NEW SOUTH WALES YOUNG LAWYERS' CONFERENCE

LUNCHEON ADDRESS SYDNEY

MONDAY 21 SEPTEMBER 1998

ACTING JUDGES - A NON-THEORETICAL DANGER

The Hon Justice Michael Kirby AC CMG

YOUNG LAWYERS AND HOPE

I seize every opportunity I can secure to meet young lawyers. Last week I gave a lecture by telephone link with a class at the Queensland University of Technology. It was interesting to hear the questions of the lawyers in training. Next year we hope to do this annual event by video-link. As you would know, the High Court has pioneered the use of video-links in the law in Australia. A large proportion of the special leave applications are heard by links established between Canberra, Brisbane, Darwin, Perth, Adelaide and Hobart.

Later in the week I went to an equity class at the Law School at the University of Technology, Sydney where a former Associate is the lecturer. I find such encounters a useful stimulus to reflection on legal principle. One can count on young people - even young lawyers - to speak more directly with fewer "with respects". They look at legal principle with eyes informed by different values. Theirs are the values that will carry our legal system into the coming century. No judge, however lofty and grand, can afford to get too far out of touch with contemporary values. Because in our system judges, inescapably, have choices to make, their values inevitably affect their choices. They affect the construction they give to the Constitution or the Acts of Parliament. They affect their perception of whether common law precedent designed in earlier times are apt for new problems in different times. Some commentators, and not a few politicians, would prefer to think of judges as pilots flying a jumbo jet eternally switched onto automatic pilot. It is not so. Under our system the judges have their hands on the controls. Every day of their lives, they are making decisions vital to the safety and well-being of our society.

Young people also know more about technology. Young lawyers use the Internet as a matter of course, and comfortably. Last week a British Minister, Mr Geoff Hoon predicted that litigants of the future would resolve many disputes from their homes over the Internet rather than going to court. He outlined ¹ British proposals which envisage "virtual" court hearings in which people can communicate with the judge and lawyers over the Internet via their television sets. According to his prediction, many of the traditional trappings of justice, including legal documents, books, papers, and formal court hearings, are likely to disappear or to be conserved to particular circumstances. The British Government Consultation Paper asks a crucial question:

"Is it the physical courtroom with associated trappings that is important to most people, or is it the confidence that their dispute is being addressed by an appropriate impartial person?"

The British Government clearly considers that there is a large unmet need for legal and judicial services that we have to re-think so that they will be provided by what are called "affordable jargon-free legal help at the fingertips of large numbers of clients across the world wide web". Older members of the legal profession may be horrified at the prospect of litigation outside a courtroom with live witnesses, a judge in wig and gown and the paraphernalia that is familiar. But the experience of the High Court with the video-links has been that there is no diminution in the effective use of judicial and lawyer time. On the contrary, the Court statistics reveal that hearings by video-link tend to be shorter. Somehow it seems to encourage a more economical presentation of argument. The living presence of human beings seems, somehow, to breathe into all concerned prolixity and oratorical flourishes that disembodied electronic form appears to minimise.

If I reflect on the technological changes that have occurred in the law in my own lifetime, and those now in prospect, I cannot by any means dismiss the British proposal. There seems much merit in the suggestion of a website to act as an online civil justice service - as a first port of call for anyone seeking information or advice on legal problems. Perhaps this will be a way to bring justice and law to the people in the twenty-first century. That was, after all, the objective of King Henry II seven centuries ago. We must move with the times.

The High Court of Australia is a world leader in the judicial use of the Internet:

• Within minutes of the delivery of the Court's judgments they are accessible and can be downloaded throughout the world.
• The transcripts of oral argument before the Court are on the Internet within hours of completion of argument.
• Summaries of cases pending and those which stand for judgment are included in the Court's website.
• Decisions are now given in medium neutral form so that they can be referred to without necessary citation of a page in a printed report.
• The range of comparative law material used by the Court is vastly increased by access to legal materials in all parts of the world. No longer are we captive solely to the decisions of the English courts. There is a vast world-wide treasury of the common law to which Australian judges and lawyers now have ready access.
• The Court has instituted a virtual tour of its premises which can be seen by every Australian citizen with access to the Internet and by people all around the world.
• As soon as security issues have been resolved, it will be possible for lawyers to tap into the Court's case management system to find precisely the state of play in any case. Thus it will become possible to find exactly when a party's submissions are filed and those submissions will be accessible virtually instantaneously.

The picture of Australian courts living in the past is often quite different from the reality. The High Court sets the standards; but all Australian courts are rapidly moving into the electronic age. If the lesson of science and technology in this century is any guide, the most exciting developments lie ahead. They will include access to justice, in at least some cases, through the Internet. For my own part, I do not doubt that, in the fullness of time, artificial intelligence will be brought to bear for the solution of at least some legal problems.

