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TRANSCRIPT OF PROCEEDINGS


O/N H-211574
FEDERAL COURT OF AUSTRALIA
CEREMONIAL SITTING OF THE FULL COURT
FOR THE SWEARING IN AND WELCOME
OF THE HONOURABLE JUSTICE MORTIMER

THE HONOURABLE JAMES ALLSOP AO, CHIEF JUSTICE

THE HONOURABLE JUSTICE MARSHALL

THE HONOURABLE JUSTICE NORTH

THE HONOURABLE JUSTICE TRACEY, RFD

THE HONOURABLE JUSTICE MURPHY

THE HONOURABLE JUSTICE ROSS

THE HONOURABLE JUSTICE DAVIES

THE HONOURABLE JUSTICE MORTIMER

MELBOURNE
9.29 AM, FRIDAY, 12 JULY 2013
MORTIMER J: Chief Justice, I have the honour to announce that I have received a commission from her Excellency the Governor-General appointing me a judge of the Federal Court of Australia. I now present my commission.
ALLSOP CJ: Thank you, Justice Mortimer. Acting District Registrar, would you please read aloud the commission.
ACTING DISTRICT REGISTRAR: Commission of appointment of a judge of the Federal Court of Australia. I, Professor Marie Bashir, AC CVO, Administrator of the Government 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 Debra Sue Mortimer SC learned in the law to be a judge of the Federal Court of Australia assigned to the Melbourne Registry beginning on 12 July 2013 until she attains the age of 70 years. Signed and sealed with the great seal of Australia on June 13, 2013. Marie Bashir Administrator by her Excellency’s command, Mark Dreyfus QC Attorney-General.
ALLSOP CJ: Thank you. Justice Mortimer, I now invite you to take the affirmation of office.
MORTIMER J: I, Debra Sue Mortimer, do solemnly and sincerely promise and declare that I will bear true allegiance to her Majesty, Queen Elizabeth the Second, her heirs and successors according to law that 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 the law without fear or favour affection or ill-will.
ALLSOP CJ: Justice Mortimer, I now invite you to subscribe the form of affirmation that you have taken. Acting District Registrar, would you please take Her Honour’s commission and the subscribed affirmation of office and place the affirmation and a copy of Her Honour’s commission in the records of the court. Justice Mortimer, on behalf of myself and on behalf of all the judges of the court may I welcome you to the court and may we look forward to your collegial help and service in service of the people of Australia.
MORTIMER J: Thank you, Chief Justice.
ALLSOP CJ: Mr Wilkins.
MR R. WILKINS AO: May it please the Court. First, may I acknowledge the Wurundjeri people of the Kulin Nation, the traditional owners of the land on which we meet and pay my respects to their elders, both past and present.
I am privileged to be here today to welcome the Honourable Justice Debbie Mortimer as a judge of the Federal Court of Australia. The Attorney-General, the Honourable Mark Dreyfus QC MP, regrets that his ministerial commitments representing Australia before the International Court of Justice have prevented him from attending this special ceremonial sitting. However, he has asked me to convey to Your Honour the warmest congratulations and best wishes of the Australian people.
I wish to acknowledge the presence today of current and former Judges of the Federal Court of Australia, the Family Court of Australia, the Federal Circuit Court of Australia and the Supreme Court of Victoria.
I am pleased to acknowledge Your Honour’s family, some of whom have travelled from New Zealand to celebrate this special occasion with you: your daughter, Hayley and son, Bryden; your sister, Jackie; your aunt, Phyllis; and your cousin, Peter.
Your Honour brings to this Court not only considerable legal experience but a strong commitment to the service of the law and access to justice. On this I will speak more.

The high esteem in which Your Honour is held is perhaps most evident in the sadness shown by your close friends and colleagues on losing such an accomplished barrister – but tempered, I am delighted to add, with their expressions of pride and jubilation on your elevation to judicial office.


I suspect that Your Honour is unashamedly a ‘Kiwi’, for your love of New Zealand can be traced to a childhood spent in your birthplace, Auckland.

Also present here today is your former secondary school teacher, mentor and close friend, Terry Bates, who taught you Art and History in your senior years at Kelston Girls’ High School. Terry remembers you as an outstanding student with a meticulous, insightful, sceptical and always scholarly approach, gifted with an intellectual capacity beyond your years.


