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Susan Crennan, Australia's new High Court Justice
G'day. Australia has a new High Court Judge, Susan Crennan, the second female to hold the position. The first was Mary Gaudron, now retired. Justice Crennan will start work at the High Court on 1 November, replacing the retiring Justice Michael McHugh. She will be one of 7 High Court judges who have the final say on what our Australian Constitution does and doesn't allow governments to do, and who comprise the final appeal court for interpreting all the laws which govern us.
Here is the biography of Justice Crennan emailed by the High Court's information officer, and the transcript of proceedings when she was sworn in as a Federal Court judge in February last year. A meteoric rise! The Law Council of Australia's statement on the appointment is here.
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The High Court's bio of Justice Crennan
Justice Susan Crennan was appointed to the Federal Court of Australia on 2 February 2004, 25 years after signing the roll of counsel in New South Wales in 1979. She practiced mainly at the Victorian Bar until her appointment as a judge. She was a Queen’s Counsel for 14 years.
Her areas of practice included civil and commercial law, which included intellectual property law, constitutional law, criminal law and related proceedings, and public law.
She was the first woman to be appointed chair of the Victorian Bar Council and the first woman to be appointed as President of the Australian Bar Association.
She has an Arts degree (English Language and Literature) and a Post‑graduate Diploma (History) from the University of Melbourne, and a law degree from the University of Sydney.
Before she qualified in law she taught English literature. She was also an Associate of the Institute of Patent Attorneys of Australia.
She is currently a member of the University of Melbourne Council and Chair of both the University’s Legislation and Trusts Committee and its Truganini Scholarship Committee.
Justice Crennan is married to Michael Crennan SC. She has a son and two daughters and grandchildren.
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Transcript of the offical swearing in of Justice Crennan as a Federal Court Judge, Melbourne, 3 February, 2004
CRENNAN J: Chief Justice, I have the honour to announce that I have received a commission from His Excellency the Governor-General, appointing me a judge of the Federal Court of Australia. I now present my commission.
BLACK CJ: Mr District Registrar, would you please read aloud His Excellency's commission.
DISTRICT REGISTRAR: Commission of appointment of a judge of the Federal Court of Australia:
I, Philip Michael Jeffrey, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 72 of the Constitution and subsection 6(1) of the Federal Court of Australia Act 1976, appoint Susan Maree Crennan, one of Her Majesty's counsel, learned in the law, to be a judge of the Federal Court of Australia beginning on 3 February 2004, signed and sealed with the Great Seal of Australia on 18 December 2003. Philip Michael Jeffrey, Governor‑General.
BLACK CJ: Thank you. Justice Crennan, I now invite you to take the oath of office.
CRENNAN J: I, Susan Maree Crennan, do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law and I will well and truly serve her in the office of judge of the Federal Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill will. So help me God.
BLACK CJ: Justice Crennan, I now invite you to subscribe the form of oath that you have taken. Mr District Registrar, would you please take the oath of office and her Honour's commission and place them on the records of the Court. Justice Crennan, I now extend to you on my own behalf and on behalf of all the judges of our Court a very warm welcome.
Mr Burmester, do you move?
MR BURMESTER: May it please the Court, it's a great honour for me to be here this morning representing the Attorney-General, the Honourable Phillip Ruddock, this special sitting of the Federal Court of Australia to welcome the Honourable Susan Crennan to the bench of the Court.
The Attorney-General sincerely regrets he is unable to be here this morning but other ministerial responsibilities have taken him overseas and precluded his attendance. The Attorney‑General has asked that I convey to your Honour his personal best wishes on your appointment and a very warm welcome to the Federal Court on behalf of the Government.
Your Honour's appointment is a much deserved recognition of the acute legal skills you have developed and sharpened throughout your long and distinguished professional career. Your Honour began your pursuit of understanding at Our Lady of Mercy Convent in Heidelberg, where I think it most unlikely the presumption of diligence maintained by the convent was at any time displaced by your Honour. Your Honour's application to your studies was reflected in your matriculation with first-class honours in British History.
Your Honour was then admitted to the University of Melbourne, where you obtained a Bachelor of Arts degree in the School of Pure English. There your Honour also met your husband Michael whilst studying honours classes in Anglo-Saxon and Old Norse.
Following your graduation, your Honour commenced employment as an English teacher, but the pull of the Bard did not prove as strong as the pull of the Bar. Your Honour commenced your law degree at the University of Melbourne and completed it at the University of Sydney while your husband was teaching law at the University of New South Wales.
Your Honour also changed careers around this time. You qualified as an associate of the Institute of Patent Attorneys of Australia and was subsequently employed with various patent attorneys. Your Honour's academic record is replete with honours, typically of the first-class variety. Your Honour shared the Jessie Leggatt Scholarship for the highest ranked first-class honours in contract law, and also received first-class honours for your history thesis entitled Transplanted Chartist Spirit: Achieving Manhood Suffrage in Victoria: the Turning Point of 1854.
Your Honour began your illustrious career in advocacy when admitted to the Supreme Court of New South Wales in February 1979, just weeks after receiving your final results in law. Your Honour kept good company from the first, reading with the present Solicitor-General of the Commonwealth Dr David Bennett QC. I know David very much regrets that his attendance in another court today has prevented him from being here. He wishes me to pass on to you his personal best wishes.
Your Honour's family moved back to Victoria and your Honour was admitted to the Supreme Court of Victoria in 1980 and commenced practice at the Victorian Bar. At first, like most new barristers, your Honour had a general practice and was grateful for any brief that you received. But as the years went by, your Honour specialised in many areas of the law dealt with by this Court. In particular, your Honour specialised in the areas of administrative law, commercial law, constitutional law and intellectual property.
In 1989 your Honour took silk. This was due recognition of your outstanding forensic skills and standing in the profession. Of your Honour's 24 years as a practising barrister, 14 have been as Queen's counsel. Since taking silk, your Honour has worked as an Australian barrister in the United States, the United Kingdom and Switzerland.
You have been instructed in several widely publicised matters, often representing the public interest on behalf of important public institutions, and I will leave to others to speak in more detail of some of your significant professional achievements.
