CEREMONIAL SITTING, HOBART, 3 NOVEMBER 2003
Your Excellency, Chief Justice Cox, Attorney-General, Mr President of the Law Society, Mr Estcourt,
This ceremonial sitting is to mark, in Hobart, the Centenary of the High Court. My colleagues and I are delighted and honoured by the presence of all who have joined us for that purpose. We are grateful to the Attorney-General, and to the representatives of the Law Society and the Bar Association, for their expressions of goodwill, which we value highly.
I should mention in particular the presence of the Governor of Tasmania, and the Chief Justice and other members of Australia's oldest Supreme Court. As a former Chief Justice of the second oldest Supreme Court, I am happy to make that acknowledgment. I should also add how gratified we are by the presence of Sir Guy Green, who, over many years, has made a major contribution to the Australian judiciary and to Australian public life.
Tasmania played an important role in the events leading to the Federal Union to which the High Court owes its existence. In the opening paragraph of his book "The Making of the Australian Constitution" Professor La Nauze wrote:
"On the first day of January 1901 great crowds assembled in Sydney, the capital of New South Wales, to celebrate the inauguration of the Commonwealth of Australia. Many of the framers of its Constitution were present that day as guests or participants in the formal ceremonies but two may be noticed ... Andrew Inglis Clark, a Justice of the Supreme Court of Tasmania, had devised the first draft of a Constitution for a federal union of the Australian colonies. Edmund Barton was now to be sworn in as first Prime Minister of the Commonwealth."
Tasmania had been active in the Federal Council of Australasia, which first met in 1886, but which was weakened by the non-participation of New South Wales. Andrew Inglis Clark played a prominent role at the 1891 Convention. He was one of the principal architects of Chapter III, dealing with the Judicature, his influence reflecting his unmatched knowledge of United States constitutional doctrine and history. An important biography of Clark, the work of the late Mr Justice Neasey and his son, has recently been published. Justice Heerey of the Federal Court, in an article in the New Federalist, described Andrew Inglis Clark as "one of Tasmania's greatest sons, and a founder of our nation." One of his particular contributions to the Constitution, and to Chapter III, was his insistence that the establishment of the High Court should be mandatory, and not merely permissible. This requirement was relied on heavily by Alfred Deakin in his speech in support of the Judiciary Bill in 1902. He had to meet objections to the establishment of the Court on the ground that it was unnecessary, at least for the time being. Deakin pointed out that the existence of a Federal Supreme Court to resolve issues as to the boundaries of governmental power - issues which must necessarily arise under a federal system of government - was an essential part of the federal agreement. The High Court, he said, was not an inessential appendage to the new constitutional structure. It was the keystone of the Federal arch.
Sir Owen Dixon, on the occasion of his retirement, described Sir Samuel Griffith and Andrew Inglis Clark as the two dominant legal figures in the Federal movement, and said that the Constitution owes its shape more to them, probably, than anybody.
The reference by Professor La Nauze to the presence together of Clark and Barton at the 1901 ceremonies in Sydney contains one poignant aspect. Deakin failed to persuade Parliament that the first High Court should have five members. If it had, Clark would almost certainly have been one. Even when the number was reduced to three, it was widely expected that Clark would be appointed, but the seat went to Barton who, as Prime Minister, was in a position to choose. I have seen correspondence between Clark and Professor Harrison Moore concerning some decisions of the first High Court. It is clear that his critical faculties never deserted him. But his health failed, and, when the number of Justices was increased to five, he was largely out of contention.
Another major contribution of Clark to Chapter III of the Constitution, and to the character of the High Court, was the recognition that the new Court should not merely replicate the constitutional role of the United States Supreme Court, but should also have a general appellate jurisdiction from State courts. This made possible the development of an integrated legal system and, at least since the abolition of appeals to the Privy Council, an Australian common law.
Alfred Deakin, in his speech on the Judiciary Bill, described the Court as "a structural creation which is the necessary and essential complement of a federal Constitution". For one hundred years, the Court has functioned as a central institution in our federal framework of government. Over that time the Court's individual members have done their best to discharge their responsibilities. But it is to the Court as an institution of government, not the individuals who come and go over time, that we look principally on an occasion such as this.
The work of the Court is sustained by, and its capacity to perform its constitutional role depends upon, the confidence of the Australian public. For that reason we value the support implicit in the presence today of the Governor, the Premier, and members of the community. Public confidence in a court of final appeal requires, in particular, the confidence of the legal profession and the judiciary. For the same reason we are grateful for the support shown today by members of the judiciary in Tasmania, and representatives and members of the legal profession.
The first members of the High Court were sworn in in Melbourne on 6 October 1903, and they granted special leave to appeal in the case D'Emden v Pedder on 7 October 1903. The High Court sat in this courtroom on 24 and 25 February 1904 to hear the appeal. The Court sat here again on 18 April 1904, to hear an electoral petition in Cameron v Fysh. The High Court visited Hobart seven times during its first ten years. It came here every year between 1908 and 1918. The first visit coincided with the celebrations of Tasmania's Centenary. The State Attorney-General was the Hon Herbert Nicholls. The Justices arrived separately. Justice O'Connor, who had spent the summer vacation in South Africa, arrived at Launceston, where he was met by Senator Keating, a protege of Andrew Inglis Clark. In the light of views Senator Keating had expressed in Parliament in 1903 about Sir Samuel Griffith, it would have been prudent not to assign him to welcome the Chief Justice.
The Hobart Mercury of 25 February 1904, in an editorial, attributed the decision of the High Court to hold occasional sittings in the different State capitals to the delay in fixing the site of the national capital, evidently assuming that thereafter it would confine its sittings to one place. Sir Samuel Griffith, at a sitting to welcome the Court, said that it was very satisfactory that arrangements had been made whereby the Court visited all the States, instead of the original idea of its sitting as a court of appeal at the seat of Government. He added that he personally enjoyed the opportunity of visiting different parts of the Commonwealth, renewing old acquaintances, making new friends, and meeting the legal profession. But he warned that this practice might not continue. In the event, the Court has continued to sit in Hobart, approximately every two or three years, over its first century. It did not obtain a base in the national capital until 1980; and it has never confined its sittings to one place. The predictions of the Hobart Mercury, and the first Chief Justice, were not borne out. Not all departures from the expectations of the founders of our Federation have been in the direction of centralism.
We are grateful to the Supreme Court of Tasmania for the willing hospitality it has extended, and continues to extend to the Court. We are grateful to all of you who have come to help us mark the Court's centenary.
The Court will adjourn to re-convene at 11 am.