Ceremonial sitting of the Full Court
for the Honourable Justice Bromberg
Transcript of Proceedings
RTF versionTHE HONOURABLE CHIEF JUSTICE DEBRA MORTIMER
THE HONOURABLE JUSTICE KENNY AM
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE LEE
THE HONOURABLE JUSTICE SC DERRINGTON AM
THE HONOURABLE JUSTICE O’BRYAN
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE O’SULLIVAN
THE HONOURABLE JUSTICE MCEVOY
THE HONOURABLE JUSTICE BUTTON
MELBOURNE
9.38 AM, FRIDAY, 17 NOVEMBER 2023
MORTIMER CJ: A warm welcome to you all. Now, this is not a farewell as such. Rather, in recognition of Justice Bromberg’s recent full-time appointment as President of the Australian Law Reform Commission, this is an opportunity publicly to acknowledge the tremendous service shown by Justice Bromberg over more than 14 years as a Judge of this Court and to thank him.
We are on the country of the people of the Kulin Nation and the area where this Court building is located is generally recognised as the country of the people of the Eastern Kulin Nation. On behalf of the Judges, Registrars and staff of the Federal Court, I offer our respects to the people of the Eastern Kulin Nation, to their ancestors and to their elders. I also acknowledge the challenges facing the Australian community in our relationships with First Nations peoples, including how First Nations peoples are treated by our justice system. Those challenges are matters that Justice Bromberg has explored in some of his work as a Judge on this Court and to which I shall return in a moment.
I acknowledge the many distinguished guests here today, including serving and former Justices. Your collective presence is an affirmation of the high regard in which Justice Bromberg is held by the profession. Most importantly, members of Justice Bromberg’s family as well as his friends and colleagues join us here today to mark what is a significant transition from one form of public service to another.
Justice Bromberg, there is much to say about the course of your career as a Judge and before that in the legal profession. I am not mentioning football. I want to focus on your commitments to this Court that may not be as well known outside the Court and then to say a little about a couple of cases which illustrate the qualities you have brought to your work as a Judge. You’ve always been active in the Court’s relationships with members of other Courts around the world, especially in the Asia-Pacific region, and you served for many years as an active member of the Court’s International Development and Co-operation Committee. You were always ready to volunteer if the Court had judicial delegations visiting our registries. In your area of long-standing expertise – employment and industrial relations – you’ve been at the centre of this Court’s professional development events, whether internally for Judges, or cooperatively with the profession.
In the latter case, these events are always very well attended by the profession and I have no doubt your enthusiasm and dedication to this area is part of that reason. You have been a National Coordinating Judge in this practice area and have led from the front. On our Court, you have been a champion of the highly successful Indigenous Clerkship Program, which is run in conjunction with the Victorian State Courts and the Victorian Bar.
In your fair and thoughtful treatment of litigants and practitioners, you have enhanced this Court’s reputation as a place where everyone is afforded dignity. You have a strong sense of compassion which is an important value in the administration of justice.
Since your appointment in December 2009, you have made a remarkable contribution to the jurisprudence of this Court. Amongst the large number of significant cases was your sensitive and principled evaluation of the evidence of a woman in an employment case where she alleged a co-worker had seriously sexually assaulted her and your 2016 decision in Plaintiff S99/2003 where you found the Commonwealth owed a duty of care to a woman detained on Nauru who had been raped there and was pregnant, to ensure she was able to have a safe and legal abortion, which on the evidence you found, required her to be transferred to Australia. That decision became critical in the large number of cases brought in this Court concerning the medical transfer of detainees from Nauru and Manus Island.
Finally, your contribution to this Court’s native title work must be singled out. For a number of years, you’ve been the regional case managing Judge of the Goldfields area in Western Australia. This is an area where claimants have faced a number of challenges, including the consequences of an early decision of this Court which found native title had not been proven. In your own decision in Wutha, some of the findings you made and the observations you offered to the applicant and the dissenting groups in that case, as well as the wider Goldfields native title claimant community, have been highly influential in the successful resolution of some claims in that region, including by consent.
Through intensive case management and interlocutory decisions, your whole of region approach to attempting to find just native title resolutions for First Nations people, government and all interest holders has been of tremendous significance. When taking evidence in that region, you conducted hearings in innovative ways, including hearing evidence around a circle of tables. These practices were appreciated by witnesses and lawyers alike and are but one example of your preparedness to look at new and different ways of delivering justice.