Your Honour has also made a significant contribution to the legal profession by making yourself available to serve on various legal professional bodies. You were chair of the Victorian Bar Council from 1993 to 1994, and President of the Australian Bar Association the following year. Your Honour has also held a number of important government positions, among them appointments to the Victorian Law Reform Council, the Law Foundation, the Legal Aid Commission and Legal Practice Board.
In the Commonwealth sphere, your Honour was a part-time hearing Commissioner with the Human Rights and Equal Opportunity Commission between 1992 and 1998. Your Honour has also provided valued services as a mediator in commercial and intellectual property disputes, championing those forums which use compromise to achieve resolution.
Over recent years, your Honour has reaffirmed your strong commitment to the education of Australia's youth which began during your service as an English teacher in the late 1960s. Your Honour was a member of the Law School Foundation at the University of Melbourne from 1997 to 2001 and you were recently appointed to the Council of the University. The graduates in attendance at the 2003 Bachelor of Laws prize‑giving ceremony also no doubt benefited from your sound words.
Your Honour's propensity for legal discourse has found expression in a number of journal articles, all decidedly instructive and acutely reasoned. Your Honour's 1995 dissertation on “The commercial exploitation of personality” was widely recognised as an engaging and instructive account of Australia's approach to intellectual property.
Your Honour, your record of achievement as advocate and as professional leader is a sure foundation for the next stage of your legal career. You can be fortified by the confidence of the Government which it has shown in appointing you and in knowing that your appointment has been widely welcomed, as attested to by the large attendance here today. On behalf of the Attorney-General and the Government, I again extend to you congratulations, best wishes and a sincerely warm welcome on your appointment to the bench of the Federal Court of Australia. May it please the Court.
BLACK CJ: Thank you, Mr Burmester. Mr Gotterson, before I ask you to move for the Court, I might invite those present perhaps to move forward a little. I think there is more room and it might be a bit more comfortable for those up the back, though it will mean that those in the front row have lost their view. Mr Gotterson, president of the Law Council of Australia, do you move?
MR GOTTERSON: If it please the Court, Justice Crennan, the Law Council of Australia for whom I speak this morning, congratulates you on your appointment as a judge of the Federal Court. It is indeed fitting that one who has become so well known, respected and admired nationally as a member of the Bar should be appointed to a court with a nationwide jurisdiction.
The commendations that your Honour attracts bespeak the qualities that you will bring to the bench. You have had the benefit of a broad education to a high level and not just in the law. You have a prodigious capacity for work which saw you develop a vast, wide-ranging and interesting practice. As an advocate you have been incisive and very effective.
To these may I add a deserved reputation for tolerance, fair-mindedness and tact, lightened at appropriate times with a keen sense of humour. It is said that your Honour subscribes to the principle that the governing criterion for appointment to the bench should be merit. This principle underpins the Law Council's policy on judicial appointment. What has been said and what is about to be said this morning attests to your appointment as one truly made on merit. Many lawyers throughout Australia have had the pleasure of working with you through your extensive involvement in the activities of the federal professional organisations.
For a number of years you represented the Victorian Bar on the Law Council. You worked closely with Bar leaders from other states and territories on the revision of barristers' rules, a task that achieved a high degree of uniformity across jurisdictions. You were vocal, both in support of the involvement of the professional associations in regulation of the legal profession and in opposition to the idea that the Trade Practices Act should have some supervisory role over that domain. Another issue that occupied you was the mutual recognition scheme for interstate practice.
As the current national practice model laws project moves into the legislative phase, we can now see mutual recognition as a transitional stage in the development of a genuinely national legal profession.
Some years ago, Sir Gerard Brennan pondered this question, "Why be a judge?" Your Honour has probably pondered the same question recently, and is bound to again, if only in darker moments. Sir Gerard concluded his answer to it with these remarks:
The satisfaction of judicial life of necessity flowed from an inner conviction of the service of society in a pivotal role, from the satisfaction of the aspirations of litigants, of the profession, of the public and most importantly of one's self, and from the mutual esteem of judicial colleagues. We at the Law Council trust that your Honour will find life on the bench to be so. We wish you the very best in your judicial career. May it please the Court.
BLACK CJ: Thank you, Mr Gotterson. Mr Brett, Chairman of the Victorian Bar, do you move?
MR BRETT: May it please the Court. It's a particular honour and pleasure for me to welcome your Honour Justice Crennan on behalf of the Victorian Bar and of the Australian Bar Association and to extend warmest congratulations upon your Honour's appointment as a judge of this Court. The President of the ABA, Mr Ian Harrison, is in court in Sydney this morning and has asked me to convey his regrets at not being able to be here, and his personal best wishes and congratulations.
It was in the first week of February 1979, 25 years ago to be exact, that your Honour signed the New South Wales Bar Roll. Your Honour's master was Dr David Bennett. The very first day of your Honour's reading was a fairly standard Sydney Friday morning in the equity jurisdiction for Dr Bennett. He was due to appear in fifteen matters before five different judges sitting simultaneously. Dr Bennett gave your Honour six of these mentions to do alone in five courts. This assignment, daunting already, was no doubt made even more daunting by the fact that your Honour had only ever been inside a courtroom once at that stage, having begun reading immediately after the completion of your Honour's law degree.
A year later in March 1980, your Honour signed the Victorian Bar Roll, having completed your reading. In Melbourne your Honour had a further short period of reading with Fred Davey, now Judge Davey of the County Court. Your Honour practised extensively in intellectual property law.
However, your Honour also developed a wide general practice which included everything from prosecuting white collar crime - the Pyramid Building Society directors - to constitutional law, administrative law, arbitrations, mediations, construction and engineering law, extradition and appeals, including criminal appeals, as well as all aspects of commercial law. As a junior, your Honour continued the practice of juggling multiple appearances that had commenced so spectacularly on your first day. Indeed, your Honour was one of a number of very busy juniors who engaged in this sport and consequently sometimes have found themselves jammed and unable to appear with their leaders. Your Honour was once embarrassed by having cases in Sydney and Melbourne on the same day; one with the then Chairman of the Victorian Bar, now Justice Chernov; the other with the then President of the Sydney Bar, now Justice Gyles, both of whom are present in Court today.
Melbourne yielded to Sydney and Justice Chernov appeared alone and was very understanding.
