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Speech to a special sitting of the High Court of Australia to welcome the Hon Justice Stephen Gageler



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THE HON NICOLA ROXON MP Attorney-General Minister for Emergency Management

SPEECH - A SPECIAL SITTING OF THE HIGH COURT OF AUSTRALIA TO WELCOME THE HON JUSTICE STPHEN GAGLER - 9 OCTOBER 2012

May it please the Court.

First, may I acknowledge the traditional owners of the land we meet on - and pay my respects to their elders, both past and present.

• Your Honours

• Distinguished guests -

 Former Chief Justices of the High Court, the Honourable Sir Anthony Mason, the Honourable Sir Gerard Brennan, and the Honourable Murray Gleeson.

 Former Justices of the High Court, the Honourable Sir Daryl Dawson, the Honourable Michael McHugh, the Honourable Ian Callinan and the Honourable William Gummow.

 Members of the Federal and State Courts present today  Representatives of the legal profession and the Federal Opposition.

It is my great honour and privilege to be here today.

On behalf of the Government and the people of Australia, I offer Your Honour my congratulations and best wishes on your appointment to Australia’s highest court. As Attorney-General, it is one of the greatest pleasures I have to welcome a new Judge to the court.

Indeed, with the current Court and attendance of seven former justices, there are two full Courts of the High Court assembled to pay tribute - an immense compliment to your honour.

And as one former High Court Associate to another, I personally congratulate you on working very hard for the length of a career, to now find yourself back where you began.

For many professions this is not a sign of success - but in this instance it is the highest achievement possible.

It seems the ultimate destination for High Court Associate alumni is either the bar, the bench or politics. If I may say, your Honour, you have chosen wisely!

I understand that many of those close to Your Honour are here today to share this special occasion with you, including:

• Your wife, Carla

• Your daughter, Elizabeth, and

• Your two sons, Francis and Benjamin

I’m sure it is with great pride they are here - but I also know how much your Honour appreciates their love and support for the work you do.

In the Sydney office we occasionally share, I once made a cup of tea and looked rather longingly at the biscuits on the counter with a stern post-it note on top from your daughter, saying “For Daddy only!”

I trust this was to protect them from hungry brothers rather than any passing Attorney - but nevertheless I resisted the temptation.

Your Honour’s appointment to this Court has been greeted with national acclaim, as well as some examination of your influences and formative years.

As others here today will speak to your formative years in more detail, I mention briefly that the media’s description of “a sawmiller’s son from the Hunter Valley with a black belt in Taekwondo” does not do justice to the remarkable journey that has led Your Honour to Australia’s highest court. Country boy, public schooling, no lawyers in the family - it may have seemed an unlikely course.

I will pick up where Your Honour’s legal career began, and I first note its curious and fitting symmetry. Your appointments to the office of Solicitor-General and now High Court justice come after extensive involvement with both institutions of Court and Government much earlier in your career.

Between 1983 and 1985 you served as Associate to then High Court Justice Sir Anthony Mason. Sir Anthony later commented that he instantly knew he had recruited an “outstanding legal mind.”

It is wonderful that Sir Anthony is able to be with us today to see the fulfilment of that early promise and dedication. Perhaps, in 30 years’ time, you will be in Sir Anthony’s position to welcome to the Bench one of those sitting behind Your Honours right now.

In 1985, you joined the Commonwealth Attorney-General’s Department, an organisation that now assists me with distinction. You worked your way quickly through the ranks from legal officer to principal legal officer. It was there Your Honour was exposed to the work of the-then Solicitor General, Dr Gavan Griffiths AO QC, serving as his assistant from 1987 to 1989.

During this period, Your Honour also worked as a part-time tutor at ANU in constitutional law. Even at this early stage of your career, your expertise in this area was widely recognised, with your tutorials needing to be moved to the Moot Court to accommodate the large number of students wishing to attend.

In 1989, Your Honour was admitted as a barrister of the Supreme Court of New South Wales and was appointed Senior Counsel in 2000. During your time at the Bar, Your Honour provided great support to your many readers, exposing them to a variety of cases and solicitors, often helping them to develop their own businesses

and niche of expertise. One of your previous readers, Stephen Lloyd SC, has described you as a well-prepared and versatile legal thinker of spectacular clarity.

