Ceremonial Sitting of the Full Court
To welcome the Honourable Chief Justice Mortimer
Transcript of proceedings
RTF versionTHE HONOURABLE CHIEF JUSTICE DEBRA MORTIMER
THE HONOURABLE JUSTICE KENNY AM
THE HONOURABLE JUSTICE RARES
THE HONOURABLE JUSTICE COLLIER
THE HONOURABLE JUSTICE BESANKO (attending remotely)
THE HONOURABLE JUSTICE LOGAN RFD (attending remotely)
THE HONOURABLE JUSTICE PERRAM
THE HONOURABLE JUSTICE NICHOLAS (attending remotely)
THE HONOURABLE JUSTICE YATES (attending remotely)
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE FARRELL (attending remotely)
THE HONOURABLE JUSTICE RANGIAH (attending remotely)
THE HONOURABLE JUSTICE WIGNEY
THE HONOURABLE JUSTICE PERRY (attending remotely)
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MARKOVIC (attending remotely)
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE BROMWICH (attending remotely)
THE HONOURABLE JUSTICE O’CALLAGHAN
THE HONOURABLE JUSTICE THOMAS
THE HONOURABLE JUSTICE S.C. DERRINGTON AM
THE HONOURABLE JUSTICE BANKS-SMITH
THE HONOURABLE JUSTICE COLVIN
THE HONOURABLE JUSTICE THAWLEY (attending remotely)
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE STEWART
THE HONOURABLE JUSTICE JACKSON
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ABRAHAM
THE HONOURABLE JUSTICE HALLEY
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE DOWNES
THE HONOURABLE JUSTICE O’SULLIVAN
THE HONOURABLE JUSTICE McELWAINE
THE HONOURABLE JUSTICE FEUTRILL
THE HONOURABLE JUSTICE MEAGHER
THE HONOURABLE JUSTICE McEVOY
THE HONOURABLE JUSTICE HESPE
THE HONOURABLE JUSTICE RAPER
THE HONOURABLE JUSTICE KENNETT (attending remotely)
THE HONOURABLE JUSTICE BUTTON
THE HONOURABLE JUSTICE JACKMAN (attending remotely)
Guest of the bench:
The Honourable Michael Black AC KC
MELBOURNE
9.33 AM, MONDAY, 17 APRIL 2023
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MORTIMER CJ: Before I invite the Attorney-General for the Commonwealth to speak, it is necessary to explain why there is no formal Welcome to Country being given today. The country we meet on today is considered to be within the lands of the Kulin nation, and it is generally acknowledged that the peoples of the Kulin nation have been living on, walking over and caring for this country for thousands of years. However, the country on which this building sits is presently the subject of a Native Title claim in this court. A representative of each of the three First Nations groups in that claim was invited to attend today, and two representatives are present. I acknowledge and pay my respects to all members of those three groups.
Once the Native Title claim is resolved, I look forward to future ceremonies in this building, including a Welcome in the customary way, and I look forward to this building proudly displaying appropriate recognition of the fact that it sits on the country of First Nations peoples. Mr Attorney, for the Commonwealth.
MR M. DREYFUS KC MP: May it please the court. First, may I acknowledge the peoples of the Kulin nation, the traditional owners of the land on which we meet, and pay my respects to their elders, both past and present. I would also like to extend that respect to any Aboriginal and Torres Strait Islander peoples present today. It’s a great privilege to be here to congratulate your Honour on your appointment as the Chief Justice of the Federal Court of Australia – the fifth Chief Justice to lead the Federal Court, and the first female Chief Justice of the court since it was established in 1976. The significance of your appointment cannot be understated. I would like to thank you, on behalf of the Australian government, for your Honour’s willingness to serve as Chief Justice of this court.
