Appointment as Chief Justice

Special Sitting, Supreme Court of Tasmania, 2 December 2004

Speech by the Honourable Justice Peter Underwood on his appointment as Chief Justice

Thank you all for coming to day to this special sitting of the court to mark the occasion of my taking the oath of office of Chief Justice. It is very kind of you.

It is a great honour to be appointed the 12th Chief Justice of this Court, the oldest Supreme Court in Australia. As you know, the Supreme Court of Tasmania is not a building or buildings, but all the judges who comprise the Court from time to time. Although the Court seldom sits like Siamese sextuplets, because various Acts of Parliament authorise a single judge to exercise the jurisdiction of the Court, the authority of the Supreme Court of Tasmania is vested in all the judges acting in concert. All the judges are equal, for the office of Chief Justice has no statutory authority. It is simply created, without reference to its authority, by the Charter of Justice, which created the Court in 1824.

However, the Chief Justices have been appointed since the 13th century, and by convention, a Chief Justice has a number of roles. As well as being the voice of the Court when it is needed, these roles include preserving the independence of the judiciary as a separate arm of government, enhancing public confidence in the courts and the judiciary, and maintaining high standards of judicial administration.

None of those objectives can be achieved without there being a widespread understanding of what the Court does and why it does it. I believe that it is the duty of the Chief Justice to promote such an understanding amongst, not only those who might seek to undermine judicial independence and public confidence in the judiciary, but also amongst the public generally. An illustration of the furtherance of this objective is the Court’s publication on the Internet of the full text of its comments on passing every sentence so that those who are interested can see the reasons for the sentences that the Court has ordered.

Public confidence in the Court is a fundamental proposition. Without that the Court cannot discharge its essential responsibilities. After all, the court – the six judges – has no power at all. It’s strength depends entirely on the degree of support that it has earned from the community it serves. I ponder on this sometimes when I am sitting in the criminal court and picture what I would do if an accused protested when I sentenced him to 5 years’ imprisonment. Imagine the scene. I sentence you to 5 year’s imprisonment. He says “not going – it’s too much”. I am suitably outraged and say to the prison warders, “take him down before I commit him for contempt”. And they say – “no we agree your Honour, it’s too much, we won’t take him down”. So I become more outraged and say to the police officers in the back of the court arrest the warders and take the prisoner down.” I picture them in a huddle and then turning to me and saying “no, we agree it is too much we won’t do it.” Where is the power of the court without the support and respect of the community for the orders that it makes?

In order to earn this support, I believe the Court must accept that it is accountable to its community. It is of course, not accountable to anyone, other than the law, in the exercise of its decision-making duty, for accountability of that sort would undermine the court’s essential independence. But that independence carries with it an obligation to account to the public for the proper expenditure of funds provided by the executive, and for the administration of justice in accordance with the law in a fair, efficient and cost effective manner. I believe that it is the duty of a Chief Justice to see that this is done.

Accountability to the public means that the procedures of the Court must be constantly reviewed to ensure that they are always relevant and effective. It is the duty of a Chief Justice to see that this is done. Accountability to the public means that the human and material resources of the Court must be expended wisely. It is also the duty of a Chief Justice to see that this is done.

Public confidence in the Court is dependent upon the decisions of the Court being of the highest calibre; reasoned and principled, produced in timely manner and free from any bias, actual or apparent. Public confidence in the Court is also dependent upon appointments to the Bench being made from those best qualified to hold judicial office, without regard to race or gender. The emphasis for appointments must be on judicial learning, experience, wisdom and judicial temperament. It is the duty of the Chief Justice to do what he or she can do to ensure that these things happen.

I think that judicial office carries with it an obligation to the public to undertake continual appropriate professional development or learning. I think that there are two aspects to this. One kind of learning is directed to an improvement in the skills required to discharge the duties of the judicial office. The other is directed, or should be directed, towards an improvement of judicial awareness of changes in society and the expectations that society has of the judiciary. It is the duty of the Chief Justice to create an environment that will encourage and facilitate this kind of learning and development.

The duties that I have assumed by taking the office of Chief Justice are many and onerous. However, I accept them cheerfully in the knowledge that I will have the support of my fellow judges. I shall do the best I can. I thank them for the goodwill and companionship that each of them as shown me over the years each has shared this Bench with me and look forward to it continuing in the future.

During the twenty years that I have served as a judge, I have always had the support of my wife and extended family. Without it I could not have achieved the things that I have achieved. Taking up this new office is made easier by the knowledge that that support and encouragement will continue to sustain me.

I thank you all again for coming here to day and for the good wishes that were so kindly addressed to me.