LITERATURE IN AUSTRALIAN JUDICIAL REASONING* The Hon Justice Michael Kirby AC CMG**

 

"And as to lawyers, they are well known to have been very little acquainted with the commonwealth of literature and to have acted and written in defiance of its laws.¹

 

TWO FOOLHARDY VENTURES

 

          Quoting popular literature in judicial utterances can be quite dangerous.  Safer by far to stick to the classics², to Shakespeare³, or other writers long since safely dead⁴.

 

          Modern authors may be part of popular culture.  They may be less respectable and less respectful of judicial gravitas.  I therefore begin this strange eventful tale with two instances.  Strange and eventful they certainly were, for, in each case, they altered the lives of the judges concerned in ways that were distinctly unpleasant.  Each involved the invocation of modern literature whose imagery upset, as it was designed to do, the audience to whom it was addressed.

 

          The famous wartime decision of the House of Lords in Liversidgev Anderson⁵ was delivered in late 1942.  These were times dangerous for England's survival.  Yet whilst the bombs were falling, Lord Atkin penned a brilliant dissent to the proposition that a recital that the minister had reasonable cause to believe that a person had hostile associations was sufficient to render the decision unreviewable in an English court of law.  Atkin, born in Queensland, would have none of what he saw as heresy.  He said⁶:

 

"I know of only one authority which might justify the suggested method of construction:  'When I use a word,' Humpty Dumpty said in a rather scornful tone', it means just what I choose it to mean, neither more nor less' 'The question is', said Alice 'whether you can make words man so many different things' 'The question is', said Humpty Dumpty 'which is to be master - that's all'" ("Through the Looking Glass", c vi).  After all this long discussion the question is whether the words 'if a man has' can mean 'if a man thinks he has'.  I am of opinion that they cannot, and that the case should be decided accordingly".

 

          Atkin's vivid prose had mortifying consequences.  Some of the participating Law Lords were deeply offended when they saw the draft of this speech.  The presiding judge, Lord Simon LC, suggested gently to Atkin that he should tone down his remarks⁷:

 

"I am all in favour of enlivening judgments with literary allusion, but I would venture (greatly daring I know) to ask you whether the paragraph should be retained".

 

          Atkin refused to change a word of it.  In consequence, some of his colleagues were so enraged that they cut him dead at subsequent encounters.  Lord Maugham, brother of W Somerset Maugham (although with even greater vanity and less talent), wrote a letter of complaint about it to the editor of The Times.  It was all very unpleasant⁸.  Perhaps their Lordships put Atkin's lack of manners down to his Australian origins.

 

          Now come to a more recent, local example.  In 1973, Jim Staples, a Sydney barrister, was appointed a Deputy President of the Australian Conciliation and Arbitration Commission.  That body was the predecessor to the Australian Industrial Relations Commission.  It traced its origins to the Commonwealth Court of Conciliation and Arbitration, established soon after the creation of the High Court of Australia, and originally constituted from amongst the  Justices of the High Court.⁹  I was appointed to the Australian Commission in December 1974 as, earlier, had been Mary Gaudron.

 

          Jim Staples did not have a background in practice in industrial relations cases.  Most of his legal practice had been in criminal cases.  He had considerable ability in the use of colourful phrases, both in oral and in written expression.  Perhaps for that reason, he enjoyed much success before juries in cases which other advocates had declared unwinable.  This verbal ability was to precipitate difficulties in his relationships with the President and Deputy Presidents of the Arbitration Commission¹⁰.

 

          The immediate cause for the crisis were remarks that Justice Staples originally made in the course of a decision that he gave in relation to a dispute between the Broken Hill Pty Company Limited and the Seamen's Union of Australia.  In his reasons, Justice Staples used language which the respondent company considered to be insulting.  Speaking of recommendations that he had made, but which the company had rejected, Justice Staples wrote¹¹:

 

"Let them, then, twist slowly, slowly in the wind, dead and despised, as a warning to the Commission of the limits of the persuasion of a public authority upon those who zealously uphold the privileges of property and who exercise the prerogatives of the master over those of our citizens whose lot falls to be their employees".

 

          The President of the Commission (Sir John Moore) thereupon removed Justice Staples from responsibility for the maritime panel of industries within the Arbitration Commission.  He told him that he had "destroyed" the confidence of the shipowners in his impartiality.  Justice Staples was then sent off on "study tour" concerning human rights¹².  On his return to Australia, he resumed normal duties as a Deputy President of the Commission.  However, a second crisis soon overtook him and this time literature intruded. 