The government extends its best wishes for this next chapter in what has already been an esteemed career on the Bench. Your Honour’s appointment to this court is another success in a distinguished and illustrious career. That so many of your colleagues in the judiciary and the legal profession are here today shows the high regard in which your colleagues hold your Honour. May I particularly acknowledge the Honourable Justice Stephen Gageler AC, Justice of the High Court of Australia, the Honourable Justice Michelle Gordon AC, Justice of the High Court of Australia, the Honourable Justice Simon Steward, Justice of the High Court of Australia, and the Honourable Justice Jacqueline Gleeson, Justice of the High Court of Australia, the Honourable Justice Jayne Jagot, Justice of the High Court of Australia, Chief Justice William Alstergren, Chief Justice of the Federal Circuit and Family Court of Australia, the Honourable Chief Justice Anne Ferguson, Chief Justice of the Supreme Court of Victoria, the Honourable Justice Karin Emerton, President of the Court of Appeal, Supreme Court of Victoria, 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 son, Bryden, your daughter, Hayley, your daughter-in-law, Christina, and other members of your family and friends. I’m told that your Honour was an inquisitive and energetic child. During your childhood in New Zealand, your Honour spent many hours outdoors climbing trees and fishing. Your Honour is also known to have inherited your father’s gymnastic skills. The flexibility and dynamism inherent in that sport is now reflected in your ability to view the legal matters before you from all angles. Your Honour was an enthusiastic student during your school years, and was known for a meticulous approach, formidable work ethic and evident attraction to issues of social justice.
Those who knew you during that time describe your Honour as personable and as an incisive thinker, with a deep sense of moral purpose, and note that those qualities are exemplified in the professional accomplishment we celebrate here today. Your Honour’s passion for the law began at a young age, having decided at the tender age of 13 that you wanted to pursue a legal career. In 1981, you commenced a Bachelor of Arts and Bachelor of Jurisprudence at the University of Auckland. Fortunately for us, in 1983, you crossed the Tasman to continue your legal studies at Monash University. There, you achieved the rare distinction of graduating with the Supreme Court prize in both of your degrees.
Your Honour eschewed an offer to join one of the major commercial firms, a well-trodden path for such a high-flying graduate. Instead, in 1987, you did your Articles with Gordon Goldberg, of Goldberg & Window solicitors in Richmond. There, your Honour gained an early appreciation for the way in which the law affects the lives of ordinary people. After your Articles, your Honour took up an associateship with Justice Sir Gerard Brennan AC KBE QC of the High Court of Australia. Sir Gerard aptly described your Honour as highly intelligent, with a passion for the law, and thoroughly industrious. In 1989, you were called to the Victorian Bar, and you were appointed Senior Counsel in 2003.
Your Honour’s practice as a barrister was principally in public law, with a focus on the areas of Administrative and Constitutional Law, and Anti-discrimination and Extradition Law. However, your Honour could easily turn your hand to any area of law, and had an unerring, forensic capability, winning so many witnesses. I’m reliably told that in one case, your Honour became a theological expert after only two weeks of study, with expertise sufficient to successfully cross-examine leading theologians. During your Honour’s time as a barrister, you appeared frequently in the High Court and became much sought after counsel. A dedicated professional, your Honour’s time at the Bar was also accompanied by periods of teaching at your alma mater, Monash University and the University of Melbourne.
Your Honour was noted to have the ability to make the law sing in a manner that makes it accessible to lay people and powerful in its application – generous and incisive, in equal measure. Your Honour’s work speaks to a great interest in advocacy. During your time at the Bar, you emerged as a preeminent practitioner, renowned for your skill in legal reasoning and statutory construction. Your Honour’s most high profile work has included First Nations land rights, refugee and detention matters, LGBTQIA+ rights, and environmental cases. Your Honour has received many awards, including the Law Council of Australia’s President’s Medal, the Tim McCoy Award for community and legal work, the Law Institute of Victoria President’s Award and the Australian Human Rights Commission Law Award.
As further acknowledgement of your contribution to the Australian community, the Victorian Bar’s Pro Bono Award, for outstanding achievement in Pro Bono advocacy in a Tribunal or the Magistrate’s Court, is named after your Honour. Your Honour’s passion and faith in the rule of law is recognised through your appointment to this Bench as a Judge in 2013, and now as Chief Justice. Throughout your career, your Honour has been known for the compassion you demonstrate towards not only clients, but also your colleagues within the legal profession. Genuine and committed to your values as a leader and mentor, you’ve been known to offer guidance and support to many Juniors and Associates.
