25 August 2022
Congratulations to the Piddington Society for hosting at the Federal Court on Wednesday evening a presentation by Chief Justice James Allsop AO – a View from the Bench.
Chief Justice Allsop approaches (in April 2023) the compulsory retirement age of 70 and Wednesday night’s presentation is probably the second last visit to Western Australia by his Honour. Regrettably the event coincided with the postponed welcome to her Honour Justice Forrester in the Supreme Court and hence the attendance was (I felt) embarrassingly light particularly from counsel that appear in the Federal Court. The remarks made by his Honour echoed his presentation earlier this year in April to the Australia Bar Association’s reemerge conference in Melbourne where his Honour discussed the important role that the Court provides, being not merely a service but the irreducible societal requirement of the provision of justice and the provision of protection from unlawful exercise of power. His Honour explained that’s the response he gives to taxi drivers who ask him if he’s a Judge what cases does he judge. He didn’t mention their reaction.
His Honour’s modest self-deprecating style meant that his “View from the Bench” was essentially a retrospective appreciation of the growth of the Federal Court’s jurisdiction and the nature and quality of the Federal Court. It was interesting to hear his account as to why the Federal Court doesn’t have a Court of Appeal – there would need to be a minimum, according to his Honour, of 12 Judges and they need to be able to straddle all the varied areas of practice dealt with by the Federal Court. Instead his Honour took a view that Judges selected for the Federal Court need to be of the finest quality to be able to straddle all of the areas of practice that present themselves to the Federal Court.
His presentation was a further reminder of the comments made by the President of the Law Society Rebecca Lee earlier this year upon the retirement of Justice Rene Le Miere.
The Constitution Alteration (Retirement of Judges) Act 1977 amended section 72 of the Constitution to provide a maximum retiring age for Justices of the High Court and other Federal Courts.
The background to it of course was the enormous long service of Sir Edward McTiernan in the High Court. When Sir Edward retired on 12 September 1976 it brought to an end the longest term of office served by any Australian Judge – 46 years.
Even then his retirement arose at the “hands” of a cricket.
Michael Kirby wrote that in 1976 there was a plague of crickets in Melbourne. McTiernan was going to a bathroom in the large room which he and Lady McTiernan regularly occupied at the Windsor Hotel when he saw a cricket on the carpet. He over balanced as he tried to hit it with a rolled up newspaper and broke his hip. The healing took a long time and when he was ultimately mobile Sir Garfield Barwick declined to alter the accommodation of the High Court to provide for a Judge in a wheelchair. It’s suggested by Kirby that Barwick, sensing the opportunity to fill the post with somebody younger and closer to his own work view persuaded McTiernan to retire.
An octogenarian at the time and the Senior Puisne Judge of the High Court McTiernan was obliged to assume the office occasionally of Acting Chief Justice. As acting CJ he had sworn in new members of the Senate Chamber. The Members of Parliament who rarely saw the Justice of the High Court were uniformly shocked at his great age and apparent feebleness.
There was bipartisan support for the amendment to the Constitution that was passed the following year.
There was no such hint of frailness about Chief Justice Allsop on Wednesday evening. That troublesome cricket has a lot to answer for. WA and Australia are poised to lose the services of another outstanding jurist.
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