 

          The second event principally concerned a claim by wool storemen for an increase in wages under the applicable award.  Justice Staples awarded the storemen considerably more than the flat increase expected.  Ordinarily, that would probably have passed with a few grumbles and a prompt appeal.  But it was the language in which Justice Staples explained his decision that caused an outcry:

 

"He criticised the lack of assistance given to him by the parties.  He identified a number of contradictions in the then governing wage-fixing guidelines established by the Full Bench of the Commission.  And he concluded his decision with an allusion to Joseph Furphy's book about the wool trade by declaring that he had fixed the figures arrived at in this way:  'I shall simply select a figure as Tom Collins¹³ selected a day from his diary and we shall see what turns up.  Such is life'"¹⁴.

 

          "Such is Life" was the title given by Furphy to the book from which Justice Staples drew his metaphor.  It is a classic Australian story of the movement of wool from the Riverina to coastal ports.  Jim Staples may have had a point that award fixation (like the award of damages in tort or the determination of criminal sentences) is sometimes presented as a scientific endeavour but actually (indeed inevitably) contains large elements of discretion, evaluation and personal judgment.  However, making that point by reference to a work of Australian literature, and in the terms described, outraged the industrial relations habitués, some of his colleagues, a few members of the government and many others besides.

 

          Within a very short time, Justice Staples was once again side-lined, this time from any of the panels of industries to which Deputy Presidents of the Commission were assigned.  He was highly critical of this development¹⁵.  He continued to receive a few invitations to participate in the Full Bench of the Commission.  These ceased entirely when a new President was appointed in 1985.  Later, when the old Commission was abolished and the new one established by legislation, Justice Staples, alone, was not appointed to the new body.  He was left, as it were, twisting in the wind, judicially dead and despised by his critics.  This was a breach of judicial convention observed in Australia at that time¹⁶.  By a legislative fiction, Justice Staples was later deemed to be of pensionable age¹⁷.  But he never again sat as a judge.  This is a sad tale about an able man who brought the roof down on his head, in part by his own too vivid writing and, on the second occasion, his invocation of popular literature.

 

BOLD IDEAS AND POWERFUL WORDS

 

          Every decision-maker reasons to conclusions that must normally be verbalised.  Judicial decision-makers in Australia are usually expected, and often required, to give formal reasons for their decisions¹⁸.  The reasons may form in the mind of the decision-maker as a case unfolds.  There is little empirical analysis of the process by which judges perform their most important function - arriving at a conclusion on an issue or a case.  Precisely how the physiological changes and electric signals in the brain combine to produce one decision rather than the other is difficult to explain.  Only the foolhardy try¹⁹.

 

          However, because judges must give reasons in the form of words, either on the run²⁰, or in opinions later published and now usually available on the Internet, it is probably reasonable to assume that the mixture of responses, intuition, impression, feelings and understandings of the law and facts are themselves influenced, to some degree, by the obligation to explain the conclusion arrived at in words which are the shadows of ideas²¹. 

 

          Words gather together in sentences which represent the usual unit of communication, at least in the English language²².  It therefore seems reasonable to suppose that ideas are themselves influenced to some extent by verbal explanations of what the judge wants to say.  Stored away in our memory cells are ideas collected over our lives.  The collection begins at the time of our first ventures into language, with the patient encouragement of our parents and families.  Absent brain dysfunction, it continues to our last breath.  All the time, we are accumulating knowledge and feelings.  Most are expressed and explained in words. 

 

          Most of the words we know occur in everyday speech of profound banality.  But vivid and powerful ideas are sometimes conveyed in a more literary form.  Some human beings have the uncanny ability to convey ideas in words that are memorable or that penetrate through the clatter of trivia and quickly reach the awareness of the reader or listener.  This may come about from a capacity, which poets have, to combine words with a kind of verbal music: rhyming, rhythm, pleasing or shocking harmonies and discordances of sound and verbal patterns.  Some authors, even when writing prose, can use words or images in such a way that they linger in our memories, only to please or irritate us when we see, hear or remember them.  Part of the purpose of using imagery in legal reasoning is to ensure, in the words of Justice Windeyer in Damjanovic v The Commonwealth²³ that the law remains a "living document", i.e. a living thing moving with the times.  As Michael Meehan has explained²⁴ it is part of the effort to "keep law on the side of the living"²⁵.

