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What is Past, or Passing, or to Come ___ _ 10f What is Past, or Passing, or to Come ______
~ .... tcllbyby the HOI!HOIl Justice Michael Kirby A.C .. C.M.G., President afthealthe CaUTIo!Caurlo! Appeal afat the 1993 BenchBelich & Bar ',lrlUlerat which he was the guest afhonour.o/honour. ¥. ,!i}fi "Once 0111011I of nature I shall never raketake ~ Mybodi1yjormfrom~f bodilyfarm/rom anyany. natural (hing,rh~lIg. Asprey kept, hanging on the wall of his chambers. behind the B ~f slIcllslIch ajormalarm as Grecian goldsmithsgoldsnllfhs make chair at his desk. the famous cartoon of FE Smith. Next to that dfhammered gold and gold enamelling cartoon was hanging a mirror. Looking in the mirror"it was To keep a drowsy Emperor awake; natural to see oneself as a reflection of the great English Or set upon a golden bOllghbough to sing counsel. "[ To lords and ladies of ByzantiumByz.antium The President of the Incorporated Law Institute (as it O/wlw{OfwiwI is past.past, or passing. or to come." was called) was NormanNonnan Cowper, later to be knighted. Reg WBW B Yeats Downing was the State Auomey~General. The most senior silks were HVH V Evatt himself, his brother CliveCJive and CAC A : ....UTI< PAST Hardwick. Amongst the senior juniors were those memorable figures Wilf Sheppard, Walter Gee, Bertie Wright and On an occasion such as this, and in this common room.room, Humphrey Henchman - the lastofwhom 1I saw, evergreen, in 'ldsinevitableitisineviw,blethatthat an affliction of nostalgia will take the mind this place but a month ago. back through lheme lost years. The spirits of these advocates are in this room with us It is thirty-five years since my first encounter with our tonight. They lived and laughed here,justas we do now. They ;~::~,~:::,{profession... ,~Itl:w:,a~;s:It was :i~n;in 195819.58 that I began m~my articles of cle~kship.clerkship. told the tales of their triumphs. They were ribbed - notnOl always ",.'TheQueen was in the sixthSixth yearofherrclgn.yearofherreign. Mr MenZIesMenzies was gently - about their embarrassing moments. They were mighty ": !he Prime Minister. Sir Arthur Fadden figures of my impressionable youth. I;::lhadjustretirectashis Deputy.. In the wake ".:-Ofthe successful struggIe against the anti At that time there were 430 members of 'c'communism referendum, the Democratic the Bar Association. Of them 51 enjoyed :/.Labor Party had been formed. It helped thc-commthe-comm ission as Her Majesty's Counsel. ~i;~~snatchvictoryfrom the AUStralian Labor TIle constitution and the law looked very ;~:tPartyinthe Federal Election in November sure and stable indeed. -~:;~~,;;~th;";~~~~I~, that year. SirGarfield Barwick was elected Member for Parramatta. As a tribute to Sixteen years passed before my first his unique distinction as a barrister.bamster, he judicial appointment was announced. This went straight to the office of Federal occurred in December 1974 when I was Attorney-General. appointed a Deputy President of the The High Court of Australia Australian Conciliation and Arbitration comprised Chief Justice Dixon and Commission. Alas.Alas, I must acknowledge Justices McTiernan, Fullagar,Fullagar. Kitto.Kitto, that this is now nearly 20 years in the past. Taylor, Menzies and Windeyer. In the The Governor~GeneralshipGovernor-Generalship had just ' ...•Supreme "'"'''' Court, Sir Kenneth Street was changed from Sir Paul Hasluck to Sir nearing theend ofhis time as Chief Justice. John KelT.Kerr. The Governor of this State Within two years he would retire to be was Sir Roden Cutler Vc. Gough replaced by the eXhaustedexhausted Evatt. Sir Whitlam was Prime Minister. Of the William Owen was the Senior Puisne High Court.Court, BarwickBanvick was at the height of Judge.JUdge. There were twenty-one judges of the Supreme Court his powers as Chief Justice. The latest member appointed to at that time. The youngest of them were the redoubtable the Court was Anthony Mason. There was an empty seat to be Kenneth Manning. the bucolic "Barney" Collins, that