INTERVIEW WITH JUSTICE MICHAEL KIRBY ON THE OCCASION OF THE
CONFERRING OF THE HUGHES-CASTELL LIFETIME ACHIEVEMENT AWARD
Greatest professional achievement?
I hope that my greatest professional achievement still lies ahead! However, as to the past, sharing in the creation and establishment of the Australian Law Reform Commission (ALRC) was very exciting. It is now 30 years young and still doing very important work. Presiding in the NSW Court of Appeal, a happy and brilliant court, involved a decade of disciplined work. Participating in the High Court, in a period when judicial philosophy has changed, has imposed more burdens. But perhaps it is my role to remind lawyers of different values, a different concept of law and of the Constitution. Fortunately, our legal system permits diversity. Today's dissents sometimes point the way for the future of the law. I have also participated in a lot of international legal bodies. This is definitely the way of the future. In our generation, the borders have fallen. Law is becoming international. Lawyers need to keep pace with this change.
Strange as it may see, for me, virtually every case is interesting. Maybe this is because law reform taught me to see each problem in its wider social context. In the Court of Appeal, my dissent in Osmond's case, on the right to have reasons from public officials, will ultimately be vindicated. In the High Court, the Wik case on native title was possibly the last legacy of the creative Mason period of the High Court. The recent decision in Al-Kateb v Godwin, on the use of international law in interpreting our Constitution, points the way ahead. That course is uncontroversial now in most countries. Bit it still causes heart attacks in Australia. Perhaps our geographic isolation makes us intellectually isolationist in the law. In the age of the Internet and jumbojets we have to get over isolation and join the rest of the civilised world.
Friendships in the law can be enduring. It is an infantile disease to think that all lawyers have to hold the same philosophy of law. We should leave that absurd viewpoint to politicians and media pundits. Sir Harry Gibbs, late Chief Justice of Australia, who died recently, had a very conservative judicial philosophy. Yet we got on very well. The genius of our legal system is its provision for diverse viewpoints. That is how law makes progress - by rational dialogue and differences of viewpoint transparently debated and assessed.
Becoming a High Court judge:
When I was at Law School in the 1950s, High Court judges were Gods. Aspiring to legal heaven was not on my agenda. But I always set high standards for myself and worked hard at law. Not everyone can be a High Court judge. Not everyone would want it. It is unrelenting and all consuming. But law offers wonderful opportunities to serve and contribute to public life - like no other profession. We can be critical of our law and its institutions whilst recognising that there are many admirable features of law in Australia. Amongst the best of these is that we are a rule of law society. We have independent judicial officers and a highly skilled legal profession. We regularly review and alter the law. We need to. We have institutions of law reform. We have an active civil society constantly striving to improve law and lawyers.
The changes include the huge growth in the numbers of the judiciary. The vastly increased pace of work. The pervading new technology. The changing public view of all institutions. The growing numbers of women in the profession, including near the top. The Bar is less stuffy and much more socially engaged. There is also the greater willingness to think critically about the content of law. The increase in pro bono work. The increasing arrival of solicitor advocates and house counsel. The fall away of stable routine work like land title conveyancing and personal injury cases. The amalgamation and internationalisation of legal firms. The best change is that we now all acknowledge that law is often imperfect, inaccessible and unjust. Complacency about our discipline is a no-no. Many lawyers do lots of things to correct defects in law - like all those who work free on refugee cases. I know these lawyers and many of them are noble people.
In a bigger profession, with bigger firms, things tend to be more impersonal. In my day, we all knew each other and this affected the culture. Time charging is something new but it can sometimes reward slow and inefficient lawyers. The abolition of important fields of practice has hurt a lot of lawyers. Finding new fields of practice that are intellectually and economically rewarding, is a big challenge. Working forever in a back room in a big palace of marble and glass would put anyone off law. One answer to this problem is pro bono work. In my day I become the Honorary Solicitor for the Sydney Uni SRC. I served on the Council for Civil Liberties. I did a lot of unpaid work at the Bar and as a solicitor. Keeping up with developments in the law is a big challenge. Fortunately, the Internet comes to the rescue. But it cannot teach wisdom and judgment. These things come from helping people with their legal problems and never forgetting that our commitment as lawyers is to justice and not simply law. I hate cynicism and pure commercialism. But there are some curmudgeons of those persuasions out there.
Advice to young lawyers:
I learned in my earliest years that there is no substitute for hard work and getting the law into my head. You don't do that just be photocopying more papers. Law is not a profession for the superficial, for show ponies or the lazy. Top performers have to make big sacrifices in time and personal relations. Yet, after a successful day as a lawyer, with a problem solved, people helped and a case well argued, there are few jobs that seem more worthwhile. It is the attainment of justice and fairness that gives us our buzz. When we can help do this, we know that being a lawyer is something special. Righting wrongs according to law is a big privilege. Even simply contributing to an ordered society is a worthwhile life's effort. The advance of women to every level in the law (almost) opens up huge opportunities. Eventually, women lawyers it will help change some of the less attractive features of legal practice. In my lifetime, I have seen the laws against gays, Australian Aborigines, Chinese Australians and other minorities completely changed. Often, the leadership for such changes has been given by lawyers. We have to ask ourselves what other areas of law need changing. Young lawyers are more likely to see these needs. With age sometimes comes complacency and self-satisfaction. So my advice to young lawyers is to strive for excellence. Struggle to maintain a full personal life. Get involved in community as well as professional activities. Never forget that our banner is justice under law.
Most pressing issues:
The most pressing issue in the law in Australia is access. When a client can afford lawyers and get to courts, the standards are very high. But it is a Rolls Royce system. Most people drive second-hand Holdens and can't afford lawyers. For the moment, we continue to improvise with pro bono and limited public legal aid. Finding institutional solutions to access to the law and justice is the biggest challenge for Australian judges and lawyers in the 21st century. If you are in doubt, look at the huge rise in self- represented litigants - right up to the High Court. An inaccessible legal system breeds cynicism and disillusionment. So we need to be self-critical and never complacent. Otherwise we will suffer the fate of the dinosaurs.