 

          Judicial reasoning is thus an art, overwhelmingly discharged in printed words and sentences.  It is an art that calls on skills of narration and story-telling²⁶.  The stories are normally told in words alone.  Sometimes words are accompanied by pictures, drawings²⁷ or maps²⁸ to make things clearer.  Including such non-verbal images in judicial reasons sometimes causes such a shock to the orthodox that it occasions rebellion on the part of the editors and publishers.  Now I am in the delightful position to insist.  Once I succeeded in having a picture of a newspaper relevant to illustrate my text, included in the published report²⁹.  But when, in the Ettingshausen appeal from a decision of Justice Hunt³⁰, I annexed to my reasons a copy of the offending page of the magazine, showing an obscure photograph of the plaintiff taken without permission in a shower, the editor of the reports had the last word.  The decision was never reported.  Which is a shame, as the points were interesting and the photograph was necessary, or at least useful, to understand the arguments in the case and my reasons.³¹

 

          Nowadays, judicial narrative appears in electronic form shortly after delivery of judgment, available on the court’s webpage.  Yet some judges still write their reasons longhand, a discipline which Justice Kitto urged as an assurance of brevity and precision of expression³².  Most trial judges must give a large number of their reasons orally, in the course of dealing with problems that arise in the course of conducting a trial: making rulings, charging a jury or presenting ex tempore reasons for the decision in the case.  Although some appellate reasons are given in this way, most are produced in written form before being released to their audience.  They may have begun their lives as speech, dictated to a secretary, spoken into a dictation machine or now to computers programmed for voice recognition.  So judges cannot get away from speech and words.  Their lives revolve around words.  And hidden in the words are ideas and values which the judges have been accumulating over their lifetimes.  Ideas may send the judge's mind searching at the speed of the synopses, for half remembered phrases, metaphors and similes and almost forgotten poems and books, learned years before, which help to shape the judge's thinking and organise responses to complex factual and legal problems.

 

          My point at the outset is, therefore, a simple one.  Between judicial ideas, conveyed in words, sentences, and in literature, lies a symbiotic relationship.  It is an inescapable relationship in the case of judges for, ordinarily, they have been educated in literature.  To some extent, their values, feelings, aspirations and fears have been verbalised in, and shaped by, literature learned at home, in school and in the solitary moments of reading, watching, listening and reflecting on powerful thoughts, powerfully expressed.  Sometimes, the power of those thoughts can be dangerous as the two judges learned in the illustrations that I have mentioned.  But usually literature can help the judicial writer to express important ideas in ways better than they could muster, unaided.  Such literature becomes part of the rhetoric of judicial exposition, explanation and persuasion³³

 

LAW & ENGLISH LITERATURE

 

          Most judges of my generation grew up with the Bible and a prayer book of some kind.  In my own case it was the Book of Common Prayer. The earlier editions of that book contain the magnificent cadences of Cranmer's original text.  Even those lawyers who subsequently rejected the religious instruction of their childhood are commonly left with the legacy of prose, fashioned in resounding words and carrying lofty ideas (for the most part) of justice, love, morality and reconciliation.

 

          Australian judges of my age probably encountered the literature of their own country, mostly, at primary school.  In the 1940s and 1950s, we learned the poems of Henry Lawson, A.B Paterson, Adam Lindsay Gordon, Henry Kendall and others in the early years of education.  Somehow, in the middle of the twentieth century, Australian literature and poetry did not seem very important to those who designed courses for secondary schools.  Those courses usually contained little in the way of Australian literature.  Mid-century, in Australian schooling, there was the compulsory study of at least two of Shakespeare's plays and a healthy diet of Wordsworth, Tennyson and other poets of England up to the end of the nineteenth century.

 

          By Wordsworth we were assured³⁴:

 

"We must be free or die; who speak the tongue

 

That Shakespeare spake; The faith and morals hold

 

Which Milton held - In Everything we   are sprung of

 

Earth's first blood, have titles manifold ".

 

          From Tennyson we read of³⁵:

 

"A land of settled government

 

A land of just and old renown

 

Where Freedom slowly broadens down

 

From precedent to precedent ".

 

          In our schools we studied the novels of Walter Scott, who at one stage of his career was almost appointed a sheriff in the Scottish judiciary.³⁶  Happily, he was rescued for higher, literary, service.  Dickens, the one-time articled clerk, and court reporter immortalized in Bleak House the pre Judicature Act Chancery Court. He stimulated criticism of the procedures, and assumptions, of the law at a time when it was at its most self-satisfied³⁷.  In school drama, we played our parts in Trial by Jury, Iolanthe and The Mikado of Gilbert and Sullivan.  At that time we did not realise that Gilbert's humorous jests, at the expense of the law, were written by someone who was himself a not very successful barrister³⁸:

 

"And that nisi prius nuisance

 

Who is just now rather rife,

 

The Judicial Humorist - I've got him on the list -

 

All funny fellows, comic men,

 

And clowns of private life -

 

They'd none of 'em be missed -

 

They'd none of 'em be missed ".