Justice Bromberg, you are kind and generous with your time to your colleagues, prepared to talk through issues, to make suggestions. You are good company and readily able to lighten the mood when things might seem a bit tough. I speak on behalf of all Judges of this Court present and past when I say that, as a colleague, we will miss having you here regularly at the Court. On behalf of all Judges of the Federal Court, I wish you the very best in your role as President of the Australian Law Reform Commission.
I now invite the Honourable Mark Dreyfus KC MP, Attorney-General for the Commonwealth, to address the Court.
THE HON M. DREYFUS: May it please the Court. I begin today by acknowledging the traditional custodians of the lands on which we meet and pay my respects to their elders past and present. I also extend that respect to Aboriginal and Torres Strait Islander people here today. It is a great privilege to be here today on behalf of the Australian Government and the people of Australia to celebrate your Honour’s service as a Justice of the Federal Court of Australia and to acknowledge your recent appointment as President of the Australian Law Reform Commission. On behalf of the Australian Government, I sincerely thank your Honour for the significant contributions that you have made and that you will continue to make.
Your Honour was appointed President of the Australian Law Reform Commission after nearly 14 years of dedicated service to the Federal Court of Australia, the culmination of a long and distinguished career on the Bench during which you’ve devoted yourself to the improvement of the law and the legal profession. The attendance here by so many of your colleagues and friends from the Judiciary and the legal profession demonstrates the high esteem in which you are held; you have the first Law Officer of the Commonwealth and the second Law Officer of the Commonwealth here.
I particularly acknowledge the Honourable Justice Simon Steward, Justice of the High Court of Australia, the Honourable Chief Justice William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia, the Honourable Deputy Chief Judge Patrizia Mercuri, Deputy Chief Judge of the Federal Circuit and Family Court of Australia, the Honourable Michael Black, former Chief Justice of the Federal Court of Australia, other current and former members of the Judiciary, members of the legal profession and distinguished guests.
May I also acknowledge the presence of your Honour’s family who proudly share this occasion with you, in particular your wife, Nicky, your daughter, Mia, and her partner, Todd, your son, Ben, your daughter-in-law, Kate, who is here with her parents, your grandson, Harvey, your brother, Gidon, who’s here from Israel, and your sister, Rachel. Your Honour was born in Israel and came to Australia as a young boy. Despite coming to Australia with limited English language abilities, you were a good student and excelled in your studies. Your Honour graduated from Monash University with a Bachelor of Economics and Bachelor of Laws and you were admitted as a Barrister and Solicitor in 1984.
You commenced your legal career as an Article Clerk at Slater and Gordon in Melbourne. You were then an Associate to the Honourable Justice Peter Gray and later sat alongside him on the Federal Court Bench. Between 1985 and 1988 your Honour worked as a Solicitor with Baker McKenzie and – in a role that took you to Melbourne, Sydney, London and Hong Kong. During your career, you’ve had a continued focus on improving the law outside Australia, including by contributing to a review of labour laws in Cambodia in 2005 and providing advice as a consultant to the International Labour Organization between 2007 and 2009. Your Honour was called to the Bar in 1988 and in 2003 you were appointed Senior Counsel.
Your Honour’s career at the Bar spanned broad practice areas, ranging from Personal Injuries through to Commercial Law, Product Liability, Constitutional Law, Administrative Law, Trade Practices and Industrial Law. You gained particular respect as an expert in Industrial and Employment Law. Others have noted that during your career you’ve been involved in almost every major case involving the significant Industrial and Employment Law issues at the time.
While at the Bar, your colleagues would seek you out for advice – both as a Junior Barrister, and later as Silk – and you were an encouraging mentor and leader. You shared your enthusiasm for the law, drawing others in and inviting alternate views.
Your Honour’s commitment and leadership in the legal community is also evident in the service that you’ve given to committees and boards over the years. You became the Founding President of the Australian Institute of Employment Rights in 2005, a position you held until 2009. You coedited the Institute’s first publication, an Australian Charter of Employment Rights.
Following your appointment to the Bench in 2009, you served as Vice President and then President of the International Commission of Jurists Victoria. Your Honour is currently the Chair of the advisory board of the Centre for Employment and Labour Relations Law at the University of Melbourne. Friends and colleagues have remarked on the depth and breadth of your work on the Bench, citing leading judgements handed down in relation to numerous cases concerning matters of broad public interest and of significant practical and doctrinal importance. You’ve been described by counsel appearing before you as hardworking, diligent and courteous.
Your strong sense of fairness is reflected in your preparation and willingness to engage with the parties, including counsel and self-represented litigants, to ensure the issues and arguments for each side are properly understood. Your judgements and reasons are always carefully considered. I expect your Honour’s intellect, work ethic, diligence, inquiring mind and collegiality will be sorely missed by your staff and colleagues while you lead the important work of the Australian Law Reform Commission for the next five years. Qualities attributed to your Honour by your colleagues are also reflected in your life and interest beyond the law. Football is coming.