Your Honour’s efforts in this area are seen in the personal and professional accomplishments of those who come after you, a legacy of your belief in the law as a mechanism to contribute to the community. Your Honour’s impact continues, following your appointment as Chief Justice of this Court. As the first female appointee, your Honour continues to pave the way for those who follow in your footsteps. Your Honour is known as a great lover of the outdoors, a continuation of a childhood spent near the coast. Your adventurous spirit is seen manifest in your passion for hiking, skiing and kayaking with your dog, Cesca. You also took up surfing in your 40s, not willing to wait on the beach while your family rode the waves.
In your personal time, your Honour has also developed a skill for wildlife photography, driven, I understand, by a great and long held love of animals. In addition to your current canine companion, Cesca, you have at various times provided a home for an eclectic array of animals, including birds, alpacas and even a possum. Your Honour’s appointment to this Court acknowledges your dedication to the law and accomplishments in the legal profession. Your Honour takes on this judicial office with the best wishes of the Australian legal profession, and it is trusted that you will approach this role with the same exceptional dedication to the law as you have shown throughout your career. On behalf of the Australian Government and the Australian people, I extend to you my sincere congratulations and welcome you as Chief Justice to the Federal Court of Australia. May it please the Court.
MORTIMER CJ: Thank you very much, Mr Attorney. Mr Dunning, President of the Australian Bar Association.
MR P. DUNNING KC: May it please the Court. It is my privilege and pleasure in equal measure to extend a congratulations on behalf of Barristers throughout Australia on your appointment today, Chief Justice Mortimer. Chief Justice, Justices of the Federal Court, Justices of the High Court, Chief Justices, distinguished guests, all. Today is an important day, indeed, a historic day, in the life of this large national Court which is fundamental not only to the third arm of government but because of the important place it has in the lives of so many Australians across its ranging jurisdiction. We gather here today, though, to recognise in one exceptional public service to the judiciary as a Judge of this Court. Chief Justice Mortimer, your Honour brings to this Court outstanding academic achievement, an outstanding career at the Bar and an outstanding decade of service as a Judge to this Court.
It is, as the Commonwealth Attorney has noted, a notable feature that your Honour is the first female Chief Justice to this Court, following in the footsteps of the late Sir Nigel Bowen, the Honourable Michael Black, who is here today, the Honourable Pat Keane and the Honourable James Allsop. But if we may respectfully suggest, what is genuinely remarkable about that is not that your Honour is a female. Your distinguished academic performance, your exceptional career at the Bar, your exceptional career on the Court explains your Honour’s appointment, but it’s reflective of the fact that this Court now has more than a third of its members as females and is heading towards the balance, diversity in all matters to which we all strive.
It’s customary on days like today to speak of some of the cases that a Judge has been involved in. Can I pick out two. Your Honour was in the Full Court of this Court in the decision in Timber Creek, a case that was most important to First Nations People, and the case was, ultimately, taken and approved in the High Court. Your Honour sat at first instance in a number of significant native title cases, including Dewal v Western Australian in relation to the fact that mining leases did not extinguish native title, again, a matter that has played an important role in the progress towards unity in our community. And finally, your Honour was a trial Judge in what we all called Palm Island. Indeed, I had a brief cameo appearance before your Honour in Palm Island. Those cases are all exemplars of the fact that your Honour brought your powerful intellect, your sense of humanity and your personal decency to the disposition of the dispute before you to show that fidelity of the principle and the attainment of Justice are true companions. I was given an injunction last week both as to the length of this speech and its content.
MORTIMER CJ: You were.
