A life in the law is full of change. If one looks backwards on life, it seems to have had a predictable symmetry. From law student to articled clerk. From articled clerk to junior solicitor. From there to partner in a law firm. Then on to the Bar. A judicial appointment. Perhaps a promotion in the hierarchy. And then farewell speeches followed by that equivalent of legal oblivion - articles for newspapers or letters to the editor.

My own case has followed this course. Only oblivion awaits. I wish to talk about some of the changes I have experienced in my latest transition - from President of the Court of Appeal of the Supreme Court of New South Wales to Justice of the High Court of Australia. I feel encouraged to talk about this move because, in recent days, I have climbed the ladder in the hierarchy of the High Court 3 . Through this rapid promotion I begin, in a type of premature maturity, to look back on the transition which I experienced nearly two years ago when I moved from my position as number one in the New South Wales Court of Appeal to the most junior Justice of the High Court of Australia.

There were some obvious differences in the two roles. The Court of Appeal is a court resident in Sydney. It never moves from its base. It has larger numbers of judges. Yet for all that, the fact that it normally sits in divisions of three judges means that virtually every day one was sitting with a different combination of colleagues. In the High Court, with only seven of us, there is not much combining that you can do. In effect, you are locked forever into professional daily relationships with the same six people. This removes the novelty and surprise of fresh faces at 10.15 a.m. It adds certain pressures to human relationships. But, equally, it makes it important that those relationships should be maintained at an optimum level of friendliness, or at least a minimum level of civility, so as to ensure the success of the Court as an institution.

Another important difference which I soon noticed after the move to Canberra related to the difficulty of the work. In saying this I do not mean to understate in any way the complexity of the work performed by the Court of Appeal. Like its counterparts, it performs work of the greatest of importance and often of great difficulty and complexity. But in my experience about a third of the work of the Court of Appeal and the Court of Criminal Appeal could be disposed of by ex tempore decisions given immediately following argument. This did not mean that the reasons were wholly inspired by what had transpired in court. Often, drafts would be prepared which could form the basis of ex tempore reasons or, at least, of a statement of the relevant facts and issues 4 . Such drafts were always subject to argument. However, about a third of cases in the appeal, and most cases in the motions list could be despatched in this way. Another third could be quite readily disposed of within hours, or days, of the hearing. The remaining hard core of a third of cases represented the line of work which would sometimes find its way to the special leave applications of the High Court.

In the High Court there are really no light duties. Every problem, or virtually every one, is difficult. Either a complex issue of constitutional disputation must be resolved. Or an ambiguous statute (usually federal) unravelled. Or a difficult question of common law or equitable principle will be presented upon which judges in the courts below have differed and about which legitimate points of view vie for acceptance in the ultimate court. When it was thought that such considerations could be resolved by a mechanical application of a rule established in past decisions, the work of a judge might have been easier. Now that it is recognised that such controversies sometimes fall to be resolved by reference not only to judicial authority but also to legal policy and legal principle, the work of a judge (if he or she is to be honest) is more complex and demanding.

The still semi-itinerant nature of the High Court also adds to burdens which did not exist for me in the Court of Appeal. The day may come when the High Court is wholly resident in Canberra, permanently using the magnificent facilities of Barwick's great building. But for the moment the Court retains something of the air of impermanency that goes with every caravan.

There are some further obvious differences which may be mentioned between the judicial life in the Court of Appeal and in the High Court. It has to be said that the facilities provided to the Justices are much more substantial. The chambers in Canberra, the library resources and research assistance far outstrip those which any State court can nowadays offer, even to its highest appointees. There is a minimal increase in salary and personal entitlements. Happily, the Justices are "constitutionally protected" against any diminution in their remuneration whilst in office 5 .