 

          Mid-century, in most schools, there were few encounters with the Australian authors and poets of the twentieth century.  Even James McCauley, an alumnus of my high school in Sydney and a noted Australian poet, was mentioned for his fame as an old boy, but the content of his writing was never disclosed.  Poets from America and the British Isles such as T S Eliot, W B Yeats, and W H Auden and all the rest lay in waiting for discovery at university or in later life.  Generally speaking, at that time, Australian poets and writers were banished, as if in embarrassment, from study.  It may have been different in some schools; but they would have been few.  There was a serious gap in my formal education.  I am not alone.

 

          Such a gap is a misfortune.  There are parallels between law and literature.  They both encourage the utilisation of imagery, language and ideas that come with creative writing of every kind.  Judges in their reasons, and lawyers in their opinions and advocacy, are recounting human stories.  By their narratives, they seek to evoke responses from their readers or listeners.  They share with poets and authors a fascination with words.  They are engaged in the art of rhetoric³⁹.  It is natural that judicial skills in writing should intersect with those of other creative writers.

 

          Yet there are inescapable differences between legal writing and writing as literature and poetry.  The law's words are ultimately coercive.  They affect the liberty, reputation and property of the individual.  Neither judge nor lawyer can fully control the script of the dramas that unfold in courtrooms.  Neither should delay too long in search of the perfect word.  The business of the law is usually too urgent.  Its expositions should be as brief as possible.  They should be confined to matters strictly relevant to the judicial purpose.  In a struggle between accuracy, timeliness and elegance, the last must always give way. 

 

          Creative writers can give full vent to their emotions.  Normally they will not be cut down by their colleagues or lose their employment because of a too vivid phrase.  The most they normally suffer will be a bad review.  Judges and lawyers, on the other hand, are expected to conform to different conventions of restraint.  In court they do not always have the privilege to indulge in vivid prose if this would undermine their effectiveness, or if it might needlessly upset the other participants or shake the confidence of society in their impartiality and professionalism⁴⁰.  Upon some sensitive matters, lawyers and judges must frame their words with great care.  Kevin Childs explained that litigants, reading our opinions, will sometimes respond with the protest:  "We don't want you to say the unsayable, just to make the inexplicable explicable"⁴¹.

 

AUSTRALIAN LITERATURE - A DESERT

 

          The only substantial citation of Australian literature in reasoning in the High Court appears in the opinion of Justice Evatt in Chester v Waverley Corporation⁴².  The case was tragic.  The defendant council had dug a large trench protected only by a railing under which young children could easily pass.  The plaintiff's seven year old son went to play on the street.  He did not return home.  The plaintiff, an immigrant from Poland, went in search of him.  The search lasted hours.  She was present when, eventually, her son's body was recovered.  She sustained severe nervous shock and sued the Council for damages.  The High Court rejected the claim, the majority speaking in orthodox and colourless prose.  But in his dissenting opinion, Justice Evatt invoked "imaginative genius" to portray suffering and anxiety of the kind that the mother had undergone whilst frantically waiting for the results of the searches.  After citing a poem of William Blake, he reached into Tom Collins' novel Such is Life.  This is the same work as was later to cause so much trouble for Justice Staples. Justice Evatt quoted an extended passage from the novel describing "the agony of fearfulness caused by the search for a lost child"⁴³:

 

"Longest night I ever passed, though it is one of the shortest in the year … wandering about for miles; listening … Once I heard the howl of a dingo, and I thought of the little girl; lying worn out half asleep and half-fainting - far more helpless than a sheep".

 

Later, from the same work, Justice Evatt quoted a further passage from the same work⁴⁴:

 

"Bad enough to lose a youngster for a day or two, and find him alive and well; worse, beyond comparison, when he's found dead; but the most fearful thing of all is for a youngster to be lost in the bush, and never found, alive or dead".

 

          To tie this literary allusion into his legal reasoning, Justice Evatt proceeded⁴⁵:

 

"Not only its poets and novelists, but, at any rate in recent years, those engaged in the administration of the common law of England have recognised that shock of the most grievous character can be sustained in circumstances analogous to those of the present case".