He describes you as a quick-witted debater with a delicious sense of irony and an attraction to issues of social justice. I understand that, at Your Honour’s ‘not so subtle’ instigation, the history classes would frequently be diverted into broader discussions of politics, philosophy and moral motivation.
Described as an incisive thinker, your school work demonstrated Your Honour’s innate ability to get quickly to the heart of an issue, ably assisted by a formidable work ethic, a searching curiosity and a great sense of humour – qualities, I am sure, that will be indispensable during your term on the bench.
Your Honour also practised gymnastics as a child, even mastering the skill of standing on your head – literally. It has been conjectured that perhaps this physical attribute served you well in your ensuing legal profession!
Given this background, Your Honour’s spectacular academic success in your university years came as no surprise.
From 1981 to 1982, you were enrolled in the Bachelor of Arts/Bachelor of Jurisprudence at the University of Auckland; and in 1983 you transferred to Monash University, where you graduated with a Bachelor of Jurisprudence, and Bachelor of Laws with 1st Class Honours, in 1985 and 1987 respectively.
Your Honour was awarded Supreme Court Prizes for the first placed graduate for each degree. I understand that Professor Louis Waller, at the Monash Law School, who is also present here today, exerted a profound influence on the development of Your Honour’s learning and career.
In 1987, you were articled to Gordon Goldberg of Goldberg and Window Solicitors, Richmond, and in 1988 Your Honour was admitted as a barrister and solicitor of the Supreme Court of Victoria.
From 1988 to 1989, you were an Associate to then Justice, Sir Gerard Brennan of the High Court of Australia. That brief but rewarding period of your career yielded many instructive lessons for Your Honour about judgment writing.
Your Honour has been a barrister at the Victorian Bar since 1989, specialising in administrative and constitutional law, anti-discrimination and extradition. You were appointed Senior Counsel in 2003. Your practice has always included a significant amount of public interest, human rights and pro bono work, most notably in refugee law but in more recent years, environmental law.
In 2009, the Law Institute of Victoria awarded Your Honour the Paul Baker Award in recognition of outstanding contribution in administrative or human rights work. In 2011, you were awarded the Victorian Bar’s Pro Bono perpetual trophy for outstanding contribution to pro bono work. Also in 2011, you received the Law Council of Australia President’s Award.
And if this was not enough, the legal team in which Your Honour was lead counsel, was awarded in 2011, the Federation of Community Legal Centres Victoria Tim McCoy Prize, and the Australian Human Rights Commission Law Award – and, in 2012, the Victorian Bar Public Interest and Justice Innovation Award in the Victorian Bar Pro Bono Awards.

All three of these team awards were principally in relation to two cases, brought directly in the High Court of Australia, each of which challenged core aspects of the Australian Government’s processing of asylum seekers arriving by boat in Australian territory. We know them as Plaintiff M61 v The Commonwealth (decided in November 2010) and Plaintiff M70 v The Minister for Immigration and Citizenship (decided in August 2011).


Your Honour is also a strong advocate for the representation of women in all ranks of the legal profession and you value highly the importance of female silks as role models for younger women lawyers. You are also one of the few women to have established a High Court practice at a time when there has been a distinct absence of women counsel at such senior levels.

Your Honour is recognised as someone who is sensitive to, and cares about accommodating, the family responsibilities of your colleagues and those who instruct you. Your Honour’s appointment is also testimony to a distinguished career in which you have successfully balanced your own family commitments with your professional choices.


