PRIME MINISTER 89/ 95
STATEMENT BY THE PRIME MOMITER, THE HON P J KEATING MIP
APPOINTMENT OF GOVERNOR-GENERAL
The following announcement has been made from Buckingham Palace:
" Her Majesty The Queen has graciously approved the appointment of
the Honourable Sir William Deane -AC KBE to be her Governor-General of the
Commonwealth of Australia. Sir William will be sworn in as Governor-General on
16 February 1996 after the Honourable Bill Hayden vacates the office."
I warmly welcome Her Majestys appointment of Sir William Deane as Governor-General to
succeed Mr Hayden. Sir William has had a career of great distinction in the law and is at
present a Justice of the High Court of Australia.
Sir Williamn will be sworn as Governor-General on 16 February 1996. Although the
appointment is at the Queen's pleasure Sir Wiliam has agreed that it would be appropriate for
it to terminate on 31 December in the year 2000.
Sir William was born in Melbourne in 193 1. He has pursued a career in the law, being called
to the Bar in 1957 and becoming Queen's Counsel in 1963. In 1977, shortly after being
appointed to the Supreme Court of New South Wales, he was appointed to the newly
established Federal Court of Australia. He became a Justice of the High Court in 1982.
Lady ( Helen) Deane received her schooling at Kincoppal Convent in Sydney. After leaving
school she became an articled clerk with a Sydney firm of solicitors and studied law part-time
at Sydney University. She graduated in law in 1958 and practised as a solicitor with one of
Sydney's leading law firms.
Sir Wiliam and Lady Deane were married in 1965. They have two adult children, a son and a
daughter. On behalf of the Government and people of Australia, I extend very sincere congratulations to
Sir William and Lady Deane.
CANBERRA 21 AUGUST, 1995
HIGH COURT OF AUSTRALIA
TEL. ( 06) 270 6969CHAMBERS OF JUSTICE DEANE
FAX. ( 06) 270 6970
P. O. BOX E435
QUEEN VICTORIA TERRACE A. C. T. 2600
Naturally, my wife and I are moved by the confidence
shown in us by our country. The appointment is a very
great honour and we approach it with humility and an
awareness of the responsibility it entails. We hope to serve
Australia weoll . In that regard, we are conscious of the
dignity and distinction with which the present Governor-
General and Mrs Hayden have discharged and are
discharging the duties of office.
On my swearing in as a Justice of the High Court more
than thirteen years ago, I pointed out that the source of all
government authority and legitimacy in a true democracy
such as Australia is the people. I then made a commitment
to serve all the people of this country to the best of my
ability as a judge of their highest court. I now extend that
public and unqualified commitment of service to cover the
office of Governor-General under our Constitution during
the period of my appointment.
DEGREE OP. DOCTOR OF LAWS, ( HONORIS CAUSA)
Presented by the Vice-Chancellor and Principal Professor D McNicol I 9 0
William Patrick Deane
Chancellor, I have the honour to present Sir William Patrick Deane for admission to the degree of Doctor of
Laws ( honoris causa).
William Patrick Deane was born in Sydney in 1931. His family moved to Canberra a couple of
years after his birth and he was educated at St Joseph's College, Hunter's Hill and at the University of
Sydney. While at the Law School of this University he was one of the student founders of the Sydney
Law Review, a development that came about very much under the influence of Professor Julius Stone.
He had a very busy time as a student, on the Law Review, with the University Squadron, as a member
of the SRC, the Union Board of Directors and so on. With all these activities, and working part-time in
the Tax Department in third year and as an articled clerk in fourth year, he confesses to having been a
" terrible crammer". But the cramming obviously worked. He shared the University Medal in his year,
but rather than the usual corollary, a scholarship to attend an English university, he accepted a
Rotary Foundation scholarship to study at Trinity College Dublin. He then went on to the Hague
Academy of International Law, gaining the Diploma cum laude. In fact he was the first attender at the
Academy from outside continental Europe to receive that honour. Since the diploma itself is rarely
awarded by the rigorously dviliancontinental jury to someone from a common law country, the
" cum laude" clearly meant what it said. He then spent some time at Louvain and Paris working
respectively with Charles De Visscher and with Georges Scelle, probably the two greatest European
international lawyers of the time.