MR DUNNING KC: Barristers are, of course, notoriously poor with both. I trust that I will not trespass on the former and will not take too great a liberty in what I’m about to say in relation to the latter. Chief Justice Mortimer, it is a singular honour and privilege and distinction to be chosen as first amongst equals in such a distinguished Court. Your Honour should be rightly proud of the effort that has brought you to today. Nobody, if we may respectfully suggest, gets to a day like today without the love and the support of family and friends, and your family and friends should be rightly proud of where your Honour sits today. Indeed, your Honour’s children’s own accomplishments and the diversity of them speak to the breadth of your Honour’s interests in life.
Chief Justice, on behalf of the Barristers of Australia, can we again thank you for agreeing to accept this service, acknowledge the great contribution you have made to the life of this Court, and in particular in the three exemplars they gave of your Honour’s performance in the Court, they serve to recognise the important role this Court plays in bringing us to peace with our First Nations Peoples. It is right that I acknowledge First Nations Peoples throughout Australia on behalf of Barristers throughout Australia and hope that the references to the cases your Honour has been in are a reminder to all of us of the effort each and every one of us must take to bring such peace. Finally, Chief Justice, may I wish you many happy years as Chief Justice of the Federal Court. May it please the Court.
MORTIMER CJ: Thank you, Mr Dunning. Ms Bennett, Vice President of the Bar Association.
MS E. BENNETT SC: May it please the Court. I appear on behalf of the Victorian Bar to welcome your Honour as Chief Justice of this Court. In doing so, I acknowledge the traditional owners of the land on 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 all First Nations people present here today. The President of the Victorian Bar, Mr Sam Hay KC, is overseas, and he is extremely disappointed that he is unable to be here today to speak at this most memorable occasion. It, therefore, falls to me to welcome your Honour as the fifth Chief Justice of this Court, the second of our Bar and the first woman to hold the role. Your Honour today joins an exclusive club; you join Crowded House, Phar Lap and the pavlova as wonderful Kiwi creations that Australia has shamelessly appropriated for itself.
Now, your Honour was welcomed first to this Court over 10 years ago when your Honour’s exploits as a pre-eminent member of our Bar were canvassed. I will not repeat the swashbuckling adventures then recounted, the late-night injunctions to turn around aeroplanes, the overnight drives to Canberra, the fierce and legendary pro bono practice, but that’s not because the adventures have ceased. Your Honour has brought maximum possible swashbuckling to judging. You have helicoptered over the wilderness in Tasmania, you have walked barefoot across rugged coastline, and you have sailed through shark-infested waters as you have heard and determined cases through a variety of jurisdictions across the country.
But lest I descend into frivolities, may I take a moment to reflect upon the changed and unchanged aspects of your Honour’s approach to the law over the last 10 years. Most notable in your Honour’s career has been the absolute rigour that your Honour has consistently brought to the practice of law. Your Honour’s acumen and clarity of legal thought is legendary. But the thing that singles out your Honour is that that rigour and clarity has never obscured the people and communities that centre each of the cases before you. Your Honour’s consideration of race discrimination claims on Palm Island has already been discussed. It required long and rigorous consideration of complex facts, including the interaction of international instruments with Australian law.
In a judgment of over 500 pages, your Honour paused to observe that Palm Island is beautiful, lush and quiet. The houses are like any other collection of houses reflecting the ordinary lives of their inhabitants. There are children’s bikes and toys outside, dogs ambling around or sitting in the dirt or the shade, unfinished building projects apparent at some houses, cars parked, boats on trailers, gardens in various states of care and wilderness. In the midst of the legal complexity, the thousands of pages of transcript and hundreds of exhibits, your Honour paused to notice children’s toys in the driveway and that will not surprise those who know you. Over the decades you have been a Judge, you have been committed to the care of many children whose parents, for whatever reason, have not been able to care for them at the time and those children have brought you considerable joy and chaos.
Professor Saunders recalls one occasion when you were teaching law students about the importance of statutory construction while carrying a sleeping three-month-old. Your Honour’s focus on community can perhaps be most clearly seen in the significant contribution that your Honour has made to native title and the work of this Court. Like many of your predecessors, where possible, your Honour has been on country. On one notable occasion, your Honour was walking with traditional owners along the remote coast. Your guides, embarrassed, said the terrain ahead was not suitable for your Honour’s shoes. To the considerable shock of all present, your Honour happily continued barefoot. Your Honour has always been able to marry the dignity, seriousness, and importance of the work of the Court with the empathy and mutual respect for all who come before it and, most of all, work to ensure that it is accessible and comprehensible for all.