 

          There are plenty of orthodox points in Justice Evatt's reasons.  Analysis of judicial texts.  References to "the broader principle enunciated by Lord Atkin in Donoghue v Stevenson⁴⁶, then but seven years in the past.  Invoking judicial reasoning outside the courts of the British Empire, including the famous words of Justice Cardozo, then of the New York Court of Appeals, in Wagner v International Railway Co⁴⁷:

 

"Danger invites rescue.  The cry of distress is the summons to relief.  The law does not ignore these reactions of the mind in tracing its consequences".

 

And mention of advances in medical knowledge about nervous shock⁴⁸.

 

          Years later in Coates v Government Insurance Office of New South Wales⁴⁹, also in dissent and without benefit of literature, I pressed some of the same points to an equally unsuccessful conclusion.  Justice Evatt's opinion in Chester did not carry the High Court with him.  But it has continued to agitate commentators and other lawyers crucial of the artificialities of the line which the common law has hitherto drawn involving the scope of the legal duty of care where an alleged victim of the default has suffered nervous shock.  Part of the power of Justice Evatt's reasons, adding to his legal analysis, is the rhetoric which the reasons display, including by the invocation of literature to explain what Mrs Chester went through and how natural it therefore was for her to have suffered a profound personal injury in such circumstances.

 

          Not everyone agrees with this conclusion.  Simon Petch contrasts what he sees as Evatt's heavy-handed technique with the simple power of Cardozo's writing style⁵⁰:

 

"Cardozo's short sentences suggest his impatience with legal formalism, and while his comments have substantial relevance to the Australian case, his authority for Evatt is as literary as it is legal, coming as it does from the power of his prose.  Evatt's phrasing emulates Cardozo's social awareness, but lacks his punch … [T]o the present (non-legal) writer, this judgment is too laden with a sense of its own significance.  The self-consciousness of Evatt's remarks renders them heavy-handed and initially the self-consciousness and heavy-handedness now signalled by the use, or misuse, of Blake.  Literary authority can be as dangerous, and as ambiguous, as a 'two-handed engine'".

 

          Petch also contrasts what he sees as the artificiality of Evatt's extended citation from Such is Life with Chief Justice Dixon's repeated quotation from Shakespeare’s Othello in Parker's Case⁵¹.  That was a case important in Australia, not only for the law of murder with which it primarily dealt.  It also represented something of a declaration of judicial independence, voiced by Chief Justice Dixon and Justice Windeyer in dissent.  Those judges held that the High Court should not follow a decision of the House of Lords⁵², a conclusion then bordering on judicial rebellion.  Their Lordships' alter ego, the Privy Council⁵³ subsequently aligned themselves with Dixon and Windeyer.  Who knows the extent to which that judicial rebellion was sanctioned out of respect for the special ability of those two dissentients to express themselves in powerful prose. 

 

          Petch thinks that Dixon's opinion in Parker is particularly powerful, and made more so because he had invoked an allusion to Othello, whose facts concerning jealousy and homicide were sufficiently similar, and therefore pertinent, to the facts in Parker.  According to Petch, the real power of Dixon's opinion lay in the way he "seals his judgment by merging his literary allusion with legal discourse"⁵⁴:

 

"Othello not only has an obvious relationship to Parker; his words support's Dixon's explanations of both fact and law, and (most important of all) are used as a potential voice for the jury, for what the jury might have said had it been allowed to test the issue [of provocation]".

 

          This is a reference to Dixon, one of our greatest judges, using Shakespeare, the most powerful writer of the English language⁵⁵.  It is not the invocation of contemporary, or specifically of Australian, literature.

 

          The only other judicial opinion in the High Court in which Australian literature makes more than a fleeting appearance is in Justice Murphy's opinion in the Scientology Case⁵⁶.  That decision concerned the question whether the Church of the New Faith would be exempted from payroll tax because it was a "religious or public benevolent institution".  Different members of the High Court approached the question in different ways.  However, whilst the opinions of the other Justices were long on analysis and legal allusion, that of Justice Murphy showed his extremely broad reading on the subject, borne out by an appendix of texts, most of them written from a point of view critical of, or sceptical about, religion.  Of the Australian authors in that list, Lionel Murphy wrote⁵⁷:

 

"Last century Marcus Clarke described religion as 'an active and general delusion':  Civilisation Without Delusion (1880), p 12.  Henry Lawson, Joseph Furphy, Manning Clark, Patrick White, A B Facey and many other Australians have written sceptically about organised religion".