Alan Goldberg QC, as his Honour Justice Goldberg then was, who also frequently led your Honour, was so impressed by the ability of his juniors to accept multiple briefs that he instituted an occasional award with the title of "Invisible Nominal Junior". There were often a number of contenders but your Honour - and I have to say Justice Finkelstein - were usually the winners. Your Honour had two readers - Colin Golvan and John Billings, who is now Deputy President of VCAT.
Your Honour took silk in 1989, a very early appointment that reflected your Honour's rapid rise to leadership at the Bar. Counsel who have appeared as juniors with your Honour speak of your Honour's extraordinary organisation and thoroughness and how much they learned working closely with your Honour. They speak also of your Honour's generosity in praising their work to the instructing solicitors.
Your Honour has argued a number of constitutional cases, both as junior and silk since taking silk. Your Honour was, for example, in the landmark section 92 case of Cole v Whitfield, led by the Victorian Solicitor-General Hartog Berkeley QC and Brian Shaw QC. Your Honour has had complex cases concerning the privatisation of infrastructure, such as the arbitration in Varnsdorf v Fletcher, and Murraylink which your Honour did last year.
Your Honour has had a number of important appeals, most recently Tahche, in which your Honour represented the Victorian Director of Public Prosecutions in the Court of Appeal and in the High Court. In denying special leave the High Court accepted your Honour's submissions that standards of fairness by the Crown are not directly enforceable by the accused or anyone else by prerogative writ, judicial order or action for damages - a matter of some significance to barristers who prosecute for the Crown.
Although your Honour has been a leader in cases relating to scientific processes, your Honour has never claimed a high degree of practical technological skill. During the Varnsdorf arbitration, for example, which concerned some gas-fired turbine electricity generators, your Honour was on a view of one of the engines in company with engineers from the United States.
Your Honour managed, inadvertently, to lean against the emergency stop button, shutting down the entire plant. The major issue in that case was your Honour's client's claim of interruptions in the availability of the plant. The weekly availability report for that particular engine recorded "plant stopped by QC".
In 1993, your Honour was the first woman elected Chairman of the Victorian Bar. Your Honour was a courageous and effective leader in very difficult times. Under your Honour's leadership, the Bar Council introduced significant reforms, including the introduction of limited direct access and co-advocacy. Those reforms were not without considerable controversy.
Perhaps most notably, your Honour led the way in constructively addressing the serious issues of access to justice by establishing a scheme for pro bono legal assistance in civil cases. The Law Institute supported and joined the Bar in the project and the government supplied seed capital.
In 1994, your Honour became the first woman President of the Australian Bar Association. Your Honour has been described as a vigorous President who fostered national discussion on public interest pro bono work. At the Bar, in addition to service on Bar council and committees, most recently on Justice Nettle's continuing legal education committee, your Honour has served as a senior mentor and taught equity regularly in the readers’ course.
Outside the Bar, your Honour is a member of the Council of the University of Melbourne, Chairman of the Independent Compensation Panel of the Archdiocese of Melbourne, and a member of the advisory board for the Graduate Program in Intellectual Property at the Melbourne Law School.
For a number of years, your Honour was a member of the Royal Women's Hospital Ethics Committee, and the Board of the Australian Book Review.
Your Honour's husband Michael is a senior counsel at the Victorian Bar. Your son Daniel is also at the Bar. One daughter, Brigid, is an historian and writer. Your other daughter, Kathleen, is studying arts and law at the University of Melbourne.
Your Honour's children are in Court today, as is the senior of two grandchildren. Your Honour's mother and your five brothers and sisters are also here to celebrate your Honour's appointment. Your Honour's father, sadly, died some years ago, but not before he had seen your Honour well established. David Bennett once described your Honour as not at all a frivolous young person. Although those who have attended your Honour's St Patrick's Day parties and been greeted at the door by your Honour beating a bodhran, which is an Irish drum, might initially think otherwise. A moment's reflection on the breadth and depth of your Honour's achievements shows that Bennett was quite correct.
The Victorian Bar and all of the independent Bars of Australia wish your Honour a long, distinguished and satisfying service as a judge of this Court. May it please the Court.
BLACK CJ: Thank you, Mr Brett. Mr Dale, President of the Law Institute of Victoria, do you move?
MR DALE: May it please the Court. I'm honoured to be here this morning to congratulate your Honour on a fitting appointment. Your Honour, we are reliably informed, went to the Bar because of a contact with a firm of solicitors, but a contact which was not the usual contact. As we have heard, your Honour did the second half of a law degree in Sydney, and at the end of the third year, despite achieving honours in all subjects, the sub-dean of the law school urged your Honour to give up a job at the Sydney patent attorneys Arthur S. Cave and Co for the purposes of concentrating on the final year.
Your Honour did give up that job and took a less demanding job as librarian at Smithers Warren and Tobias, which later became Phillips Fox. Your Honour was only required to attend there half the week, and the office next to your Honour's was occupied by a consultant solicitor, one Mr Louis Bennett, the father of David Bennett of the New South Wales Bar. One way or another, your Honour approached David Bennett to ask to be his pupil. Dr Bennett already had a pupil for the coming year but nevertheless agreed to take your Honour on as well, urging your Honour to come to the Bar straight after completing your law degree.
When this news got about in the firm, as it inevitably did, the intellectual property partner, John Goodyear, with whom you had occasionally worked as a result of having some qualifications in the field, dashed around to your Honour's tiny office, something he was not accustomed to do.
Mr Goodyear had three questions for your Honour: (1) Had your Honour lost all capacity for rational thought; (2) wouldn't it be better for your Honour to become an articled clerk after completing a law degree and spending at least a short period at the firm before going to the Bar; and (3) did your Honour understand that the firm could not, acting responsibility, brief someone so inexperienced? Your Honour's response to the first two questions was your customary smile, and in relation to the third question your Honour agreed.
The inevitable happened. Some six months later, when the firm's barrister in a simple matter was suddenly unavailable and a brief arrived from that firm, Phillips Fox both in Sydney and in Melbourne became one of your Honour's greatest supporters in those early years as a barrister.