Working to a video-link, as is frequently done in special leave hearings from Brisbane, Darwin, Perth, Adelaide and Hobart demonstrates how much could potentially be done to reduce the costs of litigation and to bring justice to the people of Australia by means of new technology. Inevitably, the High Court, like every court in the land, is affected by considerations such as the availability of legal aid. The significant increase in the number of litigants in person is as much a feature of the work of the High Court as of every other court in Australia. Experiences over many years in the motions list of the Court of Appeal have prepared me better perhaps than some, for the inevitable frustrations and stresses of dealing with litigants in person from which no judicial officer in Australia is now immune.


I now wish to offer some thoughts on a few particular problems that concern judicial administration in our country. In dealing with them I offer, of course, no more than my personal opinions which might not be shared by my colleagues. Indeed I may be in lonely dissent in some of them - not an entirely novel experience for me. In tackling them we should bring to bear not only the time-honoured judicial virtues inherited from the past, but also the professional imagination, willingness to think boldly and readiness to embrace new technology that one sees in any hospital or scientific facility. A doctor or scientist of the last century who entered a facility of his or her discipline today would be astonished and overwhelmed with the change. A lawyer of the nineteenth century who entered a modern Australian courtroom would feel immediately at home. Perhaps that is not a good thing.

The economics of decision-making:

One feature of service in the highest court which is soon brought home to any Justice is the inevitable consequence of decisions in terms of economic costs, not only to litigants but to a broader range of people affected by the decision. This may be the inescapable consequence of a judicial body which establishes legal principles that may apply as law throughout the country. But whereas the Parliament and the Executive Government would nowadays usually have a mass of economic data to assist them in their decisions, such data is ordinarily missing from the arguments of the parties in courts of law.

It is obvious that decisions such as those of the Court in Mabo 6 and Wik 7 have very large economic consequences. So have many constitutional decisions, such as that of the Court in Ha v New South Wales 8 . But quite apart from these large cases, which are of the most obvious significance to the nation as a whole, even decisions in private litigation may have a substantial economic impact.

Take for example, the decision of the Court in relation to the claims to refugee status of persons fleeing China in response to that country's one-child policy; 9 or take a more recent case where the issue concerned the obligation of a landlord for the removal of electrical faults from leased premises 10 . In a sense, every negligence action raises an economic question as to how far the law will impose upon persons in a relationship of proximity a duty of care to protect others from damage 11 . Each case may turn on its own facts, as we are wont to say. But I have recently suggested the need for a more candid consideration of the economic implications of decision-making in the courts, particularly the ultimate court 12 .

To some extent, this issue is bound up in the question of procedural reform. Should courts, especially the ultimate court, facilitate interventions or the provision of amicus curiae briefs to assist them in considering issues (including economic issues) that the parties may have no interest or knowledge to pursue 13 ? Should a different rule be adopted in relation to the costs of public interest litigation than that applied to ordinary proceedings inter partes 14 ? Of course, a court must always be focussed primarily on the resolution of the dispute of parties. To some extent, this is constitutionally required, in the case of the High Court, by the jurisdiction conferred upon it which is to hear and determine appeals from judgments, decrees, orders and sentences 15 and, in its original jurisdiction, to determine defined "matters" 16 . In the performance of establishing a rule in the particular case, courts should not allow their procedures to be converted into those appropriate to a parliamentary committee, lest the line be crossed between the judicial function and the functions of the other branches of government.

Nevertheless, alerting courts to the economic consequences of their decisions may be a challenge for the future as the declaratory function of the judiciary is increasingly questioned and new principles are sought to guide and control judicial law-making in the limited, but real, areas where it remains legitimate. Judicial methodology:


The High Court in recent years has been remarkably innovative in several areas that, I feel, deserve wider recognition and acknowledgement. They include the video links which bring the Court to the far reaches of our continental country. Also the text of High Court judgments which is available on the Internet within minutes of delivery. The Court's records of the numbers of "hits" at the website and praise of the High Court's Homepage show the great utility of these facilities. The Court has led Australia in the use of media neutral citations. Each judgment is now assigned a neutral designation ([1998] HCA 00) and each paragraph is numbered consecutively. Other innovations are in the pipeline. I pay tribute to Chief Justice Brennan for his leadership in these matters.