 

          Lionel Murphy leaves one in no doubt as to where he stood on the subject.  Accepting that one "religion" was as bad as another, he could  make no artificial distinction to favour the old "respectable" religions over a new challenger.  Just to demonstrate the many mansions that exist in the heaven of the High Court, Murphy's opinion is followed by one written jointly by Justices Wilson and Deane.  The former rose to be President of the Uniting Church in Australia.  The latter is a leading layman of the Roman Catholic Church.  Their joint reasons were not enlivened by a single reference to Australian works of art.  But "Chief Boo Hoo" and the "Boo Hoos" make an appearance there, by reference to a court decision in the  United States⁵⁸ which held that a parody of religion as a sham could not properly be characterised as a religion so as to secure the benefits that religions enjoy under the law.

 

          In terms of allusions to Australian literature, the pages of the Commonwealth Law Reports, and the authorised reports of State, Federal, Territory and Colonial courts, otherwise emerge as a kind of desert.  Scattered throughout are the occasional little oases of prose and poetry from England⁵⁹.  In the midst of the desert is a large oasis dedicated to Shakespeare⁶⁰.  On the perimeters one finds the fertile zones of the Bible⁶¹ and of the literature of ancient Greece and Rome⁶².  Ever so often, one comes upon a very modern oasis with allusions (and illusions) known only to a selected few⁶³. One sometimes comes upon a judge, wandering in the desert, who admits to an incapacity to find a congenial oasis, whilst knowing that one exists somewhere⁶⁴.

 

          Occasionally, very rarely, the judicial explorer, impatient of finding an oasis satisfactory enough, works and works, only to build a world of literature of his or her own.  Usually the results are disastrous.  However, sometimes they are truly beautiful⁶⁵. They then represent legal reasoning as literature and not simply literature in legal reasoning.  However, in this desert, the oasis of Australian poetry and prose is hardly ever discovered.  It is a mirage⁶⁶.

 

          Once one comes to the realisation that, in this large desert of professional writing, there is so little by way of reference to Australian prose and poetry, an inquisitive observer asks why this is so?  And what, if anything, should judicial writers in Australia, and advocates who address and seek to persuade them, seek to do about it?

 

CURING THE NEGLECT

 

          The chief reasons for the almost total neglect of Australian creative writing in the written opinions of Australia's judges are not difficult to find.  Until very recently, such judges were encouraged to express themselves in a ways similar to the judges of England, whose knowledge of their own classics (and ignorance of the writings of Australian authors) would have been understandable.  So long as the Australian courts remained linked to the English judiciary through the Privy Council, as they were until finally in 1986 the umbilical cord was severed⁶⁷, a high measure of obedience was called for not only in legal concepts but in judicial expression and technique.

 

          The age, and the constitutional text, which condoned and reinforced this intellectual dependence were products of the British Empire.  It is difficult for contemporary lawyers to appreciate fully the sense of belonging, and of power, and self-confidence that accompanied the notion that Australians were privileged members of a world-wide family of nations that shared not only English law but English literature, values, sports and, to some extent, common ideals.  At that time, reaching even to my own education in the 1940s and 1950s, it seemed quite natural for serious study of English literature at school in Australia to concentrate on the core texts of the classics of the English language.  This meant writers from England who, to this day, remain among the chief expositors of literature in our language. 

 

          With the breakup of the British Empire, the advent of independence of the colonial peoples and the self-confidence that has accompanied these political and legal changes has come, outside the law, a great flowering of creative writing.  It is reflected in popular culture, books, films and now electronic publications.  Anyone in doubt of this phenomenon should glance at the recent winners of the Booker Prize and reflect on the way in which the English language has become such a powerful unifying force for humanity, belonging to no nation or nations.  With the language comes a world of literature and ideas that is far greater than that which was opened to the Australian schoolchildren of my generation.

 

          Many Australian judges today have little time to acquaint themselves with the huge treasury of creative writing in Australia, still less in other English speaking countries.  The pressure of judicial life is now such that precious hours of relaxation are usually spent with family and friends.  Experts even suggest that judges (and other lawyers), whose profession is so deeply involved in words, may need to discover specifically non-verbal forms of relaxation in order to relieve the stress of judicial life⁶⁸.  Reading beyond the law reports, appeal books, submissions and the "numerous lever arch folders [which] form … ramparts behind which the embattled judge cowers"⁶⁹ leaves little opportunity for most contemporary judges to savour the delights of literature, Australian or otherwise⁷⁰. 