On his return to Sydney he was employed by one of Sydney's large firms of solicitors and was also
plunged into lecturing part-time in international law, during Julius Stone's absence overseas. He recalls
that Stone left him free to teach the subject as he saw it. He was later the Teaching Fellow in Equity
and Succession. He went to the Bar in 1957, as long intended. At a time before Wentworth and Selborne
Chambers had been built, chambers were simply impossible to get. With Dean Shatwell's and
Professor Stone's unofficial encouragement, he spent his first months at the Bar closetted in a rent-free
room in the Law School building an unusual additional return for his part-time lecturing.
After nine years at the Bar, he took silk. As Queen's Counsel, he appeared in many of the leading
legal cases of the time. He was appointed to the Equity Division of the Supreme Court of New South
Wales and then, in 1977, to the Federal Court of Australia. While on the Federal Court he was also
President of the Trade Practices Tribunal. In 1982 he was appointed to the High Court and made KBE.
In 1988, he was made a Companion of the Order of Australia.
In the period since his appointment to the High Court he has become an acknowledged
intellectual leader of the Court, and a major force behind many of its decisions In fields such as
constitutional, law, equity and tort. In constitutional Interpretation in particular he has becn
influcntial, whether as a member of the majority or, on some occasions, in dissent. He approaches the
Constitution as a social compact between the Australian people through the Federation referenda, not
as an Act of Parliament, and certainly not as an Act of the Imperial Parliament. As a social compact,
the Constitution is, In his view, a flexible document, which can usually be adjusted to changing
situations by acceptable legal method. Thus most of the criticisms of the Constitution are in his view
misplaced, although It is true that party politics has made section 128, the principal Intended avenue
for change, nearly unworkable. As a social compact, the Constitution both expresses and Implies rights
inherent In the members of the Australian community, rights which decisions such as that in the
case, on the inter-State adm'ission of banisters, reveal, are much more extensive than the narrow or
legalistic Interpretation had allowed..
He has also taken a leading role in developing the Court's jurisprudence In old areas such as
negligence and emerging areas such as unjust enrichment, constructive trust and equitable estoppel. But
he worries that ordinary people can no longer afford to go to law, that the development of the law in
the High Court may simply be forging weapons for the intim-idation of those, who cannot afford to
litigate, against those who can. To remedy this requires changes in the legal profession, both In
structure and in attitudes. Here, he believes, legal education has a major role. The old professional
system of education had many advantages, but full-time legal education, combined with study of
another degree, enables the modern law school to harness the idealism as well as the intellect of its
students. Chancellor, as his own work reveals, idealism is not the prerogative of the young or of the
recently learned. It is transparent both In Mr justice Deane's judgments and in his attitude to the role of
law In Australian society. Chancellor, I present to you an acknowledged intellectual leader of the
High Court, and one of the Law School's most distinguished graduates, for admidssion to the degree of
Doctor of Laws ( honoris Causa), Sir William Patrick Deane.
Blackacre 1990
An Interview With
SIR WILLIAM DEANE, AC, KBE
it is Sir William Deane's practice not to give
interviews. He dislikes personal publicity and is of
the opinion that what he has to say about law he can
say in his judgments; that they are the appropriate
vehicles for his views. It is also his general practice
to decline invitations to speak in public. That is a
pity, for his Honour is eloquent and interesting.
However, his Honour agreed to depart from his
usual practice to refuse to give interviews for
Blackacre. He tells us it is the first time he has done
so and will probably be the last, but not, we trust,
because he found the experience too awful.
Sir William Deane is a delightful man. He
possesses, amongst other qualities, a disarming
humility. In response to being asked his impressions
of his job, he replied " I don't think that being a judge
of the High Court for a brief period of time in this
corner of the world in this part of the universe is
such a big deal and I don't think that five hundred
years from now that it is very likely that there will be
anyone at all in possession [ of] or reading any
judgment that I wrote. So the answer is, I don't go
home at night and think what a great job I'm doing".
