Issue 43: Aug 2010, Speeches and Legal Articles of Interest
Address from The Honourable Chief Justice Keane
Colleagues, ladies and gentlemen,
This Sunday, Justice Jeffrey Ernest John Spender will retire as a justice of this court. We are gathered to mark this milestone in the life of the Court, and, to celebrate the extraordinary contribution which his Honour has made to the life of the Court as its senior serving judge.
It is only right and fitting that we should celebrate, on Bastille Day, the career of a judge whose career, at the Bar and on the Bench, has been dedicated to the great ideals of liberty, equality and fraternity.
From my own experience as a barrister who appeared before his Honour on many occasions, I can say that he has been a judge much revered by the legal profession. He is also much loved by his judicial colleagues.
A good indication of the high regard in which Justice Spender is held throughout the Commonwealth by his colleagues and former colleagues is the circumstances that we are joined today by a most distinguished guest: the Hon Robert French, Chief Justice of the High Court of Australia.
I should also acknowledge the presence of Mr Ian Callinan AC, QC, formerly of the High Court of Australia. He and Justice Spender appeared for many years as Counsel for the Canegrowers before the Central Sugar Cane Prices Board — a peculiarly Queensland style of institution.
We are also joined by the Hon Margaret McMurdo, President of the Queensland Court of Appeal and many judges of the Supreme Court of Queensland, the Family Court of Australia, the District Court of Queensland and the Federal Magistrates Court.
There are many of Justice Spender’s colleagues and former colleagues who would wish to be here but cannot attend because of commitments in Court. In particular, Justice Moore of this Court, who cannot be here today because he is sitting on the Court of Appeal of the Kingdom of Tonga, has specifically asked me to say that he would very much have liked to be here to farewell his colleague and friend, and I should also mention that the Hon Susan Kiefel of the High Court of Australia is in Germany. And only serious physical injury has kept Chief Judge Wolfe of the District Court Queensland from attending today.
At school, Justice Spender was a brilliant student, receiving an Open Scholarship to the University of Queensland where his first degree was Science with Honours in Mathematics.
He later studied law at University of Queensland and at the University of London where he was awarded the degree of Master of Laws with Distinction.
He practised at the Queensland Bar from 1967 until 1984 taking silk in 1983. He was the leader of the criminal bar in Queensland but he was sought after as a forceful advocate in all fields of the broad spectrum of legal practice. He was a true all-rounder.
He was appointed to this Court on 17 May 1984. Justice Spender has thus served for more than 26 years as a judge of this Court. That is an extraordinary achievement.
In addition, he has served as a Judge of the Industrial Relations Court of Australia, as a Presidential Member of the Administrative Appeals Tribunal.
Importantly, he has served as an additional judge of the Australian Capital Territory.
In 2001, he was appointed a member of the Court of Appeal of the Kingdom of Tonga.
He has frequently been called upon to act as Chief Justice of this Court.
On the occasion of Justice Spender’s /swearing in on 4 June 1984, he said, “The Federal Court is relatively new and entrusted with important and wide-ranging jurisdictions. It is my conviction that the Court has a significant contribution to make to the Australian identity and to the concept of nationhood.”
At that time, this Court was barely eight years old. Now 26 years later, there can be no question that the Court has indeed made a significant contribution to the Australian identity and the concept of nationhood. Nor is there any question that his Honour’s participation in the making of that contribution has been of enormous value. His retirement is a great loss to the Court in terms of judicial experience and wisdom.
If I may indulge in a personal observation for a moment: I must acknowledge my own debt to his Honour. When I was an articled clerk, I instructed him on the first occasion on which I had a case in the Court of Criminal Appeal — which he won. I learned a lot from watching him in action in criminal cases – particularly that, human affairs being what they are, it is very difficult not to entertain a reasonable doubt about many things.