 

          A further reason for reticence, even if a phrase or quotation from an Australian text might occasionally appear appropriate, may be the fear of appellate disapproval.  Appellate judges are not unknown to take umbrage at allusions to literary works, ancient and modern⁷¹ where they appear mistaken, irrelevant, contrived or posturing. 

 

          To the minimalist judicial writer, an allusion to Australian (or any other) literature will leap from the page as a red rag.  Fear of mocking words and glances at his Inn did not persuade Lord Atkin to remove from Liversidge v Anderson his powerful allusion to Alice and Humpty Dumpty.  And so powerful was it that it was copied, soon after, in the United States Supreme Court by Felix Frankfurter.  In the ways of that country, it inspired a flood of applications and an entire volume of analysis titled Alice's Adventures in Jurisprudentia⁷².  In that volume Alice comes face to face with Chief Justice Dumpty and some of the acknowledged absurdities of American law.  Lord Atkin therefore let loose a persuasive image.  But not everyone is an Atkin.  Shakespeare may be safe.  Lewis Carroll pushes the envelope.  Citations of lesser known (or unknown) local creative writers run the risk of irritating other judges, particularly those who may feel that those who are subject to their discipline would do better to concentrate on their own immortal, if plain-speaking, words.  And overreaching all of these reasons for restraint upon doing anything novel or unusual is the secure culture of modesty and understatement which, until now, has generally pervaded the conduct and writing of judges⁷³.

 

          Practical reasons may also help to explain why even a throw-away reference to Australian literature so rarely appears in judicial writing in Australia.  The dictionaries of quotations and encyclopaedias of words are, for the most part, produced for the British or American markets.  Their compilers tend to have as little familiarity with Australian creative writing as most Australian jurists have.  Another reason for the dirth of references could be the fact that contemporary literature sometimes comes too close to local debates and popular controversies.  It may express ideas on such subjects in language more direct than judges and lawyers tend to use.  Nowadays, in literature, the veneer of politeness is often dropped.  More than in the past, vivid effect is now commonly gained by sharp, and sometimes vulgar, expression.  Although now commonplace on the stage and even in film, on the television and in the printed word, legal writing still obeys conventions of style and form.  This makes the insertion in the text of apt quotations from much contemporary writing, difficult to achieve. 

 

          These, then, are the reasons why those judges who reach for what they feel is a pertinent literary allusion usually go no further than childhood memories of Shakespeare and the other safe classical writers.  Doing this may suggest a suitable, it sometimes dubious, veneer of civilisation whilst avoiding irritation of the orthodox which bolder literary allusions could provoke.  Judges know that they are expected to avoid indecorous over-dramatisation, gratuitous purple passages, coy intrusions and annoying showing off⁷⁴.  If new ideas are often uncomfortable to judicial and legal readers, dressing them up in unfamiliar literary quotations and allusions might be a sure way of losing any hope of persuasion – the ultimate objective of judicial writing⁷⁵.

 

          The cure for the almost total absence of reference to Australian literature in judicial writing, if cure be sought, is not hard to find.  It must start in the schools.  Knowledge of the literature of the English language, which is now global, should be expanded to a greater familiarity with Australian prose writers and poets than was usually offered in the schools of my day.  Doubtless this is already happening.  Obviously, it must not be achieved at the price of expelling the study of Shakespeare, whose uniquely powerful imagery will continue to be reflected in judicial and other expression as long as the English language endures.  But without such familiarity, gained in early formative years, it is unlikely that knowledge of, and reference to, Australian literature will ever enter the mind of the average lawyer or judge when trying to explain a point.

 

          One can but hope that future Australian judges and advocates will, comfortably and in passing, mention a pertinent idea of Douglas Stewart, James McCauley, A D Hope, Judith Wright, Manning Clark, Geoffrey Blainey, Kath Walker (Oogeroo of the Nunuccal), Thea Astley, Les Murray, David Malouf, Peter Carey or the law's own John Bray.  When these and other writers are as familiar to educated Australians as de Toqueville, Longfellow, Whitman and John Updike are to Americans, we will have reached the maturity of true intellectual independence.  We will not have disdained the powerful writers of other lands who share with us the the English language.  But neither will we reject them because they are Australian.