I refer in particular to your time away from the Bar between 1991 and 1994 while your children were young when you taught torts, property law and evidence in the Faculty of Law at Monash University. This serves as a model to inspire younger counsel to gain confidence that the legal profession is one in which they can continue and flourish while raising a family.
Since 2011, Your Honour has been a Senior Fellow of the University of Melbourne Law School, teaching in the Masters Program. You have been a generous mentor and supporter of many young lawyers and I know that you have inspired in them a confidence and professionalism that will endure long into the future.
Your Honour is admired for being a committed mother who adores her children and who is by far their biggest supporter and advocate. You also have a fondness for animals and at various times you have kept a most unlikely collection of birds, dogs, Alpacas, and shared in the care of your children’s possum.
You are known as a great lover of the outdoors, a keen tennis player, skier and lover of the country life, reflected in particular for your fondness for your homeland of New Zealand.
To name but a few of Your Honour’s attributes, you are reputed to be an extremely well prepared, calm and knowledgeable advocate. You are also known for your extraordinary intellectual discipline and respect for the institution of the rule of law. I am aware that Your Honour’s incisive legal capacity and belief in the law as a mechanism for greater community good is unfaltering.
One conviction that emerges strongly from your practice in the law is how deeply Your Honour believes in helping vulnerable and traumatised people to access the law and how vital it is to bring the law to them.
For Your Honour, these are the fundamental guiding principles of access to justice that respect and protect a person’s dignity and basic human rights.
While Your Honour’s sharp legal mind and ability to listen carefully will prove to be valuable assets to you as a judge of this Court, it will be Your Honour’s uncompromising commitment to these guiding principles that will make you an outstanding judge.
Your Honour’s longstanding close friends have taken a deep and vicarious pleasure at observing your career trajectory and the nature of legal cases that have attracted your attention.
Behind that highly accomplished barrister and legal mind they see the silhouette of that charming, feisty adolescent – the girl from a predominantly working class suburb in West Auckland with a precocious intellect, deep sense of moral purpose and extraordinary drive - who is now a Judge of the Federal Court.
During the term of your appointment, these will be the personal qualities and strengths that will sustain Your Honour and adorn the high standing and reputation of this Court.
Your Honour, Justice Debbie Mortimer, on behalf of the Australian people, I extend to you my congratulations on your appointment and welcome you to the Bench of the Federal Court of Australia. May it please the Court.
ALLSOP CJ: Ms McLeod.
MS F. McLEOD SC: May it please the Court. I appear on behalf of the Australian Bar Association, the Law Council of Australia and, in particular, the Victorian Bar to congratulate your Honour on your appointment to this Court. The President of the Law Council and the ABA, Mr Michael Colbran QC sends his warm regards and congratulations. It is a great personal pleasure to be able to speak at Your Honour’s welcome. Having served with you and appeared with and against you in various capacities together since we took silk nearly a decade ago. It is also a pleasure to recognise a fellow Kiwi, you by birth and me by early adoption, and to extend to your Honour and your family a Haere Mai and Kia Ora.
I will refrain, however, from a rendition of Pokarekare Ana although, as you recently remarked, great occasions do call for it.
Of particular Law Council focus, as mentioned by Mr Wilkins, is the fact that Your Honour has won, and has so far been the only woman to win, the Law Council President’s Medal, the highest award of the national legal profession. The Law Council also sponsors a Human Rights Commission Law Award that went in 2011 to the teams your Honour led in Plaintiff M61 and in the so-called Malaysian Solution case of Plaintiff M70.
And incidentally, Stephen McLeish SC, the Victorian Solicitor General who is at the Bar Table was lead counsel for Plaintiff M69 whose case was heard together with that of your client, Plaintiff M61. And your times at the High Court as Associates overlapped.
It was on the advice of Sir Gerard Brennan that, after a year as his Associate, your Honour came straight to the Bar. You had done your year’s Articles, but not spent any time as a solicitor. Being from New Zealand and without extensive connections in the law in Melbourne, coming immediately to the bar did involve a significant leap of faith, but Sir Gerard advised, “If you want to be a barrister, go and be a barrister and, if you’re good at it, you will get the work”.
Well, Your Honour did want to. You came immediately to the Bar in 1989 and you have, in some 20 years’ practice, including nearly 10 years of silk, been very good at it – an outstanding leader in your fields and nationally recognised for your contribution. Sir Gerard has remained a strong influence and supporter ever since and he and his son, Frank, both send their apologies and best wishes today.
And so you came to the Bar and read with Neil Young, later QC and, of course, a member of this Court before returning to practice.
Your son, Bryden, was born the following year in August 1990 and your Honour transferred to the academic list of the Bar Roll at the end of that year, taking an appointment as an Assistant Lecturer at the Monash Law School. Your daughter, Hayley, was born in June 1992. It was not until 1994 that you returned to practice at the Bar, effectively having to begin anew.
Concurrently with practice at the Bar, you continued to publish and teach. For example, you co-authored, with associate Professor Sue McNicol, now SC, a Butterworth’s text on the Law of Evidence first published in 1996 and in its second edition in 2000; and co-wrote with Professor Louis Waller a paper presented at the conference on law and medicine at the University of London in July 1999; and for some 22 years you have taught and co-taught various courses in the LLB, JD and LLM programs at both Melbourne and Monash.
Your Honour co-teaches with Professor Cheryl Saunders an intensive Master’s Degree course of current issues in administrative law at the University of Melbourne. Professor Saunders, who is overseas and therefore also a reluctant apology from today’s sitting, speaks most highly of Your Honour and has described you as “a significant contributor to the intellectual life of the Melbourne Law School and University”. And both Professor Saunders and the Dean, Professor Carolyn Evans, note that the students say you are consistently “a really fantastic teacher”.
Your Honour has made time for committee service both at and beyond the Bar. You were, for example, a very active member and chair of the Bar Human Rights Committee; you served on the St Vincent’s Hospital Institutional Ethics Committee for some 10 years; and served for many years as a Bar representative of this Court’s migration users group and general users committees.
You have also served as a secretary and council member on the International Commission of Jurists; with CommBar; on the Melbourne and Monash Law Faculty Boards; and last year on Chief Justice Marilyn Warren’s preliminary evaluation committee assisting with the silk selection process – an indication of the very high regard in which you are held.
You had four readers, Juliet Forsythe, Lisa Sarmas, Lisa De Ferrari and Georgina Costello. You had many juniors. All speak of your generosity and friendship and your support and how much they learned.
