"CAPITALISING ON THE LAW" - 2004 AUSTRALIAN LAW LIBRARIANS SYMPOSIUM
HIGH COURT OF AUSTRALIA, CANBERRA
29 SEPTEMBER 2004
A LAW LIBRARIES LOVE AFFAIR
The Hon Justice Michael Kirby AC CMG*
ON FIRST STEPPING INTO A LIBRARY
I welcome the participants to this Symposium to the High Court of Australia. I especially welcome the visitors from overseas to this, the ultimate appellate and constitutional court of the Australian nation. Particularly welcome are visitors from the United Kingdom, the original source of our laws and from the Pacific countries, our neighbours and close colleagues.
The most important parts of this building are the chambers occupied by the seven Justices. At least we, the Justices, think so. Close behind comes the library with its magnificent resources that surround and sustain us in the work that we do. I welcome this opportunity to pay tribute to the High Court Librarian, Jacqueline Elliott, to Rosemary Nicholson who did so much for this Symposium and to all of the librarians who work so hard in this building to help make the rule of law a reality in Australia.
Do you remember the first time you walked into a library? I can. It was in the year 1946. I had just begun primary education at the North Strathfield Infants' School in Sydney. My teacher was Miss Pontifex - and never was a powerful teacher better named. One small room in the school was the library. It had modest resources and had just endured the deprivations of the Second World War. We sat on the footpath of Concord Road that year to wave to the Governor-General, the Duke of Gloucester, on his way to the Concord Repatriation General Hospital. Soon after this, we were rewarded with medals, with the King's image, to celebrate the Victory in the Pacific. The War was over.
The library was memorable for me because it was there, for the first time, that I discovered books with shiny paper. They had a different smell to them. During the War, shiny paper had been forbidden by the austere Mr Dedman, Minister in charge of such things and, by 1946, Minister for Post-War Reconstruction. In the library I was given a book, with shiny paper, with the alphabet. In her systematic way, Miss Pontifex began our instruction with the letter "A". I came to love books and to realise the treasure that was to be found within them.
At secondary school, at Fort Street Boys' High School in Sydney, we also had a school library. The librarian was Mr Ken Barnard. The library was musty, with some of its books went back to the middle of the nineteenth century, when the school was founded. I remember finding German grammar books there with stories and photos of Kaiser Wilhelm II and his family. He had abdicated in 1918 and the books were still there in 1953. The library was a quiet place where one could think and read and dream. It was in the library that I first practised debating and our team did well in the competitions. This gave me the scent of advocacy. It pointed me to a career in law.
Then at Sydney University I studied in the old Fisher Library, now the Maclauren Hall. On my transfer downtown in 1958 to the Law School in its old building in University Chambers in Phillip Street, I studied for a time in the annex to the Fisher Library maintained there. However, the place was over-heated for my taste and too dark and gloomy. There was already more than enough gloom in the law to exude that atmosphere. So I travelled the short distance to the State Library of New South Wales in Shakespeare Place. There in its splendid reading room, I found space, and light and every book that I could wish for. The law collection was excellent and doubtless still is. The attention I received was without peer. Even my most difficult requests were addressed with efficiency - even an occasional smile - by a young librarian, Warren Horton. Later he was to ascend to be Director-General of the National Library of Australia. I pay tribute to him and to all the librarians in the State Library and elsewhere who helped me on the path through my studies.
I was appointed to the Australian Law Reform Commission in 1975. Its library was established by Roy Jordan. It was embellished and expanded by the irrepressible Virginia Purcell. Now, the Law Reform Commission Library has been named after me. There could not be a more precious tribute for a lawyer to receive.
When I was appointed to the New South Wales Court of Appeal, I came under the spell of Lynn Pollack, Joint Law Courts Librarian. No request was too much trouble. She and the librarians of the State and Federal courts in Sydney were enterprising and imaginative, working under the pressure of ever diminishing resources to respond to the incessant demands of the judges, barristers and litigants. I say my thanks to them all. In Sydney, I still call on the Joint Courts Library.