As we've heard, your Honour has sat on several boards which are of particular relevance to solicitors, including the Legal Aid Commission and also the Legal Practice Board. From time to time, when solicitors themselves were in personal difficulty or in some difficulty in relation to regulatory matters, your Honour was often the counsel of first choice. Your Honour displayed a full command of the regime but also the sensitivity required in such matters.
When your Honour was chair of the bar, your Honour enjoyed an extremely constructive and successful working relationship with the Law Institute. One example was the creation of the pro bono scheme, which was set up when your Honour was chair and one of my forebears, Mark Woods, was President of the Law Institute. Your Honour might remember the heady days of Chairman Marks' reign at the Legal Practice Board which, to the inconvenience of its members, became effective on 1 January, 1997.
On New Year's Day the new structure for the running of the legal profession took effect but the previous Attorney-General, Mrs Wade, had her parliamentary draftsman choose to ignore the fact that members of the board at that time were not in their city office but were instead holidaying at their holiday houses across the state.
The Board was made up on Chief Executive, Bill Robinson; David Miles representing the Law Institute; your Honour representing the Bar; Geoff Torney, a country solicitor; Professor Priscilla Kincaid-Smith, an emeritus professor of medicine; Charles Clark, a financial adviser; and Jan King, the lay observer. We've spoken to David Miles, and he fondly remembers the telephone hook‑ups, circular motions and faxes that were exchanged between the respective holiday locations at Red Hill and the Mornington Peninsula
For more than one of the board members a later afternoon dip in the surf had to be cut short in order to be back at the beach house in time to receive the incoming fax relating to the destiny of the legal profession.
Undertaking the role of senior counsel assisting the Royal Commission into the Tricontinental collapse was a daunting task. This was of course a role that your Honour had been appointed to. It occupied the whole of your Honour's time for nearly two years; a task which I'm pleased to say had an involvement with my firm. Those involved there speak glowingly of your Honour's role.
The Tricontinental group of companies did not keep good records. Indeed, the records were sketchy, to say the least. The corporate and board structures were minimal, and the loan investigation and approval process left much to be desired. In addition, the principal player - for reasons which I won't go into - did not only fail to assist the commission, but involved the Commissioners in delaying litigation, which went ultimately to the High Court. Your Honour and counsel, by dint of incredibly hard work and analysis, were able to present the story of the unfortunate collapse, and enabled the Royal Commissioners to reach detailed findings and make a number of recommendations. It's important to record that in their final report the Commissioners said:
Counsel assisting, Mrs Susan Crennan, Mr Ian Sutherland and Mr Anthony Howard, have been an effective and cohesive team. They have worked hard, often under considerable pressure, and have done, promptly and very willingly, everything that the commission asked of them.
Your Honour's approach to each case as if it were your first, is a lesson that has not been lost on those who have worked with your Honour. Colleagues talk of your Honour's unparalleled skills in cross‑examination, the thoroughness of preparation, and your Honour's razor sharp intellect.
May I once again congratulate your Honour on your elevation to this Court; commend your appointment; and on behalf of the Law Institute and the solicitors we represent, wish you all the best in the future. May it please the Court.
BLACK CJ: Thank you, Mr Dale. Justice Crennan.
CRENNAN J: Chief Justice, your Honours, ladies and gentlemen, I thank you all for your kindness in attending. I thank Mr Burmester, Mr Brett, Mr Gotterson and Mr Dale for the kindness of their remarks and their expressions of goodwill from those they represent. The Court is honoured today by the presence of the Chief Justice of Victoria, the Chief Federal Magistrate, justices of the Family Court of Australia and the Supreme Court of Victoria, including justices of the Court of Appeal, the Honourable Sir Edward and Lady Woodward, the Honourable Ray Northrop and Dr Joan Northrop, the Chancellor of the University of Melbourne, Professor Fay Marles, Professor Michael Crommelin from the University of Melbourne Law School, and former Solicitor-General for the State of Victoria, Hartog Berkeley QC.
I am particularly glad my mother is present today, and record my gratitude to her and my late father. My debts to my husband Michael and to each of our children are untellable on this public occasion, but I am very pleased they are all here today. I also thank other family members and friends for their attendance, especially those who have travelled a distance to be here.
It is a great honour to be appointed to the Federal Court, set on its distinguished course by the late Sir Nigel Bowen. Its jurisdiction has expanded since, and its high reputation is secure.
As you have heard in speeches made today, my life has been fortunate in many respects. Mention was made of the universities and the disciplines which shaped my life, including my professional life. Let me acknowledge with gratitude some of my teachers. Professor and poet, the late Vincent Buckley, taught me English literature. The Oxford scholar, Joan Turville-Petre, taught me Anglo-Saxon. I was taught 19th century British history and supervised as a post-graduate student by Associate Professor David Phillips.
As to the law, at the University of Melbourne I was taught criminal law by Mr Brett's late father, Professor Peter Brett, and contract law by Associate Professor Manfred Ellinghaus. At the University of Sydney I was taught equity, mostly by Professor Dyson Heydon, but also by Mr Bill Gummow and Mr John Lehane as they were. The untimely death of the late Justice John Lehane was a great loss to the Court I now join.
To my former master, now Solicitor-General for the Commonwealth, David Bennett QC - a person of many distinctive abilities and high gifts - I owe a great deal. I also thank Judge Davey.
Over 24 years as a barrister, first in New South Wales but mostly in Victoria, I was led by, then later opposed to, many outstanding barristers. Some had international reputations as commercial and intellectual property lawyers. You have heard mention of work, in cases such as Cole v Whitfield, with the former Solicitor-General for the State of Victoria, Hartog Berkeley QC, together with Brian Shaw QC.
In constitutional matters in the late 1980s, I had an opportunity to witness some of our country's finest advocates of the day, who came to occupy senior judicial office. They included Justice Charles of the Court of Appeal of Victoria, Justice Sheller of the Court of Appeal of New South Wales, Justice Davies of the Court of Appeal of Queensland, President Mason of the Court of Appeal of New South Wales and Chief Justice Doyle of the Supreme Court of South Australia.
