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LEO CUSSEN GRADUATES' ASSOCIATION LEO CUSSEN MEMORIAL LECTURE MELBOURNE, VICTORIA, 25 OCTOBER 1999 SEVEN AGES OF A LAWYER The Hon Justice Michael Kirby AC CMG
SIR LEO CUSSEN - THE MAN It is a privilege to be invited to give the Leo Cussen Lecture. On his retirement from the High Court, Sir Owen Dixon lamented that Cussen had not been appointed to the High Court of Australia. 1 Sir Arthur Dean, another fine Victorian judge, considered that, "by many standards, he was our greatest" 2 . On his death, The Age obituary remembered him not only for his great learning as a lawyer and his deep wisdom as a judge, but also for his "unassuming disposition and kindliness as a man" 3 . Sir Edward Mitchell KC said of him 4 :
Sir Leo Cussen died six years before I was born. As a lawyer, I am acquainted with him only through the casebooks 6 . Yet I am encouraged by the contemporary descriptions of him as a man (rather than as a lawyer) to venture a lecture of personal reflections. As the Graduates' Association which sponsors this lecture derives from the Institute which took Sir Leo Cussen's name, and as that Institute is concerned in the preparation of young lawyers for a life in the law, my reflections may be of passing interest to the alumni. My thoughts relate to the stages in the life of a lawyer and the particular lessons that I have learned at each stage of my journey. SEVEN AGES
However, the majority of lawyers follow a fairly predictable path. Most (but by no means all) judges will observe a settled road on their way to the judicial seat. Sir Garfield Barwick would frequently tell legal audiences about the stages of his life, contrasting his time as a junior barrister, as a leading Silk, as a Minister and finally as Chief Justice of Australia. I remember vividly how he would always conclude with the assertion that the happiest time for him was when he was a junior barrister - rushing from court to court, learning the vocation of law. It always seemed to me a little sad that such a powerful and influential man looked back, not to his days of achievement and glory but to the days of powerless youth. My career has followed, substantially, the orderly course of many a judicial life in the law. I wish to reflect upon the seven ages of my life as a lawyer. And upon some of the lessons which I have learned in each of those ages. The lessons are too numerous to mention. In the law, when one ceases to learn lessons, it is time to retire. But at each stage in my seven ages, I have learned particular lessons which I wish to share. Of course, I offer them with a proper realisation that the lessons which each one of us learns in the law will depend upon the opportunities that we are afforded. All of us need to learn the wisdom that has not already been imparted to us by our parents, teachers and friends. ARTICLED CLERK
Eventually I obtained articles with a small solicitors' firm M A Simon and Co. Articles of clerkship were duly signed by my father and me with Mr Ramon Burke. He was then a young solicitor. Later he went to the Bar and is now a senior judge in the Compensation Court of New South Wales, nearing retirement. In my work as an articled clerk, I quickly assumed responsibility for a large number of cases. I was interviewing clients, organising their litigation, sending briefs to counsel, arranging witnesses. In the morning and after work I had to rush to the decrepit building in Phillip Street, Sydney that was the Sydney Law School in those days. These were times before the Sydney College of Law or the Leo Cussen Institute. Experience was learned on the run. The principal lesson I acquired in those years was of the fascination of the law and its endless excitement. As I sat behind the young barristers presenting our client's case to the court, or watched opponents cross-examining and sometimes demolishing that case, I learned respect for the law as we practise it. I watched the judges as they struggled to reach conclusions that were lawful and just. I watched them give reasons (usually off the cuff) in language that ordinarily seemed convincing as well as eloquent. I watched civil and criminal juries at work - for in those days the civil jury was much in use in New South Wales. I saw the way that juries of ordinary citizens would usually get it right. I was constantly amazed in those far off days, that more people were not sitting in the back rows of the court, watching as these dramas unfolded. I have never lost my fascination for the law or my sense of respect for most of the players who make it work. Of course there are tedious days where the fascination is elusive. There are occasional players who command little respect. Yet in Australia, by and large, once you get to a court, it strives earnestly to do justice according to law. I realise that getting to justice, and especially getting to a court in a disputed case, is often difficult or even impossible for many ordinary Australians. But once there, the integrity of the players, the absence of corruption, the conscientious endeavour to secure just outcomes are important features of law in the courts that we can take for granted. If anything, I believe that in the time since I was an articled clerk, the concern with substance over form has increased. The willingness to allow meritless procedural objections to succeed, has diminished. So in my time as an articled clerk, I learned a fascination for the law. I learned to appreciate its excitement and endless variety. SOLICITOR