Another continuity between your Honour’s time at the bar and on the Bench is your prodigious work ethic. As a Judge, the pace has never slackened. Your Honour has steadfastly considered and managed the cases before you. Your Honour’s colleagues have described you as a force of nature, which I have chosen to interpret as a compliment, and they have described your efforts as being beyond human. That drive contributed to the conclusion of a native title claim concerning disputed boundaries that had been ongoing for centuries and then for 28 years in this Court. The lawyers and claimants say that they saw your Honour as the driving force behind the conclusion to that long running and difficult proceeding. Your Honour’s dedication and respect for community even extended to eating nearly raw kangaroo proffered by a traditional owner despite decades of vegetarianism.
I turn now to the institution which your Honour now leads. This Court was of course established in 1976 and it was a Court of high standing from the very beginning, due in no small part to the calibre of the original appointees, Sir William Deane and of course Sir Gerard Brennan.
Sir Gerard was famously proud of you, his onetime associate, and he would be even prouder today. It is fitting that your Honour now leads the Court that he helped to mould. In reflecting upon the creation of the Federal Court, Sir Gerard wrote that the original estimates for a Court of federal jurisdiction would involve only four Judges, an estimate that surely rivals IBMs calculation that the total worldwide market for personal computers would be five. Today, the Federal Court is a key institution that ensures the rule of law prevails. It is a Court of varied and significant jurisdictions, but all of which are capable of fundamentally affecting lives in profound ways. Your Honour’s history as a barrister and then a Judge of this Court gives the community great confidence that, under your Honour’s stewardship, the Court will never lose sight of that critically important fact, but that does not mean there will not be changes.
I am told that one of your juniors who appeared before you as a Judge accidentally addressed your Honour as “Debbie” in Court. The barrister was horrified and followed immediately with, “I mean, your Highness.” Your Honour did not contradict her, and one is left to wonder if it could perhaps catch on. I am likewise sure that your brother and sister Judges will learn to love the compulsory yoga classes that will no doubt start their day from here on out, but whatever changes your Honour brings, the bar is quietly confident that, as the Court takes the next steps under your leadership, the practitioners appearing before you will seek to reflect the work ethic and the human centricity that your Honour has modelled as a barrister and then as a Judge.
And I would like to acknowledge as well those who travelled to be here today. Your daughter, Hayley, a leading cosmologist, has taken a break from the mysteries of the universe in Chicago to be here and, likewise, I welcome your son, Bryden, recently returned to Melbourne from the pro golf circuit, your Honour’s daughter-in-law, Christina, an American who is reasonably bewildered by all of this bowing. I recall meeting your sister on the occasion of your initial appointment, and she told me about her pride in your appointment and how proud your parents would have been had they been here and I’m sure that holds true for today.
Before closing, I would like to say thank you on behalf of those members of our Bar that your Honour taught or led. You remain a figure of some inspiration to us, and for that, you have our gratitude. So on behalf of the Victorian Bar, we look forward to your leadership of this Court. I wish your Honour a long and honourable career as Chief Justice. May it please the Court.
MORTIMER CJ: Thank you very much, 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 the elders both past and present and all elders from other communities who may be here today. I also acknowledge the Attorney-General, the Honourable Mark Dreyfus KC MP, President of the Australian Bar Association, Mr Peter Dunning KC, Ms Tania Wolff, 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 Chief Justice Mortimer.
