by the Hon Sir Gerard Brennan, AC KBE


Mr Attorney, Mr Fowler, Mrs Crennan, Mr Sofronoff, Members of the Bar, Solicitors and Attornies, my dear wife and family and friends, Ladies and Gentlemen:


  I am grateful for the excess of generosity in the remarks you have made this morning. It comforts me to think that I must have learnt to conceal my shortcomings in the 50 years since I first entered my father's Court to arraign a prisoner at the commencement of a criminal trial. Picking up the indictment and misreading the name of the prosecutor for the name of the accused, I charged one of the dearest and most upright of men with the crime of rape. Such is the camaraderie of the Bar that counsel for the accused leapt to his feet and pleaded not guilty on behalf of his learned friend. Although your compliments sit uneasily with the truth as I know it, your words and the presence of this large gathering reveal the respect in which you, the legal profession generally and the public hold this Court and the Office which I now assume. At a personal level, your good wishes, coupled with the loving support of my family, the valued encouragement of my judicial colleagues and the loyal devotion of my staff go far to dispel the inevitable diffidence with which I enter on the duties of Chief Justice.


  My first duty is to welcome those who have honoured the Court by their attendance here this morning, especially those who have come from long distances. The Court appreciates your participation in today's ceremonies. Particularly do we welcome the Rt Hon Sir Harry Gibbs and the Hon Sir Ronald Wilson, the Chief Justices of the Federal Court of Australia and the Family Court of Australia, the Chief Justices of the Supreme Courts of the several States and Territories and the Rt Hon Sir Thomas Eichelbaum, Chief Justice of New Zealand, who sit with us today. Strictly speaking, I should welcome also Sir Anthony Mason but insufficient time has passed to separate him from the Court which he so lately led and which he leaves with our unfeigned respect and affection. We welcome his Excellency Mr Martin Burke, Dean of the Diplomatic Corps, Judges of the Federal Court and of the Supreme Courts of the States and of the Australian Capital Territory, you Mr Attorney, the Attorneys-General of New South Wales and the Australian Capital Territory and the Solicitors-General of the several States and of the Northern Territory.


  Today's ceremonies are not empty rituals. This Court's practice is to administer the Oath of Allegiance and Office in public. That is not a matter of formal procedure. It is a public witnessing of the making of two solemn promises for the performance of which the oath taker will be responsible not only to this Court and this country but also to his Creator. Statute requires that the Oath or a like affirmation be taken before a Chief Justice or Justice enters upon the duties of his or her office.


  The first promise is a commitment of loyalty to Her Majesty the Queen her heirs and successors according to law. It is a commitment to the head of State under the Constitution. It is from the Constitution that the Oath of Allegiance, which has its origins in feudal England, takes it significance in the present day. As the Constitution can now be abrogated or amended only by the Australian people in whom, therefore, the ultimate sovereignty of the nation resides, the Oath of Allegiance and the undertaking to serve the head of State as Chief Justice are a promise of fidelity and service to the Australian people. The duties which the oath imposes sit lightly on a citizen of the nation which the Constitution summoned into being and which it sustains. Allegiance to a young, free and confident nation governed by the rule of law is not a burden but a privilege.


  The second promise is to "do right to all manner of people according to law without fear or favour, affection or ill-will". The form can be traced back to a statute of Edward III, but its substance is of enduring relevance. In substantially that form, the oath or affirmation is taken by every judge. It is rich in meaning. It precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be. It forbids any judge to regard himself or herself as a representative of a section of society. It forbids partiality and, most importantly, it commands independence from any influence that might improperly tilt the scales of justice. When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with the law. That is the way in which right is done without fear or favour, affection or ill-will. Judges sometimes appear to be remote, belonging to what have been described as "the chill and distant heights". In the doing of justice that must be so. Justice is not done in public rallies. Nor can it be done by opinion polls or in the comment or correspondence columns of the journals.