ESSENTIAL CONTINUITIES

Having predicted a technological future for our discipline, it remains to insist upon the enduring continuities which give it its quality as a vocation committed to the rule of law and justice. It is no accident that the central question in the British Government's Consultation Paper is concerned with how they can preserve the indispensable pre-requisite of a just legal system. This is access to an "appropriate, impartial person". For the foreseeable future it will have to be a "person". Someone with the will to do justice according to law. No machine yet on the drawing boards can be programmed with that will. But who is the "appropriate impartial person"? Who is to be trusted with making decisions on behalf of the community and other citizens. Making such decisions on questions crucial to the Constitution and legal ordering of society? Making the decisions in highly charged criminal cases? Making them in important civil claims where reputation, funds, and the allotment of power are at stake.

Under our system, many decisions are made of great importance by police officers, company directors, public servants and media personalities that have profound effect on our society and the people who make it up. But ultimately, we are all answerable to the law. And ultimately the law is upheld and enforced by judicial officers (magistrates and judges) who are trained, independent and neutral in the decisions they make. These are precious features of our legal system which we must hang onto. No matter how the medium of access and performance is changed, the quality of manifest independence and integrity of the decision-maker is absolutely central to the integrity of our legal system and, ultimately, its acceptability to the people of Australia. In December this year, I will complete 25 years of service as a judge. There is only a handful of judicial officers in the country who have served in judicial officer for a longer time. Mind you, I fall far short of the unattainable service of Sir Edward McTiernan (46 years) and Sir George Rich (37 years) on the High Court. Now that the life tenure of federal judges has been abolished, there will be no more terms of that length. But it is, I believe, a proud boast that never in my twenty-five years have I received a telephone call from a Minister telling me how to decide a case. Or from an official in the government. Or from a captain of industry. Or from a union official. Or a media magnate. In Australia, it just does not happen that way. We must keep it so. My service for the United Nations in many foreign countries has taught me how important this principle of independence and integrity is. It is not true of most countries of the world.

In Australia, the attacks on judicial independence come not from the unwanted telephone call. They come in different form. Sometimes they arise out of well-intended innovation designed to service public needs.

I regard the proliferation of acting judicial appointments, particularly in New South Wales, as an illustration of this problem. At the outset, it is appropriate to say that arguments have been voiced that the system of acting judicial appointment is unconstitutional. Certainly, given the terms of the Australian Constitution, it would appear impossible to have acting federal judges. None have been appointed. Those who exercise the judicial power of the Commonwealth under Chapter 3 of the Constitution must be appointed under the conditions laid down by the Constitution and laws validly made under it ² . Since the decision of the High Court in Kable v Director of Public Prosecutions (NSW) ³ critics of the schemes of acting appointments have suggested that it is not possible to appoint acting judges to courts which must be of a character suitable to receive federal jurisdiction under the Constitution. I make no comment on that argument. One day, it may come for decision to the High Court, be fully argued and decided then.

Assuming the schemes to be constitutionally permissible in Australia, what has concerned many observers of the State court scene is the extent to which the number of appointments as acting judges has rapidly increased in recent years. From a truly exceptional form of appointment, usually preliminary to confirmation when a sitting judge retired and a position became available to be filled, the situation has now been reached in New South Wales, at least, that acting judicial appointments constitutes a major part of the judicial branch of government. Whilst respecting the integrity of those who serve, the good intention of the Attorney-General and his predecessor in the appointments, and the laudable desire of courts to clear their lists, the position reached is a cause for concern. In the period from 1 July 1998 to 30 June 1999, forty-nine acting judges of the District Court have already been given commissions to serve:

10 retired judges
1 retired judge now a solicitor
21 solicitors
16 barristers
1 academic

There are smaller numbers in the Supreme Court and the appointments in that court conform to an entirely different legal regime. Whereas the acting judges of the District Court ⁴ are, if practitioners or academics, typically not required to act as a judge during the whole period of their commissions, acting judges of the Supreme Court ⁵ receive a commission for a particular period. They must fit the work of their practice around judicial duties. In the District Court, typically, the judicial duties are fitted into practice or other obligations of professional life.

Whilst it is reported that this system has resulted in a reduction of a backlog of cases recently assumed by the District Court from the Supreme Court ⁶ . But the fundamental question is how that backlog accumulated in the first place. To some extent, at least, it appears to be the product of the failure of successive governments to increase the judicial establishment so that it can dispose of cases in an orderly and efficient way. And so that extraordinary and inappropriate appointment arrangements are not required.

I will refrain from repeating ⁷ criticisms of the adoption, as a regular feature of judicial appointment, of a semi-permanent supplement of the tenured judiciary with large numbers of acting judges, based upon international principles of fundamental rights. I realise that appeal to fundamental principle is regarded with contempt by media commentators ⁸ . Unlike the judiciary which must live every day with fundamental principle, reference to such considerations is there dismissed as an appeal to "lofty theoretical grounds" ⁹ or considerations "more theoretical than actual" ¹⁰ .