As with any institution that has a century of continuous operation, there are further changes which affect the methodology of the Court that might, in time, need to be considered. Let me mention a couple of them.

Judgment writing

In many cases the Justices proceed to write their own opinions, giving individual reasons for the orders which they propose. In this, I am no different from the others.

In the Court of Appeal, I inherited from my predecessor, Justice Moffitt, the President's entitlement to assign the obligation to write the first draft of a reserved decision or to give the first reasons in an ex tempore decision. It was the President's duty to share the work around. Interesting cases and boring ones. Routine cases and challenging ones. Cases where judges had expertise and cases where new insights might be valuable. Big cases and small ones. Cases involving equitable principles and criminal or other common law cases. The assignment system worked well. It was accepted by all of the judges. It tended to share the burden and, to some extent, to discourage needless repetition in reasons. Of course, any judge could write separately. But the system discouraged unnecessary separate opinions. Where they came, they often accepted the statement of the facts given in the primary draft. They then went directly to the points of difference. The sheer pressure of business in the Court of Appeal encouraged this system.

In the Supreme Court of the United States of America (and, I believe, in the Supreme Court of Canada) a formal decision is taken after each week's arguments. If the Chief Justice is in the majority as then tentatively expressed, he has the privilege to assign the duty to write the opinion of the Court. If the Chief Justice is in the minority, this privilege falls to the senior Justice in the majority. A duty to write for the Court has a tendency to reduce idiosyncratic writing. Instead, it tends to produce an opinion that will express the consensus of all or most in the majority. The High Court of Australia may come to embrace some variant on these techniques, although since 1903 they have not been part of the methodology of the Court. I do not necessarily endorse every element of the profession's repeated criticism of multiple judicial opinions. Each Justice is duty bound, ultimately, to express his or her true opinion. To some extent, the provision of differing opinions is the way by which the law develops, particularly in ultimate appellate courts. On the other hand, repetition and restatement in different terms of the same facts and issues could sometimes, possibly, be reduced without undue risk to the development of the law. A new judicial methodology may be needed to this end. Perhaps it will come during my time. Who could not have some sympathy for those who have to struggle through the nuances of multiple decisions 17 ? The future might also see the provision in all Australian superior courts of summaries which state the essence of the holding of the Court and of the principal points of dissent, where these exist.

Other areas of judicial methodology

There may be other issues of judicial administration which need to be considered. For example, should oral hearings be continued in special leave applications? In the United States of America the equivalent decisions, having regard to their great number, are made on the papers, reputedly on the advice of law clerks. Should academic opinions influence judicial decisions and, if they do, should they be acknowledged in the discussion of judicial policy 19 ? In that regard, it should be noted that for at least the last sixty years in the High Court of Australia weight has been given to the academic writings of the living as well as the dead. The lead was given first by Sir Owen Dixon and by Justice Evatt 20 . Should the judicial hearing be redesigned so that it becomes an opportunity for the parties to criticise a draft opinion, perhaps prepared by a court secretariat for consideration by the Justices? Would such a radical alteration in current procedures be constituionally valid in Australia? Would it be a means of ensuring that more people have real access to the decision-making of their country's ultimate court by procedural reforms which spare the judges of that court some of the tedious, but currently necessary, routine work involved in the preparation of opinions?

When, at a legal convention nearly two decades ago, drawing on my experience with discussion papers in the Australian Law Reform Commission, I proposed the circulation of draft judicial opinions for comment and criticism before finalisation, the idea was denounced as complete heresy. Now, under the pressure of the need to adapt judicial methodology to new times and heavier burdens, when such ideas are put forward they can no longer so easily be dismissed. To the extent that the Constitution permits, all appellate judges should be open minded about radical reform of the judicial method. Anything which helps a real increase in access to the courts and an improvement of their efficiency, without reducing their quality, should in my view, be on the table.

Attacks on judges and the courts:

One of the most obvious issues, which has marked my translation from the Court of Appeal to the High Court, has been the increased vigour, the personal character and the sustained duration of attacks on the Court and its Justices 21 .