The principal of that firm was Mr Bruce Holcombe. He had tried the Bar but had not succeeded. He had a strongly developed dislike for barristers (although he made one exception for Trevor Morling, later a judge of the Federal Court of Australia). Bruce Holcombe wanted me to be a kind of in-house counsel for the firm. In that sense, he was ahead of his time. I began appearing in court as advocate for a growing number insurance companies willing to use a young solicitor in place of Mr Holcombe's unloved barristers. I quickly adapted to the new life. It was very demanding. Returning to the office at the end of a hard day of advocacy, I had to pick up the threads of my work as a solicitor. I came to realise that, without support within the firm, it is very difficult to combine the life of an advocate with the ordinary life of a solicitor. In my time with Bruce Holcombe and his colleagues, I learned to respect the work of solicitors. I learned how important it was to listen to clients. The preparation of cases, the taking of statements and the conscientious pursuit of witnesses and of the law by a solicitor will often make or break a client's cause. I came to appreciate how important it was to know the comparative skills of barristers and to choose amongst them for particular problems. I never released the choice of counsel to another barrister or to a barristers' clerk. In my time as a solicitor, I was learning every day the arts of the profession. I learned the premium placed on honesty, integrity and conscientious attention to detail. I never regretted the years I spent as a solicitor. And I have never forgotten those testing times. Since my days in that office in Sydney, the work of solicitors in Australia has become in some ways more difficult. Protected monopolies of legal practice have fallen away. Medium sized firms have collapsed or been amalgamated. The practice of time-charging rules in many offices. But the most important lesson for me from those years came from looking across a desk at a person with a problem. Never forgetting that I was dealing with a human being who expected that I would be a help and supporter, viewing his or her predicament as more than a cold legal case. BARRISTER
My years as a barrister were divided by two long intervals in which I pursued a fascination for overseas travel. Twice I journeyed overland from Australia to Europe. Many barristers, looking at my brief-filled desk, warned me that my departure for India would be the end of my practice - if not of civilisation as we knew it - I discovered quite the contrary. Each time I returned, my practice changed. My first years involved heavy engagements in compensation and damages cases. The next phase was often before the industrial courts. The last phase involved important litigation, including constitutional, commercial and appellate cases. Often I was led by the great Silks of the time. It is often in the close company of leaders at the Bar that the observant junior will learn the greatest skills of advocacy, of tactics and of juggling the heavy burdens of work and somehow surviving to the end of each week. I found life as a barrister intense and often highly stressful. The dramas which had seemed so fascinating to the eyes of an articled clerk can become oppressive responsibilities for the conscientious advocate. I could never take the responsibilities lightly. I began a habit of life (followed by many members of the Bar) of working six or seven days each week. Efficiency and the throughput of cases became a kind of emotional reward. The reason for such conscientiousness was not financial. It was the hopeless desire to catch up, to clear the desk, and to respond quickly to the problems that others had put there. I learned many things in these years at the Bar from the judges, leaders and opponents with whom (or against whom) I laboured. To the extent that it is possible, one learns most of the attributes of advocacy by doing it. Some people are better communicators than others. But ways of doing things can be learned. The Australian Advocacy Institute, nurtured in the Leo Cussen Institute, has played a vital role in teaching advocacy skills; but it was not around when I was at the Bar. After a successful day, there are few lives that seem more worthwhile than being a barrister. Perhaps it was because he had so many successful days that Sir Garfield Barwick looked back with nostalgia to his time as junior counsel. If I had to single out one vital lesson from my years as a barrister, it would be time management. Keeping one's head above the waves. Putting the tasks in hand in a proper order of priority. Avoiding mental blanks in the work awaiting attention. Conscientiously checking every brief regularly to ensure against the imminent descent of a limitation period. Realising that in the law, the blank page is a major enemy. Problems do not become easier by prevarication. Addressing them and moving onto the next one is the prerequisite of a life at the Bar. Forgetting yesterday's case and concentrating on the new task in hand, is an imperative for professional and emotional survival. I left the Bar in December 1974 after seven years. I was never appointed to the Inner Bar - a disadvantage I share with at least two predecessors on the High Court, Sir Hayden Starke and Sir Cyril Walsh. LAW REFORM