 

          Just as Australian ideas about law are now different and distinct and expressed as such, without embarrassment, in judicial reasoning, so Australian literature, as a vehicle for powerful ideas and effective persuasion, will, in the future, find appropriate mention in the pages of our law reports.  At the moment it is a desert.  But in the second century of our Commonwealth, the desert will surely bloom.  And there are few sights on earth as beautiful as the Australian outback with occasional native flowers, opening after a long drought.
NOTE TO M D K

 

          Staples and Qun affair, add

 

M D Kirby, "Judicial Independence in Australia Reaches a Moment of Truth" (1990) 13 University of New South Wales Law Journal 187.

 

          Michael Meehan has said that allusions by judges to literature should "run far beyond mere decoration towards provision of essential social, legal and lexicographical information". (x) M Meehan at 431.

 

          The classics and neoclassics.

 

          For criticism of the judicial voice see "Human Voice in Legal Discourse" 66 Texas Law Review 577 (1988).

 

          Bluebell Timing Kent Hinz v Berry [1970] 2 QB 40 at 42.

 

          For an amusing use of Shakespeare see Condo v South Australia (1987) 47 SASR 584 at 585.

 

          Burchett J approved at least one mixed metaphor:  see Windsurfing International Inc v Sailboard Australia Pty Ltd and Anor (1986) 69 ALR 534 at 539 noted by Meehan above n …  442.

 

          Untranslated Latin see Jehovahs Witness Case at 123 per Latham CJ.  Most judges who today use Latin offer translations out of respect for the growing majority who were never taught the language.  See Stormer v Ingram (1978) 21 SASR 93 at 93.

 

          Some judicial allusions tend, out of admiration, to be repeated:  see Little v The Commonwealth (1947) 74 CLR 94 at 109 per Dixon J citing Cann v Clipperton (1839) A and E 582 at 589.

 

          Judges must avoid indecorous over-dramatisation, gratuitous purple passages, coy intrusion and annoying showing off:  Meehan above n   at 444.

 

          Add Les Murray.

 

          Lord Atkin and Lord Simon LC see Williams, "Enlivening the Law" [1989] NZLJ 360.

 

          Tennyson Land of Settled Government cited Re Basham [1987] 1 All ER 405 at 411 noted [1989] NZLJ 360.

 

          The law commands (x) In her essay "Law and Literature:  Similarities and Differences", Cambridge Lectures 1991 225 at 226, Judge Patricia M Wald reminded her readers of Chairman Mau's aphorism "A revolution is not a tea party".  Similarly "the massive disruption in lives that can be triggered by a legal case is not a conversation":  Levinson, "Law as Literature" (1982) 60 Texas Law Review 373 at 386.

 

          Sir Walter Scott almost became a judge of the Scottish Court of Session:  see F Bates, "A Reflection Upon Law and Literature" (1980) 28 Chitty's Law Journal 13.

 

          In 1752 Henry Fielding wrote (x):

 

          Although Dickens it was that recognised that children are not empty vessels waiting to be filled with facts and opinions.  (x) J Morrow, "Soft Times:  The Literary Imagination as Poetic Injustice" (1998) 10 Aust Feminist Law Journal 35 at 46.

 

          Limitations of judicial time see P Cory, "Law and Literature", Cambridge Lectures 1991, 235 at 240.

 

          R Evans has put the other point of view:  "A lot of lawyers take some pride in being well-read, and do like to think about these things.  But they tend to be somewhat modest about it".  See "Legal Fictions - Lessons from Literature and the Law" (1993) 67 Law Institute Journal (Vic), 1134 t 1135.

 

          Add the law's own John Braye.

 

          :  Michael Meehan, "An Anatomy of Australian Law or The Human Element in Legal Argument" 376 at 388.

 

          Rhetoric need not be a perjorative word.  As the ancients used it, and as it was taught for centuries, it involved using language as a vehicle for explanation and persuasion:  Meehan "An Anatomy" 389.

 

          Meehan.  in J N Turner and P Williams, The Happy Couple:  Law and Literature (1994), 376 at ….

 

          See also Burchett J's judgment in News Limited v Australian Rugby League 58 FCR deconstructed by Justice Ian Callinan in "Law, Culture and Language in Courts and Other Places", unpublished paper for the 8th Annual Law and Literature Association of Australia Conference 1997 at 10 ff where he describes the reasons in that case as rolling out "literary allusion like a rather gaudy carpet".

 

          Another well known instance is In re Flynn:  Flynn v Flynn [  ] …. Ch …. per Sir Robert McGarry VC.

 

          F E McArdle (ed) The Cambridge Lectures 1991.
LITERATURE IN AUSTRALIAN JUDICIAL REASONING The Hon Justice Michael Kirby AC CMG

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