The Hon Justice Michael Kirby AC CMG




I am not sure why the President decided to have a speech at the dinner of the Fiji Law Conference.� Originally there was to be none.� I considered that it was a remarkably sophisticated and admirable law conference that refused to inflict a speech on the dinner participants.� But then it was explained to me that anything to do with lawyers must have an address.� I was asked to make a short speech, if that is not an oxymoron for judicial observations after dinner.� I was told that I should direct my remarks to the young legal practitioners in Fiji, whose work is symbolised by the award of the outstanding young practitioner just announced.� I congratulate the winner and those included in the short list.� To them I say:� You are the hope of the future.


I will confine my observations to a few thoughts about the profession and about life.� This is not, by any means, the true order of things.� We all know that there is life beyond the profession.� I shall save my best wine to last.




My message to young practitioners about our profession of law is that they should remain idealistic and optimistic.� I still am.� There is plenty in the law to give us encouragement for the present and the future.


Of my three siblings, both brothers went into the law.� One became a senior solicitor in a large firm in Sydney.� The other went to the Bar, became Queen's Counsel and is now a judge of the Supreme Court of New South Wales.� I am proud of them both.� My sister took a different course.� She went into nursing.� She works in a leading Sydney hospital.� Her specialty is oncology - treating cancer patients.� It is an intensely personal and often highly stressful occupation.� It is a noble vocation.� My sister enjoys my love and respect.


Can we in the law ever approach the nobility of the healthcare professions?� We are no longer involved in decisions of life and death.� Happily in Fiji, as in Australia, the death penalty is no more.� Yet like healthcare professionals, we work with people when they have problems - often grave problems.� We are there to listen, to advise calmly, to be a guide in times of stress and worry - not only for the client but also for the client's family.� In the judiciary, we are there to decide cases impartially, courteously and efficiently - with integrity, independence and competence.� In so far as we can do so, we can all help to avoid injustices.� When we do this, our profession too is a noble one.� Often it must seem mechanical and routine.� But then comes a client and a case or a problem that involves a challenge and an opportunity.� When that occurs, we know that it is the quest for justice, and the avoidance of injustice, that give nobility to our calling.


In my lifetime in Australia, I have seen important injustices corrected.� Take the injustices to the Aboriginal and Torres Strait Islander people - the indigenous people of Australia.� When I was young, they suffered many wrongs in society and in the law.� Young Aboriginals were taken from their mothers and adopted out on the criterion of the fairness of their skin colour.� Health, education and housing were extremely poor.� The law refused to recognise the land rights of the indigenous peoples.� In one of the most important decisions of the High Court of Australia in its first century, the Mabo case, the Court reversed the old law.� It recognised in law the land rights of the indigenous people.� Other improvements have been made.� Lawyers have played a significant part in them.� Last week, in Sydney, I visited the Aboriginal Legal Service.� I met the young lawyers and volunteers who represent the disproportionately large cohort of Aboriginal defendants in prisons and before the criminal courts.� Such lawyers and volunteers make the rule of law a reality.� Most of them are young lawyers.� They believe that the law is not just a set of rules but an instrument of equal justice for all.


Also when I was young there were no women judges.� Listening to Justice Catherine Branson give her address to the Fiji Legal Convention, and witnessing her answers to searching questions, I could see the progress that we have made.� Here not only was a distinguished judge with a well furnished mind.� Here was a woman judge who demonstrated that gender is an irrelevant consideration to the "merit" that is required for judicial office, including high judicial office.� Such "merit" does not come pre-packaged on the Y chromosome.� Now, increasing numbers of women are attaining high office in the practising profession and on the Bench both in Fiji and Australia.� We will see more of this.� It is a big change since my early days in the law.


Another change concerns attitudes to race, skin colour and ethnicity.� I grew up in White Australia.� By the use of the devilish dictation test, people of darker skin colour were kept out of Australia, even in the days of Empire when they were British subjects.� Most Australians supported this racial exclusiveness.� In this respect, Australia was not unique.� As I found in my service for the United Nations in Cambodia, racial dislike and distrust is not confined to people of European origin.