The story of my years in the Law Reform Commission was one of great excitement 9 . I was fortunate that the colleagues in State and Territory bodies soon rallied to support the national Commission. I would single out for particular mention three great Victorian judges - Tom Smith, Sir Oliver Gillard and Clifford Menhennit. I made it the Commission's business to secure the support of politicians of all parties in the Federal Parliament. The most important innovations of the Australian Law Reform Commission concerned the techniques that were used to engage the legal profession and the public in debates about the topics which were referred to the Commission by the federal government. Law reform became a matter of public involvement. In the decade that I spent in the Commission, I worked with some of the finest lawyers in Australia. I saw the magic way in which Mr John Ewens QC, one-time First Parliamentary Counsel of the Commonwealth, translated proposals for law reform into draft Bills for enactment by the Parliament. The Commissioners, consultants, and staff with whom I worked were, virtually without exception, remarkable and highly dedicated. It was an exciting time to participate in institutional law reform in Australia. Many were the lessons that I learnt in those years. The most important one, I think, was taught to me by one of the first full-time Commissioners, Professor David StL Kelly. He came to the Commission from the University of Adelaide. He is a brilliant intellect. He was famous for blunt speaking. When I presented him with a draft report on breathalyser laws for the Australian Capital Territory 10 , it contained a vast amount of data on how the problems in that area had been tackled in countries as far apart as Denmark, South Africa, Canada and New Zealand. Soon after he received the draft, Professor Kelly entered my office and threw the pages of my draft in the air. They fell to earth like confetti. "We were asked for legal analysis; not a geography lesson", he declared. David Kelly set about teaching me the importance of conceptual thinking in the law. One of the defects of the common law arises from one of its great strengths. It is a problem solving system of law using a unique kind of legal analysis. It generally moves from precedent to precedent by analogical reasoning. This occasionally results in the clarification of a large legal concept. But often this will be by accident rather than by design. Law reform, Professor Kelly, instructed, had to concentrate on the concepts of the law. It had to clarify how a particular situation fitted into the mosaic. Thus, the project on breathalyser laws required not detailed exposition of foreign legislation but a close analysis of the problems to be tackled and the options that were available for doing so. If foreign laws were to be mentioned at all, it must be in the context of illustrating the alternatives on offer in Australia and arguing their comparative advantages. This lesson of conceptualisation is one, I hope, that has never left me since that morning in 1976. It is inevitable that my approach to judicial work should have been influenced by my decade as Chairman of the Law Reform Commission. Behind every rule of the common law is a case in which the rule was expounded; but also the principles and policies that informed the development of the law to that point. COURT OF APPEAL
My arrival at the Court of Appeal was somewhat bumpy. There were other senior judges (and some senior barristers) who had legitimate claims upon appointment. Yet institutions are powerful things in the law. When it emerged that I would work conscientiously and conduct the court in an efficient manner, agreeable to the profession, such initial resentment as had existed against my appointment melted away. The Court of Appeal became, and I expect still is, a most agreeable collegiate court. Reading the biographies of Benjamin Cardozo 11 , I could see some analogies between the New York Court of Appeals in his time, as he viewed it, and the Court of Appeal of New South Wales in mine. Justice Cardozo often lamented his elevation to the Supreme Court of the United States and described his six years in that Court as an "imprisonment". He missed the variety of the work at Albany which he regarded as infinitely more satisfying, intellectually, than labouring over the sparse words of the United States Constitution. Whilst I do not quite feel the same way about my translation as Cardozo did, I confess to a full understanding of his point of view. In my work as an appellate judge, I learned that the cross-over from law reform was not quite as radical as some would think. True, an appellate judge is not free simply to abolish longstanding authority or substitute rules congenial to himself or herself. True also in two out of three cases, at least, the rule to be applied is ascertainable. If established by the High Court of Australia it is binding. The Judge of Appeal then has no choice but to give effect to it. Yet in a number of cases (many of which later went on to appeal to the High Court) the Court of Appeal had a