News: Kiefel CJ’s swearing in by Bell J

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The swearing in of Justice Kiefel as the Chief Justice of the High Court of Australia was major news throughout Australia, and rightly so. But, as Professor Adrienne Stone pointed out on twitter, the Australian Financial Review fluffed its reporting:

The photo the Fin used was from Kiefel J’s swearing in as a High Court judge in 2007. On Monday, Kiefel CJ was sworn in by the High Court’s next most senior judge, Bell J, arguably adding to the groundbreaking nature of the event from a gender perspective.

Without letting Fairfax off the hook, I have noticed that there don’t seem to be any photos online of Bell J swearing in Kiefel CJ anywhere.That is not (it seems) for legal reasons. The Court’s website states:

Photographs may not be taken in any sitting courtroom without the permission of the Justices of the Court. Permission may be granted on a case-by-case basis in exceptional circumstances, such as when a Justice retires and another is sworn in at a ceremonial sitting.

Channel 7 tweeted video footage of the swearing in, while other press ran a photo of Kiefel CJ on the bench with Bell J and Gageler J on either side, with the caption ‘Chief Justice Susan Kiefel (C) was sworn in by fellow female female justice Virginia Bell (L)’, attributed to AAP photographer Mick Tsikas. Possible explanations of the absence of photos include some sort of very specific limit imposed by the justices, a failure by journalists to take the photo at that particular moment or the media’s lack of interest in using such a photo. Either way, the apparent absence of such timely photos of a public event is unfortunate and (to my mind) inexplicable.

The problem is likely to be a short-term one, as the High Court typically films such events and places them on its website. Usually, those audio-visual records appear within a day of an event. However, for whatever reason, the recordings of the swearings-in of Kiefel CJ and Edelman J have (at the time of writing, early Wednesday morning) not yet appeared and are simply described as ‘in production’. (The written transcripts aren’t yet available either.) The combination of the unexplained absence of media photographs of the event and the somewhat delayed availability of the recordings means that this iconic image was lacking (or, in one case, erroneously substituted) in the contemporaneous reporting of a significant event in the life of the High Court.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

18 thoughts on “News: Kiefel CJ’s swearing in by Bell J”

    • I tried to watch it ‘live’ on facebook, but got the email from CNN before Trump even appeared on the screen…?

      I’ve been reading Gorsuch J all afternoon and like what I see. Two things that matter most to me: (1) he’s an interesting, clear writer; (2) he’s expects criminal legislation to be clear (and otherwise he reads it protectively.) I wish the same was true of all judges (American and Australian.)

  3. Jeremy, the swearing-in videos are now live.

    Knowing your keen interest in seating positions, I have been trying to determine how the seating positions of the former justices were worked out.

    Sitting to the Court’s right (the viewer’s left) were, in order from closest to furthest, French CJ, Kirby J and Crennan J. Sitting to the Court’s left (the viewer’s right) were, in the same order, Gummow J, Hayne J and Brennan CJ.

    I cannot for the life of me work out any orderly reason for those seating positions.

  4. Thanks (not that seating positions at ceremonies, let alone ceremonies themselves, interest me!)

    The seating order was repeated at Edelman J’s swearing in, so apparently not random. Assuming the usual alternating approach, the order was: French, Gummow, Kirby, Hayne, Crennan and Brennan. The four non-CJs are in descending order of seniority. Maybe French gets first dibs as a former CJ. Brennan is a mystery.

    Also, strange that Kiefel CJ’s associate gets to walk on with the former judges, walk all the way across the bench and then sit behind the CJ (which happened in both ceremonies.) Was he leading the way or something…? He doesn’t do that for regular hearing. Also, it was cute watching Hayne tell Gummow that he was sitting in Edelman’s spot.

    • Yes, the mix up over seating at Edelman J’s ceremony was amusing.

      Brennan CJ clearly new where he was meant to sit.

      The less kind among us may remark that it was a fitting metaphor that Hayne J followed Gummow J in sitting in the wrong seat!

  5. Do you know whether all former High Court judges are invited to swearing-in ceremonies or does the judge to be sworn in choose who among them they wish to have attend?