Dedicated to your family, I’m told that your Honour has always encouraged your children in pursuing their interests and passions, providing them with wisdom and guidance – and I’m also told you’re often willing to embarrass yourself for the amusement of your grandchildren. Aside from family and a wide circle of long-standing friends – among which I’m honoured to count myself – your loyalties include a continuing love of football, having played 34 games for St Kilda Football Club just a few years ago. You are also a passionate and competitive mountain bike rider.
After once being beaten by the Honourable Justice Murphy in a four-day mountain bike race in Tasmania, you returned to conquer your colleague the following year, demonstrating your characteristic drive and tireless preparation. On 10 July 2023, your Honour commenced a five-year term as the President of the Australian Law Reform Commission. The Australian Law Reform Commission undertakes research and provides recommendations for law reform in the best interests of the Australian people. It’s recommendations to Government help to simplify the law, promote new or better ways to administer the law and improve access to justice.
I look forward to the expertise, diligence, thoughtfulness and enthusiasm for the law that you will bring to the leadership of the Australian Law Reform Commission. Your Honour, I acknowledge your significant contributes as a Justice of this Court. It’s a privilege to be here today to celebrate your remarkable career. On behalf of the
Australian Government and the Australian people, I thank you for all that you’ve done for the administration of justice in Australia, and I wish you all the very best as you commence this next chapter as President of the Australian Law Reform Commission. May it please the Court.
MORTIMER CJ: Thank you, Mr Dreyfus. Ms Annesley, Vice President for the Australian Bar Association.
MS R. ANNESLEY KC: May it please the Court. I appear on behalf of the Australian Bar Association to recognise your Honour’s enormous contribution to the law over 40 years, and more particularly, as a Judge of this Court. The President of the Australia Bar Association, Mr Peter Dunning KC, regrets that he is unable to here, and has asked me to extend to you his very best wishes. As the Attorney General has outlined, your Honour’s contribution to Industrial and Employment Law has been exceptional. In this area, your Honour is widely regarded and respected as the most experienced Judge on the Court, and your departure will be a significant loss to the Court, the law and the profession as a whole.
The Industrial Law Bar, although encompassing a national practice, is generally a fairly small one. One could say a closed shop. Whilst in most areas of the law, barristers are prepared to – and indeed, expected – to act for both sides, plaintiff or defendant, turn and turnabout. This is not the case in the often hotly contested area which occupy the Industrial Law. In Industrial Law, one must choose a side – either union or employer. Perhaps stemming from your Honour’s childhood influences, your early days in the law at Slater and Gordon, or your lifelong interest in social justice, your Honour has always been on the side of the unions.
Notwithstanding the partisan nature of lawyers in Industrial Law, your Honour was highly regarded by both sides at the Bar table for your intellect, your court craft, your sensibility, your capacity for hard work and your good manners. As evidence of the high esteem in which your Honour is held, Malcolm Harding SC tells me that when he sent a note to the members of the Industrial Bar Association advising of today’s ceremony, the first email in response described your Honour as, “A giant of our area of practice.” This email was from Stuart Wood KC, a man perhaps slightly further right politically than your Honour, and one who never appears for unions. Malcolm Harding had the duel pleasure of being your Honour’s Junior and appearing before you on many occasions. Malcolm describes your Honour’s approach to every case – both at the Bar and on the Bench – as follows:
His Honour was always actively interested in the issues. He liked to solve a problem. He mainly did this by getting to the nub of it, turning it on its head and then turning it around six different ways.
At the Bar, it meant that Malcolm always went into conferences with you quietly confident that he had the case figured out, only to be flummoxed when your Honour, with a far more creative approach, would turn the issue on its head and come at it from a different angle completely, a very uncomfortable position for most Juniors.
On the Bench, your Honour’s approach to an issue usually led to a request for further submissions from the parties just when they thought the case was over. Your Honour’s approach to problem-solving bespeaks a deep consideration and understanding of policy, statute and the issues at hand. You were never afraid to question the status quo; you were courageous in pushing boundaries.
Time does not permit me to traverse the many landmark decisions of your Honour’s tenure on the bench. Of note, perhaps, is the decision of Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment. The applicants in the case were eight Australian children. In short compass, the children sought a declaration that the Minister for the Environment owed them a duty to take reasonable care to not cause them and other children personal injury while exercising her powers under section 130 and 133 of the Environment Protection and Biodiversity Conversation Act. Although overturned on appeal, your Honour’s reasons were treated with considerable degree of respect by the Full Court. Moreover, if the social media pages of the eight applicants and their multi-thousand followers are anything to go by, your Honour, in one decision, won over a whole generation of young Australians. It’s fair to say that some regarded Justice Mordy Bromberg as a real life superhero.