And now I work in this building. Here, we have what is undoubtedly the best law library in Australia. I have the privilege of serving on the Library Committee of the Justices, together with Justice McHugh, Justice Gummow, Mr Christopher Doogan, the Chief Executive and Principal Registrar, and the High Court Librarian. I saw an estimate of the value of the library in the recent Annual Report, put at $10 million. This is surely severely written down. The collection is extraordinary. Despite the adverse terms of trade and the reduced value of our dollar in recent years, the High Court library has maintained the serials and continued to acquire the monographs that enhance its usefulness and preserve its premier place. I take this opportunity to express thanks for the work of all who serve in the High Court library and those who have gone before. In this matter, perhaps uniquely, I have no doubt that what I say is expressed for the entire Court. On this question, even in the High Court of Australia, there would be no dissents.
OF GHOSTS AND SERENDIPITY
From the start, the commitment of the library in this building has been to maximise its utility. It traps the Justices into expanding their knowledge, as only a law library can. On level 9 where the Justices' chambers are found, is established the basic library of essential works. At any time when the Court is in session one can find Justices and their Associates reading, searching, adding to the data of decision-making.
My favourite public space in the whole building is one to which, alas, members of the public have no access. It is on level 9, just near my chambers. There is found a large room, reportedly inhabited by the ghosts of the hopefuls (many well deserving) who were never appointed to the High Court of Australia. The room is large enough to be converted at some future time to chambers for an additional Justice. There is another space on the same level that could make a second added Justice to bring the Court's complement to nine, the same as the Supreme Court of the United States and the Supreme Court of Canada.
For the time being, we, the seven present incumbents, have a reading room in this hopeful space. There, the High Court librarians lay out for us all the tempting morsels that change every month. The law reviews and law journals are displayed, together with the newly acquired monographs; the law reform reports, royal commission tomes, historical publications, new encyclopaedias and basic texts, newspapers and tempting magazines. One of the most closely read legal texts of this variety is the New Yorker. It vies with The Spectator, and the New York Review of Books and local journals for the precious spare moments of the judges' time.
Lionel Murphy used to say to me that the best ideas in life, including in legal life, came from serendipity. He urged upon me the value of browsing. Just reading to acquire thoughts that would stimulate new ideas that would return to the browser in the most unexpected moments when considering a legal problem or reading some ancient legal text. The workings of the human mind - particularly the legal mind - are mysterious. I am convinced that there was a lot of wisdom in this observation of Lionel Murphy, as in many others that he uttered in this place and elsewhere.
Of course, it is not uncommon to feel oppressed by the wonderful books that one will never have the time to read. Sometimes, under my breadth, I quietly denounce the law librarians for displaying such temptations when they know that the judges must be at their desks working, thinking and writing. Not for us, too often at least, is the pleasure of reading The Green Bag. Not for us more than a peep into the new biography of Justice William Brennan or a new review of the writings of Cardozo or Lord Mansfield or the other great luminaries of the legal past. Librarians can be so unkind, including law librarians. To display such temptations, knowing that a judge is only mortal and may succumb to them, is cruelty incarnate.
The High Court library also boasts a special resource, known only to the Justices. Not only do we have brilliant detective research work from Jacqui Elliott and her professional colleagues. There is one officer who is dedicated as a researcher. He or she works for all of the Justices of the Court. A special problem in a pending case; a paper to be prepared for a coming conference; a quick lead on an intriguing legal theme and an emailed request will produce an amazing result in astonishing speed.
Many who have held the position of Legal Research Officer in the Library have gone on to fame and fortune in the profession and in academe. One of them, Professor Brian Fitzgerald of the Queensland University of Technology Law School, served in the early days. Now he is a world leader in the impact of cyberspace on the law and the law on cyberspace. I often refer to his writing, as I did in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. Others among his successors I sometimes see before me in wig and gown at the High Court Bar Table. They are a special breed and greatly valued by the Justices.