Your juniors sometimes had difficulty containing their enthusiasm in court. A very senior junior, now silk, was so enthusiastic in one case as to attract the attention of the High Court Bench to the extent that Justice Gummow interrupted you by saying, “Ms Mortimer, your junior is trying to communicate with you”. You replied: “I did see that, your Honour. I was just making him wait a moment but, as he has been so obvious, I will make his point now”.
Another junior’s enthusiasm pushed your Honour even further. You stopped, mid-sentence, ignoring your junior’s agitated whispers, looked directly up to the judge and said, “Your Honour, obviously my junior knows more about the point than I do, so I will leave it to him”. Abruptly, you sat down.
Your Honour was outstanding in the High Court, pitching arguments in a way that was polished, compelling and to the point and at times with great moral authority. Just once there was the hint of a slip in the Malaysian Solution case in 2011. Your Honour referred the Court to the judgment of Chief Justice Gleeson in Forge. You realised it had not been supplied to the Court and Chief Justice French observed, “It’s not on your list”. You responded, “Yes, it’s not very much help in any event”. Quick as a flash, Chief Justice French interrupted, “Do be sure to pass that on to Chief Justice Gleeson”. The transcript does not record your Honour’s blush.
On one occasion, Your Honour was intervening for the Human Rights Commission in a transgender recognition case, when the case before yours collapsed and you were summonsed urgently to appear before the High Court in Canberra the next day. Aircraft were grounded due to the eruption of a Volcano in Iceland and a video link to Melbourne was not available. Your Honour leapt into your car, with your junior, Liz Bennett, and you drove like mad things up the Hume to arrive in time the next day, if somewhat dishevelled, before the Court, only to be told by the Chief Justice, “We need not trouble you, Ms Mortimer”. As Liz put it, however, you were “living the dream”.
It was in a similar case, AB v Registrar of Births, Deaths and Marriages, that I first encountered your Honour’s devastating advocacy skills and then on appeal in this Court. It was not only your advocacy that impressed, but your thorough decency and integrity in kindly suggesting that I might consider, before adopting the Court’s apparent lifeline in that case, what the logical consequences would be. I have not forgotten the manner in which Your Honour acted as the very model of a model litigant in that case.
Your Honour has a deep fondness for animals, as Mr Wilkins has also mentioned, and you introduced your readers and juniors alike to the menagerie, including the aviary of multi-coloured birds; and your dog, “Cesca”, the wonder escape artist and devastator of your vegetable garden – apparently Cesca’s determination to escape all manner of confinements and attempt to confine him is said almost to match your own; and your alpacas. The story was told at our Bar dinner of a rather sophisticated young junior who came for lunch at your property at Merricks only to find himself enlisted in helping to herd the livestock.
Your Honour has we’ve also heard represented your fair share of Australia’s native flora and fauna: in Brown v Forestry Tasmania No 4, the broad toothed stag beetle, the Tasmanian wedged-tailed eagle and the swift parrot; in the Brown Mountain case, the long-footed potoroo, the Orbost spiny crayfish and a variety of owls, gliders, frogs and quolls; sharks I believe before the AAT; and abalone. The list goes on.
In the Brown Mountain case, your Honour took the Court and everyone else on a view by way of a bushwalk through the beautiful East Gippsland forest under threat of logging. Your Honour recognised the power of a view; and of contrasting large pictures of endangered species with the images of the aftermath of clear fell logging. Justice Jack Forrest in granting an injunction in that case observed that, post-logging, the landscape looked like the Somme.
Your Honour’s recent profile in the media particularly in the last couple of years has been largely focused on refugee and immigration cases with some exposure concerning your work in the environmental area. True and important as all that is, it paints only a partial picture of your Honour’s practice.
For the whole of your some 20 years practice at the Bar your practice has been pretty well evenly spread between advice work and appearances; and between acting for and against various government entities – a true observer of the cab rank rule. A list of your Honour’s government clients, Commonwealth and Victorian, authorities, departments, bodies and individual officers and various statutory and municipal bodies goes on for more than a page.
Your Honour has also appeared in the Supreme Court and Court of Appeal in Samoa. You were retained by the Samoan Telecommunications Tribunal in the first judicial review of a tribunal decision. The tribunal decision was upheld. And you were retained by the Samoan Attorney-General and successfully defended the government’s electoral petition legislation.
Your Honour’s constitutional and public law specialities have seen you advise in matters such as parliamentary and ombudsman’s inquiries and appear in inquests and criminal proceedings. Leading criminal law silks have enlisted Your Honour in extradition proceedings. And Your Honour represented the brother-in-law of the notorious Carlos “cash register” Cabal, Mario Bassini, in extradition proceedings.
Your Honour has appeared in so many important and significant cases it is difficult to single out just a few. However, that said, beyond the very recent landmark refugee and immigration cases, I might mention the decision of the 2005 case of applicant VEAL of 2002 v Minister for Immigration, in which Your Honour and Richard Niall SC were instructed by Victoria Legal Aid, which has become an important authority in the area of natural justice. The Brown Mountain case, about which I’ve spoken, was ground breaking in that it was the first case in Victoria in which an injunction was granted to stop logging. The State of Victoria v Turner, a disability discrimination case in the Supreme Court of Victoria, has become an important precedent in disability discrimination and education. In the Cobaw v Christian Youth Camps case, the issue of competing rights of non-discrimination and freedom to manifest religion – where we all argued with the phalanx of excellent juniors – is still under consideration. And the AB cases I mentioned concerned the human rights of transgender and inter-sex individuals.
Many of these cases touched you deeply. You arrived late one night last year to an evening meeting of the Silks preliminary evaluation committee, having secured a last minute injunction to prevent clients being deported from Australia, and you were visibly moved by the outcome and the impact upon your clients. A number of those former clients and those you’ve served in your extraordinary work with David Manne on behalf of refugee applicants are here in court today.
Professor Mary Crock of the University of Sydney Law School, a prominent academic and fellow honorary life member of the Refugee and Immigration Law Centre with your Honour, has aptly described your Honour as a jurist par excellence in an area of law that is fraught with politics and the human impact of decisions – a clear mind that cuts through the jargon and rhetoric – one who is able to translate high principles and human rights into cogent legal arguments and domestic law – a person of enormous humanity who sees injustice and acts to do something about it – a loss to the community of advocates.