William Patrick Deane was born in Melbourne in
1931. His family moved to Canberra a couple of
years after his birth. After primary school in
Canberra, he obtained his Secondary schooling at
St. Joseph's College in Sydney. In his final year there
he decided to study law. In fact, Justice Deane
confessed, " It was more a process of elimination,
which I think was very common in those days for
people doing law. I wanted to go into a profession,
possibly that seemed the thing for people from
middle class backgrounds to want to do". He recalls
that his father, who was an engineer, " was pleased,
but didn't push me that waymHis Honour has
-acknowledged publicly the role of his parents, who
went without many things to meet the costs and
demands of my education but who did not live to the
stage where I could offer them material evidence of
my gratitude" m ( Swearing in Speech, High Court)..
His Honour's memories of university are mixed
ones. In those days the combined Arts/ Law Course
at Sydney involved two years studying Arts on the
University campus and four years studying law at
the Law School. He found the two years in Arts
quite exhilarating. Attending Law School between 1950 and 1953, he remembers that ' The Law School
in Phillip Street was a very depressing place in those
days. I used to spend as much time as I could at the
university.. The great majority of the students were
part time students; they were articled. A lot of the
students were ex-servicemen who were really only
concerned with getting through as quickly as
possible. As a result, there was almost no corporate
life at the Law School."
" I don't think that being a judge of
the High Court for a brief period of
time in this corner of the world in
this part of the universe is such a big
deal"
Nevertheless, university life was a hectic one. He
held various offices in the Sydney University Law
Society, including Secretary and Vice president. He
was on the SRC and the Union Board of Directors
( which the law students managed to " stack" in order
to obtain better facilities at Law School). In addition
he worked part time in the Tax Department during
third year and was articled in the fourth year. Add
to this flying with the university squadron and
playing sport and the result was, his Honour
confesses, that * 1 tended to indulge in the practice of
cramming for exams as much as anybody else did in
those days". However, as it has been pointed out, the
cramming must have worked, for he topped both
History and Political Philosophy in his second year
in Arts and shared the University Medal for Law in
his year.
Of lecturers, Justice Deane remembers that the
ones who influenced him most were ( in the order in
which they taught) Professor Currey in
Constitutional History, Professor Shatwell in Legal
History, Professor Stone " of course" and Professor
Morison. The association with Professor Stone was
a long and fruitful one and the influence lingers,
undoubtedly. Profeuc, 3. swm page
Blackacre 1990
. After graduating the young Deane spent nine
months in the advising section of the Attorney-
General's department, where he came under the
direct influence of the then Solicitor-General
Professor Bailey, who was " very kind" to Deane.
Following that he proceeded, on a rotary
scholarship, to Trinity College, Dublin, where " In
theory I was studying International Law. But the
truth is that I had a wonderful year".
His departure for Trinity had been delayed by the
almost complete loss of the sight of his right eye in
the last rugby match he ever intended to play. After
Trinity, Justice Deane went, " partly at Professor
Stone's prompting" to take the courses and exams at
the Hague Academy. At this distinguished
institution he was awarded the Diploma cum laudc,
becoming only the sixth person in the history of the
Academy, and the first outside Continental Europe,
to have gained it. The exam was " a bit frightening",
partly written and partly oral, the latter part being
conducted in public by a " jury" of five. His honour
then spent some time at Louvain and Paris working
respectively with Charles De Visscher and George
Scelle, probably the two greatest European
international lawyers of the time. Naturally, all of
this " pleased Julius Stone" and led him to ask Deane
to conduct his lectures in International Law during
the Professor's absence overseas for the whole of 1956 and part of 195
This began Justice Deane's teaching association wi;
Sydney University Law School. The associatic
continued for eight years as teaching fellow
Equity and Succession.