In a memorandum sent by the Permanent Secretary to the Lord Chancellor of England, the following was said:

"The deep and ... underlying truth seems to be that Judges, however subconsciously, desire to retain or obtain for the judiciary problems more fit for executive decisions ... In recent years ... it has been difficult for the State to obtain justice from the judges of the High Court. It is not too much to say that in recent years, the weight of prejudice against the State in the minds of many members of the Court of Appeal and the judges of the High Court has been such as seriously to affect the Administration of Justice."


So these are some of the changes which I have seen in the past two years. Changes in my own life and in my experience of the judicial role. Changes in the public perception of the Court on which I now have the honour to serve. In times of great social change, it is inevitable that the courts too will change. The High Court of Australia will not be exempt. Nevertheless, the Court will continue to serve the Constitution and the people of Australia and to uphold the rule of law in this much blessed country as it enters the second century of the Constitution and a new millennium. But is there a sufficient sense of urgency in the current pace of change in judicial administration in Australia? That is a question which all judicial officers, and not only the Justices of the High Court, must ask themselves.

1 Derived from an address to the Annual Dinner of the Centre for International and Public Law in the Australian National University, Canberra, 5 November 1997.
2 Justice of the High Court of Australia. President of the International Commission of Jurists.
3 Following the appointment of Hayne J. Since these remarks Callinan J has been appointed.
4 M D Kirby, "Ex tempore reasons" (1992) 9(2) Australian Bar Review 93.
5 Constitution, s 72 (iii); cf Superannuation Legislation Amendment (Superannuation Contributions Tax) Act 1997, Schedule 5.
6 Mabo v Queensland [No 2] (1992) 175 CLR 1.
7 The Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1.
8 (1997) 71 ALJR 1080.
9 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381.
10 Northern Sandblasting Pty Ltd v Harris (1997) 71 ALJR 1428; see especially 1476.
11 See, for example, the discussion in Cekan v Haines (1990) 21 NSWLR 296 (CA) at 306-307.
12 M D Kirby, "Law and Economics. Is There Hope?" in M Richardson and G Hadfield (eds), The Second Wave of Law and Economics , 1988, The Federation Press, Sydney (forthcoming).
13 See the differing views expressed in Levy v Victoria (1997) 71 ALJR 837 by Brennan CJ and by the author.
14 cf Richmond River Council v Oshlack (1996) 39 NSWLR 622; Oshlack v Richmond River Council [1998] HCA 11.
15 Australian Constitution, s 73.
16 Australian Constitution s 75. See North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, 643 per McHugh J and 665-668 per Kirby J.
17 The Wik Peoples and Thatorre People v Queensland (1996) 187 CLR 1 and Re Residential Tenancies Tribunal of New South Wakes, ex parte Defence Housing Authority (1997) 71 ALJR 1254 are notable recent examples.
18 See, for example, The Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1 at 132-133 where, in a "postscript", Toohey J, with the authority of Gaudron, Gummow JJ and myself, expressed the essential common ground of the judges in the majority in that case.
19 cf Hunter v Canary Wharf Ltd [1997] 2 WLR 684 (HL) at 697 where Lord Goff of Chieveley criticised the use of academic writings by Lord Cooke of Thorndon in support of his speech; cf D Cane, "What a Nuisance!" (1997) 113 LQR 515 at 518-519.
20 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 637-638, 650-652; Mills v Mills (1938) 60 CLR 150 at 181-182.
21 MD Kirby, "Attacks on Judges - a Universal Phenomenon" speech for American Bar Association Conference, January 1998, unpublished. [Available on the High Court Home Page]
22 R Stevens, "Judges, Politics, Politicians and the Confusing Role of the Judiciary", Chapter 11 in K Hawkins (ed) The Human Face of Law, Clarendon, Oxford, 1997 citing Sir Claud Schuster writing to the Lord Chancellor 25 March 1929 (LCO 2/1133).