fined.filled. Shortly.Shortly, it was to be occupied by Justice Jacobs, the gentleman Rex Chambers and the multi~talentedmulti-talented Rae Else·Else third President of the Court of Appeal. That court had been Mitchell. established with sharp recriminations and much bitterness in JudgeJUdge Lloyd was the ChairmanChainnan of the District Court 1965. Judges.JUdges. TheaTheo Conybeare presided in the Workers' In the Supreme Court, Sir John Kerr was soon to be Compensation Commission. succeeded by Sir Laurence Street - third Chief Justice of that Atthe head of the Bar Association was Bruce Macfarlan name. There were 37 judges. The latest appointments to the QC. His able lieutenant was Nigel Bowen QC. The leaders of Court were Ian Sheppard, Hal Wootten and that fine teacherof titeBarweretheBarwere towering figures of my youth - Kerrigan.Kerrigan, Meares many banisters.banisters, Harold Glass. and Asprey. AAF F Mason was a younger member of the Bar Jim Staunton, still in office. had just begun his long and COuncil and the newest recruit to it was DAD A Yeldham. distinguished leadership of the District Court.Coun. Chris We have it on Chief Justice Mason's authority that Ken Langsworth was Chainnan of the Compensation Commission. Of all the judges who were serving at that time.time, day by busy day, nine only remain in judicial office today, together SeeSec AAF F Mason. unpUblished address 10to the District Court with myself. They arcare Chief Ju.-;ticeJU.-;tice Mason of the High Court: Jutlges·Jutlges' Conference. I May 1992.4. Justice Sheppard now ufthe feller:!!feuer:!l Court Justices Evatt ami
NSW Bar ASSllCi:llion Bar New~ 19\}319\)3 EJitinn - 31 d~I~;:I~e:~;;w;ii:~th,~;m,:e,n(then, with me, in the Arbitration Commission) now to assure me of heartfelt sympathy in my hour of need. I did ,;;,~'vcIY President of the Law Reform Commission and not know what they were talking about. Surely Justice ~ofthcHigll.' ~fthcHigh Court. Dennis Mahoney, now mycolJeague Meagher's observations were merely the public exchange of '~~ourt of Appeal. John Cahill still sits on the Industrial pleasantries between colleagues sharing, with the protcssion. minission• today as Vice-PresidentVice-~re~ident Judges Staunton and their inner thoughts.thoughts, , Bell still grace the DistrictDlstnct Court. Frank McGrath, For my part. 1 knew that there was no malice in Justice "teaene:r.:( teacher. presides in the Compensation Court. Nine Meagher's words. My reading is wide enough toenable me to arc left. The restrestor of our judicial company at that time have recognise a true personal denunciation when I see one. :d on _~ such is the cycle of the law. Take these words of Justice Rehnquist, joinedjOined by Chief In the Bar Association in 1974\974 Tom Hughes QC was Justice Burger in the Supreme Court of the United States in ",~I~;b~~t~in~~thatnt and in that capacity welcomed me to judicial office United Steelworkers of America v Webber.Webber . "It: rbitration Commission. It was in that speech that he ..... Bya tour de force reminiscent not ofjurists suchSitch as :ly claimed that I was well known for my "urbanity", Hale.Hale, Holmes and Hughes bittbllt of escape artists Sitchsuch as ,rthand reporter, who rarely erred, still swears (as she Houdini,Houdini. the Court eludes dearclear statutory language, ... :d) that he said "vanity". Tom Hughes's deputies were legislative history and uniformulliform precedent ..."."" 2:::!~';cGregor and Phillip Powell. The latest members of Council were Roger Court, Barry Toomey and myself. Or take Justice Rehnquist, again joined by Chief Justice ~ sidcnt of the Law Society was Alan Loxton. The most Burger but also by Justice O'Connor in Florida v Royer': I(silks of the time were still Clive Evatt and Hardwick. ,most",cc"tlymost recently appointed silk was Oneone M H McHugh QC. "The plurality's meandering opinion containscOlltaills inill it a do you remember Sid Webb? Sir Jack Cassidy of little something for everyone ... Indeed. In both manner agne chano? The redoubtable Jack Smyth? And that and tone,tone. the opinion brinss 