His Honour's decision to go to the Bar w;
" something that just seemed to happen". It appea
to have been characterised by the same absence
deep examination of alternatives that was the non
of the day. He recalled that "[ T] here was much le
an inclination on the part of most part time lecture
who were practising barristers to encourage la
students to question the correctness of the reasoni.
in cases. Also there was almost no emphasis on tt
many avenues in which legal education can I
applied outside the practice of the law. J woul
think that notwithstanding the efforts of people lik
Shatwell and Stone and Morrison and Currey mo
of us left the Law School thinking that the obvior
path to pursue was professional success and in thow
days real professional success was seen as lying
the Bar and that's just the way it worked. Lookir
back I think that has been unfortunate'.
Blackacre 1990
From all accounts his Honour's career at the Bar contrary view is irretri
was a phenomenally successful one. As Mr McHugh never going to convino
Q. C. ( as he was then) said on the occasion of Justice
Deane's swearing in to the High Court, his Honour When at the Bar his H
was " one of the most able counsel the Australian areas of taxation, trac
legal system has ever produced'. He went to the Bar and constitutional law.
in 1957 and, just nine years later, at the age of 35, of these areas of the l
was appointed Queens Counsel His honour, in name. It has been poir
response to our question, opined that the qualities suppose that his Hone
needed to be successful at the Bar varied depending this class of case, for
on the type of law, but that " If youre going to go front of a jury in a cri
into the practice of ' Lawyers' law" in the sense of on the occasion of Just
for example, appearing in the High Court on a High Court). Yet it is
regular basis, I think, apart from the obvious need that one hears, as the
for intelligence and basic legal knowledge, the main William earlier this y
ingredients are hard work; honesty with the court that ordinary people c
you are appearing before so that you get their law, that the developm
confidence; and oddly enough, a degree of humility Court may simply b
so that you can appreciate the. impotnaee of inmidatiMat those,
listeninw not only to wh at'oropo iays I3 to P~ ssiwhbbCrbwosda
the qucstions you are-adkh Be that. yo; cam FateliMopuoaBtf th
apreciate-rptrtear ii i
viw other than your ow to a cm
I ~ l
L sh_ hA~ oi~ iit . tLk..' 4 evably misconceived, you are
eanybody of anything'.
[ onour practised largely in the
ie practices, commercial law
It was largely on the strength
aw that his Honour made his
ited out that it is a mistake to
ur's practice was confined to
he " was equally at home in
minal trial' ( Mr McHugh Q. C.
ice Deane's swearing in to the
not without a touch of irony
SVice Chancellor said of Sir
ear that his Honour " worries
an no longer afford to go to
nents of the law in the High
e forging weapons for the
who cannot afford to litigate,
r. Howier Justice Deane-ise
irmony.
Blackacre 1990
In response to being asked what he would say to
someone considering entering the profession today,
his Honour said, * 1 would say the sort of thing that
young people have always, with a degree of justice,
seen as involving a touch of hypocrisy in that I'd say
' that what the law needs now more than anything
else is a degree of commitment to community
service that I didn't show when I was setting out. It
seems to me that the important areas of the practice
of law these days, if you put aside constitutional
cases which are in a particular category, are not the
absurdly expensive commercial disputes between big
companies fighting with their shareholders' money.
It is the area where the law touches the life of
ordinary people and I think that the area of legal aid
has to be expanded so that the Law is available to
ordinary people. I think that the Aboriginal legal aid
area is one that holds tremendous attraction in
terms of fulfilment of something worthwhile. But as
I say, these are comments which the younger
generation going into law are perfectly entitled to
close their ears to when it comes from the
generation that has allowed law to move down its
current path".
" barristers and even more so exbarristers
that talk about their excases
are amongst the most boring
people that there are".
Sir William admits to having loved the Bar". He
consciously avoided speaking of any particular cases
in which he was involved, being of the belief that
" barristers and even more so ex-barristers that talk
about their ex-cases are amongst the most boring
people that there are". However, he did comment on
the sort of work he found personally unfulfilling:
[ In my later years at the Bar I hardly ever
appeared for individuals. That had the advantage
that you didn't become particularly involved
personally in a case. It had the disadvantage that you
didn't really have the feeling that you were doing
anything great for society or anything else..."