Whatever I made of it, I was given access to the high techniques of the law insofar as they repose, not only in the judges, but also in the leaders of the Australian Bar. I also count it as part of my good fortune that I was educated plenty of times by the forensic skills and strategic abilities of barristers, particularly in fields into which I trespassed only occasionally, such as criminal law and arbitration. I am grateful to all my juniors, clients, and the many experts whose thankless tasks were to instruct me in technical matters. I thank my successive clerks, most especially Glenda McNaught, and many others including Shirley Downing who assisted me, and I record my gratitude to the solicitors by whom I was briefed over the years.
Life on the 17th floor at Owen Dixon West is something I shall certainly miss. However, I should have been warned. Six judges came from the floor during my time on it, and I am the third from the set of chambers I occupied, the others being Justice Cummins of the Supreme Court of Victoria and my brother Justice Weinberg. It was a privilege to lead the Victorian Bar, and the Australian Bar Association, and this together with some practice interstate led to many congenial friendships with barristers throughout Australia.
Notwithstanding Mr Brett's account of my conduct as a junior, I nevertheless learnt useful lessons, two of which I would like to see applied by those appearing before me. Justice Gyles as a leader taught me how to cross‑examine without notes. Justice Goldberg as a leader taught me the judge's point is the best point.
I particularly thank Mr Brett for what he said about my chairmanship of the Victorian Bar, and Mr Gotterson for his reminders of the national agenda of the time. As Mr Brett said, these times were not without controversy. The fact that I did not get away unscathed by the controversy was brought home to me when Santa Wilson reached into his sack at the bar Christmas Party. He pulled out my present, a large bottle of Grecian 2000. The card read:
Dear Chairman, we know it has been a tough year. Try this. Bill Gillard says it really works.
The Victorian Bar civil litigation assistance scheme, which was mentioned by Mr Dale and was supported by a cognate Law Institute scheme, was a good example of the Victorian profession's generosity to the community. I record my gratitude to retired barrister John Barnard and to the late Neil McPhee QC, for the wise counsel they both gave at the time. These acknowledgments should not omit to record the debt of successive Victorian Bar Councils to the Honourable Xavier Connor.
Chief Justice, I was pleased to take the oath of judicial office in public, and was put in mind of four matters as I did.
First, an oath “to do right to all manner of people according to law, without fear or favour, affection or ill will”, has been sworn by judges for over six centuries. This immediately gives one a sense of proportion and humility about the tasks ahead.
Secondly, I reflected on those of the Putney Debates in the mid-17th century, which showed the dreadful damage to the authority of the law when the judicial oath was dishonoured. This is what led to the familiar conditions of judicial office, which are now enshrined in section 72 of the Constitution and section 6 of the Federal Court of Australia Act.
Thirdly, I thought of an historical topic in which I have had a little interest, and that is the democratising of Parliament in the latter half of the 17th century. Victoria played a leading role. This year will be the 150th anniversary of the Eureka Stockade. It helped secure the diggers' suffrage, which led seamlessly to manhood suffrage and more flexibility in qualifications for members of parliament. Manhood suffrage in turn was the template for later grants of suffrage to women and indigenous people. It was this substantial, although still incomplete, democratising of parliament, which spread throughout Australia, which gave egalitarian theory political expression. It also formed the bedrock upon which our founding fathers instituted our federal system, marked by the division of power exemplified in section 5 of the Constitution.
The fourth matter I considered was the debates of our times. The law and the courts have not been free from widespread general attacks upon institutions of authority, despite the absolute necessity of promoting their authority and independence in the maintenance of a civil society. Also, as Chief Justice Gleeson has reminded us on several occasions, we live in a rights‑conscious age.
I intend no condescension toward the past when I say such an age obliges judges to be especially attentive to the relationship between the authority of the law, continuity and change. On the occasion of his first sitting as Chief Justice in Melbourne on 7 May 1952, Sir Owen Dixon referred to his belief that the law had always been administered by the High Court as “a living instrument and not as an abstract study”. A living instrument has a past, a present and a future, and encompasses both continuity and change. Once again, I thank those at the bar table for what they have said, and thank all of you for attending.
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re: Susan Crennan, Australia's new High Court Justice
Wow, Margo, faster than lightning - I just sent off a request for a piece on this very topic.
Fascinating reading, and it is great to see a woman appointed. Clearly she is very well qualified for the position.
Ruddock said that the fact she is a woman is not the reason for the appointment (and it would indeed be a disaster if it was), but surely that she is a woman must have been a factor given the ongoing comments about the fact that the sex balance on the high court has been even more appalling than the sex balance in the senior levels of the legal profession on the whole.
Of course the fact that there are fewer women than men at senior levels in the legal profession means there are fewer women available than men for consideration for the high court.
But surely there should have been more than 1 woman appointed before?
I would be interested in any perspectives on whether the sex of an applicant should be a factor of any kind in an appointment of this kind.
Should the composition of the High Court be more representative of society? (raising issues of age, race etc as well I guess)
If so, should we weight an applicant more highly because of their sex even if they are not as qualified as applicants of the other sex (ie: affirmative action)? This would apply equally when appointing a male to a court that has mostly female justices, or vice versa.
(And seems to me to be rife with danger actually ...)
If we agree that we should only select an applicant on the basis of their qualifications, what happens when we get a pool of applicants who are completely unrepresentative of society as a whole (ie: all male and anglo saxon).
How do we go about addressing the issue?
re: Susan Crennan, Australia's new High Court Justice
A Melbournite, a woman and an expert in English literature? A member of the Truganinni scholarships committee? This is sublime. A gift. What did I tell you? The best lawyers are those with humanities, as well as legal experience. Democracy is not dead in Australia.
So help me God if they ever make me swear allegiance to Her Majesty, Queen Elizabeth II.
re: Susan Crennan, Australia's new High Court Justice
I wonder how she will feel about decisions like Al Kateb, Behrooz, Al Khafaji, re Woolley, s134 and s 157 when she is really on the bench. For those who don't know those new laws let me explain them in layman's terms - which is all I can do because I am not a lawyer.
Al Kateb and Al Khafaji were two stateless men who had been in detention for many years. Under a decision named Al Masri they were released on habeas corpus as their detention had become arbitrary, punitive and illegal. Al Masri was the lovely young Palestinian boy who was eventually deported to the Gaza holding a sign "I hate Australia, I hate Philip Ruddock". I am told he has two more children now.