I am honoured to appear on behalf of the national legal profession, to welcome your elevation. In 2013, your Honour’s affirmation to office included a promise to do right to all manner of people according to the law without fear or favour, affection, or ill will. Access to justice for all and whether we achieve it defines us as a society and, as we have heard this morning and as was emphasised by all who addressed the Court in 2013 on the occasion of your Honour’s swearing in, access to justice for all is something your Honour has always embraced with vigour. In his foreword to the report of the Access to Justice Taskforce in September 2009, then Attorney-General Robert McClelland said:
An effective justice system must be accessible in all its parts. Without this, the system risks losing its relevance to, and the respect of, the community it serves. Accessibility is about more than ease of access to sandstone buildings or getting legal advice. It involves an appreciation of the needs of those who require the assistance of the legal system.
I know this principle will be one that guides your Honour as you manage the business of this Court. On the occasion of his swearing in as the first Chief Justice of this Court, Sir Nigel Bowen said:
This Court has no history and, as yet, no tradition. At least it has some fine examples. It is my hope that the Court will quickly establish itself as a Court of high standing in the eyes of the profession and of the public.
It cannot be questioned that his Honour’s hope has been achieved. The high standing of this Court has been contributed to enormously by the leadership of it by your four predecessors as they fulfilled their responsibility for the orderly and expeditious discharge of the business of the Court. The Australian profession has no doubt that your Honour will build on the outstanding work of your predecessors to ensure this Court continues to meet the changing needs of our community and maintains the high standing.
From its beginnings as a Court of limited specialist jurisdiction, this Court’s jurisdiction now covers almost all civil matters arising under Federal Law. Just as the law does not stand still, neither does the Court’s jurisdiction, nor does what constitutes true access to justice. The demands on our justice system and how justice is accessed has undergone an incredible transformation in recent years and our journey is not yet over. There are many challenges ahead. This Court’s ability to respond remains abundantly clear. As it was described by the Honourable Sir Gerard Brennan AC KBE in his speech on the 40th anniversary of this Court, and I quote:
The history of the Federal Court, from its commencement, has shown that its comparative youth gives it the freedom to innovate, that its commitment to scholarship, integrity and courtesy commends it to counsel and litigants, and that its internal relations ensure efficient and cooperative disposition of the work. The court is well placed for the challenges of the times.
The ability of this Court to fulfill its central role in informing and leading the administration of justice in our community will, I have no doubt, continue with your Honour as its helm. On behalf of the Australian legal profession, I congratulate your Honour on your appointment to Chief Justice, and express the profession’s gratitude for your continued service of our community. May it please the Court.
MORTIMER CJ: Thank you, Mr Murphy. Ms Wolff, President of the Law Institute of Victoria.
MS T. WOLFF: May it please the Court. I echo the sentiments expressed by my colleagues before me, in respectfully acknowledging that we are meeting on the traditional lands of the peoples of the Kulin nation. I recognise their continuing connection to the land, water and community, and extend that respect to the acknowledgment to any elders and First Nations people here today. I’m delighted, your Honour, to appear on behalf of the Solicitors of this State, to both congratulate you and welcome you on your appointment as Chief Justice of the Federal Court of Australia. Over the course of your Honour’s impressive career, you have earned the wide acclaim, admiration and respect of the entire profession.
During your time as a practitioner, you’ve received a slew of prestigious awards, recognising your steadfast contribution to justice, to equity and to human rights, including the Law Institute of Victoria’s Paul Baker Award in 2009, in recognition of your Honour’s outstanding contribution to human rights work. Since your appointment as Judge of this Court, your Honour has continued to shape and develop Federal Law, with profound impact on the physical and economic fate of individuals and businesses, the environment, Native Title and the principles of justice and equality that underpin our democracy. You now take on the leadership of this Court, an institution that, for almost 50 years, has played an important role in our community and our justice system.
The Federal Court is a crucial, national arbiter of disputes – an increasingly complex and challenging social business and legal environment. As society changes and evolves, the Court must secure and promote justice, while engaging with issues that were largely inconceivable half a century ago. We’re living through a period of unique uncertainty and change. Society is adapting to rapidly evolving and disruptive technologies, and in many instances, the law is playing catchup, to the ramifications of artificial intelligence, including the ubiquitous chatbots, ChatGPT, to defamation, incitement through social media, and to the social impact of instant mobile lending services like Beforepay and Afterpay.
