Appointment of Justice Porter


Address by the Hon Justice David Porter

Thank you very much Mr Attorney, Mr Schyvens and Mr Tree.  You have been very kind indeed in what you have said.  It occurs to me that you may also have been very kind in what you have not said.

I am very grateful to you all for coming to this sitting this afternoon.  I am greatly honoured.  I note especially the presence of:

·  His Excellency the Governor

·  Sir Guy Green and Mr William Cox.

I would also mention the special group of my family and friends who have joined me today.  I immediately wish to acknowledge and express my deep appreciation for the enormous support and tolerance of my wife Anne, in the years we have been together.

Since my appointment was announced I have received many kind and generous messages of congratulations.  I was truly overwhelmed by the number I received and by the generosity of the comments made, from which I have drawn much comfort.  I am still to fully respond individually but, in this setting, would like to record my thanks and appreciation.  Having said that, perhaps I should repeat the remark attributed to a recent appointee to the Supreme Court of Queensland.  He said “This is a time when too much flattery is barely enough”.

When discussing my appointment with Sir Guy, he pointed out that one of the essential differences from judicial life to life at the bar, was that as distinct from providing an opinion, when a judgment was delivered, you were always right; you may be wrong, but what you did had an immediate effect or result.  I very gleefully took this piece of news home, and announced that when I was a judge I would always be right.  My wife Anne was very quick with the response “Not in this jurisdiction”.

I recently learnt that when the first encounters occurred, the Maori people of New Zealand were most intrigued by the European method of rowing a boat, as distinct from canoe style paddling.  They could not understand why a person would want to travel forward but be always looking back at where they had been.  The Maori view of travelling forward, looking where you are going and at what lay ahead; rather than whence you had come has much to commend it.  However, for the moment, I will do a little rowing, and so look back.

I consider myself to have been very fortunate in the early stages of my career to have had the benefit of the teaching and influence of lawyers of great learning and distinction.

As has been noted, Sir Guy chose me as his associate and for that, for his patience and for the inspiration I gained, I will always be grateful.  I was very lucky when the late Bill Zeeman offered me a position as his apprentice to serve out the then required 18 months, and allowed me to work on for a couple of years.  I remain truly indebted to them both.

Starting out in Launceston, I was also privileged to be involved in cases with skilled and distinguished more senior lawyers, and to learn from them.  Naming people in this context is always risky, but I would venture to make particular mention of John Wilson, then of Clarke & Gee, and the present Chief Justice then of Douglas & Collins.  Additionally, in the first few years after my admission I spent much time appearing before Sir George Crawford whose insistence on very strict compliance with principle, particularly in relation to the rules of evidence, is well known. That time has I think, stood me in good stead.  There were also of course lawyers who were more my contemporaries, some of whom are here today. I learnt much from them and shared a strong camaraderie. As to this group of contemporaries, it would be remiss of me not to mention the late John Kable, with whom I worked quite closely in the early years.

Moving to later years, I have very much enjoyed my time at the independent bar and am most grateful to the barristers and support staff, past and present, at Malthouse Chambers. It was a most rewarding period of my career and I am pleased to see, by the incorporation of the association, the entrenchment of the independent referral bar in this State, and its continued development.  There is no doubt that an independent bar is an essential part of the provision of legal services to the public.  Putting that alongside the advantages of a fused profession, the public in this State is well served.

Well that is perhaps enough of rowing. I will change to paddling.  I look forward to the challenges which judicial office undoubtedly brings.  Some of these challenges will be personal and professional ones arising from a wide array of issues in day to day judicial life. Some however, may well be greater challenges arising from fundamental changes to community needs and attitudes to the law brought about, in turn, by changes of a far different nature, although time may mean that these challenge will not be for me to any great extent.

I am told that the most immediate personal challenge of judicial office at this stage of my career is not to instinctively leap to my feet when the court attendant says “all stand” when the court is adjourned.

But if I may for the moment, move to the other end of the scale and speak at a more abstract level, it seems to me that challenges to courts and to those involved in the administration of justice are imminently presented by the implications of changing conditions on Earth.  The proposition that climate change will present substantial challenges to the administration of justice is, I think undeniable.  I would venture a superficial glance at what this may entail.

Climate change is set to lead to a rise in sea levels and to vast barren areas, creating the need for large scale population relocation.  This will seriously challenge established social and legal notions of land ownership and use.  Climate change is set to lead to fresh water and food shortages.  There will be energy shortages. These things will seriously challenge established social and legal notions of personal resource use and   management, if not basic subsistence.  All of this will lead to widespread conflict of varying degrees.  Of course some of this may well be beyond any court’s jurisdiction, but it is inevitable that courts will have to be involved in related dispute resolution.

These things, and the broader need for international cooperative efforts, serve to sharpen the focus on the need for the strict operation of the rule of law.  Only by rigid adherence to the precepts involved can we properly address the issues of the governance and regulation of human conduct brought about by these changes.

In broad concept, in the face of these changes the need for the constraint, by law, of the exercise of all authority must remain paramount.  At the risk of sounding trite, all aspects of the rule of law need to be safeguarded.  In particular perhaps, the independence of the judiciary, access to courts, proper means of review of executive action and the right to a fair trial are all aspects which require careful protection.  Such changes in the way human affairs are conducted as I have outlined, and the consequent need for vigilant adherence to the rule of law will provide challenges to the courts in the not too distant future.

Returning to the present, in conclusion may I say that I am deeply honoured to be appointed the 36th puisne judge of the Supreme Court of Tasmania.  I am acutely conscious of the distinguished history of the Court and the eminence of its judges.  I am not quite sure that I will be able to match the established longevity of many of the judges who have ceased to hold office since 1824, and of some who are presently in office.  In fact the operation of law would prevent me from achieving the milestones of some.

The reference to my underground mining in University days and to the statutory retirement age brings to mind the analogy between miners and judges drawn by the late English comedian Peter Cook.  He said:

All in all I’d rather have been a judge than a miner.  And what is more, being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go.  Well, the very opposite applies with the judges.

Hopefully, my retirement occurs one way or the other before I reach that stage. In the meantime, all I can do is to pledge my utmost endeavours in discharging my duties to the best of my abilities.  Thank you very much again to all of you for attending today.  You have done me a great honour by doing so.

The court will adjourn.