10to mind the old nurserylIursery ised and graceful man, Marcel Pile? The senior juniors rhyme: 'The king ofFrance - with 40,00040.000 men -marched :dcd Wilf Sheppard. And Harry May and Ivan Roberts uplip the hillhill-- and thenIhell marched back again'. The opinion also there. Their spirits too are in this room with us nonetheless,nonetheless. in my \'iew,\'iew. betrays a mInd-setmilld-set morcmore IIseflilIIscflll hl ·They are here to remind us of our brief journey to those who officiate at sku!ffeboardskufffeboard gWlIcs.gWlICS, primarily gh ,hi"this ",'of,ess:;onprofession which gives so much and to which we concerned with which parricularparriclilar squaresqllare the disc has also make returns. landed on,on. thanthall to those who arcare JeckingJeding to10 administer e," When I first look up judicial appoimmentappnimment in 1974 there a system ofjustice ... " ~l;Were·~,"5!IOrnennb"rsofthe590 members ofthe Bar of New SOUlh Wales_Wales. Of them, ~~were'''NCn, ,<'JeensQueen's Counsel. Today there are 1700 members of Within weeks of writing thc"ethe!';c words, Justice Rehnquist ~r~,Bar and 200 silks. Inevitably, with the expansion of the was elevated to become his nation's Chief Justice. His strong ~lar, there have been changes. But many of the traditions of words were rewarded withwith:la marvellous judicial crown. When "l~':~I~~~)n(1U~sourage. honour randand c,oOl,ra,jc.·;hcomradeship il) endure.",d,,,e. akin to those enjoyed I1 measure Justice Meagher'sMeaghcr's worus against such vituperation. -I li~soldiers under fire. May it continue to be so. I realise once again how sweet is my brother's disposition. I also know Justice Meagher's writing well enough to be ~~RPASSING able to recognise, without hesitation, when he is straying from .~4· his natural disposition into a few gently chosen words of :;:!~'~f; Ofcourse, in the daily life of the law there are inevitable criticism.criticism, That was not so in Videski.Videski, as I hastened to reassure :;: ,::;-.C'risesthatblowup.up. They appear like asummerstOm1 and pass all those concerned for my sensibilities. For example, when i :~,~ayasquickly."'I"":«:Y. We saw such an event in Ihethe recent judgment his Honour took a mild dislike to Simon Gardiner's book An f.•.. '-.~.:.:.-_~9f._e., the C?urt of AppealAppe~l in VideskiVides~i v AIlS.Australiantralian Ironfron and St~elSteel Introduction to the Law of Trusts, he wrote the following t' ),~,RcyUmlted.lcry'e1m,"",.' FollowingFollowmg a few lllnocuousinnocuous comments of mmemine words, displaying a rare (but happily passing) note of ~;_9fl the need for sensitivity to different curial reactions by disapproval: ·v:c~opie of different backgrounds, Justice Meagher observed "This book. by an author whoII'ho has been a Fellow of ':!_::~atl had developed: Lincoln College.College, Oxford. sillcesince 1978. isIS one of the ::fS[ "An elaborate,elaborate. and distinct!...".distinct!.v xenophobic rodomonrade."rodomontade." Clarendon Law Series. a series 1\,hic1JI\'hich produced ~J?"'. Warming to this theme. he fashioned an apparently masterpieces such as H L A Hart.Hart, The Concert ofoUhethe i '~.~.~.Ical analysis of Macedonian truth-telling, illustrnted.illustrated. Law and Barry Nicholas' Introduction to Roman Law.Law, "I..fy~\Urally enough, by reference to Arnan's Life ofAlexander enough, by reference to Aman's Life of Alexander Alas,Alas. It is not of like quality." 'I;e'r!,h,~Great with allusions to the suggested taciturnity of And he finished his review with the following helpful advice: ~j!xander'sepigoni. f '::~::i~;~~i~~:; His Honour's appeal, in this confection, "No one should yield to the temptation to buy this book.book, t. :.,.,.':,":!Olntemational1tl human rights instruments was the last strawstraw.. .' .~:':'f;llt a~ least that suggested that_my tireless efforts in that ~,directitm ':t lreCl10n were having an impact upon his occasionally resistant 2. Unreported.Unreported.!17 7 JuneJune!1993. 993, For carlierearlier rcmarksremarks to the same al .t-teg thinking. effec!.effect. ~ee Askaf(lllAskaI'(J1I \.