And with these technologies come other risks – cyber-crime, data breaches and identity theft. We can anticipate complex issues arising out of accelerating climate change, and, as the nation seeks to promote justice and recognition of our First Nations people, redressing the injustices of the past, including through Native Title, claims will be especially urgent and important. This Court, like all our Courts, faces both challenges and opportunities to ensure justice for all – particularly, for those who lack the material resources and are unable to access legal aid, developing technological infrastructure, and embedding the advancements achieved through COVID will also remain important.
In this court, and under your leadership, we can meet these challenges with precision, expertise, thoroughness, and importantly, fairness and compassion – with the best attributes that both your Honour and the Federal Court exemplifies, and which it strives to promote within and beyond this Court. In closing, we congratulate your Honour on your appointment as Chief Justice of this esteemed National Court. We wish you a long, satisfying and rewarding tenure in your new role, and we very much look forward to working with you as the Federal Court heads towards its 50th year. May it please the court.
MORTIMER CJ: Thank you very much, Ms Wolff. Mr Attorney and each of the speakers, thank you very much for your kind words. I extend my gratitude to all who have taken the time to attend this ceremony today. Chief Justice Kiefel and Justice Edelman have sent their apologies for not being able to attend. There are many distinguished Judges and former Judges in this room, and I am honoured by the presence of each and every one of you. It is a humbling experience to look out at professional colleagues, family and friends who are here. I also thank my colleagues from the Court, who have taken the time to sit with me today, whether personally or remotely. The Court’s ability to livestream this ceremony is something for which I am very grateful.
Today is another step in the history of the Federal Court, a Court which serves the Australian community. And it is important that all members of the Australian community who want to witness this step can do so. At a personal level, I have friends and extended family watching here in Australia, in mainland United States, in Hawaii, in Zambia, and, of course, all my whanau in New Zealand. Neither of my own parents, Bett and Ted Mortimer, lived long enough to see my first appointment to this Court. I’ve attempted to live by their grounded and compassionate values, and their determination to live a straightforward and materially modest life.
My eldest sister, Jackie, my only sibling, was at my welcome in 2013. However, she died, unexpectedly, in October 2020, and it’s tough that she’s not here today. I thank my former partner, Mark Macpherson, for his support over more than 25 years of marriage, and for his close and sustained commitment to raising our two children, Bryden and Hayley, who are here today. We are both so proud of you. Bryden’s partner, Christina, is here, and Hayley’s partner, Eric, is watching from Hawaii. There’s a lot of Hawaii connections in my family. Both are welcome members of our family, and they have each enriched our lives.
At my invitation, there are distinguished guests from a number of First Nations bodies with us here today. I am grateful for the presence of representatives from two Victorian bodies, the Yoorrook Justice Commission, which is focused on a truth-telling process, into injustices experienced by First Peoples in Victoria. Second, representatives of the First People’s Assembly of Victoria – an elected body, focused on creating pathways towards the negotiation of treaties between the First Peoples of Victoria and the Victorian government. Also present, at my invitation, are representatives of the three regional land councils and Native Title representative bodies, with which I have worked most closely over the last 10 years, as a Judge on this Court – Gur A Baradharaw Kod Sea and Land Council, from the Torres Strait, the Cape York Land Council and the Kimberley Land Council.
To my guests from the Kimberley, from the Torres Strait and from Cape York, I have been honoured to participate in Native Title determination ceremonies on the country of the people that you represent, and I felt it was only fitting to invite you, in return, to this ceremony today. I consider it is important that a ceremony such as today’s includes and pays respect to the invited guests representing at least some of the First Nations Peoples of this country. From First Nations Peoples over the last decade, I have learned much about the role of elders, their wisdom and their generosity of spirit in sharing what they have learned with younger generations. There are parallels in the practice of the law. To all my friends and colleagues from the legal profession and from the academy, I have learned something from each and every one of you. There is always more to learn, and the longer I remain a Judge, the more I understand that proposition.