On the occasion of your Honour’s appointment to the Bench, you gave three reasons for accepting your appointment. Since that December morning in 2009, your Honour has been committed to ensuring that your actions matched and fulfilled those reasons. Over the past 14 years, your Honour has maintained a fervent passion for the rule of law, been a leading Jurist across the complex and large terrain of this Court, particularly in the area in which you’ve made lifelong contribution, Industrial and Employment Law, and ensured as far as practical that those seeking justice were able to access it in this Court. No doubt, your Honour’s commitment to exploring ways in which our legal system can be improved, as well as its boundaries, will be at the forefront of your Honour’s mind and daily work in your new role as president of the Australian Law Reform Commission.
I am confident that others today will tell of your Honour’s stellar football career with St Kilda without descending to the stats of your Honour’s on-field performance. I understand that your Honour was secretly pretty chuffed when, many years after you had hung up your football boots, your colleagues at the Bar stumbled across the Scanlens footy cards for St Kilda circa 1981 in which your Honour appeared considerably more hirsute and with a mop of dark curly hair. Your Honour feigned embarrassment when your colleagues pinned the card to the wall of your regular coffee haunt.
As the Attorney alluded to, your passion for mountain biking is well known. I’m reliably informed that a base level of fitness for cycling was a prerequisite for employment as an Associate to your Honour, although I’m also reliably informed that, notwithstanding the disparity in years between your Honour and your Associates, you could beat them uphill every time. On behalf of the Australian Bar Association, may I congratulate your Honour on an outstanding Judicial career. May
I thank you for your selfless service to the administration of justice and wish you every success and happiness in your new role as President of the Australian Law Reform Commission. May it please the Court.
MORTIMER CJ: Thank you, Ms Annesley. Ms Bennett, Vice President for Victorian Bar Association.
MS E. BENNETT SC: May it please the Court, I appear on behalf of the Victorian Bar to congratulate your Honour on your appointment as President of the Australian Law Reform Commission. The President of our Bar, Gina Schoff KC, is overseas and regrets that she can’t be here today. I acknowledge the traditional owners of the land upon which we meet, the people of the Kulin nation, and I pay my respects to their elders past and present and I extend that respect to any First Nations people present here today. Today marks the quasi end of your Honour’s responsibility to apply the laws of the Commonwealth and the start of your role in advising what those laws should be.
This is not your Honour’s first career change, however: your Honour famously went from being a footballer to being a Barrister. But, really, when one thinks about it, there’s not much difference between those two roles; effectively, one simply runs until you’re tackled in both roles. The change in this case is more pronounced, however. There are some parts of your role, however, that will be very familiar following your 14 years as a Judge on this Court and some, perhaps, that might take some getting used to. The things that will probably stay the same, your Honour, I’m sorry to say, it appears you will still get a lot of the hard issues. Your Honour was a renowned hard worker, both on the Bench and at the Bar, and, in consequence, you seemed to end up with your fair share of complex and difficult cases, some of which have been spoken about today.
In Eatock v Bolt, your Honour pioneered the analysis of section 18C in a decision that has been oft cited and analysed since and, despite the endless discussions, never quite led to the chilling of free speech that was so confidently predicted by many at the time. Law reform is about grappling with hard social questions, and so it is a sad fact of life that simple issues of law reform rarely get referred to the Australian Law Reform Commission, so I’m afraid your Honour can expect that the difficult issues will continue to be sent your way. However, your Honour will no doubt continue, as you have as a Judge of this Court, to think deeply about the implications of the decisions and the matters before you.
It’s – of course, it’s a trait that’s shared with all of your brother and sister Judges on this Court, but it must be said that the depth in prescience of some of your Honour’s decisions are quite remarkable. Your Honour’s scholarship can be traced over the whole of your time on the bench, some 14 years, and, in preparing for today, I spoke with Mr Mark Irving KC about your influence upon Australian Industrial Law, and it is safe to say that Mr Irving could give a lecture on the topic and I actually think he should. That lecture might be called The Dignity of Work, and he spoke about cases of such significance in that space that they are now simply called by their one-name title – Quest, when one wants to talk about the hotly-contested issue of the difference between an employee and an independent contractor is where one starts, with your Honour as a member of that Full Court.