With Justice Patrick Keane, your Honour was one of the two speakers at the Victorian Bar dinner in May revealing your wit and sense of mischief. Your speech began, “Plenty of people have told me the principal convention at these dinners is that one should not talk about sex, religion or politics. So let me start with politics.”
Courageous by nature you did go on to speak about politics, religion and sex saying of the latter, “Female alpacas are, shall we say, always interested – except when they have already ovulated and conceived, and then they’re no longer interested. Bring a keen male close to such a female alpaca and she will spit at him – not just a polite dribble, but a good cupful of putrid green bile from all the way down in her gut.” Your Honour went on, “I always thought that was a handy attribute to have available.” Let this be a warning to the ill prepared advocate.
A fellow silk at our Bar has said there must surely have been a spike in phone usage in Melbourne in the 48 hours after Your Honour’s appointment was announced, with distressed solicitors and clients needing to find replacement counsel; and that your Honour’s extraordinary industry and practice was such that these cases are likely to keep the rest busy for years to come.
Your juniors are delighted, as has been mentioned, but devastated to lose your company in chambers and your strong personal support for all those you work with. The only consolation is that others may now wear their cubic suits identical to your own to conferences without fear of being sent out to change.
On behalf of the Australian Bar Association the Law Council of Australia and the Victorian Bar I wish Your Honour long, satisfying and distinguished service as a judge of this Court. May it please the Court.
ALLSOP CJ: Mr Tang.
MR R. TANG: May it please the Court. I appear on behalf of the Law Institute of Victoria and the solicitors of this State to congratulate your Honour Justice Mortimer on your appointment to this Court. A very recent Meanjin essay records that it was from a job working at a law library at the age of 14 that your Honour decided to become a lawyer. As we’ve heard you started your law course in New Zealand before moving to Australia where you became an outstanding student at the Monash Law School.
You won the Butterworths prize in property, the Alec Masel prize in civil procedure and the Sir Charles Lowe Moot prize. In 1985 you won the Supreme Court prize as the top graduate in the Bachelor of Jurisprudence degree. Not content, in 1987 you won the Supreme Court prize ranking first in the honours list as the top graduate in the Bachelor of Laws degree with first class honours.
It goes without saying that you could have had your pick of articles in the major city law firms however you chose a small firm in Bridge Road, Richmond, Goldberg and Window.
Professor Louis Waller, now Professor Emeritus, who is in court today, had become your Honour’s mentor at law school. Professor Waller put it thus: “From the very beginning, she was interested in what a lot of lawyers find uncomfortable. She was interested in the human condition – in individual people. And Maurice Goldberg had a very ‘human condition’ practice.” The firm had only three partners. Your Honour was articled to Maurice’s son Gordon. Gordon Goldberg was a colourful figure known for riding to courts all over Melbourne on his ancient bicycle – always immaculate in a three piece suit. He later became a Reader in Law at the University of Buckingham teaching, amongst other things, constitutional and administrative law and being the moot master.
Your Honour’s social conscience has deep roots. You attended the local State school in the working class western suburbs of Auckland where you lived. Having won a university place in year 11, you applied for and won a place in a foreign exchange program to go to Sri Lanka for year 12. That involved some expense. Your late father Ted had not had a lot of formal education himself. He returned from active service in World War 2 and became a book binder. However your father valued education and experience and he made a substantial sacrifice to find the money for you to go.
Your Honour spent year 12 in Sri Lanka. You lived with a large Sinhalese family in a very small two bedroom house and went to a Buddhist girls school at which only a couple of the pupils spoke English. You saw first hand the racial tensions that were to escalate into violence and then civil war. In your own words, you saw “bad things” and your interest in human rights was born in that human experience.
I shall, of course, get to the M70 Malaysian case – but Your Honour had already been recognised publicly for your outstanding contributions to human rights law long before that. In 2007, you were made an honorary life member of the Refugee and Immigration Law Centre, a distinction accorded to very few. Then in 2009 you received the Paul Baker Award which is awarded by the Law Institute of Victoria in memory of a former chair of the Administrative Law and Human Rights section. That award is for significant achievement or outstanding contribution in the fields of administrative or human rights law. In horse racing terms, your Honour won with a quadrella.
There is a standing joke at the Refugee and Immigration Law Centre that David Manne’s telephone conversations to Your Honour customarily began with, “Have you got a minute?” – and very often what followed led to Your Honour taking on a marathon.
So it was with the Malaysian case, that of Plaintiff M70 of 2011. David Manne received a phone call on Saturday evening and it was understood that the asylum seekers were to be flown from Australia to Malaysia on the following Monday morning. Your Honour began work immediately. Allens Arthur Robinson agreed to act as your instructors. Justice Hayne agreed to hear an urgent application at 6 o’clock on the Sunday evening, with documents to be filed by 4 o’clock. And your Honour led Kristin Walker and Elizabeth Bennett, opposed by Dr Stephen Donaghue for the Commonwealth, in the appearance before Justice Hayne at 6 o’clock.
His Honour granted an interim injunction and adjourned until the Monday afternoon. The government estimated the cost of the delay in deportation as running at about $820,000 a week. The case was heard and decided in what has surely to be record time. From the phone call to Your Honour on the evening of Saturday, 6 August, to hearings before Justice Hayne on Sunday the 7th, Monday the 8th and Monday the 15th – to written submissions on the 17th, 18th and 19th – arguments to the Full High Court on the 22nd and 23rd – and judgment delivered on the 31st – all in a few hectic weeks in August – and all arising out of a phone call beginning, “Have you got a minute?”
And it was often on little sleep. In Canberra for the hearing, Your Honour worked until four in the morning, was up at six for a jog at breakfast and then argued all day in a manner described by journalist, David Marr, as “flicking expertly through the casebooks”.
Your Honour has shied away from the description as a Human Rights advocate. “Rule of law advocate” is, you have said, closer to the mark. Indeed, putting a label on you is something of a challenge. In the Meanjin essay I have previously referred to, “bolshy barrister” and “black letter lawyer obsessed book nerd” were both toyed with, but rejected for the simple description from Richard Niall SC that you are “first and foremost a lawyer”.
But perhaps “legal rock star” is also apt. It was a first to be approached by one of the members of my Executive noting that, if I happened to be busy this morning, she would be more than happy to take my place. Katie Miller has worked with and against Your Honour in her years with the Australian Government Solicitor and Victorian Government Solicitor. She is here this morning and I thank her for her contributions to my address.