Al Kateb and Al Khafaji mean these men are allowed to be held in detention for the terms of their natural lives for the crime of being illegal. In spite of a small change so that the ombudsman can have a look after two years the law is still on the books. Al Khafaji has since been accepted as a refugee from Iraq - go figure.
Behrooz was a case for files and videos of a man who escaped detention. The court deemed 6-1 that it would too onerous for DIMIA to be forced to hand over all the files but that the man could sue for punitive detention under tort law. Which gives Badraie and others a leg up for compensation claims.
Behrooz himself was finally charged with escape Woomera, was driven nearly insane and spent months in Glenside before being granted a visa the day after the district court refused to record a conviction for escaping. The government naturally appealed on the basis that "escaping lawful detention is a serious crime". Bull. He got a $100 good behaviour bond and after winning the appeal was awarded $750 in costs.
Now for the compensation money for nearly killing him.
Re Woolley is the case of legality of kids in detention. Even Kirby upheld this one albeit with a stinging attack on the government for writing and upholding such a law. So it is not illegal or against the constitution to lock up kids for life for no crime - so long as they dare to come to a f....g island on a boat. Unlike all of our ancestors who said "beam me up Scotty" and just got here.
Maybe in a tardus.
The kids involved got released as Afghan refugees while the case was waiting for decision. Strangely they had been locked up with the Bakhtiyari's as Pakistani cousins - except if one family came from a village in Afghanistan then the other family did, they are first cousins after all.
This law is still on the books in spite of a mother hood statement of detention as a last resort.
s134 is the cruelest of all in a way. This was Roqia Bakhtiyari's only case - it was for a family reunion visa after she had been refused as a stateless woman even though DIMIA knew her Afghan husband was in Sydney.
It also claimed that the tribunals don't have to tell the truth. Can you believe it? They have to make life defining decisions and don't have to tell the truth or follow the rules of evidence. And no court can over turn their decisions on merit.
Thanks to s157 which says that decisions can only be overturned if judicial errors have been made.
Here is an example.
Ali Bakhtiyari had an RRT decision based on the following details.
1. A set of old Pakistani documents with two different names, ages, addresses, ID numbers - from 1973, 1975 and 1982.
2. He had a facial mapping exercise done that said a young 17 year old Tajik boy was really a middle aged Hazara man - was almost identical in some features and similar in others.
3. Three language tests - two genuine ones and one bogus one. The first two said he was an Afghan, the second said Pakistani.
4. Two eyewitnesses that said they knew him from Afghanistan.
5. A statement from the governor of his district that said he was from Sharistan.
6. Newspaper reports from various journalists.
Guess what he believed? No 6. He discarded all the rest.
But still said the man is from Pakistan.
Except he is in Afghanistan.
I just heard that Crennan is a cronie of David Bennett - the man who argued these vile laws and won.
re: Susan Crennan, Australia's new High Court Justice
Michelle Davis there are now more women entering the legal profession than there are men so in 20 years we might be lamenting the lack of suitable males for the job.
Nicola Roxon on Lateline tonight welcomed the appointment but drew attention to the dominance on the Bench of the big states at the expense of states like South Australia and Tasmania.
Given the size of the High Court Bench it is not in the realms of fantasy to imagine perhaps one judge from each state?
re: Susan Crennan, Australia's new High Court Justice
Malcolm , yes but I'm sure Kim is happy anyway. I've emailed her to tell her of my excitement. This is close enough. The sweetest victory of all!
re: Susan Crennan, Australia's new High Court Justice
Solomon, doesn't this mean your candidate missed out?
re: Susan Crennan, Australia's new High Court Justice
I feel agrieved that my genes did not deliver such magnificient organising skills. Never mind, Susan Crennan is obviously part of an evolutionary strategy designed for the further advancement of women. :)
re: Susan Crennan, Australia's new High Court Justice
Apologies to side track the discussion:
Marilyn, it is said to know the truth and not speak it, is also crime:
Regarding the Bakhtiyari family, it was proven beyond reasonable doubts that they came from Quetta and are Pakistani citizens, it is a well known fact known to DIMIA and migration agents that the majority of the asylum seekers claiming to be Hazra from Afghanistan, are Pakistani citizens.
This is a problem having the current UN's definition of refugee; this needs to be redefined more then anything else.
The judges have to uphold rule of law, and apply it accordingly.
re: Susan Crennan, Australia's new High Court Justice
Hi Marilyn, I was out with some lawyer friends last night and they raised the same concerns re the Solicitor-General connection. In the Herald Sun today, David Bennett is quoted as a "lifelong friend" of Justice Crennan:
Phew for that, huh. Wouldn't want a 'crazy feminist' in the High Court now, God forbid.
re: Susan Crennan, Australia's new High Court Justice
Solomon, I was just thinking about the contrast between all the excitement in the US about the next appointment to the Supreme Court there and our relative composure at the selction of Susan Crennan here in Australia. What does that say about the difference in the way the law works here and its impact on our lives?
re: Susan Crennan, Australia's new High Court Justice
Jenny, I think it means we're less obsessed with issues surrounding abortion, stem-cell research, minority rights and gay marriage. I think the present government is occasionally highly astute in its management of the electorate and we've been spared some of the excesses of America, whilst not fully embracing the civility of New Zealand.
re: Susan Crennan, Australia's new High Court Justice
Who cares whether she is a woman? I want to know if she is a conservative.
Margo: Hi. Please, please use your name or let me know why you don't feel comfortable doing that and use a nom de plume. See Webdiary Ethics, and in particular 'My expectations of you':
1. If you don't want to use your real name, use a nom de plume and briefly explain, for publication, why you don't want to use your real name. Please send me your real name on a confidential basis if you choose to use a nom de plume. I will not publish attacks on other contributors unless your real name is used.
re: Susan Crennan, Australia's new High Court Justice
Dee Baylis: "Given the size of the High Court Bench it is not in the realms of fantasy to imagine perhaps one judge from each state?"
I'd have to say yes. About 8 per cent of Australia's population lives in SA, so on a "representative" basis, SA should get about half a judge.
There are more people in Greater Geelong than in Hobart, more people in Greater Bendigo than in Launceston. The way things are going, the Gold Coast will soon have more people than Tasmania.
