The Hon Justice Michael Kirby AC CMG 1



I am proud to receive the Vocational Service Award. I knew many of my predecessors in this award, going back to Sir Lorimer Dods in 1962. My own public life began in 1974, when I was appointed to the Arbitration Commission. It was in that year that the late Sir Bernard Heinze won this award. I suspect that he, and his music, brought much more joy to the lives of fellow citizens than ever I could. In 1977 Sir Bede Callaghan and in 1978 Professor Alex Mitchell - fine university men with whom I have worked - won the award. I count as friends most of the winners of recent years. It is a great privilege to join their company and to see so many of them here today.


I have been lucky in the vocation I chose, law, and in the opportunities which it has presented to me. Of course, you have to seize luck and make the most of it. But there is no getting away from the fact that the law presents its practitioners with a vocation to play a part in public life which has no true equal. It is a structured vocation offering steps which afford new and different challenges at chosen intervals. From clerk to solicitor. From solicitor to barrister. From barrister to senior counsel. From there, perhaps, to the Bench and possibly elevation to the judicial equivalent to heaven: the High Court of Australia. More and more lawyers today are pursuing careers outside the legal profession: in government, the business sector and public service. Yet my own choice of this vocation was made less by enthusiasm than by elimination. I lacked the piety to become a Bishop, the numeracy to embrace engineering or the stomach to cut up frogs on the high path to medicine. So that is why you see me where I am. However, I am grateful to my vocational choice for the chances it has given me to serve with fellow men and women both in Australia and overseas. From a jurisdiction-bound vocation, confined to a single State of Australia, I have seen the legal profession in my lifetime become a national one and, increasingly, regional and global in outlook.


Throughout my life I have been conscious of the criticisms voiced about the legal profession and the judiciary. The temperature of the attacks, and the occasional lack of grace in them, may have increased of late. But as long as I can remember, the legal profession has been the subject of attack. In part, the criticism has been justified. In part, it can be traced to envy about the power which the profession enjoys. As we all know, envy is a most destructive propelling force.


That some of the complaints are fully warranted is demonstrated in the most recent report of the Legal Services Commissioner for New South Wales (Mr Steve Mark) 2 . According to Mr Mark, the principal source of complaint remains that:


"The cost of justice [is] being priced out of the reach of ordinary people. ... The public is clearly telling my office that they are having difficulty with legal fees. Just under half of the 11,302 people who contacted NSW Legal Services last year raised concerns about legal costs. That is about 5,000 people told me last year that they had difficulties with legal costs, including that they had been overcharged, and it is my job to respond to these concerns 3 ".


In the context of radical changes in the provision of public legal aid in Australia, this concern about costs takes on a new urgency. The Law Society of New South Wales defended itself, pointing out that conveyancing costs in the State had actually fallen in the past two years 4 . This may be a special case occasioned by the introduction of some healthy competition as well as by new land title technology. But it is in the field of litigation that the most important and serious conflicts of society are settled, in the courts. There, high costs seem inescapable and intractable. One lawyer castigated both the Legal Services Commissioner and the Law Society for failing to address what he described as the "fundamental source" of high costs in litigation - an inefficient system:


"Is the real question not necessarily whether lawyers are expensive but whether the inefficiencies of the litigation system are the root cause of the expense and, in turn, consumer dissatisfaction with the legal system. I ceased litigating over a decade ago, primarily because it was difficult to come out of most litigation with a happy client. The only guaranteed win-win in litigation is that the plaintiff's lawyers win and the defendant's lawyers win 5 ".


These remarks resonate with comments made about the legal system in Australia by a United States Professor of Political Science (Professor Thomas W Church). He served up a "Consumer's Perspective on the Courts" 6 . Looking at my vocation from the perspective of a different discipline, he did not pull his punches. He had the usual criticism of wigs and robes which he regarded as designed to cultivate "an image of eccentricity and remoteness" 7 . He then had some rather pertinent remarks about the places in which many of my vocation perform their daily work, in the courts:


"At a major court here in Melbourne even the front door was disguised for more than a year under a web of semi-permanent scaffolding ... Once the courtroom is found it is apparent that it too was not designed for accessibility of the public, but almost its converse. All the major actors are separated from the public by a physical barrier, and the acoustics and sight lines are frequently poor for all but the active participants. The closest analogy - and it really is remarkably apt - is to the medieval cathedrals of Europe, where the worshipers were separated from the nave, the scene of all the action, by an ornate but largely opaque carved screen. The cathedrals were designed so that all ordinary folk heard lovely sounds emanating from behind the screen - in an ancient and indecipherable language - but they were not permitted access to the mysteries occurring out of sight".


Some Australian courts have improved acoustics and layout. But many have not.