In the many years since, he has been a friend and mentor to me. I would say that I will miss his advice and guidance, but I am in no doubt that the fact of his retirement won’t mean that there will be an end to the advice.
On behalf of all the members of the Court, I wish Justice Spender and Glenice all the very best for a long, happy and rewarding retirement.
Address from The Honourable Justice Spender
Thank you, Chief Justice, for your generous remarks, and to Ms Playford, Mr Ferguson, Mr Stewart, Mr Douglas, and Mr Eardley. Thanks to you also for your generous remarks.
If my late parents were present today, my father would have been very very proud, and I am sure my mother would have believed every word of it.
I am very grateful to everyone present, and to those who have written to convey their apologies for their inability to be here.
I really am quite chuffed by the presence of so many members of the profession, my friends, my colleagues and my family, this morning.
I am particularly honoured by the presence of the Chief Justice of the High Court of Australia, Bob French, and by the presence in the Court this morning by other judicial colleagues: Judges of the Family Court, of the Queensland Court of Appeal, of the Supreme Court, Judges of the District Court, Federal and State Magistrates, and member of tribunals.
I am particularly honoured by the presence of old friends, who have retired from the High Court, the Federal Court, the Queensland Court of Appeal, the Supreme Court, or the District Court. Your attendance has no element of “noblesse oblige” about it, and so is doubly welcome.
When I was sworn in in 1984, the Federal Court was at 294 Adelaide Street. After about 9 months during which I was the only Federal Court Judge in Queensland, Bill Pincus joined me. Later, the Court moved to 15 Adelaide Street, and Doug Drummond and Richard Cooper joined us, and in 1993, we moved to this dedicated Commonwealth Law Courts Building.
This project was nearly scuppered by the 1991 finance cuts, but at least two things saved it: First, I had arranged for the Commonwealth Attorney-General, Michael Duffy, to be photographed in the Courier Mail turning the first sod on this site – the old McDonnell and East carpark, so that there was a continuing commitment to this project by the Government. Secondly, a number of representations, including, in particular, by the Premier of Queensland of the day, Wayne Goss, who emphasised just how important this building was to Queensland, since there had been no public Federal building since the ANZAC Square Centre was built in the 70s. The building was postponed for a year, but the site had been bought by the Commonwealth, and the project was saved.
I have had the honour to serve under three Chief Justices: Sir Nigel Bowen, Chief Justice Michael Black, and, this year, Chief Justice Pat Keane.
This Court has forged for itself a national and international reputation for excellence in its judicial function, and the reputation of the Federal Court has been confirmed to me on my occasional travels overseas.
It is not only in legal scholarship that the Court has earned its reputation, it has embraced innovation, technology, and administrative techniques.
When I was appointed in 1984, the Court had half the number of Judges it now has, and none of them was a woman. During my time on the bench, six women have retired or graduated from the Federal Court, including Justices Susan Crennan and Susan Keifel to the High Court, and there are currently eight women Judges on the Federal Court.
That has been an important change during my time on the bench.
One of the primary reasons for my going now, about 15 months before deemed statutory senility, has been the impact of generational change.
Many of the Judges with whom I have served have either passed away or have retired, and there has been a regeneration of Judges in the Federal Court.
I mean no disrespect to the modern appointees, but I do miss not having John Toohey and Malcolm Lee on the Court in Western Australia, Bob Fischer and Maurice O’Loughlin in Adelaide, Ken Jenkinson, Ray Northrop, Sir Edward Woodward, and Peter Heerey in Melbourne, Michael Foster, and Doug McGregor in Sydney, John Gallop in Canberra and many others.
In 2005, the Court list five sitting Judges who died in office, as well as two just-retired Judges. In that group were friends and outstanding Judges in Brad Selway, Richard Cooper and Graham Hill.
I think there is still room for a little bit of nostalgia.
I have very happy memories of my childhood and adolescence at Balmoral and my secondary education at St Laurences. I acknowledge the sacrifices my parents made to give me the education they were denied.
