A Farewell: The Honourable Patrick Keane AC KC
The content below is a re-print from the transcript of the farewell sitting held on 16 September 2022 in the High Court of Australia, Brisbane.
HIGH COURT OF AUSTRALIA
REMARKS TO FAREWELL THE HONOURABLE JUSTICE PATRICK ANTHONY KEANE, AC
AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA AT BRISBANE
ON FRIDAY, 16 SEPTEMBER 2022, AT 9.00 AM
HIS HONOUR: Mr Sullivan, Ms Thomson, the Court convenes this morning to hear applications for special leave to appeal, but I do not think that is why you are here. Yes, Mr Sullivan.
MR T.P. SULLIVAN, KC: Thank you, your Honour. May it please the Court, I appear on behalf of the Bar Association of Queensland and the Australian Bar Association, on this, your last sitting day in Queensland as a judge of the High Court of Australia.
I count it a singular honour to be able to address the Court today. For my entire career in the law, your Honour’s intellect and character have been the dominant force within the Queensland legal community.
As President of the Queensland Court of Appeal, Chief Justice of the Federal Court and then as a judge of this Court, the many reasons to which your Honour has contributed are a testament to the importance of your role, the role you have played as a jurist within Australia. A review of your decisions in any of those courts reveals a mind which has always been able to sift through the complex in order to find the critical path of reasoning. That art of reducing perplexing concepts into clear and applicable principles has lain at the heart of your Honour’s jurisprudential achievements.
The important decisions which your Honour has contributed to are numerous. I will not touch on those today. I would wish to briefly focus on some other aspects of your Honour’s career.
At St Joseph’s Gregory Terrace you were dux. Then at the University of Queensland you took a first in your undergraduate degree. It must have seemed to your mother that you had, at a young age, burnt your thumb on the salmon of knowledge. That early promise was confirmed with you taking a first at Oxford in the BCL where you were awarded the Vinerian Scholarship.
At the Bar you were simply a force of nature. In a period where there was an exceptionally rich vein of talent at the Queensland Bar, your Honour ultimately stood out as the preeminent barrister. A review of the Queensland Reports from the late 1980’ s until when your Honour first took an appointment to the Court of Appeal of Queensland reveals that your name features in almost all of the most important decisions within the State.
Your success did not lie simply in your intellectual rigour, but it also lay with your advocacy skills. Your Honour was an excellent crossexaminer but it was the oratory of your submissions which was your true strength. In this respect, your Irish heritage came to the fore. It was simply a delight to watch you weave the story together. It was often observed that this resulted in you participating in an intimate conversation which seemed to be only between you and the Court before whom were appearing.
Your Honour’s signature Mark Twain move would be to summarise fairly but amusingly the other side’s case, then to lean over the lectern and observe in a conspiratorial tone to the judge, “it just ain’t so, it just ain’t so”.
It was a surprise to no one when your Honour followed on from the greatly respected SolicitorGeneral, Geoff Davies QC. Whenever the Commonwealth sought to vex this State with some new constitutional incursion, it was with real pride that the Queensland Bar knew that you would lead the State into battle. Indeed, your Honour used to observe that such occasions were like leading the army of the Potomac into the South. Whether you saw yourself as General McLellan or General Grant was unclear. In our eyes at least, it was always the latter, and at least he eventually won.
Putting to one side for a moment all of your Honour’s intellectual and judicial achievements, I do want to pay tribute to how your Honour has conducted yourself throughout your career.
Your Honour has always been a great mentor of young barristers. No one who ever sought your assistance or advice was ever left unaided. Your Honour gave it freely and without reservation. You have always been a person of modest and selfdeprecating nature with no hint of the vainglory.
If your Honour lost a case you never sought to attribute blame to others, but rather took it on your own shoulders, with your only qualification being that at least it was not as bad as the Boyne. It is for these attributes that you have been so admired by all at the Bar.
The Bar Association of Queensland, the Australian Bar Association and all of its members congratulate you on your outstanding career and thank you for your service to the Court and to the community. We wish you, your wife Shelly, your children and grandchildren the best in the future. May it please the Court.
