecessor in other ways. Like yourself, Julian Salomons acted for a time as Solicitor General, which was then an office within the ministry, and as a trustee of the Art Gallery. You do not have Salomons' cross eyes or squeaky voice, but other likenesses may be found in the contemporary description of Salomons as having a mordant wit and being quite the fastest, long distant talker of his time. However, the option of following him into a knighthood has passed.
Minorities who have known persecution tend to bring up children who are keen to seek justice for all people. It is perhaps literature's loss that you did not follow a vocation as a writer of fiction. But it prefigures the adult that the boy in his last year at Sydney Boys' High wrote in its magazine "The Record" a short story that condemned the White Australia Policy and criticised the treatment of the Chinese in our history. The story did not flinch from saying harsh things about trade union phobias against the Chinese. When you were at school the few Chinese students in our schools tended to be side-lined. Young Jim Spigelman, provoked by some gush of enthusiasm from the authorities over an American student, formed the Asia Society, as a forum for communication with the Chinese students.
Your part in the Freedom Rides of 1965 has been much reported in recent days. They were times of hope when it was possible for the young to believe that the walls of prejudice must inevitably fall. We have made gains, but the struggle against intolerance and injustice continues. While the Freedom Riders are well-remembered, the student activist took up many other issues. You advocated a 'poverty law' option at the Law School and, as President of the Students Representative Council, championed student representation on Faculty committees.
Your career has been marked by both hard work and intellectual brilliance. These characteristics were evident as an undergraduate. In the Arts Faculty, you took a double honours degree by the rare feat of doing both subjects (Government and Economics) in the one honours year. Despite frenetic activity in extra-curricula matters and very sporadic attendance at lectures you topped the Law course and were awarded the University Medal in Law.
It is a cliche, alas too often true, that legal practitioners, read little outside the law. However, no-one could level that accusation at you. We will have to wait to see whether you can resist citing in obiter dicta the New York Review of Books, or The New Yorker, where you have the family connection of a cousin, who designs some of the covers. It is the vast scope of your omnivorous reading that has earned you recognition as one of the better conversationalists of our city. Sometimes your conversation has had unintended consequences. Our former Sydney playwright, David Williamson, likes to tell how he was attracted to the idea of writing his play, Top Silk, by your stories. All this and you have found time for tennis. More importantly, your commitment to your family (Alice and three children) is a major feature of your life.
The law makes heavy demands on those who practice it well and the burdens of the office of Chief Justice that you are undertaking are even greater. I and your colleagues have faith that you will carry out your duties with great energy and effectiveness.
There are temptations even for Judges. Shakespeare etched out a portrait of a functionary of the Venetian State who was one of the kind of men "whose visages do cream and mantle like a standing pond" and who would say "I am Sir Oracle and when I open my lips let no dog bark".
You will, I am sure, maintain the appropriate dignity of this high office (the leadership of the New South Wales judicial structure), but I hope that you will retain that capacity you share with your distinguished predecessor, Julian Salomons, for a little mordant wit from time to time. If the Court pleases.
MR R HEINRICH PRESIDENT LAW SOCIETY OF NEW SOUTH WALES: May it please the Court, it is an honour and pleasure for me to be here this morning at this special sitting of the Court to welcome your Honour as Chief Justice of the Supreme Court of New South Wales.
Representing the solicitors' branch of the profession, I seem to be strangely suffering the effects of the cab-rank rule, at least in being last in a very long queue of congratulations which have been extended to you over the week since your appointment was announced by the Premier of New South Wales.
However, being last has its advantages. I do not have to say a lot other than to make some observations about the great changes taking place within our Courts and your suitability amidst these changes for the highest judicial office in New South Wales.
That you are eminently suitable is beyond question. Throughout your student days and professional life, you have distinguished yourself as a person of great analytical and technical ability. The people of New South Wales will be well served by your considerable talents.
That great changes are occurring in our Courts is unquestionable. Rarely have we experienced in such a short period of time so many new appointments to Courts in New South Wales and to the High Court of Australia.
And rarely have we seen such intense scrutiny, speculation and expectation surrounding our Courts and those men and women appointed to the challenging task of delivering justice to the citizens of New South Wales. That the judiciary shares responsibility for what goes on in our daily lives is without doubt, but it is in the sharing that some pressures seem to be emerging.