Quinn is where one starts when you want to talk about the non-pecuniary aspects of the importance of work to a person’s life or, indeed, their dignity of work. So the Australian Law Reform Commission will be fortunate to have the benefit not just of your Honour’s experience but your Honour’s habit of deeply reflecting upon the issues before you and developing a deep and principled understanding of those issues. A third thing that will probably stay the same is that your Honour will no doubt be criticised and it won’t stop you. As a Judge, your Honour has, in many ways, exemplified the kind of process that Sir Gerard Brennan explained in the following way:
Judicial method starts with an understanding of the existing rules; it seeks to perceive the principle that underlies them and, at an even deeper level, the values that underlie the principle … each step in the reasoning must be exposed for public examination and criticism.
Your Honour’s judgments set out each step of your prodigious and careful reasoning without fear or hesitation and exposed them for public examination and criticism. This is an approach that your Honour has adopted faithfully and carefully throughout your time as a Judge. It may be there is a new freedom now that comes as a Law Reform Commissioner, but the reasoning will, we trust, be just as fearless and as frank as it has ever been. But leaving the judicial arm of Government to consider how the Executive should carry out its role might carry some benefits – there will be fewer Barristers appearing before you with hundreds of pages of Court books – and it might be there’s greater flexibility to hang out with your young grandchildren who are present in Court today; I acknowledge four year old Harvey and five month old Pippa, who is somehow asleep. Your Honour’s career as a Judge has exemplified the intellectual depth and courage that is in the finest traditions of this Court and, if I may say, our Bar. On behalf of the Victorian Bar, I wish your Honour every success in furthering a long and distinguished period of service to this nation. May it please the Court.
MORTIMER CJ: Thank you, Ms Bennett. Mr Murphy, President of the Law Council of Australia.
MR L. MURPHY: May it please the Court. I also respectfully acknowledge that we are meeting on the traditional land of the Kulin nation and I pay my respects to their elders, both past and present, and elders from other communities who join us this morning. I also acknowledge the Honourable Debra Mortimer, Chief Justice of the Federal Court of Australia, the Attorney-General, the Honourable May Dreyfus KC MP, Vice President of the Australian Bar Association, Ms Roisin Annesley, Ms Tania Wolff, immediate past President of the Law Institute of Victoria, Ms Elizabeth Bennett SC, Vice President of the Victorian Bar Association, all Judicial Officers, dignitaries, family, friends and, most of all, your Honour.
It is an honour to have the opportunity to on behalf of the Australian Legal Profession to thank your Honour for your commitment to this Court, and to extend the Professions’ congratulations and best wishes as you continue to serve our community in your new position as president of the Australian Law Reform Commission. Many of your Honour’s achievements and contributions have already been acknowledged, and I will not repeat any of them and will leave them to others. I do, however, wish to refer briefly to one. And unlike your Honour, the Chief Justice, it is football related. And in particular, your membership of the Brighton Grammar School hall of fame. Your biography associated with that membership quotes your Honour as saying:
You can’t shy away from hard work to succeed as a footballer. And the dedication to the task that football teaches you is something I’ve applied to my legal career as well.
On the occasion of your swearing in as a Judge in 2009, your Honour said of your appointment:
This appointment provides me the opportunity to make a contribution to the service of the public. I have accepted a weighty responsibility. I intend to give it my best.
Your Honour, no one in the profession can doubt your honest belief and commitment to those statements. You have given of your best to your first 14 years of public service, and throughout that time, you have dedicated yourself – as we have heard – to the hard work required to make a successful contribution as a Judge of this Court. Just as significant, though, is the fact that you are, of course, not leaving the Court to escape hard work and commitment. In fact, quite the contrary. Your Honour’s new responsibility will demand more hard work and the same level of dedication and commitment.
The prodigious workload of the Law Reform Commission certainly keeps the Law Council of Australia busy. And that is said with the upmost respect and gratitude, because the Law Council – and I am sure, the entire Australian profession – sincerely appreciate the commission’s commitment to consulting with the profession, as it seeks to reform the law for the good of all. The importance of the work of the commission can not be overstated. There is no doubt the commission is one of the most effective and influential agents for legal reform in Australia, and your Honour now has the privilege and responsibility of steering the commission in that task.
We thank your Honour for the service you’ve already made to the justice system in this nation, and now will continue to make in your new role as President of the commission. We look forward to continuing to work closely with you and the commission as it continues to strive to improve access to justice, remove defects in the law and adopt more effective methods for administering the law and dispensing justice. On behalf of the Australian Legal Profession, your Honour, I congratulate you on your appointment and wish you well in your new role serving the nation. May it please the Court.