I understand that this is reflected in the structure of Your Honour’s speaking notes in court. I am told that Your Honour often writes only one sentence per page, broken into individual segments. Your approach has been described, I am sure in a complimentary manner, as “an intellectual discipline intended to reduce all propositions to their simplest form”.

I’m not sure if this method seamlessly translates to judgment writing, although one page judgments may have a certain appeal to law students!

I am also advised that you like to set yourself an additional challenge by making your writing so small as to be barely legible! (Surely your honour on this ground may have missed his calling as a doctor?)

More seriously, I am sure your Honour’s ability to decipher the smallest detail will be a valuable skill as you take your place on the bench.

I first met your Honour during your time working at the bar - and was immediately impressed by a prodigious work ethic, a quiet but purposeful demeanour, and a steely resolve.

It was during this period that Your Honour also served as a Member of the Administrative Review Council, and undertook the role of Editor for the Australian Law Reports - yet another example of finding time to give back to the profession. More recently you have also been the Chairman of the Constitutional Law Section of the NSW Bar Association.

Your Honour is recognised as an excellent speaker, and the Australian Government has often been the beneficiary of your talent in Court and in the delivery of speeches on the Government’s behalf at ceremonial sittings like the one today. Despite your superior skills, I did feel this was one occasion where it was preferable I did it myself!

Over the course of your career, Your Honour has also been a gifted writer, authoring many articles ranging in topics from the republic to preventative detention to the scope of judicial review.

Your Honour may also recall authoring some time ago an article in the Sydney Law Review about the four ‘essential attributes of a judge’. You proposed these attributes to be:

• technical competence

• practical judgement

• courtesy; and

• industry.

All those who have worked with you know that your honour far exceeds these self-described standards. Courtesy and modesty being remarked upon most often by all close to you - emphasised by the fact that your long standing assistant Jan Cutelle, will continue in your employ at the Court.

The number and significance of cases argued by Your Honour in the High Court and other superior courts over the last couple of decades is impressive from any perspective.

Your Honour has appeared before this Court as senior counsel on more than 30 occasions. These appearances cover a wide range of constitutional issues including freedom of interstate trade and commerce, judicial power, federal relationships and the role of executive governments.

It could be said that the frequency of your appearances has made you somewhat of a fixture of the court. Your Honour’s status as a ‘regular’ was acknowledged publicly in 2003, with your image appearing as part of the painting commissioned to mark the centenary of the court. I am advised it is a decent likeness.

There has been a tendency in recent times to pigeon-hole Your Honour as ‘merely’ a constitutional lawyer, however your career has seen you appear in a very diverse range of matters including commercial law, revenue law, administrative law and medical negligence.

Your Honour’s exceptional record and standing made you a strong and well-supported choice for appointment as Solicitor-General in 2008.

Your Honour brings the special experience that comes from being Solicitor-General to the High Court.

Of course, although this is rare, you are not the first to do so. Your Honour was preceded by Sir Anthony Mason, who also served as Commonwealth Solicitor-General. Sir William Webb, Sir Ronald Wilson, Sir Daryl Dawson and the Honourable Mary Gaudron also all served as State Solicitors-General prior to appointment to this Court.

This latest appointment from among those who have served as Solicitor General continues a great tradition which allows Australia’s court of final appeal to reap the benefit not only of technical strength, but also of experience in government at Commonwealth and State levels.

As Solicitor-General, a person must exercise that independence of legal judgment required of the principal legal counsel to executive government, all the while conscious that particular advice may determine governmental practice in many areas which may never come to be considered judicially.

This involves an application of deep legal principle in relation to the full spectrum of government practice. Few in the legal profession are called upon to perform this onerous - but also very rewarding - task.

At a personal level - may I thank you for the professionalism you took in that role and the seriousness with which you undertook such service to the public.

It is an excellent thing that in Australia someone born into a sawmiller’s family in a small New South Wales town can reach this high office.

And it is an excellent thing that someone with your Honour’s integrity, legal expertise, constitutional law experience, passion for public service and the time already spent representing parties before this Court, is now able to take this further step and

contribute more closely and directly to the work of the High Court of Australia - and through it the Australian community.

Once again, on behalf of the Government and the people of Australia, I extend to Your Honour heartfelt congratulations, best wishes and a very warm welcome as a Justice of the High Court of Australia.

May it please the Court.