Your Honour has, as we’ve heard, adhered faithfully to the cab-rank rule and has often represented government. For example, on instructions from the Australian Government Solicitor, you represented the Commonwealth and employer respondents in appeals to the Full Court of this Court in the disability discrimination in employment cases of Michael Nojin and Gordon Prior. The Commonwealth and employers did not succeed in either case, but it was not for want of trying on your Honour’s part. You represented each client to the best of your considerable skill and ability. Your instructor in those cases speaks of your determination, brilliance and tenacity. One of the panel in particular, scarcely let your Honour complete a sentence before interrupting, but your Honour remained calm and focused.
Beyond “calm and focused” under fire in court, your instructors testify that, in the most stressful situations, you are always in good humour. Your instructors also praise your listening to and, indeed, inviting their contributions to the strategies and arguments. Your Honour always saw and treated your solicitors as an active and respected part of your team. However, I have strayed from Human Rights and the Rule of Law.
Your Honour has a real passion for equality before the law – for bringing the transformative effect of the rule of law to bear on the most vulnerable in, and within the jurisdiction of, our society. You never lost sight of people, the individuals and their predicaments. Yet your Honour’s cases, and the judgments of the courts in response to your arguments and submissions, can be seen as chapters in a book of a development of jurisprudence in Human Rights law and principles and their practical application.
You communicated your passion for Human Rights to your clients. Late last year you represented Mr Tony Mokbel before the Victorian Court of Appeal, advancing Human Rights arguments in his conviction appeal based on his extradition before his European Human Rights court case was heard. The Court of Appeal judgment came down in May. Your Honour’s arguments failed to convince the Court, but they seem to have inspired your client with Human Rights zeal to pursue special leave to the High Court.
Your Honour engaged personally with your Human Rights clients, on occasion continuing that human connection beyond your professional representation. I understand that Ms Jacqui Katona is here today to celebrate your appointment. You met 15 years ago in May 1988 when she came to you through Juliet Forsyth, then a law student and volunteer with the Australian Conservation Foundation, and who later came to the Bar and read with you.
Ms Katona and Ms Yvonne Margarula, the senior traditional owner and named plaintiff, were leading resistance to the proposed Jabiluka Uranium Mine on the lands of the Mirarr Aboriginal People. They led what is believed to be the first environmental blockade in which Aboriginal traditional owners joined with Greens activists, a blockade in which they, with some 500 others over the course of the blockade, were arrested.
It is remarkable how many of your cases began with a weekend telephone call cry for pro bono assistance. This time, it was a Sunday afternoon call. The urgency was the apprehension of the Northern Territory Minister for Mines was about to grant authorisation for the proposed mine.
Justice Marshall, who is on the bench today and whom your Honour now joins, granted an interim injunction.
It was from the initial professional relationship with Ms Katona as her counsel, that the ongoing personal relationship developed and you have been a mentor to her in her study of the law.
There is also the very personal humanity in the case of two Kenyan unaccompanied minors in respect of whom Justice North, also on the bench today, granted an injunction to restrain their removal from the jurisdiction. They were flown off, but when they were brought back, the Court was in the dilemma that, unless there was a guardian willing to take them, its order for their release from immigration detention pending the hearing of their case would be futile and ineffective. There was no one else and your Honour stepped up and took them into your own home and withdrew while their guardian from acting as their counsel.
You have been a generous contributor to the profession and it would be remiss were I not to thank Your Honour for your significant contributions to the Law Institute’s program of continuing professional development, including seminars on the Equal Opportunity Act in review; and on the right to health.
Justice Peter Tree who came down to this Melbourne winter from the Family Court in Townsville to be here, years ago suggested that your Honour considered managing your son, Bryden’s brilliant career as a golfer. Although you had greatly enjoyed a golfing foray with Bryden, you resisted that tempting comfortable release from the stresses and uncertainties of practice at the Bar.
Having remained at the Bar and now accepted this appointment, you have now to overcome your engrained willingness to work without a fee. Your Honour’s appointment is not effective until today and you are not on the payroll until today but your Honour has, I understand, been in all week, working on a case that you are hearing next week.
Your Honour has been an outstanding, committed and passionate advocate and your appointment to this court is something of a natural progression. We have lost an outstanding advocate and the community has gained a judge, one who we are entirely confident will be an outstanding judge.
On behalf of the Law Institute and the solicitors of this State, I wish Your Honour joy in your appointment to this Court and a long, satisfying and distinguished service. May it please the Court.
ALLSOP CJ: Justice Mortimer.
MORTIMER J: Chief Justice, former Chief Justice Black, fellow judges of this court, Justice Maxwell, President of the Victorian Court of Appeal, representing Chief Justice Marilyn Warren, judges of other courts, the Solicitor General for Victoria, Mr McLeish, my colleagues and guests, my friends and my family, it is really wonderful to see you all here today. I join Mr Wilkins in paying my respects to the traditional owners of the land on which we meet and to their elders past and present and I also acknowledge in a broader sense the first peoples of this nation. Thank you, Mr Wilkins, Ms McLeod and Mr Tang for your kind words and your renditions of what others have mischievously told you.
Amongst the hardest aspects for me of sitting here, away from the bar table, will be acclimatising to being quieter in court. Fortunately, I do not have that limitation today. I begin by thanking the members of my family and my personal friends who are in court today. One’s life as a barrister certainly affects families and friends. They live with our irregular hours, our lack of time, the consequences of over commitment, including grumpiness and short temper from time to time, the burden we carry when we represent clients with a lot at stake. However, I know my friends and family understand my sometimes obsessive devotion to my work and what motivates me. I am extraordinarily lucky in the love and support I have from my family and from my friends.
I especially thank Hayley and Bryden for their terrific company and encouragement along the way, including through some tough times, for their sense of fun (which I was a little bit worried about this morning when they were telling me what they might talk to the Chief Justice about) and for their very positive attitudes to life. I am very proud of both of them. My parents did not live to see today, but I want to take a little time to acknowledge both of them. If or when my son lifts a major professional golf championship trophy above his head, I hope he remembers the importance of acknowledging his parents. My mother always displayed endless patience in listening to others and trying to help them.

