The Hon Justice Michael Kirby AC CMG*



Michael Kirby in Law School Days


          If you are thinking of being a judge or magistrate in Australia, and consider that you can plan systematically for appointment, forget it.  In our country, judicial office usually involves a high measure of chance.  In countries of the civil law tradition it is otherwise.  Young law graduates have to make a decision at the threshold as to whether they will go into private or governmental or commercial practice or into the judiciary.  Those that take the last course go to special judges' school.  They graduate into the lowest tier of the judiciary.  They enter a kind of governmental service.  Over the years some of them are promoted.  A very few end up in the top court or the Council of State.


          The English, however, always did things differently.  We are heirs to their traditions.  The differences can probably be attributed to the geographical isolation of the British Isles from the rest of Europe.  But it is also probably bound up in the English infatuation with the amateur and suspicion about big government.  For the English, this is not a new vogue.  It is something deep in the national psyche.


          In the earliest days, after the Norman conquest, many of the judges came from the Church.  But with the formation of the Inns of Court in London, and the rudimentary systems of legal education that the Inns organised, the sources of the English judiciary changed.  With few exceptions, judges were chosen from the private legal profession - virtually always from practising barristers.


          This method of recruitment had disadvantages.  It injected an element of patronage and the potential for governmental influence.  But those risk were true of the civil law system as well.  Its great strength was that it recruited people from the private sector into public service at a mature age when they had already formed many of their values.  Most of them were independently minded.  They never looked on themselves as government servants.  To this day, this is still true of the judiciary in England, Australia and most other countries of the Commonwealth of Nations.  Overwhelmingly, judges are still chosen from the private practising profession.  People become judges, occasionally with relatively little experience of court work but usually with years of appearing as an advocate and watching other judges and magistrates.


          I am a product of this system.  Naturally enough, I see its strengths.  They include the strong traditions of independence of mind, of incorruptibility and practical skills. 


          However, my road to the High Court was somewhat different from that of most judges.  Most have a fairly straight-forward career as barristers, QCs and judges.  In my case, I was snatched away, virtually from my cradle, to be appointed a Deputy President of the then Conciliation and Arbitration Commission in 1974.  Within a few weeks I was transferred to chair the new Australian Law Reform Commission.  From there I went to the Federal Court, the New South Wales Court of Appeal and finally the High Court in 1996. 


          My preparation for a seat on our country's highest court was therefore somewhat different.  But I believe that it was a good training. 


          As a solicitor I learned the importance of mastering the detail and helping the client.  As a barrister I learned the stresses of presenting and attacking the case in the drama of the courtroom.  As a law reformer I learned the importance of conceptualising the law and its problems:  of seeing a particular legal problem in a wider context of principle.  In the Federal Court I learned the vital importance of the Constitution and the growing role of federal legislation in our law.  In the Court of Appeal I learned the skills of appellate judging and the importance of legal principle and legal policy, as well as of legal authority, in deciding appellate cases.


          My training at the University of Sydney Law School was a sound preparation for this life in the law.  The most influential of my teachers was Professor Julius Stone.  He taught me jurisprudence.  I find it difficult to believe that some law schools today have no required course in jurisprudence or its equivalent.  For me, it was the subject that examined the very purposes of law and the theories of justice.  Law teachers have a big influence on the direction of law - but often it is not felt for thirty, forty or more years.


          My appointment to the High Court came in 1996 on the fourth occasion that my name had gone forward to the federal Cabinet for consideration.  I have been told that on one such occasion a very influential politician said that there was no way he could support the appointment of a gay man to the Court.  Yet, in December 1995, the appointment was made.  It is a very chancy thing.  No law student, indeed no lawyer, can plan on an expectation of high judicial appointment.  There are too many unpredictable factors at work.  As Sir Nigel Bowen, one-time federal Attorney-General and Chief Judge of the Federal Court once said, it is substantially a matter of luck.  It depends on being near the empty seat at the moment the music stops. 


          Nevertheless, the procedures of judicial appointment in Australia are now becoming more transparent.  Especially in the Magistrates' Courts and in the District Court it is possible to contemplate planning a career on the bench.  At these levels of appointment, in many parts of Australia, public advertisements now call for applications and nominations.  Interviews are conducted.  Suitable people are then chosen for judicial appointment.  Such procedures are not yet generally followed in the higher courts.


          The improvement of the standards of the magistracy in Australia can probably be attributed, in part, to this more transparent and logical system of appointment.  In these courts too, most appointees are now recruited from the private legal profession.  I hope that this will continue.  I believe that it is one reason why our judiciary has a stronger tradition of independence from government than generally exists in civil law countries. 


          Young lawyers need mentors.  In the nature of legal practice you pick them up on your journey.  Lionel Murphy was one of my mentors.  He appointed me to the Law Reform Commission which became my first step on the ladder to the appellate judiciary.  I never quite knew why he liked me.  He was a party person.  I was serious and considerably more boring.  I owe a lot to Lionel Murphy.  He taught me to be questioning about the law.  I still am.


          As to the future, if I remain in the High Court for as long as the Constitution allows, I will serve for another six years.  After my years on the Court will be many opportunities of service on international bodies.  Already I am engaged in a number of them dealing with aspects of the Human Genome Project, the HIV/AIDS epidemic, global judicial integrity and international human rights. 


          It is a natural thing for law students, who read law books and follow closely the minds and feelings of judges, expressed in their opinions, to contemplate the possibility of a period of service in judicial office.  I did at law school.  So may you.  It is a worthy ambition.  At every level, the judicial life is an interesting, often exciting, always demanding and highly responsible vocation.  For those that feel they have the precious combination of legal skills and a desire for justice, I commend the retention of the noble ambition of judicial appointment.   However, my life's experience teaches that, in our system, such appointments are usually unpredictable.  Typically, it is impossible to plan for them in detail.  The most one can do is to strive for excellence as a practising lawyer, to be engaged in professional and community activities and to hope that, one day, the call to wider public service comes.  If it does, answer that call.  I have never regretted that I did.