From such a wonderful group of professional colleagues, it’s always challenging to mention particular people and not others, but here goes. Most people I’m going to talk about are from my earlier career for that is what shapes us, I think. Since my student days at Monash, Professor Louis Waller remained a friend and significant mentor to me. He was at my welcome in 2013, but he passed away in 2019. A great loss. Louis was also the Victorian scout for Sir Gerard Brennan when he was looking for associates. Having no connections in the law and not really even being aware that there was such a thing as an associate to a Judge, were it not for that relationship between Ged Brennan and Louis Waller, I would never have had the chance to spend a year as an associate to Ged, an experience that shaped my professional values and much of my professional life. There are a few members of the Brennan family here today, and I am so grateful that they are sharing this day since Ged cannot.
At the Bar, I read with Neil Young, later a Judge of this Court, who is here today and from whom I learned a great deal. Although, I soon discovered he couldn’t help me out very much with my Magistrates Court work. In my time on this Court, I’ve had the benefit of his fine advocacy, and I still admire it. Finally, I want to acknowledge my dear friend and colleague, Emeritus Professor Cheryl Saunders, who is here today. I met Cheryl when she was my client in the long-running Hindmarsh Island trial before John von Doussa, a Judge of this Court in the Adelaide registry. We have talked and we have taught and we have thought together ever since. I’m grateful for her friendship. Her remarkable insight into so many aspects of the law never ceases to amaze me.
I regard this Court as my professional home, not just because of the last 10 years. So many of my memorable cases as a Junior and a Senior Counsel took place in the Federal Court. My colleague and friend, Alberto Zinser, who has travelled all the way from Mexico to be here today, will recall the many battles fought in the extradition and immigration jurisdiction of this Court for our mutual clients, and it was in this very courtroom that I appeared as a Junior to Gavan Griffith and Jack Fajgenbaum in the Full Court appeal in the Tampa litigation. Chief Justice Black was presiding with a very long line of silks and juniors at the Bar table. That case was notable on many fronts, but to echo some of the speakers, chief amongst them were the steps taken by this Court to ensure access to justice in the most extreme and urgent of circumstances.
When I think back to the long list of the distinguished Judges I appeared before in this Court and the distinguished Judges with whom I’ve sat over the last 10 years, it is a mind-altering experience to be here in the middle of this Bench today. My colleagues on this Court have been enthusiastic and supportive, and I am honoured to sit with all of them today. We are so pleased to have former Chief Justice Michael Black join us on the Bench today. I acknowledge my predecessor, James Allsop, and thank him for his leadership over the last decade and his guidance to me.
I thank the CEO and Principal Registrar of this Court, Ms Sia Lagos, and all the other staff and Registrars and my own chambers’ staff for the positive and encouraging way they have received my appointment and helped me get to work. In my welcome in 2013, I, of course, quoted some remarks from Sir Gerard Brennan, and I’m going to do so again today, but this time from the speech Ged gave on the 40th anniversary of this Court in 2017. Fortunately, Mr Murphy, a different passage from the one you quoted. I was a bit worried for a moment. This was one of Ged’s last major speeches and fittingly so for one of the first Judges of this Court, and this is what he said:
The life of a Court involves more than is found in the reports. It involves the personalities of the Judges, their relationships with one another and with members of other branches of government, with the tensions that arise between them, with the sensitivity of the Court to changing culture and values of the community, with the style of advocacy, with the accessibility of the Court to potential litigants, with the transparency and facility of the Court’s procedures and with the atmosphere and the architecture of the courtroom. These are factors which shape the role that a Court may play in the history of a nation.
I aim to pay attention to all those factors in my leadership of the Court. The Judges and all staff of this Court take pride in continuing to make a contribution to the administration of justice in Australia. Today, we can reflect on what holds us together as we undertake that task, and in this magnificent building, I ask you all to pay attention to the inspired conception of Michael Black to have the words of the Australian Constitution written on the windows, thus wrapping the Constitution around this Court and around the other Courts in this building – the physical manifestation of a legal truth. Thank you very much for this welcome. The Court will now adjourn.