I have extraordinarily happy memories of my undergraduate career as a science student at the University of Queensland. My friends in fencing at Australian Universities and internationally, my service as Deputy Warden at International House in the first three years of its existence, and my continued presence on the Board of Governors, and then the Board of Directors, and for the last 10 years or so, as Master of the College.
I have happy memories of my time at Crown Law and the many continuing friends I’ve made from those days. I still nurse a sense of grievance that I was not able to get a years leave of absence without pay to study for my Masters in London from Crown Law while two others who were contemporaries were able to get that leave without pay: Bill Ryan, the Solicitor-General, in those days, apologised, but said the reason that I couldn’t get leave was that, in his view, I was indispensable, and therefore I had to resign so that my position could be replaced. That decision had the consequence that I went to the private Bar on my return from England.
We had a wonderful year at LSE and University College in London, Glencie and I. Fiona came with us, then aged 6 weeks, and we did two thorough trips of Europe, totalling more than 10,000 miles, the three of us, in a Volkswagon that we purchased from a friend for 30 pounds, and sold it after the year, also for 30 pounds.
My practice at the private Bar was a matter of enormous pleasure to me. The Grosvenor School of Law truly was an institution. I am saddened that three of my close barrister friends, Bill Cuthbert, Basil Martin, and Bob Greenwood are no longer with us.
The Bar, in those days, was an enormously pleasant place to practice, and I am also very very grateful for the solicitors of those days who briefed me, particularly, Jim Barry, tTrry Mellifont, and John Manners, each of whom, I am pleased to say, is with us today.
To swap the camaraderie of the Bar for the isolation of the bench has been an enormous change for me, but I have had the assistance of a great many people during my Federal Court career. All of my associates, many of whom are present today, were wise beyond their years, and were a great help to me.
The staff of the Registry have been superb, not only at the top levels, with people like Graham Ramsey and Jocelyn Green and others, but all the Registry staff and Court Officers and Court reporters.
Lorraine de Lacy was my most long-serving secretary, and so too, Kate Emery and Ann Tarragano. Each of them is here today. I am very grateful to each of them. I am quite sure that some of my demands on them were in breach of even the most generous occupational health and safety requirements, but they and the hard-working Associate of the time never seemed to grumble sufficiently hard or sufficiently long for me to alter my work habits.
I have no regrets about my time on the Federal Court, although I would have to say that only in a handful of the many appeals from my judgments that have been successful, I do prefer the judgment at first instance.
It goes without saying, and therefore is seldom said, that the law is an honourable and noble profession. I have had the enormous pleasure and privilege of being a working barrister and Judge for nearly 45 years. The law is directed to the peaceful resolution of conflict.
I know that “gentleness” would not be a word normally associated with my practice as a Judge. Intellectual rigour and hard work should be the talisman of all counsel, and I really believe that justice according to law is best achieved after a thorough and rigorous Socratic inquiry. The gold in argument is proved in the furnace of judicial inquiry.
It was a technique directed only at those who had the intellectual ability and the forensic skills of counsel to equip them for that searching inquiry.
It truly should be regarded as a badge of honour to be worn with pride by those who are thought worthy to be exposed to it.
I don’t propose to practice as a mediator or arbitrator. I will not offer any parting observations about the current state of the law, or of the judiciary, except to make one genuine and deeply felt observation: It is a disgrace that there is a small cohort of Judges on the Federal Court of Australia who even now are subjected to a discriminatory superannuation surcharge. I am not included in that group, but that charge was imposed without any rational justification for its application to Judges, and when it was cancelled for appointees after the date of cancellation, it was not cancelled or abolished retrospectively. Two of our best Judges left the court to avoid its impost.