    • I don’t know, though maybe readers of OOH do? But surely there’s room in Court Room 1 (but not on the bench) to invite all former HCA judges. Mason CJ and Gleeson CJ were seemingly absent, hopefully not due to illness.

  6. With too much time on my hands today, I took a look at all past swearing-in ceremonies that are available through AustLii (commencing with Brennan CJ and Gummow J in 1995).

    Starting with the most recent, these are the attendances of former High Court judges:
    Edelman J (6) – Brennan, French, Gummow, Kirby, Hayne, Crennan
    Kiefel CJ (6) – Brennan, French, Gummow, Kirby, Hayne, Crennan
    Gordon J (6) – Brennan, Gleeson, Dawson, Gummow, Hayne, Heydon
    Nettle J (6) – Mason, Brennan, McHugh, Gummow, Kirby, Crennan
    Keane J (6) – Brennan, Gleeson, McHugh, Kirby, Gummow, Heydon
    Gageler J (7) – Mason, Brennan, Gleeson, Dawson, McHugh, Callinan, Gummow
    Bell J (5) – Mason, Brennan, Gaudron, McHugh, Kirby
    French CJ (5) – Mason, Brennan, Gleeson, Toohey, McHugh
    Kiefel J (4) – Mason, Gaudron, McHugh, Callinan
    Crennan J (4) Mason, Brennan, Dawson, McHugh
    Heydon J (2) Gibbs, Gaudron
    Gleeson CJ (6) – Brennan, Gibbs, Mason, Stephen, Dawson, Toohey
    Callinan J (2) – Gibbs, Stephen
    Hayne J (0)
    Kirby J (3) – Deane, Mason, Gibbs
    Gummow J (3) – Mason, Gibbs, Wilson
    Brennan CJ (3) – Mason, Gibbs, Wilson

    This is the attendance record
    Brennan 10
    Mason 10
    McHugh 7
    Gummow 6
    Kirby 5
    Gleeson 4
    Dawson 4
    Gibbs 4
    Hayne 3
    Crennan 3
    Gaudron 3
    Heydon 2
    Callinan 2
    Toohey 2
    Stephen 2
    Wilson 2
    French 2
    Deane 1

    Some interesting things to note:

    It is perhaps unsurprising that, as former Chief Justices, Brennan CJ and Mason CJ have attended the most ceremonies. They likely feel a greater obligation to do so.

    Gummow and Hayne JJ have a perfect post-retirement attendance record.

    Hayne J did not have a single former justice attend his swearing-in, including the retiring Dawson J.

    Toohey J did not attend the swearing-in of his successor, Callinan J.

    The most attendances was at the swearing in of Gageler J, 7.

    The swearing-in of Kiefel CJ marks the second time in this period that the swearing-in of a Chief Justice was not attended by all living former Chief Justices. Mason CJ and Gleeson CJ did not attend Kiefel CJ’s. Barwick CJ did not attend the swearing-in of Brennan CJ.

    Of Justices who have been alive at some point during this period, only 2 former justices have failed to attend at least one ceremony, Barwick CJ (d. 13 July 1997) and Jacobs J (d. 24 May 2015).

    The longest absence from a swearing-in for a living former Justice is Deane J, who has not attended a swearing-in ceremony since that of his successor, Kirby J.

    • Thanks. That is fascinating (and a little scary.) Note, though, that Deane apparently did attend Gleeson CJ’s swearing in – he isn’t listed in the attendance list, but Gleeson mentions that he is there. There seems to be a thing where GGs attend CJ swearings-in – Peter Cosgrove was present at Kiefel CJ’s swearing in and Michael Jeffery was present at French CJ’s, though if Bill Hayden was at Brennan CJ’s, no-one mentioned it.

      • Thanks. I had noted that Cosgrove attended at Kiefel CJ’s swearing in and checked on all of those which occurred during Deane J’s tenure as Governor-General. However, he was never mentioned by the Attorney (who acknowledged Cosgrove on Monday) so I assumed he was not there.

        It pays to look through the entire transcript!

      • Also, given that, Stephen J and Deane J are then jointly the longest absent living former justices as both were present at Gleeson CJ’s ceremony.

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