Now, before too many of you start smiling, I am not suggesting that I inherited her patience, but her compassion for those that she encountered, no matter what their circumstances were, was an important role model for me. My father, as has been pointed out in the speeches, was a bookbinder by trade and from small beginnings he developed the bindery at the University of Auckland into a substantial organisation. He worked with the university librarians.



ADJOURNED [10.11 am]

RESUMED [10.34 am]

ALLSOP CJ: Justice Mortimer.


MORTIMER J: Thank you, Chief Justice. I was talking about my father who was a bookbinder by trade and from small beginnings he had developed the bindery at the University of Auckland into a substantial organisation. He worked with the university librarians, including the head librarian, Julia McMahon. It is to Julia that I owe my introduction to the law. Now, whether it was because I was difficult to keep occupied or irritating to have at home, I don’t know, but my parents – when I was about age 14 – suggested I should get some part time work and they suggested I should go and work at the university library and while, no doubt, I was generally improved as a person by Julia’s rather stern tutelage in the library, in particular three things happened to me when I worked in that law library.

Firstly, I was introduced to what a university was and what it offered and that was something that otherwise might have remained a little remote from me. Secondly, through contact with the staff and students at Auckland Law School, the prospect of becoming a lawyer became real rather than fanciful and thirdly I was able to spend many hours while I was ostensibly shelving books, hidden away reading the books instead, embarked on a voyage of discovery about the law and that was how I became hooked. So, you see, opportunity is everything.