There are many Judges who were appointed before it came into operation, and many Judges who have been appointed subsequent to its cancellation. For those small remaining number, however, it is a continuing grievance. Sound policy demands its repeal. For the government not prepared to act because of the screams of outrage contemplated from the Daily Telegraph and the like, can I say that the surcharge law was aimed to claw back some of the tax deductions of the wealthy in respect of their payments into super. Judges never had those deductions, so the imposition of the tax on them was unfair. The High Court struck down the tax in its application to State Judges. The government should acknowledge the unfair and unjustified tax on a small, and seemingly forgotten, group of Judges, repeal the imposition of the tax. Sound government trumps the braying of the ignorant, even if there are some politicians and public servants, who are also caught.
I would be grateful if you, Ms Playford, could convey to the Treasurer and to the Attorney-General my sentiments that fear of misplaced criticism is not reason not to amend wrong and unjust impost.
Whilst it is a tiny thing in the grand scheme of things, its unfairness positively rankles, particularly to those few still caught by it. It should be repealed.
Finally, I want to express my great thanks to my family, particularly Glenice, my wife of more than 40 years. Two of our three children, Fiona and Duncan, are here today with Duncan’s wife Kim, and two of our Canberra grandchildren, Penelope and Louis. Our other son, Tom, is in London with his wife Mina and our two London granddaughters: Alice and Camille. There is the whole future of grandchildren ahead of us.
A little while ago, I was kicking a football around with Alice, aged just over 2 in the back garden of their apartment block in St Johns Wood, when after a while, Alice said, “Granddad, let’s do something else.” And I said, “Very well, Alice, what would you like to do?” and she said, “I know, let’s play hide and seek.” I said to her, “How does one play hide and seek, Alice?” “Well”, she said — using that tone of voice that women of all ages use when explaining the obvious to a mere male — said, “Well, you put your hands over your eyes like this, and you count to ten, and while you’re doing that, I hide behind the tree.”
To all of you, thank you.
Thank you Chief Justice, and to the other Judges of the Federal Court of Australia, including those on the bench with me today for giving me this opportunity to express my thanks and to say farewell.
Speech delivered by Richard Douglas S.C.
On behalf of the Bar Association of Queensland, I bid your Honour farewell from this court.
The previous speakers have well essayed your Honour’s career achievements. Such achievements are indeed weighty:
Tertiary academic qualification, in multiple disciplines, in Australia and overseas.
Sporting prowess at a national level as a fencer.
An accomplished woodworker and, I am informed, ballroom dancer.
A tenacious but astute barrister.
An international sports arbitrator.
A jurist of the highest quality and integrity.
A sometime leader of this court, as Acting Chief Justice.
A court builder, this building being a product of your industry.
But equally important, a family man, a reliable friend, an affable companion and a mentor to others who also have gone on to achieve great things.
The Bar has always looked up to your Honour. Even on the occasions when, no doubt for good reason, your Honour was a little grumpy.
You never shrank from identifying cant in any discourse, or specious argument in curial contest. Rare would it be for anyone to be mistaken as to your Honour’s view on any issue of importance or at hand for disposition.
Your Honour is a life member of the Bar Association of Queensland.
Mr Tony Glynn S.C., when President of the Bar Association in 2003, moving a motion for your elevation to life membership of the Association, observed:
Jeff Spender has been a great supporter of this Association and the Australian Bar. For his entire professional life he has actively championed the Bar. He has shown a genuine interest in the Bar and has been willing to assist wherever possible. He is a worthy recipient of this honour.
The Bar wishes you well in retirement, whatever is entailed in that concept in modern mores.
In truth, we look forward to the contribution which your Honour, no doubt, will continue to make in application of your intellect, integrity and experience.
Your Honour we salute you and, from this court, we bid you adieu.
Speech delivered by Michael Stewart S.C.
Justice Spender.
As we have been told, you have now served as a Judge of this important national Court for more than a generation. What is more, it is interesting to hear from those who have known you throughout this career that there seems to have been no alteration to your method throughout this period. You have conducted your Court in the same way since 1984 and it is this that has created your colourful reputation.