  The oath requires justice to be done according to law. The content of the duty thus accepted depends upon the jurisdiction to be exercised. In the trial courts of this country, the rules of law prevail. And so they must, for it would do no justice to give judgment according to an abstract notion of what is right in the knowledge that the judgment would be overruled on appeal. In appellate courts, the law may authorize a tension between abstract justice and a rule of law to be resolved by an alteration of the rule. In either case, the jurisdiction of the court is fixed by law and judgment must be rendered in accordance with the judicial method. The security which each of us has is the law. Sir Thomas More of the "Man for All Seasons" 1 is surely right to put to Roper -


  "This country's planted thick with laws from coast to coast... and if you cut them down...d'you really think you could stand upright in the winds that would blow then?"


  Insistence on the rule of law has a corollary which is implicit in the terms of the judicial oath. If right is to be done according to law, right will be done only if the law be just. Such tension as there is between justice and the rules of law surfaces most acutely in litigation before the High Court, partly because of history, partly because of procedure. With the abolition of the last appeals from Australian Courts to the Privy Council, this Court was charged with the ultimate responsibility of declaring the law for this country. This did not mean that we were free to cast aside the priceless heritage of the common law of England, but it did mean that this Court had to examine critically those rules of the common law including the rules of statutory interpretation in the light of our own history, culture and social conditions. Long-standing rules of tort and contract, of land law, equity and administrative law have been revisited in recent years. The same factors and the ever-changing problems of government have evoked renewed examination of the spare text of our Constitution.


  Then, with the increasing volume of appeals to this Court, it became necessary to introduce the procedural filter of a grant of special leave to appeal. The result is that a considerable proportion of the cases to be decided by this Court involve rules of law that have already proved to be questionable, or at least productive of uncertainty in the Courts below. In cases in both its original and appellate jurisdictions, the Court has had to grapple with issues on which two or more views can reasonably be held. Decisions have not always been reached by more than a narrow majority, but that is not to be wondered at. Where the review of existing rules is in question, the judicial oath to do right according to law sometimes places emphasis on abstract justice, sometimes on the existing rule. And when constitutional doctrine is to be re-examined, the frustration of powerful interests frequently follows. It is inevitable in these circumstances that the decisions of this Court would be seen by many to have a legislative flavour.


  But this Court is not a Parliament of policy; it is a court of law. Judicial method is not concerned with the ephemeral opinions of the community. The law is most needed when it stands against popular attitudes sometimes engendered by those with power and when it protects the unpopular against the clamour of the multitude. But judicial method is concerned with the equal dignity of every person, his or her capacity to participate in the life of the community, to contribute to society and to share in its benefits; it is concerned with the powers entrusted to Governments and the manner in which those powers are exercised. 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. At the appellate level, analogy and experience, as well as logic, have a part to play. Judgments must be principled, reasoned and objective, as Sir Anthony Mason said yesterday. And, most significantly, each step in the reasoning must be exposed for public examination and criticism.


  Herein lies a difficulty. The work of this Court is rightly a subject of considerable public interest. Though the arguments heard here are often at a high level of abstraction, the emerging principles have a concrete effect on the liberties, relationships and property of individual persons, both natural and artificial. Therefore the work of this Court should be subject to informed public scrutiny. But how is it possible for the public to be informed? It is unrealistic to expect the arid fields of law to be tilled in the popular press, much less in the brief and adversarial encounters of the television screen. Of course, there are some few highly competent legal journalists but an adequate analysis of legal principle and its significance may be precluded by limited space or may give way to a story of more gripping, if ephemeral, interest. The problem of fostering informed public appreciation of the laws by which we are governed and protected is, I venture to suggest, a problem far from satisfactory solution. It will not be resolved by superficial comment or by an expression of pleasure or disappointment in advancing policy or interest.


  Nevertheless, the public interest in the judgments of this and other Courts is a clear and gratifying indication that, in this country, we are governed by the rule of law. The Courts have earned and maintained public confidence in their unfailing response to every reasonable application, to their impartiality and the fearless administration of the law. Today's focus is on the work of the High Court, but it must be remembered that the face of justice is more often the face of the magistrate and the judge at trial.


  To accept the office of Chief Justice in the judicial branch of government is a signal honour. To share in the rigorous debates in this Court with colleagues who bear mutual respect for the intellectual integrity and fierce independence of one another is a continuing satisfaction. I assume this office with gratitude for their friendship and support. I thank you for your attendance here today.


1 Robert Bolt, A Man for All Seasons , Act 1 [p.39].