HIS HONOUR: Thanks, Mr Sullivan. Yes, Ms Thomson.
MS K. THOMSON: May it please the Court. It is a special honour to be here today, this final Queensland sitting, to acknowledge the profound service to the Australian people your Honour has performed as a Justice of this honourable Court and previously on the Federal Court and Queensland Court of Appeal. It is a particularly pleasant duty to bring the thanks and admiration of the solicitors of Queensland to your Honour, who is a proud Queenslander and onetime solicitor. And, as a solicitor, may I say, it is particularly exciting to be able to have the opportunity to address this Court.
Your Honour’s contribution to the administration of justice is prodigious and significant across a number of the highest positions in the highest courts of this land. I am conscious the happy duty of speaking today follows previous Presidents of the Queensland Law Society who have spoken on several occasions to wish your Honour well. When you assumed the office of the Chief Justice of the Federal Court in 2010, my predecessor, as President of the Queensland Law Society, Mr Peter Eardley, said the following words:
Every accolade, your Honour, is well deserved and well earned, reflecting not only the great admiration we all have for your legal talents, but also the great personal affection we all have for you. . . . you have the responsibility to lead one of the great traditional institutions of our legal system. Your outstanding capacity for hard work is legendary. We are very confident that your learning, your diligence, your humanity will enable you to be a beacon in judicial decision making throughout Australia. Your Honour has rightly stated that judgment writing is not a popularity contest. Hard decisions are necessarily made. The prominent standing your Honour holds in the profession throughout Australia is evident by the universal willingness to accept your learned reasoning.
In 2013, Ms Annette Bradfield reaffirmed these sentiments upon your valedictory from the Federal Court. Today, at this ceremony, I can only again reaffirm them with respect to your Honour’s role as the 50th Justice of the High Court of Australia. There is no hyperbole or exaggeration in recognising your Honour as a beacon in judicial decision making throughout Australia. Your Honour has a formidable legacy of jurisprudence and has also set a model for being the consummate judicial officer for the coming generations to follow.
Your Honour is well known for both holding a healthy scepticism for technology and being exceptionally prepared for the matters that come before you. My members have said that questions from Justice Keane are ignored at their clients’ peril, and often paint in the last remaining elements of a masterpiece of judicial reasoning. In this, your Honour has always shown the profession the importance of the simple, if not sometimes overlooked, value of doing your homework before coming to court.
I will not recite your Honour’s CV or repeat your path to this point, but I do take some pride in the fact that you commenced your days in practice as a solicitor, firstly as a clerk with Roberts & Kane Solicitors while you were a student, and then being recruited to the renowned firm Feez Ruthning by thenpartner Martin Kriewaldt, where you practiced for a time upon your return from Oxford. We firmly believe that those solid, practical and sensible foundations as a solicitor have played, hopefully, some small part in your Honour’s successes. Mr Kriewaldt saw in your Honour the abilities to be the finest of lawyers and was quoted in The Age newspaper upon your ascension to this Court saying you were a “Renaissance man” and that he “would be staggered” if there was a lawyer in Australia who knew you who did not think your Honour was “an absolutely perfect appointment to the High Court”. The depth of feeling and admiration for your Honour in Queensland solicitors runs deep, but it has not always been sunshine and roses, at least from a solicitor’s perspective. Mr Eardley noted:
We solicitors have a common lament from your time at the Bar. Your name was foremost on our list of preferred counsel. Many a solicitor regrets the delayed phone call to engage you for the hard case. Many were disappointed to be told you had applied the cab rank rule; the other side had got in first.
Your Honour was kind enough to provide the address to our legal profession dinner in 2015, entitled “a true profession”. In those remarks, your Honour opined on the true recognition of the Magna Carta as a distinctly more modest milestone in our journey towards a just society than its enthusiasts are disposed to acknowledge. I am confident your Honour has faced more than enough enthusiasm for the Magna Carta from various litigants to reaffirm those views. In your address, your Honour did, however, celebrate clause 45 as the root of the common law tradition of an independent judiciary and, thereby, legal profession, as people “that know the law of the realm and are minded to keep it well.”