Michelle Davis: "... completely unrepresentative of society as a whole (ie: all male and anglo saxon)".
What do you mean by 'representative'? The vast majority of us who didn't go to uni (or study law if we did, are excuded right from the beginning.
I don't suppose Susan Crennan has ever worried about where her next meal is coming from, or where she's going to sleep at night. It would be much the same for every successful QC of either sex, or any ethnic persuasion.
re: Susan Crennan, Australia's new High Court Justice
Solomon Wakeling. May I first extend my sincerest condolences to you that La Rubenstein was not selected. But look on the bright side, you can continue your fantasies from afar without the attendant guilt of unseemly thought crimes with a High Court Judge! ;)
I am over the moon about this appointment. Admittedly, I had never heard of Justice Crennan before, but after a few conferences with friends in the Law, and digesting all today's and yesterday's media, how could ANYbody not be thrilled?
Apart from all her academic and jurispredential distinction, particularly the breadth of her legal advocacy and judicial work, she has shown herself to be a first class leader of legal professional organisations. I was particularly overwhelmed by her admission that women can NOT "have it all." I have had to painfully realise that myself.
Perhaps the greatest achievement of this appointment is that Ruddock and Howard have opted for a socially and politically "healing" appointment. By that I mean, they have considered the universal approval with which the appointment would be received at the same time as being able to fulfill the demand of many, myself and yourself included, that a woman be appointed.
Given how much rancour has been generated (it will be many years before we can conclude whether that rancour was from rational sources acting in good faith, or merely the splenetic cries of those who history has swept by) by Howard and Ruddock's actions in executive policy, this decision is first class.
Well done to all!
re: Susan Crennan, Australia's new High Court Justice
Michelle Davis reckons: "Ruddock said the fact that she is a woman is not not the reason she was appointed".
Bollocks! Having already stacked the legal system with conservatives; to much public opprobrium, the government, having realised the game is up re public opinion, appointed a token to demonstrate how enlightened it is, rather than dishonest or reactionary.
Wrong-foots the sceptics. Of course we can always retreat to the piously hopeful default position offered in Jenny Stirling's analysis that proposes:
"... Susan Crennan is obviously part of an evolutionary strategy designed for the further advancement of women" (yes, Jennny this just TOO tempting a bait).
If above is taken as correct, we therefore also get just the slightest glimpse on a purportive time frame involved. Given the current state of the world, one is not sure whether one should laugh or cry; female OR male.
re: Susan Crennan, Australia's new High Court Justice
Avidly, it's hard to tell, just based on this piece. Sir Owen Dixon was Australia's strict legalist judge. Her quote from him, which is an anomaly, is the kind of thing a person pulls out when they want to hedge their bets. My hope is that she's neither a liberal or a conservative and takes the approach of most good judges, including Kirby, which is to pick their battles carefully.
re: Susan Crennan, Australia's new High Court Justice
Dee, I wish I could've been old enough to marry Nicola Roxon. Isn't she pretty? She wears normal T-shirts, not fancy lawyer get-up. She also has a very sweet, slurry Australian accent. For all the talk of 'cynical lawyers', I think that the member for Gellibrand provides a welcome contrast. I'm glad that we got a Victorian appointment, since they seem to have a very vibrant legal culture and are deserving of greater representation. To me the cynicism comes more from the NSW culture, since all of the Victorians I've either corresponded with or investigated seem much more relaxed.
Kim Rubenstein says re appointment: "Good news indeed!"
re: Susan Crennan, Australia's new High Court Justice
US Supreme Court appointments are a political circus because the US Constitution allows judges to interpret people's 'rights' and 'freedoms' (strangely, some Australians want to give the High Court similar powers).
At least, as The Australian pointed out this morning, the US appointment process has some transparency. Who knows what Ruddock asked Crennan?
re: Susan Crennan, Australia's new High Court Justice
Hey Dee, More from Roxon in The Age today. See here.
re: Susan Crennan, Australia's new High Court Justice
Nicola Roxon expands on her remarks in Courting trouble at Club Judge in The Age.
re: Susan Crennan, Australia's new High Court Justice
Now, now, Marilyn Shepherd, notwithstanding there is not an enormous amount of love lost between Bennett and me (and that one of his former pupils has the seat on the High that he has always craved), no matter how putrid the task, he is a fine and very intelligent advocate and as Solicitor for the Commonwealth only doing his duty for his client. In an adversarial system, one must have adversaries.
Don't shoot the messenger. Bennett's private views may well differ from those of his client but he is a creative and challenging intellect and opponent. Often that is just what is needed to bring out the best in the other side.
He has certainly taught me a thing or two in my career and I enjoyed (in a brief, bowel-watering fashion) our only encounter to date. He was very clever, almost ingenious.
Latterly, even with one as lowly and despised as I, he can use and accept first names. Grudging though it may be, respect is still respect.
re: Susan Crennan, Australia's new High Court Justice
Noelene, Professor Rubenstein is far too young and busy to become a High Court judge at this stage anyway. She'd be better off as a Senator, some time in the future. I don't know if my email to Bob Carr (forwarded to the Attorney-General's department) or to Judi Moylan, had any impact, but there's a chance. I suggested that Kimmy would be useful in winning over right factions, given that she's studied in both Israel (which she described as an "amazing" experience) and America, so she can hardly be accused of being anti-Israel or Anti-American. I also argued that if they wanted "cultural change" in the immigration department, they better think hard about who they appoint, since those at the top set the tone for those below. I was trying to suggest in my email to Bob Carr, before he went and retired, that the issue of a female High Court judge could be used as a wedge issue amongst the Liberals, especially the Young Liberals. I was told by the Attorney-General's department that my suggestions would be given careful consideration, so I'm hoping that perhaps my cynical politicking grated with them.
I think that, after the comments from Mary Gaudron about the trial of David Hicks, coupled with Ruddock's accusations that she was sitting in an "armchair" (!), made a female appointment an absolute necessity. I don't know whether Gaudron came out with this statement on her own, or whether she got some prompting from someone like Roxon, who was her little feminist pup (isn't she just the cutest thing?), but I think Ruddock really had little choice, as Paul says.