And also that which he found satisfying: " In the
early years of the Trade Practices Commission I was
the silk under the general retainer to the
Commonwealth and I stayed under general retainer
for the first six years of the Commission. That
meant that I was precluded from doing a lot of
company work in that period, for private
companies but I thought that was worthwhile.' " Also, for about five or six years as a senior
I was retained by the Commissioner of Tmx
the time in which the tax avoidance indus
really flourishing and I thought that was won
The retainer was with regard to tax av.
matters and we seemed to be making consi;
progress and we won quite a few cases but 0i
whole enterprise came tumbling down when
Casuarina v. Commissioner of Taxation in th
Court and it didn't particularly seem woni
anymore.-" I think the worst sort of judge in
non-jury case is the judge that s:
there silently nodding at you ai
finds against you"
In 1977, Sir William was appointed to the E
division of the Supreme Court of New South V
He sat for a mere six weeks before he
appointed to the newly established Federal COL
Australia. While serving in that office he was
the President of the Trade Practices Tribuna
1982 he was appointed to the High Court
appointment described by the then sha
Attorney-General Evans as " safe". Sir William
of his appointr
page.: 8
. r.
r .' jfr~. 7
4
IT that " in one sense I think I just saw it as a change
of a significant change of, jobs. But I was
extremely happy on the Federal Court and would
have been quite hiappy to stay there".
Whben asked ' iether the responsibility of being on
the Bench weighed heavily upon him, his Honour
said that it did not " weigh all that heavily. Indeed the
fact that we niever ( or it is unusual to) sit in single
judge cases means that the responsibility is always a.
shared one. I personally found that the responsibility
was much heavier if I was sitting as a single judge in
the Supreme Court in Equity and the Federal Court
deciding questions of fact between people who were
there giving evidence before you as human beings,
than it is in deciding an important constitutional
case in the High Court. In the sort of work that we
do you may be wrong in many people's eyes but you
ordinarily have the time to think the issues through.
They are almost invariably issues of law and even
though a lot of people might think your conclusion
is wrong, and the decision of the court might
establish that it is wrong, if you are dissenting, it is a
process of reasoning that brings you there, whereas
deciding a question of fact at first instance is
exercising a different sort of jurisdiction which is
much more final and which in many senses is a
much heavier burden".
Sir William Deane was awarded an honorary
doctorate this year by the University of Sydney. It
was said at that ceremony that * since his
appointment to the High Court he has become an
acknowledged intellectual leader of the Court, and a
major force behind many of its decisions in fields
such as constitutional law, equity and tort He has
also taken a role in developing the Court's
jurisprudence in old areas such as negligence and
emerging areas such as unjust enrichment,
constructive trust and equitable estoppel*. Sir
William says of his job on the High Court that " It's a
hard job and after thirteen years on the Bench I
must confess I'm sick of writing judgments but I.
don't think there is anything more useful that I
personally could do now, though no doubt a lot of
people would disagree with that'. He admitted that
the office is one which makes him feel ' a little bit"
isolated " but not to worry about. I'd feel very
isolated if it weren't for my family. I don't see nearly
as much of my friends as I'd like to it's not easy,
Partly because of living mainly in Canberra, partly
because of the writing of judgments that never
seems to end, to keep in touch". His Honour went
On to say that " One danger in being on the Bench
for a long time ( and I suppose I'm coming up a long time) is that
you tend to forget that any form of questioning of
counsel, even though you may intend to be helpful,
can be off-putting and with a young counsel, a bit
intimidating. But the approach that to avoid that
risk you sit there and stay silent seems to me to be
an even worse approach. I think the worst sort of
judge in a non-jury case is the judge that sits there
silently nodding at you and finds against you. It's a
very hard road".