You also opined that the most eloquent of arguments for tenured judges appointed from the ranks of the legal profession was notably made by an American: Alexander Hamilton – the man, not the musical, of course – writing in the Fe deralist Papers. Hamilton reflected much on the importance of an impartial and dedicated judiciary in preserving the balance of power needed to maintain the rule of law. To this end, your Honour’s contribution as the very model of an impartial and dedicated jurist has contributed much to the maintenance of the rule of law in this country and is to be celebrated.
Your dedication to the judiciary and its advancement is always on display, and I note you are soon to speak at the Asian Australian Lawyers Association panel on diversity in the judiciary, and that is an example of your Honour’s persistent and wider view. Senior solicitors have remarked to me that your Honour is so much more than a historical scholar, but is known as a man of such general decency that you are noted as much for your lack of pretence as your good humour.
There is a wellspring of deep general affection amongst my members for your Honour not just as a great judge, a great lawyer, but as a great comrade. An insight into your Honour’s generous nature is evidenced so well by your continued dedication to the ceremonies and institutions of the Queensland and Federal Courts. The importance of shared experience and ritual being so obviously key to the profession has not escaped your Honour.
On behalf of the solicitors of Queensland, I extend the highest regard and the warmest of wishes of our profession to your Honour on your retirement from the bench. May there always be more Château DucruBeaucaillou in your future than in your past. May it please the Court.
HIS HONOUR: Thanks, Ms Thomson. Some people think that judges are immune to or not interested in outrageous flattery. I am here today to say that those people are quite wrong.
I should say immediately that it is not the custom of the High Court to hold farewell sittings for Justices other than the Chief Justice, and in my view that is an entirely wholesome custom. It spares the retiring judge’s family from the alarming revelation that the judge is looking forward to spending more time with them. But while the Court’ s practice is indeed a wholesome one, and one which I fully support, I must admit that I am very touched by this morning’s gentle act of subversion by Queensland’s barristers and solicitors.
It is difficult, to say the least, to be confronted with the stark reality that one’s usefulness to the people of the Commonwealth has come to an end, but if we did not have compulsory retirement you would never be rid of us, so deeply absorbing and interesting is this job. And, as Thomas Jefferson wrote to James Madison in Paris shortly after the fall of the Bastille, “the Earth belongs always to the living generation.” I have great confidence in the new generation that is now taking my place, and for good reason.
Mr Sullivan and Ms Thomson, I am truly warmed by your kind remarks – and you have been very kind. May I say, through you to your members, who have taken the time out of their very busy lives this morning to come here – without even the prospect of a cup of tea and a biscuit by way of thanks – the recognition by members of the profession that has given me so much means a great deal to me. I am especially chuffed by the presence this morning of old friends with whom I spent time in the trenches before being appointed.
The contribution of the legal profession to the due administration of justice is, of course, vital. That is so true it almost goes without saying. What we do is hard. Sometimes barristers and solicitors may not feel that the courts appreciate this important truth in the heat and dust of vigorously contested litigation, but while the lawyers are having the spots knocked off them by judges energised, unattractively perhaps, by the smell of blood in the water, truth is glimpsed in the sparks that are struck. And the rigour of the crucible of debate in open court means that all this happens without the banality or selfrighteousness or pomposity which sometimes characterises public discourse in other places.
Mr Sullivan and Ms Thomson, like you and your members, I am what the Queensland legal profession made me, most of all by the example of the giants who showed us what it is to be a good lawyer. I am conscious that we, all of us, want to do that profession proud. I am convinced that Sir Francis Bacon put it accurately when he said, “I hold every man to be a debtor to his profession; from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavour themselves, by way of amends, to be a help and an ornament thereunto.” Notwithstanding the gender bias of the language, that is an eloquent statement of a very noble ambition, and an ambition that has motivated the giants of the Queensland legal profession who have been our great exemplars. I am very proud to have been, and to remain, a member of Queensland’s legal profession. It gladdens my heart to see that your members continue to do the profession proud.
Thank you all again for your kindness in coming here this morning. The Court will now adjourn to reconstitute. Adjourn the Court until 9.30 am.
AT 9.17 AM THE COURT WAS ADJOURNED