Anyway, shut up. You're embarassing me.
re: Susan Crennan, Australia's new High Court Justice
Just to correct any possible misunderstanding here ... I didn't say I believed Ruddock when he said that Crennan's selection had nothing to do with her sex, I was simply commenting that he said it.
Of course I should also comment that in the absence of all other things being equal, to take her sex into account would be totally inappropriate.
All we can actually tell at this point is that Crennan certainly seems eminently qualified for the appointment.
I guess this is where the US system of publicly scrutinising the selection process is a good idea. If we were able to scrutinise the appointment process then we could be certain that he process was 100% fair.
We wouldn't have to take Ruddock's word (such as it is) for it.
re: Susan Crennan, Australia's new High Court Justice
A belated and lackadaisical effort from Albrechtsen. Barely noticed, indeed.
re: Susan Crennan, Australia's new High Court Justice
Jenny Stirling, I would be very keen to hear about these "neo-liberal" values that you fear are stacked against you because you are a woman. Are they stacked against all women, or just you?
re: Susan Crennan, Australia's new High Court Justice
Jenny , surely you are as old and as employable as you think you are. I feel like I'm a thousand years old and a total dropkick.
re: Susan Crennan, Australia's new High Court Justice
Solomon and Paul, you guys make my day.
I am sitting here writing a thesis about how neo-liberal values are impacting on the ethics of my profession, all the time thinking I will be unemployable by the time I finish because of my age, (I will be 50 in a couple of years) and the political climate. So any time a woman can make a difference is good for me.
Did you see the ravings of the US Senate committee about their new High Court appointment. Glory be. I swear, it is Jesus come again and an American male to boot.
"How embarrassment" Effie would say.
re: Susan Crennan, Australia's new High Court Justice
Anyway, Polly, Gaudron was a bit of a crazy feminist. She kept tight-lipped for most of her career, which I discovered when trying to research her in '04, but in this speech she made some alarmingly (or charmingly, if you're so inclined) vehement statements.
For example:
"Whatever else may be said, it seems to me that the failures of the law and legal profession cannot be blamed on women. By a process of elimination and with only a slight leap of faith and logic, I am driven to the conclusion that women lawyers are the law's only real hope for the future."
The only hope for the future! Indeed. I may as well give up then. I'm quite confident that there are a great many up-and-coming young female lawyers that will most definately make a splash. Whether or not a young male law student like myself can hope to make any difference, or whether I am indeed "hopeless", as Mz Gaudron informs me and which my own experience tends to testify, is something only time will tell. I hope you haven't given up entirely on mankind, Jenny 'n' Polly. You chicks are going to need guys like me to be 'home-dads' at least.
Noelene, if indeed women can't have a career and a family at once, then surely the 'home-dad' phenomenon is an excellent partnership, where by the smarter and stronger member of the couple is given due support in her career, as Mr Latham has decided to do for Janine. I feel instinctively that for survival's sake it is best to adjust myself to being a courtesan, house-maid and generally supportive creature, more than anything else. Perhaps what we're seeing now is a continuation of the feminist revolution and a general re-structuring of society.
re: Susan Crennan, Australia's new High Court Justice
Tell you what Jenny Stirling, things are 'Crook in Tallarook' as my old Nana used to say po-faced, when citizenry are reduced to hoping for evolution to furnish a (miracle) solution for the current state of affairs humanity finds itself in.
I'm holding my breath, too.
"Abandon hope; all ye who enter here."
re: Susan Crennan, Australia's new High Court Justice
Why Paul, are you suggesting that the good judge's appointment was of a gratuitous nature? (blink blink).
Let's hope that the good judge wrong foots them all by having the integrity to do what the role gives her the opportunity to do - balance out the bench with her lived experience, passion for justice, common sense, reason and expertise. She seems like a splendid choice.
Yours truly,
Pious Optimist.
re: Susan Crennan, Australia's new High Court Justice
I've been following this thread with a little interest. SMH Online this morning posts an article commenting on Sydney Uni basking in the limelight a little.
At the end of the article, Michael Pelly makes the following observation:
If you do a quick Austlii search using the phrase 'Crennan J', you should be able to drag up most of Her Honour's decisions rendered while a Federal Court judge, and Marilyn's queries should be answered one way or another.
re: Susan Crennan, Australia's new High Court Justice
I think that is just great that there is a woman up in the court system. There should be more of them. I mean what is so interesting about being a house wife anyway. More women should take a leaf out of her book and do something with their lives instead of wasting away in the kitchen.
re: Susan Crennan, Australia's new High Court Justice
Noelene if one has certain values it is difficult to work in or be hired by organisations which subscribe to a different set of values. Margo found this out with her experience with the SMH. Neo-liberalism is now pervasive throughout federal and increasingly state government organisations where the bottom line is increasingly framed in terms that stress the dollar rather than the welfare of the clients who are usually very vulnerable people. In my profession, social work, it is difficult (but not impossible) to work in a way that is always ethical and sustainable. Lots of conflicts of interests and stress, which is one of the reasons why people burn out quickly. Added into that mix, we now have policies that are loaded with neo-liberal values which compromise social work, social justice ethics and values. So it is not just about me but all those workers who try to implement a practice which is 'change' oriented, in other words, seeks individual as well as structural change so that outcomes are fairer. The way the system is, developing, I believe, is slated against those sorts of outcomes.
Also, there is a history of professions that are dominated by a female workforce not being paid at rates that are commensurate with their training, skill development and the rigors of the job. Now, if I am going to be writing about that, meaning, I hope that I devlop some expertise in the area, that will inevitably make me less than welcome in organisations that practice in that way. I wouldn't want to work there anyway but it cuts down my options considerably where I live. But no doubt, I will sort something out.
re: Susan Crennan, Australia's new High Court Justice
No real indicators of how Justice Crennan might decide future cases are to be found in her speech. I must admit, though, that her CV is very impressive, and not only due to her work at the bench and the bar. It's her humanities experience that particularly laudable. At least she is not some old fuddy-duddy equity / commercial judge from NSW. She is probably the best appointment the Howard government has made to the court. I hope I don’t eat my words…
Below is an extract from a speech she gave at the University of Melbourne on 9 April 2005: