Remembering Major General the Hon Justice Richard Tracey AM RFD QC 1948–2019

By the Hon Justice Anthony Cavanough.

Major General the Hon Justice Richard Tracey AM RFD QC (LLB(Hons) ’69, LLM ’73) passed away in the USA on 11 October 2019 at the age of 71.

Richard Tracey
Banner image: Major General the Hon Justice Richard Tracey AM Credit: Supplied.

For over 50 years, beginning with his days in the Melbourne High School Cadet Corps, Richard was associated with the armed forces. He joined the Australian Army Legal Corps in 1976. He became a Defence Force Magistrate, Judge Advocate General of the ADF and President of the Defence Force Discipline Appeal Tribunal. His citation in 2014 for membership in the Military Division of the Order of Australia recorded service “in the most senior and demanding roles in the military justice system”.

Richard graduated LLB with Honours from Melbourne Law School in 1969. He completed Masters degrees in law at Melbourne in 1974 and the University of Illinois in 1979. He had a lifelong association with Newman College.

He was a Senior Lecturer and Sub-Dean at Melbourne and a Teaching Fellow at the Law School in Illinois. In 1979, he
co-authored General Principles of Administrative Law, which became a leading text on the subject.

Richard joined the New South Wales Bar in 1975 and the Victorian Bar in 1982. He began practice at the Bar while still
a full-time academic. He left the Melbourne law faculty in 1986 to take up full-time practice at the Victorian Bar.

In 1991, Richard was appointed Queen’s Counsel. He was an outstanding leader of the Bar, with a vast practice, especially in the fields of administrative law and industrial law. He was a part-time Commissioner of the Commonwealth Human Rights and Equal Opportunity Commission from 1997 to 2000. He was a reporter and editor of the Victorian Reports and editor of the Federal Law Reports.

Between 2001 and 2003, Richard was Senior Counsel assisting the Cole Royal Commission into the building and construction industry.

On 9 March 2005, Richard had the rare distinction of winning two High Court appeals on the one day, both in industrial
law matters.

Richard was appointed to the Federal Court in 2006. On one notable day in 2012, Justice Tracey was upheld by no less than 10 judges – by five judges of the High Court in Barclay (on discrimination in employment) and by five judges (constituting the Full Court of the Federal Court) in Jones (on military disciplinary proceedings). Richard served until reaching the statutory retirement age of 70 in August 2018. At his farewell, Chief Justice Allsop remarked that Richard had done great work at the Court and, in particular, that he had contributed mightily to the Court’s work in administrative law, migration law and industrial law, each being a critical area of the Court’s jurisdiction and each being essential to the economic and social fabric of this country. The Chief Justice observed that cases in these areas illustrated the capacity of those who held power to affect individuals through the exercise of that power. It was this, the Chief Justice said, that Richard had always understood.

After Richard’s retirement from the Federal Court, it was planned that he would serve as Adjunct Professor of Military Law at the ANU Law School and as Judge-in-Residence at MLS. However, those plans were overtaken by his appointment as Chair of the Royal Commission into Aged Care Quality and Safety in December 2018.

Richard threw himself into the work of the Commission, travelling widely and hearing from numerous witnesses. However, in August 2019, he was diagnosed with terminal cancer. Some hope was held out by experimental treatment available in California. He went there for the treatment but kept working on the Commission’s interim report. News of his passing first reached Australia late in the evening of Saturday 12 October (Melbourne time). By 9:15am on the Monday morning, a multitude of Richard’s friends and colleagues had assembled to hear tributes to him at a special sitting of the Royal Commission in Melbourne. Commissioner Briggs said that the news of Richard’s death was “absolutely shattering […]. He was experienced. He was wise. He was admired. He knew the law like the back of his hand”.

The same day, in a joint statement, the relevant federal ministers spoke of Richard’s “professionalism, compassion and leadership” at the Royal Commission. The Law Council of Australia issued a statement describing Richard as a “man of the highest integrity” and referring to “the important and enduring legacy of Justice Tracey to Australia’s legal community”.
Richard Tracey inspired generations of lawyers as a university teacher and as a mentor to other members of the profession. He will be greatly missed.

Richard is survived by his wife Hilary and their children Jack, Philip, Fiona and Rosie (the whole family being alumni of the University of Melbourne).

This article originally appeared in MLS News, Issue 22, November 2019