Perhaps the pressures have always been with us, but the level of scrutiny and of media and political criticism means the judiciary and their decisions are more exposed, creating new challenges for the justice system.
For solicitors in New South Wales, we look to a judiciary which remains steadfastly independent of the State and unrelentingly committed to applying the rule of law. We look for analysis and insight, thoughtfulness and thoroughness in judgments. We also seek a justice system which is well managed where parties appearing before the Courts can reasonably expect the efficient handling of matters through well-managed administrative systems.
While saying this, such efficiencies should never be a reason to disadvantage a person to a fair hearing. Legal representation should always be a question of right, not of money.
With your qualifications, experience and wide background, we are confident that you are well suited to the leadership role to which you have been appointed and to meet the challenges ahead. In this, you will have the full support of the New South Wales legal profession.
The solicitors of New South Wales congratulate you and wish you well in your new appointment. If the Court pleases.
SPIGELMAN CJ: Your Honours, Your Excellency, Mr Premier, Mr Attorney, Mr Heinrich, distinguished guests, men and women of the legal profession, and of the public, your presence honours me. It honours the Court.
On this, the first occasion that I address the Court as Chief Justice, my initial remarks are to my immediate predecessor, Chief Justice Gleeson, now Chief Justice of Australia. No successor could wish for a better inheritance. The Court is in good shape.
Further, as you pointedly reminded us at the ceremony to mark your retirement, exactly a week ago, no-one could wish for more informed surveillance.
Mr Attorney, thank you for your personal comments. As you and others would recognise, it takes a lot for a South supporter to willingly wear rabbit fur.
Mr Heinrich, thank you for your comments, and I will have some comments of my own on the matters you raised.
The media has given considerable attention to the fact that I was not born in Australia. I came here at the age of three. It has happened before.
Sir Frederick Jordan (Chief Justice between 1934 and 1949) was born in London. He came to Australia at the age of five and lived humbly in Balmain. Like myself, contrary to something the Attorney said, he attended Sydney Boys High School.
Setting aside my two living predecessors, there can be no doubt that he is the most intellectually distinguished Chief Justice in the history of this Court. Sir Owen Dixon thought so. On his retirement as Chief Justice of Australia, Sir Owen expressed his regret that Sir Frederick did not serve with him on the High Court. I do not compare myself in that regard but, rather, I simply note, other than my non-Anglo Saxon background, there are some personal parallels.
By the 1930s Australian society, at least in the legal profession, was already a comparatively open one. If one surveys the world, the nations in which it could be reasonably expected that a transition from migrant to an office of this character could be accomplished in one generation, can be numbered on the fingers of one hand.
I am lucky that my late parents brought me to live in one.
Furthermore, such a transition is also a manifestation at the rigorously meritocratic tradition at the Sydney Bar. It does not matter where you came from, who your father and mother were, or what other privileges you had, you make it or you don't on your own abilities.
I was recently reminded of the competitive pressure at the Bar by David Jackson QC. On the announcement of my appointment he forwarded an extract from volume 9 of the Commonwealth Law Reports at page 16. The judgment of Justice O'Connor or, rather, Mr Justice O'Connor, as his Honour was then, somewhat redundantly, known.
Jackson had read in the newspaper that my age was 52. Justice O'Connor said this:
“A man in search of employment at 52, even if his limbs and health are perfect, begins to feel the competition of the younger men who will eventually drive him off the field.”
The first thing to note about this extract is that it manifests the extraordinary depth of the jurisprudence of the High Court of Australia.
Secondly, it raises the issue of competition of the Bar. I must confess, that oblivious as I am to these things, I was not conscious of pressure from younger rivals. It may be that Jackson feels differently. His letter to me was a warm one.
It is a matter of bewilderment to me that the Bar, or the solicitors' branch of the profession, would be under attack for being inadequately competitive. Attempts to proscribe some professional rules or restrict the recognition of a special status, like Senior Counsel, are sometimes advanced in the name of competition.
I do not know of any area of commercial activity in Australia that is more intensively competitive than the law. Practices which were real barriers to competition have long since gone.
