BY HEATHER ROBERTS

Monday, 30 January 2017 was an historic day. At 10:15am Susan Kiefel was sworn-in as Chief Justice of the High Court, the first woman to hold the office since the Court’s creation in 1903.

With the notable exception Sir Owen Dixon’s swearing-in speech as Chief Justice in 1952, swearing-in ceremonies have been largely overlooked in legal scholarship. The dominance of (auto)biography, humour and emotion in the ceremony, when situated within a positivist tradition that accentuates the public aspects of judicial service and relegates the private to the lesser realm, has the result that the ceremony has traditionally been depicted as a diversion from the ‘real’ work of courts.

In this post I will argue that swearing-in ceremonies in fact constitute a significant ‘ceremonial archive’, shining a light on who our judges are and the changing expectations of their role in Australia’s democratic system. In particular, I believe that by virtue of its glimpses into judicial philosophy and personality, and the ways in which it speaks to debates regarding gender in the legal profession, Kiefel CJ’s swearing-in ceremony will increase the public and scholarly attention paid to judicial swearing-in ceremonies.

What happens at a swearing-in ceremony

After the formality of the oath of office and allegiance, a series of welcome speeches are made by the Attorney-General, and Presidents of the Law Council of Australia, Australian Bar Association and the President of the Bar Association of the Judge’s ‘home’ State. The ceremony concludes with the Judge’s inaugural in reply.

To the extent that ceremony has traditionally featured in legal scholarship, this has tended to be through the glimpses it provides into judicial philosophy and judicial biography. Without discounting the importance of these insights, one of the many features of the appointment and aftermath of Tim Carmody’s tenure as Chief Justice of Queensland was the reminder of the broader institutional significance of swearing-in ceremonies.

The so-called Carmody Affair is better known for the fierce debates surrounding Tim Carmody’s aptitude for the role of Chief Justice, and more generally about the politicisation of the appointment processes. However, the Affair also boiled over onto the ceremonial stage, when Carmody elected – against convention – to hold his swearing-in ceremony in private, and, in a later and striking gesture, his fellow judges boycotted a joint welcome ceremony held for Carmody and Peter Flanagan. These events reinforced how seriously the Queensland legal profession and judiciary took the role of ceremony as a public attestation of their confidence in both the new judge’s capability and the integrity of the appointment process.

In a system of judicial appointments made behind closed doors, and with limited insight into selection criteria, Australian swearing-in ceremonies provide a rare opportunity for the public airing of the attributes of judicial appointees. As such, swearing-in ceremonies operate alongside the open hearing of cases and the production of reasons for decision as an institutional feature of courts designed to reinforce transparency and public confidence in the judiciary.

The lasting contribution of Kiefel CJ’s swearing in

At his swearing-in in 1996, Justice Michael Kirby reflected that ‘the portentous words of the newly sworn judge … hang in the air and then evaporate and are gone’. I believe that rather than suffering this fate, three features of the Kiefel CJ ceremony may result in a shift in degree of considered public and scholarly attention paid to these rituals.

1. Public accessibility

Chief Justice Susan Kiefel’s swearing-in ceremony was not the first to be filmed and uploaded to a Court website. In the High Court, this ‘first’ belongs to the swearing-in ceremony of Justice Michelle Gordon in 2015, following the Court’s expansion of its practice of filming and uploading all of its proceedings. But Kiefel CJ’s was the first to be broadcast live on ABC News 24.

Of course, the fact that the second ceremony on 30 January – to swear in Justice James Edelman – was not also broadcast on ABC News 24 suggests that judicial ceremonies may not generally be regarded as show-stopping events. Nonetheless, press coverage of High Court appointments over the last decade illustrates that the media is readily turning to court ceremony for biographical information and anecdotes about judges.

In fact, interest in swearing-in ceremonies seems to have become more pronounced in recent years. As a consequence, for the current generation of law students (and so, the future lawyers, policy makers and academics) ceremony may come to be seen as part of the normal business of courts.