" I think the Court is more conscious
now than it has been at any time
since I've been involved in the legal
profession about the desirability of a
joint judgment ( of a majority) if that
can be done without unduly
sacrificing the standard of the
Court's judgments
Looking back over the law during the period of his
professional life, his Honour has discerned some
interesting ( and worrying) changes. He said " in my
time at the Bar it was unusual for discovery in
commercial litigation to be other than a quick
process directed at the ascertainment of what were
the really relevant documents. It was unusual for
more than one solicitor, and extaordinarily unusual
for more than two solicitors, to be engaged on a
case. It was unusual for a commercial case to take
more than two or three days. It was unusual for the
documents going to court in a case to be more than
what could be contained in the barrister's brief and
that meant it was usual for the case to be quickly
decided. There were exceptions, but crossexamination
of people for days would have occurred
in commercial litigation comparatively rarely. That
was beginning to change when I left the Bar and in
my time on the Federal Court I observed people
arriving to court with trolleys and it never seemed to
me that it helped to identify the issues or that it
added greatly to the efficiency of the litigation, as
distinct from the cost of it*. page 19
Blackacre 1990
Blackacre 1990
In his own court, the changes have been more
positive. He said, " I think the Court is more
conscious now than it has been at any time since I've
been involved in the legal profession about the
desirability of a joint judgment ( of a majority) if that
can be done without unduly sacrificing the standard
or quality of the Court's judgments and also without
any member of the court being under pressure to
compromise his own real views. The court has, in
the last few years, introduced regular meetings of
the judges about cases which are reserved and
awaiting judgment. That has led to a formal
exchange of tentative views ( but on a limited scale in
some cases), which is conducive to the production of
joint judgments. In some cases those members of
the court who are seeing a case in a similar way will
agree that a particular person will write the first
judgment. In other cases no consensus for a joint
judgment will emerge until after a judgment has
been distributed. In some cases a joint judgment wil
be exclusively the work of one person, in others it
will be far more a co-operative effort. In the rare
case it sets out from the commencement to be a cooperative
effort. I don't want to be specific about
cases but I would think that there would be some
cases throughout the period that I've been on the
court where it would be apparent that the judgment
bears the traces of more than one hand sometimes
unfortunately apparent".
It seems superfluous to say that his Honour is an
eloquent man. He speaks ( and writes) in long,
logical sentences that are sprinkded with strong
adjectives. His words convey the deep conviction
that obviously lies behind them. He manages to say
much with a few simple words. At his swearing-in
ceremony in the High Court he said * 1 refrain from
making other than passing reference to my wife.
Some things are beyond words. Our lives have long
been one". In his judgments a similar eloquence is
found. We suggested to his Honour that his languap
at times, almost poetic. He said " I wouldn't p*
such kind terms. I think there are some areas
law where I feel rather strongly about things
those areas I may use language which I think
people would think is occasionally unduly stroi
And yet the language must be only an outward
manifestation of what is within, clothes for ide.
to speak. It has been said elsewhere that his
Honour's work reveals that " idealism is not the
prerogative of the young or of the recently lear
it is transparent both in Mr Justice Deane's
judgments and in his attitude to the role of law
Australian society". It is also transparent in the
impromptu words he spoke to Blackacre. He s.
" I.. think however that there has to be a cold, h
look at the way both sides of the legal professic
functioning. On the High Court we are a bit
removed from the run of the mill practice of bc
law and litigation but it's impossible not to be.
disturbed by the fact that law is obviously out o
reach of ordinary people unless they qualify for
aid of one sort or another. That is something w
quite apart from natural concern as an individu
does affect one's perception of the law, even in
terms of writing j udgments in the High Court
because you can't help but be conscious of the f
that legal developments which are aimed at ena
ordinary people to obtain justice can themselve:
become instruments of injustice when ordinary
people can't afford the luxury of litigation. In ot.
words, if you have a right of action in circumstai
where only the wealthy can afford to take advan
of it and only the wealthy can resist it it become
potential instrument of injustice and that is
something which of course is extraordinarily
worrying in the present situation and its no ansA&
to that to say that law has never been availablet
ordinary people. If it hasn't been available to
ordinary people in the past it is time that the
community generally and the legal profession in
particular took steps to ensure that it is available
M. C.
page