In the light of such attacks the status of the legal profession as a profession is one of the matters which I wish to highlight in these remarks.
There is a view abroad that because one aspect of the profession's activities constitutes a business the profession should be treated and regulated as if it were nothing other than a business. In this lies great danger.
The independence and integrity of the legal profession, with professional standards and professional means of enforcement, is of institutional significance in our society. It is an essential adjunct to the independence of the judiciary.
The ideology of the free market forces, which I do not doubt has a significant and appropriate role in many spheres of discourse, has been elevated by some to a universally applicable orthodoxy. It should not be accepted to be such.
Economic rationalism has its place. In the administration of justice that place is a limited and subsidiary one. A plurality of organising principles for our social institutions is as important to the health of our society as biodiversity is to our ecology.
There are parts of our society in which the ideology of free markets simply has nothing useful or interesting to say. The requirements of justice is one of them. Some have advocated applying the doctrine of "user pays" to the Court system. That would fundamentally diminish its capacity to deliver justice.
The work of this Court cannot be assessed as if it were merely a publicly funded dispute resolution centre.
There are some specific points of contrast between markets and the profession worthy of note.
The first and, in my view, foremost, is the significance of historical continuity. This is at the heart of the legitimacy of our legal system. A profession values such traditions. Markets are different. A market wakes up every morning with a completely blank mind, like Noddy.
Secondly, a profession has an ethical dimension and values justice, truth and fairness. The market recognises self-interest and self-interest alone.
Third, the operation of a market gives absolute priority to a client's interest. A profession gives those interests substantial weight, but it is not an absolute weight. In many circumstances, the lawyer's duty to the Court prevails over a client's interest, let alone a client's enthusiasms.
This Court knows that it can generally rely on the professionalism of those who appear before it. If that were to change the resources needed to administer the law would explode, perhaps to American dimensions.
I do not intend to suggest that venality is unknown in the legal profession, but it is not its central organising principle.
As Justice Posner, of the United States Court of Appeal, indicated in his 1995 Clarendon Law Lectures at Oxford University, the special role of the English Bar, with which he was making comparison, and particularly the greater significance of duties to the Court, make American practices inappropriate in our system.
We do not have and must not create the situation reflected in the American aphorism:
“A town that cannot support one lawyer can always support two.”
There is a comprehensive review of lawyers' duties to the Court by Justice Ipp of the Supreme Court of West Australia, published in the January 1998 issue of the Law Quarterly Review, which I commend to the practitioners present today.
The duties of a lawyer to the Court include:
* A duty of full disclosure of the relevant law;
* A duty of candour not to mislead the Court as to fact, nor to knowingly permit a client to do so.
In this regard greater recognition is now given to the many cases in which mere silence constitutes misleading conduct.
* There is a duty to prepare the case properly and to know the relevant law.
* A duty to refuse to permit the commencement or continuance of baseless proceedings or proceedings brought for an ulterior purpose, such as malice, or to exploit the advantage of Court delay.
* There is a duty to exercise care, by testing any instructions, before making allegations of misconduct against anyone.
* There is a duty not to assist improper conduct, whether illegal or dishonest or otherwise improper.
All of these duties will override the perceived interests of the client.
There is another significant duty that may coincide with the interests of the client. Contemporary pressures on the administration of justice require the recognition of a professional duty owed to the Court, as well as to the profession, to conduct cases efficiently and expeditiously. Pursuant to this duty practitioners must identify, at the earliest possible stage, the real issues in dispute. Practitioners have a duty to ensure that legal costs and Court time are not unnecessarily spent. It is no longer permissible, if it ever was permissible, for a lawyer to take every point, and this also applies in criminal trials.
It may now be appropriate for the Court and the profession to review the means of enforcement of the duty to conduct cases efficiently and expeditiously. We simply must recognise that inability to make concessions is often a cloak for incompetence. So is prolixity.
To brace me for my new role I turned to Justice Kirby's articles on the subject of "Judicial Stress".
My immediate predecessor as Chief Justice has established a clear tradition for the conduct of this office with respect to that subject: "Stress" is not something you get. "Stress" is something you give. I will do what I can.