choice. The statue under scrutiny was ambiguous. There was no clearly applicable rule of the common law. Or the suggested rule of the common law had become overtaken by events or by other legal developments 12 . In such circumstances, an appellate judge in our system, has an inescapably creative function. He or she has what Professor Julius Stone taught were leeways for choice 13 . Most members of the community, and not a few members of the legal profession, think that the role of a judge, including an appellate judge, is semi-mechanical. But it does not take long service in the law, and especially in an appellate court, to discover that this is not universally true. In the New South Wales Court of Appeal there was a great pressure of the caseload. And yet, I believe, very high standards were set by a court of diverse personalities, in identifying the applicable rules of law and specifying, where the choices had to be made, the principles that would guide the judges' decisions. All of this was done, in an atmosphere of civility and courtesy, not only to each other and to lawyers but also to any litigants in person who appeared before the court. These were happy days. Arduous, it is true; and disciplined because of the rules binding in many cases. But days affording sufficient creativity to give energy and meaning to life as a judge. HIGH COURT
Of course, like every appellate judge, I am sometimes in dissent. This is not a badge of honour; but neither is it a mark of dishonour. The dissent is an appeal to the future 15 . It is a feature of the judiciary of the common law which is not shared with all other legal systems. Sometimes, where opinions of mine in the Court of Appeal have been overruled opportunities may present to reconsider those rulings. Recently, for example, the Supreme Court of Canada has held that in some cases administrators are bound in law to give reasons for their decisions 16 . This was a view advanced by me soon after my appointment to the Court of Appeal. 17 It was overruled by the High Court 18 . One day, I may have the opportunity of reconsidering that earlier authority, in the light of developments in the understanding of the common law in other jurisdictions. But I keep an open mind. In the High Court, more still than in the Court of Appeal, I have learned the importance for judicial decisions of legal policy. This does not mean the whim of the Justice or the Court. But it is important to recognise that an ultimate appellate court has responsibilities for legal exposition that are somewhat different in kind from those of other courts. Those responsibilities, in Australia, extend to constitutional elaboration, which presents special challenges in the case of a text (such as the Australian Constitution) that is so brief, difficult of formal amendment and often opaque in its meaning. A final court must endeavour to bring clarity to the law. Sometimes, it must seek to reclassify legal rules, when appropriate, into new categories that are simpler, easier to apply and more principled. As well as that, a final court has the responsibility, in appropriate cases, to develop the common law and to articulate the principles that will govern the interpretation of legislation and the elaboration of the Constitution. I venture to hope that an interpretative principle which I have offered in a number of cases 19 will be accepted in due course by the High Court. This principle would hold that, in a case of ambiguity, it is permissible, indeed essential to construe an Australian statute and the Constitution itself, in a way that would resolve ambiguities consistently with the norms of universal human rights law. The reconciliation of international law (including the international law of human rights) and municipal law is one of the major challenges which the Australian legal system faces in the coming century. It is essential that a final court of appeal should keep its eye on the past, and the great body of authority and learning that comes with the casebooks. But it is also important that such a court should look to the future. It should seek to understand the large trends that are occurring in society and the major challenges that face the law in its jurisdiction. In Australia, a comparatively small legal jurisdiction by the world's standards, it is specially important to keep in mind significant legal developments that are happening in other countries, especially countries of the common law. There is always a danger in a small jurisdiction of succumbing to parochialism and an inward looking attitude to the law. Rescue lies in ensuring acquaintance not only with legal developments that are occurring in other countries of the common law but also in the legal systems of the countries of the civil law tradition and in international and regional courts and tribunals. The latter have an increasing importance which is acknowledged by the frequent use to which their decisions are now put by the High Court of Australia. In the past we were saved from myopia by our link, through the Privy Council, to the great legal system of England 20 . That link has gone. But I have learned from my experience in the High Court how important it is to retain contact with the major world systems of law. Comparative jurisprudence and international law will have an increasing