2. ‘Inaugural’ or ‘Maiden’ speeches and judicial philosophy

Philip Ayres’ biography of Sir Owen Dixon revealed that in later life Sir Owen regretted his use of the phrase ‘strict and complete legalism’ in his 1952 swearing-in speech. Certainly those four immortal words have shaped legal debate in Australia for decades after his appointment.

Sitting in Courtroom 1 on 30 January, I cannot claim that Kiefel CJ’s depiction of legal themes in her speech left me with the same sense of a ‘zinger’ as Sir Owen Dixon’s iconic four words. However, two features of her reflections on the judicial process are likely to attract significant future attention.

(a) Comparative law: In both her swearing-in speeches in the High Court, in 2007 and 2017, her Honour reflected on the benefits of comparative legal analysis for informed legal and judicial reasoning.

It is not unprecedented for a substantive theme to thread through multiple swearing-in speeches made by a single judge. For example, the Hon Susan Crennan invoked Sir Owen Dixon’s reference to the High Court’s role as administering the law as a ‘living instrument and not as an abstract study’, in her swearing-in speech as a Justice of the Federal Court of Australia on 3 February 2004; and, as a Justice of the High Court of Australia in 2005. As then President of the Australian Bar Association, Susan Crennan had also cited this quotation from Sir Owen Dixon in her remarks at the retirement ceremony of Sir Anthony Mason as Chief Justice of the Court in 1994.

However, the prominence of comparative law in the decisions of Kiefel J between 2007 and 2016 was a noted thread in the coverage of her Honour’s elevation to the position of Chief Justice. It was also a feature of the Attorney-General’s commentary on her judicial philosophy in his welcome speech. While her Honour’s 2007 swearing-in speech may not have received much attention in this context, this 2017 theme is likely to frame much later discussion on the topic.

(b) Collegiality: A new – but also expected – reference in Kiefel CJ’s 2017 swearing-in speech was to collegiality in the Court.

Her Honour’s thoughts on the topic, as expressed in her extra-judicial publication ‘The Individual Judge’ (2014) 88 ALJ 554, had garnered significant academic attention and been a feature of media commentary surrounding her appointment.

That French CJ also returned to the theme in his farewell radio interview with Damien Carrick on Radio National’s Law Report, and in his retirement speech, further ensured that Kiefel CJ’s commitment to ‘collegiate’ decision-making remained in the public eye prior to her swearing-in speech.

Commentators expecting extensive detail on this topic will be disappointed by the brevity of her Honour’s remarks. In contrast to the more extensive discussion of ‘globalisation’ in the law, Kiefel CJ merely reflected ‘I believe that we may both have learned much from our time on that Court about the importance of civility and collegiality.’ To frame a tribute to a predecessor as a joint legacy in this way, however, is unusual in swearing-in ceremonies. By referencing the term, Kiefel CJ must be taken to endorse ‘collegiality’ as a touchstone for later commentary on her judicial philosophy, and that of the Kiefel Court.

3. Gender

The historic nature of her Honour’s appointment as the first female Chief Justice of the High Court is likely to mean that all aspects of Kiefel CJ’s public statements will be subjected to intense study, including her swearing-in speech.

I have argued elsewhere that beyond the insight into individual judge’s judicial personalities and philosophies, court’s ‘ceremonial archives’ are vital records of changing attitudes within the legal community, including on questions of gender and judging. For example, these rituals record such things as the changing attention paid to the physical appearance and marital status of women judges, experiences of discrimination in the profession, and changes in the explanations of how and why the participation of women in the legal profession ‘makes a difference’. At times, this insight occurs through striking allusions to how a successful (female) barrister found time to conceive a child. More frequently, however, it occurs through differences in emphasis and silences in the telling of the judge’s story.

The contrast between the ways in which a number of different speakers discussed Honour’s identity as the ‘first woman’ Chief Justice of Australia illustrates this point.

Attorney-General: ‘A Great Australian … and first woman’

Attorney-General Brandis’ speech left no doubt about the Government’s assessment of the talent of Australia’s new Chief Justice, or his own ‘great personal pleasure’ in the appointment. It also included three notable references to gender.

