SPEECH OF JUSTICE RICHARD REFSHAUGE ON THE OCCASION OF HIS SWEARING IN AS A JUSTICE OF THE ACT SUPREME COURT

Thank you Chief Minister and Mr Brzostowski and Mr Barnett for your kind and overly generous words of welcome.  They are much appreciated, although it is always something of a surprise to hear the particular aspects of one's life and career that others see as worthy of mention- including, of course, those that one thought best forgotten.

I am exceedingly  aware of the honour that the ACT Executive and the Attorney, have done to me in this appointment.   With it, of course, comes important  responsibilities and I certainly hope and intend to discharge them to the best of my ability.  It is also a great privilege and enormously  satisfying to be sworn in on the same occasion when this Court at last achieves gender diversity and fairness and I warmly, if I may, add my words of welcome, Justice Penfold who will bring great distinction to this Court.   I look forward to working with such a distinguished jurist.

I am grateful, too, that two of us are being sworn in today so that direct lineage to our predecessors  cannot be attributed.   I have the utmost respect and admiration for the Han Dr Ken Crispin  QC and the late Justice Terry Connolly.   Dr Crispin  established the office of the DPP and laid firm foundations  that I found a solid base from which I could develop  it.   I worked closely  with Justice  Connolly  in the Canberra  Chapter of the International Commission  of Jurists and on the Harmonised  Court Rules Project. They both have provided models of judicial conduct to which I can only aspire.   I am very grateful for the Dr Crispin's  presence  here today.   It is very moving  for me that this important ceremony is combined with a tribute to the late Justice Terry Connolly.

I am also honoured  by the presence  of those Judges  from the High Court, Federal Court and Family Court and Magistrates  from the Federal Magistrates  Court and the ACT Magistrates Court who have been gracious enough to attend today as well as members  of  the  ACT  Assembly  and  the  Commonwealth  Parliament,  the  Solicitor­ General Dr David Bennett QC and the Commonwealth  Director of Public Prosecutions Mr Chris Craigie SC, and so many members  of the legal profession,  the ACT Public

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Service, the Universities  and the community.   I am very grateful for your attendance which has made this occasion very special and your generous support which is very welcome and heartening.

I perhaps  need to be a little careful in what I say today.   Already Justice  Penfold's words have been quoted back at her.   Further, a very bright young student I know at ANU has just written recently a Ph D thesis on the judgments of a distinguished  High Court Judge considered  in the light of his Honour's  remarks made at his swearing in ceremony.   No-one is likely to embark on a doctoral thesis of my future judgments in the light of these remarks, but there are so many law schools with so many students these  days that  some  smart  but desperate  student might  see that as a worthwhile honours thesis or just an essay.   You never know how history will treat the careless remark,  and the streaker's  defence  - it seemed  like a good idea  at the time - will hardly provide a viable excuse.

To borrow the phrase from AB Facey, but the phrase only and neither literary quality nor content, I have had a fortunate life and an interesting career and I like to think that I have been able to make some recompense to the community for that.

I lasted  a  long  time  at  University,  trying   to  better  Jack  Waterford's   marathon attendance  record,  spending  about  twice  the  time  most  Arts/Law  students  stayed, certainly longer than I spent in secondary education or in primary education.  This was not through poor academic  performance,  though as Professors  Zines and Davis are fond of reminding me, my examination performance in Legal History and Practice and Procedure left much to be desired.  I think I have since made up for that in interest and diligence.   It was rather the lifestyle and the fondness for student politics.   It gave me great  experiences  in which  I was  intricately  involved,  like  the Aquarius  Festival  at Nimbin,  the Day of Rage in Canberra,  the establishment  of the Aboriginal Embassy and the building of the ANU Arts Centre amongst many others.

After graduation,  when I finally had to leave the ANU, I was most fortunate  to have caught the eye of Mr Neil Macphillamy,  then a doyen of the Canberra legal profession. In a move not an obvious choice for the young student activist, I joined his full-service but  commercially  oriented  firm  and  worked  closely  with  him  for  my  first  years  of

practice.   I managed  to sneak in a quiet criminal  practice on the side, with unkempt clients mixing it with corporate high flyers in reception, much to the consternation  of the latter.   To Neil I owe a real debt for he gave me the foundation  of professional responsibility,  client  focus  and  ethical  duty  and  I still remember  with  fondness  his patience  and  erudition,  generously  shared.    As  they  say  in  the  acknowledgement section of books, his example is appreciated, but the faults in delivery are all mine.  He has no responsibility for any of my procrastination, nor the perpetual state of my desk, but as they say, a clean desk is the devil's playground.