But achievement also depends on encounters with individuals who provide inspiration and support and I have been very fortunate in such encounters and there are some people I want to thank in particular today.
At my high school I had dedicated and enthusiastic teachers who were committed to State School education. Two of them are here today and they are lifelong friends and they deserve my gratitude. At Monash University, as you have heard, amongst many fine law school staff, Professor Louis Waller taught me the law of evidence and he supervised my honours thesis. Professor Waller then played a part in the next two stages of my career, both the choice of a firm at which I did my articles and my decision to apply to be an associate to Sir Gerard Brennan in the High Court. Professor Waller has my thanks on many levels and I am very pleased to see him here today.
Something has been said of my articles experience. In what might not have been the first display of contrariness on my part in my life, I declined an offer of articles with Arthur Robinson & Hedderwicks, as the firm was then known – much to the astonishment of the recruiting partner – in favour of the choice of a small generalist law firm in Bridge Road, Richmond, then called Goldberg & Window. Those familiar with the history of legal practice in Victoria will know my principal, Gordon Goldberg and they will know his father, Maurice Goldberg, who was one of Victoria’s leading solicitor advocates. There were unmistakable aspects to Gordon’s practice of the law as you’ve heard. He did ride a bicycle to court in a three piece suit and he used to date all his correspondence to solicitors by reference to saints’ days, a practice which irritated everybody with whom he corresponded. He is a formidable lawyer and I learned a great deal from him.
He deplored the use of pro forma documents and precedents, instead advising me, “Dear, go and read the relevant legislation and any court rules and then read the cases and work it out”. Reading the relevant legislation and any court rules, then reading the cases and working it out, is, I have found, rather a sound general approach to the practice of the law.
Now, I can’t mention all the individuals who have inspired, taught, supported and sometimes challenged me since I joined the Victorian bar in 1989. So many fellow barristers, my friends in chambers at level 8, judges, instructing solicitors, colleagues at law schools and colleagues working elsewhere in the law: firm friendships have been made and they will endure. I thank them all.
My clerk, John Dever, supported me when I came to this Bar straight from completing my associateship. I had not even attended a Victorian school, let alone the “right” school and I had no networks, whatever that word means. In the early days when John called me at 5 or 6 o’clock at night with a brief for the next day, I grabbed each and every one of them. We both felt, I think, that the proving ground for this Bar was being on your feet in court and he was very dedicated to giving me those opportunities. I could not have asked for a better introduction to this Bar than reading with Neil Young, QC. I have also been privileged in the leaders I had as a junior, some of whom are here today. In my time as a silk, I have been completely spoiled by the quality of the juniors who have worked with me.
I pay tribute also to the qualities of the senior counsel to whom I have been opposed over the last 10 years. Overwhelmingly, no matter what was at stake or no matter how hard the battle was in court, the battle was left in court and this is one of the most remarkable and precious things about an independent bar. Over 10 years of senior counsel, I am pleased to have witnessed the Victorian Bar’s commitment to increasing diversity amongst its members and I am particularly proud to see impressive women joining its ranks in numbers greater than ever before and I am even more proud to see that they are staying. I am also delighted that public interest and pro bono work is no longer seen as the provenance of the “slightly whacky” or the “bleeding hearts” although I will be worried if it ever becomes fashionable.
I am confident it will not, rather I am confident the Victorian Bar has led the Australian legal profession in increasing access to justice for all the right reasons, so that courts may perform their function in circumstances where there is (as there should be) better equality of opportunity between the parties in the way their cases are conducted.
I have learned a great deal also from my clients. Those in government institutions or corporations I have seen manage challenging situations while striving to remain fair and principled. I have seen individual clients with high profiles, and individual clients without any profile, face circumstances not of their own making and do so with courage and dignity.
Today, there has been some focus on my refugee and migration work and some of those for whom I have acted are in court today and I am very pleased to see them here. They are all people of great tenacity, goodwill and tolerance. They came into my professional life because they needed to invoke our justice system and they placed their trust in it. That they are free and present here today as members of the Australian community is, in large part, a consequence of the application of the rule of law. I thank each of them for what I have learned from them.
I must also thank the staff and judges of this court for their warm welcome and their generous levels of assistance to me as I settle in and to Kate, my executive assistant who has come with me from the Bar and Natalie, my brand new associate, my thanks for a dedicated and enthusiastic start.
Finally, my good fortune in spending a year as an associate to Sir Gerard Brennan inspires me to this day. I thought I might begin my judicial career and end the speech making by referring to some observations Sir Gerard made on his swearing in as Chief Justice in the High Court in 1995. In describing the substance of the oath or affirmation of office taken by a judge, Sir Gerard said (and I am quoting only in parts):
It precludes partisanship for a cause, however worthy to the eyes of the protagonist that cause may be 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….
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 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 … each step in the reasoning must be exposed for public examination and criticism.
I am very much looking forward to working across the diverse jurisdiction of this court.
Just as I took Gordon Goldberg’s words of advice about the practice of the law, it seems to me that Sir Gerard’s words constitute a solid guide to being a judge. Thank you all for honouring me, and this court, by your attendance today.
ALLSOP CJ: The court will now adjourn.
______________________



.MORTIM 12.7.13R1 P-1

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