The first, and fleeting reference, was by way of opening salvo. After the customary litany of welcomes to distinguished attendees at the ceremony, Attorney-General Brandis said:

In the more than 113 years that have passed since Sir Samuel Griffith was sworn in as the first Chief Justice of this Court, on the 6th of October 1903, only twelve people have occupied that highest of judicial offices. Your Honour will be the thirteenth Chief Justice of this Court, the fourth from Queensland, and the first woman.

The fact that Attorney-General Brandis acknowledged Kiefel CJ as a ‘first woman’ judge at all is ground-breaking in the history of High Court swearing-in ceremonies. Thirty years earlier, when Attorney-General Bowen welcomed Gaudron J to the bench, he did so without single use of female pronoun; without explicit reference to the historic first.

The Attorney also broke new ground in his second reference to Kiefel CJ’s gender: by (briefly) acknowledging that Australian women lawyers had faced discrimination when practicing at the bar. Within Australia’s federal courts, I have found that welcome speakers have increasingly acknowledged the discriminatory context in which woman judges forged their careers in legal practice. These references locate the judge’s career trajectory within the discriminatory culture of the time, and praise the judge’s resilience, determination and talent within that context. The speeches have also increasingly recognised these judges’ importance as role models for future women and men within the legal community, and that the telling of these stories is important for the next generation of Australian lawyers gathered in the courtroom to witness the event.

In framing his remarks, Attorney-General Brandis instead relied on his personal experience of working with Kiefel CJ, in the 1990s, and inserting a deliberate distance between ‘now’ and ‘then’, remarked:

Those were different times, and I recall that our rather blokey clients, representatives of three of the great pastoral homes, Dalgetys, Elders and Primac, were initially a little hesitant about retaining a woman silk, but yielded to my assurance that you were one of the best in the business. Needless to say, by the end of the case, you had them eating out of your hand.

It is not uncommon for an Attorney to refer to personal anecdotes of shared experiences with the judge – Attorney-General Nicola Roxon, for instance, at the swearing-in of Gageler J included recollections of working with the judge early in their legal careers. Such anecdotes reinforce both the reality that the Australian legal community is a close-knit group, and the simple fact that judges are human, with lives and friendships prior to their ascension to the bench.

It is true that Attorney-General Brandis’ anecdote somewhat unusually inserts himself as a protagonist in the ceremony. Omitting this reference to his role in reassuring the client of Kiefel CJ’s talent might have been more consistent with the purpose of the ritual. However, it remains the case that in a High Court swearing-in ceremony – that was streamed live on television – this event witnessed an Australian Attorney-General placing on the ceremonial record the fact that women lawyers have forged their careers in the face of gender discrimination.

The Attorney continued this reference to gender by then noting that Kiefel CJ had earlier been appointed to the Supreme Court of Queensland, and was the first woman appointed to that bench:

It has been a feature of your Honour’s story – as it is of today’s ceremony – that you have, at several crucial steps in your career, been the first woman to occupy a particular office. But your profound achievements and success has had nothing to do with your gender and everything to do with your intelligence, diligence and skill.

Although the speech never deploys the term ‘merit’, this passage returns to a familiar theme. One wonders if the Attorney’s point might have been better made by instead simply remarking that Kiefel CJ’s appointments illustrated the esteem in which her intelligence, diligence and skill were regarded. However, presumably by attempting to deflect a criticism of ‘tokenism’ in judicial appointments, the passage ensures that the question of gender and judicial appointments remains squarely in view. This is particularly the case when it is remembered that a few hours later the Attorney gave a second welcome speech. In a significant silence, Attorney-General Brandis did not consider it necessary to reassure the assembled audience that only Justice James Edelman’s intelligence and skill explained the appointment.

Of course, if Attorneys-General throughout Australia could point to published criteria for judicial appointments, some of the challenges inherent in crafting welcome speeches might be avoided.

Kiefel CJ: ‘This is not the place’ to reflect on gender and the judiciary

When Mary Gaudron was sworn-in as the first woman justice of the High Court of Australia, her first speech trod a careful path: acknowledging her historic status as the ‘first woman’, and her consequent responsibility as a role model for women in the law, while at the same time minimising her difference from male members of the bench, as a judge equally sworn, like them, to apply the law faithfully.