MORTIMER CJ: Thank you, Mr Murphy. Ms Wolff, Immediate Past President for Law Institute of Victoria.
MS WOLFF: May it please the Court. I too acknowledge the traditional custodians of the lands on which we meet, the peoples of the Kulin nation, and traditional owners of country across our state, and I acknowledge their continuing connection to land, to waters and communities. I pay my deep respects to elders past and present and extend that to any Aboriginal or Torres Strait Islander person who might be here today. It is my great privilege to appear on behalf of the Law Institute of Victoria and the Solicitors of this State to recognise your Honour’s service as a Judge to this Court since 2009, and to congratulate your Honour on your new role as President of the Australian Law Reform Commission.
Matthew Hibbins, the newly elected President of the Law Institute of Victoria regrets that he is unable to be here today, but has asked me to pass on to you his very best wishes. As we’ve heard from my learned colleagues, your Honour has had a long and distinguished career in the law. At Monash University, you were taught Employment and Industrial Law by Professor Ron McCallum, who would become a mentor. You say Professor McCallum – who has been blind since birth – was an inspiration, both for the way in which he managed his life with his disability, and for his teaching. He motivated your interest in Employment and Industrial Law and quickly became a friend.
The area interested you, not only because it was intellectually stimulating, but also because you favoured what you call people law over commercial law. You say you were drawn to law that raised important public issues, affecting the lives of hundreds, if not thousands, of employees. In 1984, you were admitted as a Solicitor, completed your articles at Slater and Gordon, and later worked with Baker McKenzie in Melbourne, Sydney, and overseas in London and Hong Kong. In 1988, you were admitted to the Victorian bar, and in 2003, you were appointed Senior Counsel. You appeared in well-known, high profile and landmark constitutional cases of which we’ve had.
In 2005, your Honour became the founding President of the Australian Institute of Employment Rights. Under your presidency, the institute formulated a Charter of Employment Rights that sets out the rights of employers and employees based on Australian industrial practice, Australian common law, and international treaty obligations that are binding on Australia. Your Honour played a key role in consulting with academics and practicing lawyers, employers and union officials, all who contributed to this Charter.
In 2009, you brought your vast experience and expertise to the Federal Court Bench upon your appointment, especially in the areas of Industrial Law, Personal Injuries, Commercial Law, Product Liability, Constitutional Law, Administrative Law and
Trade Practices. There were many high profile cases over that time, to which you brought your characteristic sense of fairness and a desire to see the law progress justice in our society. One of these very public cases occurred in 2011. As we’ve heard, when your Honour found that journalist Andrew Bolt had contravened section 18C of the Racial Discrimination Act after nine First Nations applicants brought a class action against him and the Herald Weekly Times for articles Bolt had written accusing them of seeking professional advantage from their Aboriginality.
You reflect that it was a difficult case, requiring you to consider the law at the intersection between two important human rights, one being freedom of expression, and the other freedom from racial discrimination. You also say it led you to explore the history and provenance of the Racial Discrimination Act. An International Law in an area that had not been the subject of a great deal of judicial learning. The case received a lot of media and public attention. Others that drew wider public attention were disputes between Toyota Australia and its workers in 2013, and Seven Network and whistleblower Amber Harrison in 2017.
Last year, you handed down a landmark decision in which you ruled that the energy company Santos and National Offshore Petroleum Safety and Environmental Management Authority had failed to ensure that Tiwi traditional owners were properly consulted on the pipeline in the Barossa Gas Project. This was the first significant Australian case brought by First Nations people challenging a major offshore oil and gas project due to lack of consultation.
We’ve spoken to many of your colleagues in the law, all who speak of you very warmly.
Charles Power at Holding Redlich was one of the Solicitors who instructed you at the Bar. Your Honour’s strong Industrial Law practice, saw you spend a lot of time with that firm. Charles has told us that your humility and your charm endeared you to all at the firm. You were counsel in the vast majority of the big Industrial Law cases in the 1990s. As a barrister, you would always wrestle the legal problems to the ground – that might be my only football analogy, your Honour – and would never give up until the very best solution was found. Charles has said that this approach is exemplified in your judgements at the Federal Court and makes you so eminently suited for your new role at the ALRC. David Shaw was another of your Honour’s earlier instructing solicitors. He says:
In the 1990s, his Honour was at the vanguard of efforts by the Victorian Public Sector Unions to obtain Federal awards following a sudden decision by the State Government to abolish the State arbitration system.