significance for Australian lawyers of the future. This much, and more, my service in the High Court has taught me. HUMAN RIGHTS I reach the final stage. The Christian ideal is life everlasting. On the other hand, Buddhism would have it that we are on a journey, doomed to be repeated until we finally reach the peace of Nirvana - a state of supreme enlightenment bringing total awareness of one's own condition and that of humanity. Largely by chance I have had the opportunity to serve in a number of international posts connected with the pursuit of human rights. The common law usually reflects the principles of human rights. In the future, it will do so under the stimulus of the decisions of courts and also bodies such as the Human Rights Committee of the United Nations 21 . The first complaint to that Committee, after Australian subscribed to the First Optional Protocol of the International Covenant on Civil and Political Rights was made by Nick Toonen of Tasmania. His complaint, as a homosexual man in Australia, that the Criminal Code of Tasmania interfered in his enjoyment of fundamental rights under the Covenant was upheld by the Committee 22 . It led to reform of the last of Australia's laws which rendered criminal the sexual conduct of adults although they are consenting and acting in private 23 . In March 1998 I asked Who's Who in Australia to introduce a new category to permit people to acknowledge their partners (p) - long term companions of either sex to whom they were not married (m). This was agreed by the editor. In November 1998, the edition for 1999 was published. It contained, in my over-long entry, an acknowledgment of my partner of thirty years, Johan van Vloten. This entry was not noticed by the Australian media until April 1999. When it was, most of the coverage was factual; some of it even supportive 24 . But letter writers to the press urged that, to restore respect and confidence to the Bench, I ought to be removed from office; that I ought to be prosecuted; and that by admitting my "liaison", I had evidenced how far moral standards had sunk 25 . One commentator asserted that "no matter how much the Oxford Street friends of Dorothy may wish, 'p' can never equal 'm' 26 . He mused on what he saw as an admission to "breaking the federal and state laws regarding homosexual relations" 27 . Another journalist demanded "did he prima facie break the law at the time by participating in a homosexual relationship" 28 . Such commentaries pass for serious journalism in contemporary Australia. The lesson I learned from my work for international human rights was this. Working for the human rights of disadvantaged people or people suffering from discrimination is a moral obligation. It is especially an obligation for lawyers whose calling inescapably involves them in the use of state power. When opportunities to do something arise, it is a privilege to respond. The response may, by chance, involve constitutional reform in Malawi or Labour Law in the new South Africa. It may concern defending the rights of people living with HIV/AIDS. It may relate to protecting privacy rights in the context of international data flows. It may concern human rights and the human genome. But these activities, worthy as they are, cannot excuse the lawyer - or anyone else - from upholding that person's own human dignity and basic rights. Silence about one's own human rights, in the name of modesty or politeness or saving the embarrassment of others, is not excuse enough. For centuries people have been playing the game of shame over human sexuality. That game was long reinforced in countries such as Australia by criminal laws which invaded the bedrooms of adults, and promoted in virtually all, an undeserved feeling of inferiority and deep unworthiness 29 . It led to serious problems of suicide which persist in Australia to this day, especially amongst the young 30 . There are of course still some in our society who would wish to perpetuate those feelings. Astonishingly, some of them masquerade as religious people 31 . Some of them are in the law. Discrimination on the basis of sexuality is an important human rights issue; but only one. Lawyers who are committed to a vocation concerned with equal justice for all under the law, must resist unjust discrimination. They must help rid the law of its residuum of legal injustice. This applies whether the discrimination rests on a person's gender, race, genetics, age, sexuality or other like ground. I received many letters following the media disclosure of my entry in Who's Who. A judge wrote that my step was "another contribution to the development of Australia as a liberal democracy not without considerable personal risk in a world where liberal reform seems on many fronts to have stalled". A senior churchman wrote: "The entry will be an encouragement and comfort to those who take a stand against homophobia in the Church and the community". From India, a student emailed me with the instruction to "stand tall ". An Australian police officer (later a volunteer serving in East Timor) wrote:
And finally, in the dignity of one's own existence - not as a judge, nor as a lawyer, not even as a citizen but as a human being - standing up for one's own humanity and dignity. And doing so before the
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