I have been very lucky to have worked with great partners in Macphillamy  Cummins & Gibson, then Sly & Weigell and Deacons Graham & James each of whom taught me something important about the practice of law.  I was also fortunate that we employed and trained so many who worked with us for a time and then left to join other firms or to establish their own, many of whom are now the leaders of the Canberra profession today and whom I am glad to call friends.

To my delight, however, I have had close involvement with nearly all the forms of the legal  profession  in  Canberra. 	I have  been  closely  involved  with  community  legal centres  particularly  through  my  20-year  membership  of  the  Board  of  the  Welfare Rights  and Legal  Centre and have  appreciated  the outstanding  commitment  of the staff, both legal and non-legal, who contribute so much to the community, in particular, by  alleviating  distress  amongst  or  asserting  the  rights  of  the  most  vulnerable  and neediest in our community.  Canberra is a rich and diverse community with opportunity and good fortune, but it has a significant  number  of poverty-stricken, homeless  and disadvantaged people.  One such is too many and while there are any whose potential and ability to exercise their human rights are compromised  we are all diminished.

I have been proud to be associated with the Law Schools of our Universities, my alma mater, the ANU College of Law (as it now is) and the University of Canberra.   I have tutored, taught a prescribed course, engaged in panels, given occasional lectures and been  on  review  and  interview  committees.        have  enjoyed  the  interaction  with students,  their  training  being,  in  my  view,  an  integral  and  important  part  of  the responsibility  of  a  professional.    I admire  the  intellectual  excellence  and  teaching commitment  of the faculty of both institutions  and have prized  the collegiality  of the

ANU College of Law so 'freely and warmly extended to me.   These teachers and researchers are so important to the future and health of the profession and to the community  to  which  it  is  so  important  a  contribution.     I hope  to  keep  a  close association with them.

For nearly two-thirds of my career, I practised as a solicitor, pushing the bounds of our fused  profession  in  practice  as  a  solicitor-advocate   and  in-house  counsel,  never answering directly the oft asked "When are you going to the bar?"   I had a fascinating practice, exploring arcane jurisdictions like the Security Appeals Tribunal, appearing in all courts and most tribunals including many domestic tribunals in the ACT and acting in a wide range of areas of practice.

I have  formed  close friends  with many in the profession  and I am grateful for their comradeship.    I have  also  seen  incredible  acts  of  generosity  and  of  commitment amongst  Canberra's   solicitors  and  the  community  is  well-served  by  them.    It  is fashionable  to  denigrate  lawyers  and to portray  them  as  greedy,  opinionated  and uncaring.   There are bad bananas  in every bunch but my experience  is that by and large  lawyers  in  Canberra  are  conscientiously  committed  to delivering  high  quality legal services to their clients.

While I have not worked as a legal aid lawyer, I have worked closely with them and their Chief Executives and can attest to the value they add to the legal services they provide,  despite  under-funding  and excess  demand.    I was  very  pleased  with  the respectful relationship  that the Legal Aid Office enjoyed  with the Office  of the DPP where   both   agencies   could   recognise   each   others'   different   imperatives   and obligations  yet  co-operate  and  extend  a  high  level  of  professional  comity  to  the betterment of the criminal justice system.

The most recent phase of my career has been as a government  lawyer and member of the bar, an apparent oxymoron.   It has been a privilege to serve the community as Director of Public Prosecutions, following my distinguished predecessors,  the Han Ken Crispin,  former  judge and President  of the ACT Court  of Appeal, and  Justice Terry Buddin of the NSW Supreme Court, who laid firm foundations  and left the Office in a good shape.  I found in my interaction with the Bar, especially as a member of the Bar

Council,  the camaraderie  and  practice-style  that  I had  never  been  bold  enough  to embrace  for all those years.   The Bar, with its cab-rank  rule and its high ethical and professional  standards is an essential contributor to the health of a liberal democratic society.   I thank the members of the Canberra bar for their generosity  in working with me while I was a solicitor-advocate  and them accepting me so warmly when finally I joined their ranks.