Chair of the Victorian Law Reform Commission and former Judge of this Court, Tony North, says your Honour has the attributes of a very good Judge. In particular, you are fearless and you are fair. You’ve always been prepared to entertain new and different thinking. These qualities, together with your concern to build a better and fairer society, make you an ideal choice to lead the Australian Law Reform Commission. And, a little closer to home, your son, Ben Bromberg, a barrister practising primarily in Employment and Industrial Relations Law, says your Honour’s career has been driven by a passion and a strong sense of fairness.
Ben says you wanted to make a difference to people’s lives, and that led to a career keenly focused on the law and the important role it plays in protecting the rights of workers, refugees and Indigenous Australians. Mark Irving KC, of whom we’ve heard, remembers co-editing the book with you the Australian Charter of Employment Rights, the blueprint for the future of industrial relations in Australia. Mark describes you as the pre-eminent industrial lawyer of your generation, one of the greatest industrial lawyers Australia has ever produced.
Your Honour sees your new role as President of the Australian Law Reform Commission as an opportunity to extend the work that the ALRC does as there is so much of the law that needs to be looked at. You say you hope the ALRC is called upon more to extend the number of inquiries it oversees each year. Your Honour’s deep and broad experience and expertise, as well as your acute consciousness of the central human element of the law, make you an excellent choice for your new role as President of the Australian Law Reform Commission.
On behalf of the Solicitors of this State, we thank you for your service to the profession and to this eminent Court and wish you a fulfilling and rewarding next chapter in your new role, an important role. May it please the Court.
MORTIMER CJ: Thank you, Ms Wolff. Justice Bromberg, I invite you to reply.
BROMBERG J: Thank you, Chief Justice. I, too, extend my sincere respect to the elders, past and present, of the peoples of the Kulin nation, the traditional owners of the land upon which we meet. I am truly honoured by the attendance of all of you, distinguished guests, friends and colleagues. I’m grateful to the Attorney-General, the Honourable Mark Dreyfus. It could not have been more difficult for him to attend today; the fact that he has, is a testament to his commitment to public service.
Mr Attorney, Chief Justice, Ms Annesley, Ms Bennett, Mr Murphy and Ms Wolff, thank you so much for your very kind observations.
I must say that, over the past 14 years, I’ve often sat here on occasions such as this, watching the celebrated Judge showered with compliments then humbly dispute that any of the praise was either true or deserved. Let me be clear: I do not intend to do that. I thought the submissions made – were very well put and very persuasive; I won’t undermine them. I will let the praise sink in and lift my spirits just for the briefest of moments before turning to say, as I now do, that the credit really belongs elsewhere.
I have been fortunate over the course of my career. Time and time again, I have stood on the shoulders of giants. For me, the entire and only purpose of this ceremony is to redirect the credit. I won’t be making any prophetic or profound pronouncements. All I want to do is thank all the wonderful people who have steered me in the right direction and carried me over the course of my 38-year association with this great centre of justice, the Federal Court of Australia.
If you permit me the indulgence of counting my time here as a Judge’s Associate, I have worked in the Federal Court during at least some of the term of each and every Chief Justice this Court has ever had. I’ve come and gone and, having just gone, intend to come back at least occasionally because my long association with this place means that it is and will always be my professional home.
One of my former Chief Justices, the Honourable Michael Black is here, and may I acknowledge your presence, Michael. As both a barrister appearing before him and one of his Judges, Michael was always kind and considerate to me. I think I won his heart when I favourably compared his leadership skills to those of Allan Jeans.
My current Chief Justice is, of course, also here. I suspect that a favourable comparison of her with Allan Jeans is unlikely to win her heart. You don’t know Chief Justice who Allan Jeans is do you?. Perhaps instead of that, I should simply thank her Honour for being one of my intellectual giants and also a friend. There is no one I know that has a more admirable legal toolkit than her Honour. She has an unparalleled understanding of justice, a formidable appetite for hard work and the capacity to produce a just result supported by impeccable reasoning. She brings great intellectual leadership to this Court. I have stood on her shoulders often; she has always made me look good.
I started life on the shoulders of my parents. It was they who unselfishly gave me so many of life’s opportunities that injustice had cruelly denied to them. My father was a refugee at the age of seven. My mother was born in Israel at the time when it was called Palestine. She lived through several wars and never saw a day’s peace over the homeland she so dearly loved. Each of my parents lived hard, sometimes brutally hard lives. They were victims, but they were survivors. They both had an inner strength – a deep inner strength – a capacity to endure inhumanity and yet – particularly in the case of my wonderful mother – a capacity to care, to support, to nurture and to love. My parents both passed away over the last five months. In honouring me, you honour them.