In his original article Justice Kirby had a separate section on Chief Judges in which he said:
"The skills that were required of Chief Justices in earlier times have radically changed in the last two decades. At least, to some extent, Chief Judges are expected now to keep abreast of Court management, social change, legal trends, judicial philosophy, law reform, macro economics, the law reviews, world events, cultural occasions, legal conferences and suitable charities".
Now, I have to confess to you that I have, in the past, had a very real problem with legal conferences. I have in fact only ever attended one, an excellent conference in Melbourne on the Mason Court. However, notwithstanding its quality, it did confirm my worst fear about legal conferences: They are full of lawyers.
Today I am dedicating my life to the law to a degree that I have hitherto managed to avoid. It is, I believe, important for all lawyers, especially judges, to participate in community life beyond the law. This is not a monastic order. Plainly there are restraints on such participation. It is not desirable for members of the judiciary to place themselves in situations where they seek favour from the executive, whether Commonwealth or State. Subject to that, the performance of judicial functions will be enhanced by engagement with the broader community. That is something which I do and will encourage.
What I join today is a vocation of service. It is well to remember that the role of the Judge of this Court is to serve the people of Australia and, in particular, the people of New South Wales.
Sir Gerard Brennan, on his swearing in as Chief Justice of Australia, explained the oaths, in particular the Oath of Allegiance. He identified the Oath of Allegiance as a commitment to the head of state under the Constitution, in my case, under the Constitutions of both Australia and New South Wales. He identified that now, as the ultimate sovereignty resides in the Australian people and, relevantly, in the people of New South Wales, the Oath of Allegiance is a promise of fidelity and service to the Australian and, in my case, New South Wales people. I adopt his Honour's analysis.
However, the people whom we serve should not be understood in any immediate populist sense. Judges serve the people understood as a historical continuum: We owe debts to prior generations and obligations to succeeding generations. However, a vocation of service to the people it remains.
I approach my new task with enthusiasm. In particular, I look forward to what I see as the most intellectually satisfying manifestation: The crafting of judgments. The law to me is an intellectually creative process. As the great American jurist Oliver Wendell Holmes put it:
"The law is not the place for poets or artists. The law is a calling for thinkers."
I hope to participate in my new role in the future development of the law to the best of my abilities. The judgments of this Court are part of a broader public discourse, by which our society and polity affirms its core values, applies them and adapts them to changing circumstances.
I also accept a representative and administrative function in the maintenance and enhancement of our system of justice, a system which most nations have cause to envy.
Australians like to think of this as a young country. With regard to the rule of law that is not so. This Court has a continuous institutional history from 1824. Very few nations have judicial institutions of such antiquity. Whatever criticisms there may be of current practice, whatever reforms appear appropriate, historical perspective shows that our legal system is a great source of national strength.
Finally, I wish to emphasise the role of an independent judiciary as a bulwark of personal freedom, particularly against the hydra-headed
Executive arm of government, which history suggests is the most likely threat to that freedom. The profession, no less than the judiciary, operates as a check on Executive power. Indeed, if there should ever be an indication that a member of the judiciary was unduly favouring the Executive, the profession would play a primary role in preventing such conduct.
Our history, in that regard, stands in marked contrast to the continental inquisitorial system where blatant political interference with the legal process, including in criminal trials with political implications, has been a recurring feature.
We are the inheritors of an 800 year old tradition which represents one of the most extraordinary of human constructs. The common law and the adversary system - a manifestation of the power of Socratic dialogue - is one of the greatest mechanisms for the identification of truth and the maintenance of social stability that has ever been devised. It is an honour to serve it.
Justice is like oxygen: There is no reason to notice it if you have it in abundance, as we do. However, as you constrict the flow it becomes more and more important until a point is reached where nothing else matters at all.
There is nothing fragile about justice in this country. However, it can be gradually attenuated by seemingly inconsequential decisions. Eternal vigilance is required. Such vigilance is my primary duty.
This is a civic occasion of some significance. We have too few in this country to allow it to be taken over by personal indulgences. However, one great thing about an opportunity such as this is to allow me to publicly acknowledge the degree of support I get from my wife and my three children. I appreciate the opportunity of acknowledging that support. If I try to elaborate any further it would embarrass you all.
The Court will now adjourn.**********
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