I also count my time as a government  lawyer  as a prize.   Public servants  are good targets for ridicule and certainly there are some who do or appear to deserve it.  The people I worked with and had the privilege to know were for the most part committed to serving the community as conscientiously  as any lawyer I know in private practice or any journalist.  The public servants I know and worked with could also be frustrated by  rules  and  regulations  which  send  the  citizen  demented,  but endeavoured  to be faithful  to their obligation  of loyalty  whilst doing  their best to be fair and just to the citizenry.    There  were  obstacles,  impediments,  hindrances  and obstruction;    there were people who follow the letter of the law or policy with a rigidity that would make Stalin blush,  but they are a tiny minority and not representative  and usually a more senior person can unblock or sanitise.

Finally, there are the prosecutors, a group which I joined with some hesitation.  I recall years  ago  in private  practice  actually  shouting  in frustration  at a prosecutor  who  I thought  had too  robustly put  his case  leading  to the  imprisonment  of my  client for whom I had valiantly tried to retain his liberty.   I think my client was less dismayed at the sentence than I was;   it was almost as if I was to do the time.  So many blackly talked of me going to "the dark side".   If the alleged limitless resources of the Crown mean  that  a criminal  trial is a David  and  Goliath  contest,  it is always  much  more romantic  to  be  David  than  Goliath.    It  is  always  more  satisfying,  if  not  positively exciting, to be the lone defence standing valiantly between the oppressive forces of an autocratic police state and the rights deprived hapless defendant.

That is a not an entirely inaccurate,  if colourful and partisan, description  of the role of defence  counsel.    Such  people  are extremely  important  to the  justice  system  and deserve to be celebrated.

Yet law and order is essential for the liberal democratic society;   it is only when people feel that they, their families and possessions  are safe that they can get an education for themselves and their children, go about their daily lives and be productive.  We see that to be so from its absence in Iraq, Gaza, Afghanistan, Zimbabwe, Sudan and many other places.

For this, we need  prosecutors  to take cases to court and to ensure  that those who break the law are held accountable.  The office of a prosecutor has been described as quasi-judicial   and  there  is  great  power  and  therefore  great  responsibility   in  the discretions exercised by prosecutors.

I found  that for the most part, prosecutors  discharge  their duties well with integrity, rectitude  and a proper  concern  for human  rights.   I am aware of its faults but was essentially proud of the work and achievements  of the Office of the DPP in the ACT and of the staff, both legal and non-legal, in the Office during my time as Director.   I also made good friends with and admired the work of many of the prosecutors around Australia   and,  indeed,  across  the  world  where,  despite   such  different  systems, prosecutors face the same challenges and dilemmas, and, despite some significant examples  to the contrary, were for the most part fiercely independent,  incorruptible, fair and rights respecting.

In my  time  in the  ACT  DPP, there  were  achievements  of which  I was  particularly proud.   I am inordinately  proud  of the Family Violence  Intervention  Program,  which has received national awards, and which has done much to address the formerly unaccountable  and almost accepted violence suffered by women particularly, within a family relationship.    I also count with much satisfaction  the contribution  many in the Office made to the development  of a comprehensive  regime of Restorative Justice for juveniles,  hopefully soon to be extended to adults, a professional witness assistance program, the Ngambra Circle Sentencing Court and the improved case management processes in both the Magistrates Court and this Court.

As DPP, of course, I also worked with the AFP, especially  in ACT Policing.   Indeed, I think I worked with 6 Chief Police Officers.   I was impressed by the excellent way they and their officers carried out the duties with which the community charges them.

I have also been lucky to have been able to participate in a wide number of community activities, particularly in the arts and welfare sectors.  To me the arts are an essential indicator of our humanness.  While the concept of the isolated judge, immune from the corrupting influence of the real world has some attractions, it is not one to which I subscribe;   I have been well rewarded by the experience  I have gained through such involvement  and the creative and talented people  I have met and with whom I have formed strong bonds of friendship.   I am proud to have been a part, albeit a small part of the process to establish and complement a rational and human policy of harm minimisation  to respond  to people  with drug  addiction  and to assist in the effective reaction to the scourge of HIV/AIDS and other blood borne viruses and sexually transmitted diseases in Canberra.

So I have had a fortunate life.  Perhaps these are the ramblings of a myopic, hopeless optimist, but I am satisfied that this is a fair and sustainable view of the many facets of the profession of law that I have experienced  and to which I am devoted.   Despite the varied  nature  of my  practice  and  experiences,  however,  this  is  the  Court  which  I regard as my real professional home where my skills were developed and where such distinguished  judges  as The  Hon  Russell  Fox, Sir Richard  Blackburn  and the Hon Jeffery  Miles  taught  me  so  much  about  law  and  practice.    This  appointment  is, therefore,  all the more  exciting  and  satisfying.    I am  very grateful  for those former members  of this Court who have taken the trouble to join us today.   From you all, I have learnt so much about the law and its proper and effective practice.