I pay tribute to Alex de Costa, who held the position of legal researcher until recently. Jacqui Elliott and he collected for me a huge mass of reading from which I prepared my Hamlyn Lectures: Judicial Activism: Authority, Principle and Policy in the Judicial Method (2004). I hope your library has a copy. No library should be without one for it is an antivenene, like snake antivenene, against the loose talk of self-appointed media and other pundits about so-called "activism". If you look at the foreword to that work, you will see my tribute to two special officers of our library, Jacqui Elliott and Alex de Costa. Shortly Ben Wickham, after a stint of power in the Registry of the Court, will return for a time to the role of legal researcher. It is a position giving a great insight into the workings of the High Court. The office-holders are greatly cherished.
The world of legal research is changing. The technological changes in my lifetime have been remarkable. As an articled clerk I saw a bank of typists copying medical and other reports for use in litigation. Later came the early wet paper photocopies that banished the stencils and many of the typists. Later still came the fast Xerox machine and even colour prints. The dictaphone was introduced. Then the correcting typewriter. Then the word processors. Now voice recognition.
In the future every judge and lawyer will have a vast library of cyberspace at his or her fingertips - even more than today. Plunging further and deeper into it - and using judgment and discernment to avoid extraneous material - will require (as it does already) professional assistance. Going to the heart of a legal issue will take more than reading the High Court oral transcripts. Our decisions are on the web within minutes of their delivery in open Court in this building. But getting them into the heads of lawyers and ensuring that they remember the principles for which the decisions stand is a different matter. Presenting them in an interesting and accessible way when the need arises becomes a new challenge. Ensuring that they are accurately covered and thoughtfully analysed and criticised in the public media is vital. Law libraries of the future will be information services. They will be interactive. They will not only serve judges or even lawyers. They will help bring the message of the law to the people, for whom the law should be a living force.
We cannot think that the advances in technology will now come to a full stop. They will continue to expand at an extraordinary rate. Who could deny the possibility that lawyers of the future will walk around with implanted microchips that expand their mind to an instant knowledge of every word that has ever been uttered in the Commonwealth Law Reports?. Of course, such microchips would be interchangeable with those of John Gielgud reading Shakespeare or the Concertgebou Orchestra playing the immortal music of Mahler or the John Butler Trio or SpiderBait. We would have to watch the judges when this happens to make sure that they are plugged into the right microchip at the right time.
Just around the corner is artificial intelligence that will help judges to solve problems; to analyse questions; to get the statute and the common law right. Lawyers will speak to a computer and ask for an immediate analysis of the latest authority of the High Court of Australia on the duty of care in negligence. Instead of collapsing at the very sight of such divided decisions as Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 or Perre v Apand Pty Ltd (1999) 198 CLR 180 a thinking machine will do in minutes the analysis that it would take a contemporary lawyer a thousand hours and countless cups of strong coffee to accomplish.
We can laugh at these predictions. But if we think back in our own lives of how different libraries, including law libraries, were just 20, 30 or 40 years ago, we will stop laughing. The world we now occupy is changing at a remarkable rate. Technology is changing in tandem. Law libraries will not be immune from such changes, although the ventures into futurology need to avoid over-optimism: C Gareau: "Best Law Libraries" (2003) 14 National Jurist 18 at 23.
There will always be the precious treasure of a good book. The feel of its cover. The turning of its paper. The joy in reading of a discovery a new idea, well expressed. There will also always be a place in the law for the human decision-maker. Humans will never be able to create a machine with the will to do justice. Nor will they create a machine with the sensitive intelligence to search for principles in the law library and to deliver the books and the articles, the journals and the ideas that enhance the work of human judges in pursuit of human justice. At least, this will not happen in my lifetime.
If I look back on my life, I must acknowledge that I did not thank my teachers sufficiently for their contributions to my knowledge and the enlargement of my spirit. I did not thank Miss Pontifex. I did not thank Mr Barnard. I did not thank Warren Horton. So I take this occasion to say to all librarians who have been such special friends, colleagues and guides in my professional life: a warm appreciation. We should say it loud and say it often. Through you, I express the gratitude of generations of judges. Your work is indispensable. In the complexities of life it will become more so. It will change in delivery. It will be enhanced by technology. But it will always be there and essential to the idea that human beings can attain the noble goal of equal justice under the law for all.
(*) Justice of the High Court of Australia