Getting back to the issue of costs, Professor Church concluded 8 :


"I wish there were as clear a solution to the problem of escalating costs of litigation. Unfortunately no 'magic bullet' exists. The high cost of litigation is a result of an interlocking web of factors. Among them: its increasing complexity; procedural requirements imposed by courts and legislatures; changing economics of the practice of law and associated professional restrictions upon it; and - very probably - an all too human tendency for some men and women operating in a largely unregulated environment to engage in good old-fashioned price gouging".


Criticisms of this kind are not new. Some of the sternest critics of the high costs of the inelastic market in legal services offered by the top talent come from those who are generally most insistent upon market forces in other things. Yet the fundamental difficulty is that law is not, or should not be, just another commercial product. When law forgets its basic purpose - to bring order, safety and justice to all members of society - law has lost its way.




It is in this context that I was interested, as a past head of the Australian Law Reform Commission, to see its recent Issues Paper Review of the Adversarial System of Litigation 9 . The Issues Paper is not a report but a document designed to stimulate public discussion and the questioning of things long accepted and unquestioned. The Australian Law Reform Commission continues to play a vital role in challenging the otherwise unchallengeable. It has been particularly bold in this case because, it acknowledges, some of the changes which it is contemplating might even require constitutional amendment. Basically, the Commission has urged the Australian legal profession and community to consider whether the inquisitorial system for the administration of justice, as followed in Europe, might not be cheaper, more accessible and cost effective system than the adversary system inherited from England. Under the European model, much of the burden of extracting the relevant facts and controlling the conduct of disputes falls upon a career judge who is specifically trained for that purpose. An unrepresented person may be at less of a disadvantage in such a court. The role of the parties' lawyers is different and more circumscribed. It is, as a German judge once said to an Australian legal audience: "Not the Rolls Royce system you have. It is a Volkswagen system. But how many people can afford a Rolls Royce and how many a Volkswagen?"


One feature of the European system which captured a lot of negative comment when the issues Paper was released was the idea of a career judiciary. This means young men and women who are trained from law school days to become judges. This would involve a sea change in the appointment of the judiciary in Australia. Indeed, it would involve a complete alteration in the delivery of legal and judicial services to the Australian people.


The Law Reform Commission's paper has been criticised and praised 10 . Rather unkindly the Financial Review quoted Judge Richard Posner in the United States as saying:


"The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics, the history of efforts by all branches of the profession, including the professoriate and the judiciary, to secure a lustrous place in the financial and social status sun".




So is my vocation, so ancient and established in its ways, on the brink of fundamental change in Australia? I certainly welcome the debate. If Law Reform Commissions do not tackle such basic and difficult questions we can be fairly sure that the political process, unaided, will not do so. Yet, it was interesting for me to discover last week when I was in Geneva that many of the European systems we are urged to copy are at this very moment going through their own period of reconsideration. In France, President Chirac has established a Commission to suggest changes in the judicial system of France. The inquiry is designed to enhance the independence of judges from the Executive Government: said to be the weakness of a career or bureaucratic judiciary 11 . Whilst we in Australia should certainly be studying the inquisitorial system of Europe, we should not be unaware of the criticisms which the Europeans themselves voice about some of its features:


If you have a career judiciary, there is a risk of career attitudes and ambitions getting in the way of zealous and complete independence. The judiciary in such a system tends not to enjoy the status and power of judicial review of legislation and government actions which the judiciary of our tradition has built up over the centuries. Moreover, appointing judges, as we generally do, from the private sector legal profession in middle-age, means that the appointees bring with them attitudes of independence. They do not see themselves as public servants for they have never been so. This attitude of mind - independence of thought - has often proved a guardian of our liberties. It has to be taken into account in considering any fundamental change in the system. It is often envied by the Europeans.
The investigating judge, which seems a contradiction in terms to us, may certainly get at the facts more quickly and efficiently. But our system has been designed over centuries to protect the individual's basic rights when they are most at risk. By separating completely judges and prosecutors, we have adopted a system which helps to keep the great power of the state in check. Ironically, this is why many European lawyers are now looking to England for a similar model. It is always a shock to a lawyer in our tradition to enter a criminal courtroom of the European system. The judges sit on their Bench. The prosecutor has a Bench beside them. The defence is consigned to the well of the court where the acoustics are probably no better than our ours. The symbolism is all wrong to our eyes. It is a symbolism that seems to align the prosecutors with the judges and to diminish the independence of the decision-maker which, costly and all, we insist upon as absolutely fundamental to our notions of justice.
Furthermore, the inquisitorial system is not always as efficient as its proponents suggest. More than in our tradition, it depends upon institution-driven rather than client driven decision-making. A good illustration of this fact came before the European Court of Human Rights last year in Phocas v France 12 . Mr Phocas's dispute with the French administration began with the adoption of a road development scheme in May 1960. He applied for a planning consent in March 1965. There followed an astonishing saga of disputes, appeals to an administrative court (on four occasions) and eventually to the Conseil d'état of France - the top constitutional body. The application to the Conseil was made on 11 August 1986. It did not deliver its decision (against Mr Phocas) until 25 May 1990. The European Court of Human Rights found no violation of Article 6 of the Convention promising speedy trial, apparently on the ground that Mr Phocas had not made special efforts to speed up the proceedings. We have our own lamentable cases of delays in reserved judgments in Australia. But few of them equal those of Mr Phocas. I suppose we must be grateful for small mercies. The Imperial High Court of the Holy Roman Empire often took more than a century to decide a case. Lord Eldon began a judgment in Earl of Radnor v Shafto in 1805 with the breathlessly urgent words: "Having had doubts upon this will for 20 years there can be no use in taking more time to consider it 13 "