The tallest of my giants are my wife, Nicky, my son, Ben, and my daughter, Mia. There is nothing better than unconditional love to sustain any endeavour. Every meaningful success I have had has been fuelled by the love of my family. I am immensely proud of all of you. They each have all my love and thanks. Mia marries Todd next Friday; that will be another blessing amongst many which have come my way. Two of those blessings are in the front row. Let me introduce them: we have Harvey, who is three but nearly four. I like to call him “Harvey Hooney” and he likes to call me “Babba Looney”. “Babba” means “granddad”; where he got “Looney” from, I don’t know. Nicky helpfully explains that Harvey is a good judge of character!
Perhaps his little sister, Pippa, will treat me with more respect. She is a delight. Raspberry-blowing on Pippa’s tummy is more than any granddad could ever ask for. Harvey and Pippa’s mother, Kate, is another blessing. My sister, Rachel, is here and my younger brother Gidon is also here, having flown here from Israel. I welcome them both; we are particularly relieved that Gidon is here. Others have travelled long distances. I know that Professor Ron McCallum and
Professor Mary Crock were on their way here from Sydney. They made it. Well done. They are my great friends and it’s so great to see them here. You’ve heard that Ron opened my eyes to the wonder of Industrial and Employment Law and I shall forever be grateful. Marilyn Pittard was also a great teacher.
Others have come long distances; Lynne and David Olsson are here from Hong Kong, and you’re very welcome, of course, as well.
There are many other good people here whom I should thank. Roy Punshon, my mentor at the Bar. There are many solicitors, many barristers some of whom are now Judges who briefed me, led me or were otherwise on my team. You all made me look good. They are too many of you now to name; you well know who you are and I hope you know how much I appreciate you and your continued friendship. My former Judge, the Honourable Peter Gray, is here too; he’s also my mentor and great friend. Peter, I have stood on your shoulders often. If I have any wisdom at all, it is usually wisdom borrowed from you.
I am the only former Associate of this Court – perhaps any Australian Court – who has had the great pleasure of sitting as a Judge with the Judge to whom I had been an Associate. Further still, the natural order of things was reversed when the novice sitting on an appeal was given the task of correcting the homework of his former master. Peter dealt with that with great dignity, although I do recall a ‘nervous Nellie’ waiting to talk to me as soon as the appeal was finished. Of course, I didn’t have to correct Peter’s homework.
One of the reasons, however, I am leaving town is that if I stay much longer some of my talented team of former associates will be correcting my homework. Most of them are here and I’m really grateful for their attendance. All of them are precious and destined to make great contributions through their work. I’m sure that I got much more out of each of the time that they spent with me in my chambers than they got from me. Some of them were foolish enough to come mountain biking with me and have the scars to show it, but all of them were really smart, worked hard and kept me young and energised. Their attempts to educate me about popular culture failed – failed miserably, I think. Despite that, they’re all my lifelong friends.
Their efforts in making me look good were only surpassed by those of my EA, Elizabeth Sotiriadis, who, for 14 years managed to do exactly that. Liz’s devotion, commitment and friendship was much more than I deserved. She applied the same rule to me that I now apply to my grandchildren: no request, no matter how unreasonable, is ever to be denied. Thank you, Liz.
Finally, to my Judicial colleagues, both past and present – and I note some of you, including Duncan Kerr, have come a long way, and thank you, I have greatly enjoyed working with you all. Your dedication, enormous capacity for work, your commitment to justice and your wisdom make this Court great.
My good friend, Sia Lagos, the Court’s CEO, and each and every one of our Registrars and each of and every one of the other staff of the Court deserve my thanks. There are wheelbarrows full of thanks that I intend to deliver.
Those of you on the Court who are my special friends know who you are and I won’t single anyone out, other than Justice Bernard Murphy. I am now pausing for effect! Justice Murphy should now be feeling decidedly nervous! Having been his friend for nearly 40 years and his neighbour in chambers for the last 12, there are a lot of beans that I could now spill.
Let the transcript note that his Honour has just kicked me. I will only spill two beans, but if he kicks me again there shall be more. First, I should warn our new Judges that, particularly in the company of John Middleton, Justice Murphy is dangerous. If you are confronted by them in a restaurant, leave immediately. Second, as we learned today with the comment about a certain race – a mountain biking race – whilst his Honour may be a fair Judge, his sense of justice is completely lost when he gets on a mountain bike and tries to beat me to the finishing line. It’s a long story with many chapters. I won’t tell it now; my own finishing line is upon me.
I’ve been greatly honoured. I’ve had a lot of fun. Thank you for sharing that with me today.
MORTIMER CJ: Thank you, Justice Bromberg. The Court will now adjourn.
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