As has, I hope, been  evident  in what  I have  said,  I see the law as a fundamental foundation  to a truly civilised community.   Regrettably,  phrases  like "the rule of law" can  too easily  become  just  slogans  and  can  attract  opprobrium  as allegedly  being aligned to particular political ideologies.   We need to guard against these kinds of distortions and reclaim its true meaning and content.

We need to re-affirm  to the members  of the community  that they are entitled  to as much certainty as they can have about what is acceptable conduct and when they are truly liable for condemnation,  to be held accountable and justly punished.  We need to assure them so far as we can that the dealings  which they wish to transact have the

meanings  and consequences  they know or of which they have been advised and will not afterwards be construed or analysed to be something else.  We need to affirm that to avoid injustice discretions must be exercised but that they do not convert the rule of law into the rule of judges and that subjective or idiosyncratic exercise of discretion is no part of the justice we administer.  We need to reassure them that while the courts are a part of government they are independent of the government and they can be confident  that  they will find remedy  for abuse  of executive  discretion,  illegality  and breach of human rights.  We need to demonstrate that those who fail to secure the remedies  they  seek  have  been  fully  heard,  their  claims  fairly  considered  and their failures due to a proper application of the law to the facts and not to the fact they are a litigant in person or have a particular representation,  or from their sex, race, religion, skin colour, financial circumstances or sexual orientation.

This is my ambition and this is how I intend to discharge the heavy responsibility that has been entrusted to me.  I hope I can make a successful transition from advocate to judge and deliver justice to plaintiff, defendant, witness, accused, victim and the community.

There  are so many  I should  thank for where  I am today.    I have mentioned  many already and will not repeat their names.

I am grateful to the court staff, the Registrar,  Deputy Registrar,  associates,  registry staff, secretaries  and Sheriff's  Officers  with many  of whom  I have worked  over the many years of my practice, who have valiantly endeavoured  to adjust to my changed status but who have been entirely welcoming and helpful in the process of settling in.

I think  my  personal  assistant  for  over  15  years,  Mrs  Annette  Hawken,  who  has accompanied   me  'from Macphillamy   Cummins  &  Gibson,  to  Deacons  Graham  & James,  the DPP and now  here.   She has tolerated  my eclectic  - some  would  say erratic- and accumulative  work habits beyond the call of duty.  The look on her face when I ask "where ever can I find ... ?" has stopped me dead but never taught me to be tidier.

I want  particularly  to mention  my  parents.   My mother,  who  died  some  years  ago, always kept my feet on the ground and amongst other things taught me that, no matter how high and mighty  you were, or thought  you were, everyone  had the right to be treated  the same  as an important  human  being.    My father  (who,  unfortunately,  is unable to be here today) has been in inspiration.   His commitment  to public service has been outstanding, both at a national and international level particularly in medical administration,  medical  ethics  and in responding  to the problems  of drug  addiction. He was also responsible  for building  the Woden  Valley Hospital, now the Canberra Hospital, and concluding  negotiations  with the Little Company  of Mary for the Calvary Hospital, so I suppose he can truly be called a father of the ACT health system.   He taught me duty, patience, integrity, loyalty and the intrinsic worth of each fellow human being.

I have been supported and educated by my faith and its teachings which have helped to form my approach to life and other people.

I have  also been  supported  and  encouraged  by my brothers  and sister  who,  I am delighted  are all here  today,  and  who in their  own ways  have  reached  success  in private and public life that I envy and admire.  They have all been very supportive of me and my family, especially during some of the more interesting medical experiences I have endured.

My children, Christina  and Kim, are very special and I am immensely  proud of them and their achievements.   Having carefully observed their father and his habits, neither have any ambition to enter the legal profession.

Of course, my wife, life partner and best friend, Barbara, has been my strongest and best  supporter.      Her  loyalty   is  unstinting   and   unreserved;     her  patience   and forebearance  are,  however,  not boundless  - there are limits which  I have  over the years discovered by pushing beyond them.   Nevertheless, those limits are hardly constraining  and are generously  and lovingly wide.   Her love has been all-sustaining and I certainly could not have achieved what I have without it and her.

I look forward to the challenges  of this appointment and to continuing to work with the legal profession and the community  to do justice and right to all and to contribute to this great Canberra community of which we are so proud.

Thank you Chief Justice