Chief Justice Kiefel’s speech adopted a different path, preferring instead to minimise allusions to her gender in her speech. For example, she noted:

I am pleased to have been sworn in as Chief Justice by my dear colleague, Justice Virginia Bell. This occasion is therefore historically significant on two counts.

The history being made in Courtroom 1 – the first female Chief Justice sworn-in, and the oath of office administered by a female justice to a female justice – was not explicitly recounted.

Following this oblique reference to gender, Kiefel CJ’s only further discussion of the historic nature of her ascension to the position of Chief Justice was in the following passage:

 In the year preceding the opening of this Court, Australian women were given the right to vote at federal elections. It was then that they truly became part of “the people” to whom our Constitution refers. That year also saw the first woman graduate in law from an Australian university. It would not be until 1987 that a woman, the Honourable Mary Gaudron, was appointed to this Court.

When I came to the Bar in 1975 there were very few women members of the profession. This is not the occasion to consider why this was so. The point presently to be made is that this has changed and so has the composition of this Court. In more recent times the appointment of more women to this Court recognises that there are now women who have the necessary legal ability and experience, as well as the personal qualities, to be a Justice of this Court. There seems no reason to think that that situation will not be maintained in the future. It may well improve.

While honouring Mary Gaudron as the Court’s first woman, the tenor of these remarks suggest that Kiefel CJ was reluctant to claim the title, or the status as role model for future generations of women within her swearing-in speech. Chief Justice Kiefel’s juxtaposition of the Court’s history with women’s history of political participation in Australia may perhaps be a reference to the larger issues of democratic legitimacy that are implicated when women are significantly underrepresented in public institutions. However, this message is by no means clear on its face, and the implication that women have ‘made it’ now, may leave the impression that no work remains to be done to ensure that the legal profession is and remains free from systemic barriers that in the past had resulted in ‘very few women’ at the bar.’

Of course, had Kiefel CJ devoted significant attention in her speech to her identity as a woman lawyer, or the history of women in the law in Australia, press coverage of the event would inevitability have (over)emphasised that theme. However, current debates surrounding equitable briefing practices and the retention of women in the profession would suggest that while significant strides have been taken towards gender equity in the judiciary, now is not a time for complacency. Outside the carefully scripted performance of a nationally televised swearing-in speech, one hopes that this message may later be given greater voice.

Fiona McLeod SC: ‘A powerful image … of equality’

I have elected to take the speeches made at Kiefel CJ’s swearing-in ceremony out of order, in order to conclude this post with the welcome address made by Fiona McLeod SC, President of the Law Council of Australia. The speech as a whole exemplifies the capacity of swearing-in ceremonies to bring humour and emotion into the courtroom, while simultaneously affirming the confidence of the profession in a judge of exemplary talent. Notably, Ms McLeod also ensured that the significance of the moment for women in the law in Australia was noted:

Today we gather to mark the appointment of Your Honour to the highest judicial office in the land, an appointment fitting your outstanding career and exceptional talents. We celebrate this landmark moment in the history of this nation. Your Honour’s oath this morning was administered by the next most senior puisne judge of the Court, Justice Bell, presenting a powerful and enduring image of equity and an inspiration to many.

The audience in Courtroom 1 had, by convention, remained in strict silence throughout the event. But outside Courtroom 1, her Honour’s swearing-in had been greeted by spontaneous applause. Fiona McLeod’s statement ensures that that mood has now been captured within the Court’s ceremonial archive.

Dr Heather Roberts is a Senior Lecturer at the ANU College of Law. This post draws on a paper that will be presented at the ‘Feminist Judgments: Comparative perspective’ Symposium, International Institute for the Sociology of Law, Oñati, 11-12 May 2017.

Suggested citation:  Heather Roberts  ‘Ceremony matters: The lasting significance of the swearing-in ceremony of Chief Justice Susan Kiefel‘ on AUSPUBLAW  (9 February 2017) <https://auspublaw.org/2017/02/ceremony-matters/>