It must be said thought that the implementation of this method has had its casualties. As a Judge of the Federal Court you have presided over trials all over the country so that your impact has not been confined to Queensland alone. As I speak for the members of the Australian Bar Association, I consulted with the Presidents of the Bars of the other States and Territories about their members’ experience of Your Honour. One universal response was that they had members who were still in therapy after recovering from the experience of a trial before you.One. Stuart Pilkinton, is now the President of the Bar of the ACT. As an essentially sympathetic and caring man I know that Your Honour will be pleased to know that so far Mr Pilkinton and the others are all doing well.
What is this method that Your Honour has used which has caused so much interest? It really is no more than the vigorous, intelligent and perhaps somewhat early application of the dialectical method. All perfectly laudable in my respectful submission.
Barristers admire and appreciate this approach, Your Honour. Judges who keep their own counsel and choose not to debate points run the risk of not taking full advantage of our system which relies on the clash of opposing arguments to reveal the proper conclusion. Those opposing arguments are not confined to the ones put by the parties. The Judge’s views are the most important. They produce the judgment. They should be aired fully so that the parties can respond to them and seek to refine, change or correct them. As I have said, if the Judge’s views are not shared the risk that the proper result will not be reached is greater.
Counsel ran no such risk in Your Honour’s Court. From the start – in fact sometimes before counsel for the applicant had even finished announcing their appearance – we have been given the benefit of Your Honour’s views. One quality attributed to Your Honour is the lightning speed with which you seem to grasp points and with which you seem to be able to reduce the complex to the comprehensible. This habit of early intervention in the debate is simply explained by these skills.
Another feature that has marked Your Honour’s career is the colourful, direct and sometimes earthy way in which you have expressed yourself when disagreeing with a submission. A favourite of some of Your Honour’s former associates, if not the counsel involved, is: “That’s a dud”. While a little unconventional, this certainly had the benefit of leaving the advocate in no doubt of where they stood.
To engage in this type of debate takes a certain strength of character and as a result of the way you have conducted trials and appeals Your Honour has won a reputation for courage.
But if the earliness of your intervention in argument and the strength with which you expressed your views were the only hallmarks of Your Honour’s approach, things might be different. But the other vital quality you have consistently demonstrated is the capacity to change your mind; to be persuaded by the force of an argument. It takes particular courage to do this. This is especially so when your views have been expressed so forcefully, yet Your Honour has always shown a preparedness to change tack when it is the correct thing to do. In addition to courage this exhibits Your Honour’s intellectual honesty.
So far I have spoken only about the impact Your Honour’s judicial method in Court has had on barristers. More important is the effect it has had on the litigants whose disputes came before you. The result of Your Honour’s method has been hearings that are dealt with efficiently and in a way that, at the end of the hearing leaves everyone concerned satisfied that they have witnessed and most importantly participated in that most vital, if unglamorous of things – a fair trial.
It is tempting to consider what has made Your Honour adopt this slightly idiosyncratic approach. One school of thought has it that it is simply a product of Your Honour’s innate elan; the same which led you to represent your country at fencing at youth level. Having heard of your other career as an unlicenced builder, I should point out that that is fencing with a foil as opposed to with a post hole digger.
Another school has it that Your Honour has taken this approach out of pure altruism in an attempt to assist those who appear before you achieve true happiness. These people point, I submit persuasively, to the sign hung prominently in your chambers. It reads: “The floggings will continue until morale improves.”
On behalf of the Australian Bar Association may I inform the Court that morale is high in no small measure because of Your Honour’s efforts over the last 26 years.
Throughout your judicial career Your Honour has been a loyal attender of the biennial conferences the ABA conducted overseas. It is vital for us to have Judges participate in these events. They would not be the same without you. Thank you for this.
I also thank you for your fine career as a Judge and wish you and Mrs Spender a long, happy and fulfilling retirement.