Yet in my lifetime, this fundamental principle of the Australian Commonwealth has also been overthrown.� Australia is a now a much more interesting and varied country as a consequence.� People are accepted as migrants on the basis of the skills they bring.� Intellectual talent is colour-blind.� It is not confined to any ethnicity.� This is another great change that has occurred n my lifetime.� It has been accompanied by legal change.� Lawyers have played a part in effecting the change and in defending racial equality and redressing proved cases of racial discrimination.


How did these prejudice - against Aboriginals, against women, against people of different ethnicity - survive for so long into the modern age in a civilised community?� To a large extent this occurred because of ignorance, prejudice and mythologies handed from one generation to another.� But to a certain extent, it also occurred because of unfamiliarity and ignorance.� Many people simply did not know any Aboriginals.� Many did not know a leading women professional.� Many had no contact with people of a different race or ethnicity.�


There was another group who suffered discrimination.� I refer to homosexuals.� The criminal law penalised them.� They suffered civil disadvantages.� They were stigmatised and humiliated just for being themselves.� To some extent, this attitude also survived because people did not know homosexuals.� They were encouraged to be secret about their identity.� When we know people who are slightly different from ourselves, we realise the overwhelming commonalities of humanity.� It is much harder to hate people that we know.� That was certainly Australia's experience in breaking down the prejudices based on Aboriginality, gender and ethnicity.� It is happening now with sexuality.� The law, and lawyers, have played an important role in correcting these old, infantile prejudices.� Usually, it has been young lawyers who have led the way.


I do not pretend that everything in my own country, or in Fiji, is prefect.� For example, there are still many wrongs suffered by the Aboriginal people.� Often there is still a "glass ceiling" against women, including in the law and in judicial appointments.� Quite frequently there is racial prejudice and a fear of people from different ethnic backgrounds who look different from ourselves.� There is still prejudice and discrimination against gays.� But the barriers are gradually coming down.� The young are leaders in these changes.� They are connected through the Internet to the world of ideas everywhere.� They are much better informed than any earlier generation.� They know of the diversity of humanity.� Far from being a cause for fear and shame, it is a cause of celebration.� Diversity upholds freedom.


So when I look to the future, I have great confidence in the young lawyers of Australia and of Fiji.� They will not be content with nostalgic talk about the "good old days".� Such days were not so good after all.� For them, the myths and fictions of the law will not be enough.� They will translate "equal justice under law" from an empty phrase carved in stone or written in books to a living reality.� That is their professional challenge.� It is also their professional privilege.




But what of life?


I first came to Fiji when the Union Jack flew here.� In so short a time the Empire, upon which the sun never set, has faded into history.� Yet it has left behind many links.� Some remain precious to this day.


We still play the same games.� Our political and constitutional arrangements are still profoundly affected by our past.� We still boast an independent judiciary.� We have legal professions that are in contact with each other and that draw strength from their long-shared tradition.


Our greatest link is the English language.� With it come words and ideas of freedom and basic human rights.


But for me to give advice on life to the young, including young lawyers, would be presumptuous.� So instead, I will leave it to the greatest exemplar of the English language, Shakespeare, to offer his advice.� In Twelfth Night, the Bard said:


"What is love?� 'tis not hereafter;


Present mirth hath has present laughter;


What's to come is still unsure:


In delay there lies no plenty;


Then come kiss me, sweet and twenty,


Youth's a stuff will not endure".


II, i[37].


Youth is a stuff that will not endure.� So the best advice that age can give to the young is:� Enjoy yourselves.� Enjoy life.� Enjoy the profession of law.� Remember it is a noble profession and we must be worthy of it.� In whatever tiny ways we can we must, as lawyers and as human beings, seek to make the world a better, more equal, kinder and juster place.