So let me try to explain, quite bluntly, why the development we are seeing is undesirable:

1. It undermines the tenured judiciary; and tenure has commonly been regarded as essential to judicial independence ¹¹ . When you think of the many countries which do not have this feature and the long constitutional struggle that lies behind Australia's achievement of it, it seems a trifle reckless to throw it away so easily and to denounce those who resist as "assorted purists ... snorting" ¹² when they are defending a hard-won right of the people against incursion from executive governments.

2. When it said that the dangers are "theoretical", what is meant is that critics cannot point to an actual case where a judge has tailored his or her decision to avoid government of client displeasure. But judicial impartiality is not only a matter of avoiding actual bias. Our law defend people who come to our courts from the appearance of reasonable apprehension of bias ¹³ . Of its very nature, that cannot be proved empirically. It rests on appearances. If a barrister would love to be a permanent judge, may he or she not be tempted or appear to be tempted, to avoid a decision that might upset the appointing government? If a solicitor generally acts for insurance companies (or workers) might he or she not be tempted (or appear to be tempted) to avoid making decisions that upset actual or potential clients? With sections of the media baying for law and order and stiffer penalties, might an appointee hoping for a permanent seat not be influenced by the need to avoid an unpopular decision, however merited it might seem on the evidence and argument? These are not theoretical questions. Every informed member of the legal profession knows of stories that are circulating. I certainly know of acting judges who were disappointed not to secure permanent appointment. Ambition for appointment in an acting judge is potentially a very dangerous thing.

3. The acting judges doubtless do their best. But they are riding on the reputation for integrity won by the tenured judiciary who have a permanent investment in actual and manifest impartiality. If the acting appointments were limited to a few recently retired judges called back to full-time service on an acting basis or (as in my youth) people given acting commissions in anticipation of confirmation, there would be fewer expressions of concern. What is worrying is the growth of numbers and the fact that this is now becoming, apparently, a permanent feature of our judicial scene. The exceptional has become the ordinary. There will always be excuses for avoiding proper funding of the judicial branch of government. Flexibility of available personnel can be bought at too high a price. It is legitimate for judges who have given a full-time commitment to be concerned about damage to the judicial institution that can be caused by the number and variability of appointees who, in a sense, "ride on" the reputation of the permanent judiciary. It is especially inappropriate to have acting judges who are part-heard as lawyers before other acting judges and who return to their chambers of offices to bump into their "judges" and have to deal with them, and negotiate with them, in the course of their practice.

I do not regard these as theoretical problems. If they become systematized and endemic they will undermine our hard-won principle of manifest judicial independence. But perhaps more importantly, they will provide bandaids and temporary expedients for problems of case control. They will remove the pressure for permanent solutions from courts for the efficient disposal of the business of courts. Papering over problems of judicial administration by the use and expansion of exceptional devices such as acting appointments is no real alternative to the proper funding of a judiciary of adequate numbers and greater accountability, transparency and efficiency on the part of permanent judges.

As young lawyers, you will have the obligation to explain to an often cynical and skeptical community how important is the principle of judicial independence. Of how it is just as important in State as in federal courts. Of how comparatively rare it is, in practice, in the world today. Of how we have it as a settled given in the Australian judiciary. And of how we may endanger it by continuing down the path of appointing more acting judges. If those ignorant of hard-won constitutional freedoms treat your warnings with contempt, you still have a duty to place them before the community. It is a duty that comes with study of the law, knowledge of its institutions, and loyalty to our constitutional arrangements. Never be deflected by the ignorant and wrong. To speak up for fundamentals, and to defend the independent judiciary of this country, is a duty of all lawyers, and especially young lawyers who must inherit this legacy undamaged.

1	The Times (London), 11 September 1998 at 6. See Lord Chancellor's Department (UK), Consultation Paper, Civil Justice, 1998. The Consultation Paper is accessible on the Department's website: www.ldpen.gov.uk./led/index.htm.
2	Australian Constitution, s 72.
3	(1996) 70 ALJR 814; 138 ALR 577.
4	Under District Court Act 1970 (NSW), s 18.
5	Supreme Court Act 1970 (NSW), s 37.
6	R Ackland, "Clearing the legal logjam", (estimated at 3,000) Sydney Morning Herald, 4 September 1998 at 19.
7	M D Kirby, "Independence of the Judiciary - Basic Principle, New Challenges", unpublished address to the International Bar Association Conference, Hong Kong, 12 June 1998.
8	See eg Ackland above n 6.
9	Editorial, "Making judges more efficient" in Sydney Morning Herald, 30 July 1998 at 15.
10	Ackland, above n 6.
11	Valente v The Queen (1985) 2 FCR 678; The Queen v Beauregard (1996) 2 FCR 56.
12	Ackland, above n 6.
13	Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 368.