We should probably not exaggerate the differences between the European delivery of justice and our own. In Australia, we are moving increasingly to judicial case management, although within a tradition which typically safeguards the ultimate observance of the justice of the case when it conflicts with managerial principles 14 . But our judges are certainly now much more pro-active. They will not accept needless delays which add burdens to the litigants before the court and retard the resolution of the disputes of others. New techniques of dispute resolution outside the courts have been introduced. Judicial education has been started. In an age of globalisation of so many issues, the law and even the judiciary of Australia are not immune.


My journey to Europe last week was to help the United Nations Office in Geneva to prepare a manual with basic information about fundamental human rights law so that judges on every continent can have these developing principles before them, where they are relevant to their decisions. This manual will itself, like trade, telecommunications and other links, tend to reduce the sharpest differences between the legal systems of the world. Perhaps a convergence is underway between the inquisitorial systems of Europe and the adversary system which we follow. In Australia, we should be alert, as I believe we have often lately been, to adopt techniques, wherever they come from, which save time and costs. An appreciation of the inefficiencies of our system should stimulate us to look with an open mind to new and even radical proposals. But we should be cautious before we abandon some of the best features which our legal system offers:


A long tradition of incorruptibility.
An independence of mind on the part of the judges and the advocates.
Sufficient power, by judicial review, to keep the other branches of government always within the law.
Adherence to the symbols and to the reality of true neutrality so that the judge is not, and is never seen as, just another public servant.
A client driven rather than an institution driven system.


This is not a formula for complacency. In the coming millennium global convergence and new technology will produce fundamental changes in my vocation - the law - as it will in every occupation. We should keep the best of what we have. But we should also continue looking for Utopia. Oscar Wilde gave us - lawyer and non-lawyer alike- an injunction specially suitable to the idealism of Rotary:


"A map of the world that does not include Utopia is not worth even glancing at, for it leaves out the one country at which Humanity is always landing. And when Humanity lands there, it looks out and seeing a better country, sets sail. Progress is the realisation of Utopias".


It is in the spirit of that happy mixture of idealism and pragmatism which marks Australian public life, and so much of the work of Rotary, that I am greatly privileged to receive this award.


Justice of the High Court of Australia. Text on which was based a speech on the presentation of the Vocation Service Award 1997.


2 Office of the Legal Services Commissioner (NSW) Annual Report 1994-95.


3 Australian Financial Review, 15 April 1997 at 18.


4 "Damning Verdict on Lawyers", Sydney Morning Herald, 2 April 1997.


5 W Cross, "Inefficient legal system also to blame for high costs of law", Australian Financial Review, 17 April 1997.


6 T W Church, "A Consumer's Perspective on the Courts", Second Annual Oration in Judicial Administration, Graduate School of Management, Melbourne, 31 October 1990.


7 Ibid, 9.


8 Ibid, 10.


9 Australian Law Reform Commission, Issues Paper 20, Review of the Adversarial System of Litigation - Rethinking the Federal Civil Litigation System, 1997.


10 See eg Sydney Morning Herald 9 May 1997 ("Career Judges"); Australian Financial Review 12 May 1997 at 20 ("Dilute the Judges' Cartel").


11 "L'indépendance du parquet est au c ur des travaux de la commission Truche", Le Monde , 6 May 1997 at 8.


12 European Court of Human Rights, Summary by the Court, 23-25 April 1996.


13 Cited in H T Gibbs, Occasional Address at the Graduation Ceremony for Graduates in the Faculty of Law, University of New South Wales, 7 May 1982 at 7. See M D Kirby, The Judges , Boyer Lectures, 1983 at 50-51.


14 Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294 (HC).