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.