\' V('mil1dV(·mil1d Df'ff'lldalllD('f('lldall( (NSW)INSWj (1989) 8 I:;~ . In the cOnidorsconidors ofthe law. following this much publicised :-.tVR ..-Nlf91l:"S\\·C.·\. !:"S\\'C-\. :'><1:'''1 f::~I:::::.:;,~:~bfJha~ge, II. was stopped con~tantlyconstantly by J.nxious-looking 3. ...\..43l:S...!""t\ l:S \93.11 Ili· ."" .... g~"the aI/thor, /he publisher and the editors of the attitudinal correctness in judicial work. I do not wish tojustify .;"';'!rtildon La\\' Series, ought all to be ashamed of some of the jUdicial observations which have been criticised rltsell'es and of each other." . .: ..... "1"\. ere, these enemies of old talked to each other about the pressures to restore the French legal system and its language. ,-\\h-Whereofof their country . 1 also chaired the meeting as it moved But he saw some dangers in iSOlatingisolating Cambodia from its future . - to iis'is final seSSionseSSIOn. . natural trading partners in the region which unifonnly use the IOL.",ejuJges. The judges appeared. When the Chief Justice and his English language and are now profoundly affected by the " male and female colleagues, seeminglysec.mingly withoutwitho.u.t thought,thou.ght, common law system. The French are offering large sums for , lured(urcdtowards towards the Govemmcntsldc,Govemmentsidc. the OpPositionOPPosItion let itbeItbe the restoration of their culture and language. The Australian ~~~wnthatthey~~~wnthat they \vould\\lould walk out. Wisely, the judges took their Ambassador told me that he had a small fund available· a few I1 ccs in the neutral centre, evenly between the two sides. As thousand dollars - how could it be used? A pitiful sum for the fl~kCdft~ked at the .eyes of these judge~,jUdge~t I realised h?w .i~portan[.i~portant rule of law I thought. inourpolity it IS to have a neutral,neutral. Independent JudicIaryJudiciary safe The Minister appealed, through me, to idealistic in its tenure. Australian judges and lawyers. It would now be unacceptable The Constitution of Malawi provides in the normal way to have white faces on the Bench. But perhaps iflawyers were .- (orlhercmoval ofjudges forforpraved proved incapacity and misconduct. willing to spend some time in chambers with judges they could Butin 1988 a provision was added permitting the Life President explain, with more time than I had available, what it means to totoremov~ remove ajudge where, in his opinion,opinion. it was "in··in the public bring the rule of law to a country which until recently know interest so to dO".17 Pray do not laugh at such a provision,provision. This only the rule of the gun. ·isprecisely-is precisely what has occurred in our own country in the year On one occasion during this training session I swle away past in Vic.tori~. And toOoth~rto·oth~r ~udicial officers in recent times,times. from the classroom in the No 1I CounCourt of the Supreme Court at including toIn thiS State. JudicialJudiCial officers have been removed Phnom Penh. I took a motorbike to a back street, over a canal for what the politicians - our local equivalents of the Life to a large edifice. It was a building constructed by the French President-conceivedPrCsid~nt-conceived to be "in the public interest", interpreted as a high school. On the wall could be seen the graffiti of by them. generations of students - jests at their teachers scrawled on the Judicial tenure is the foundation stone of judicial walls in French. Cartoons of their European masters of earlier i~dependem:c.i~dependencc. , 0. We are not so much above Malawi that we times. In fact the three-storey building looked remarkably o cannotleam from its sad cxperience.experience. It is incumbent onjudges like my mvnown high schonl in Sydney. But there the similarity and all members of the legal profession to strive to teach the ended.cOlled. community about the foundation stonesstoncs of our democratic This was\\ as the torturetorturc place - the infamous S 21. Here the o. way of life. victimsofthe Cambodian revolution were submitted to barbaric Before I went to Malawi I spent five days in Cambodia cmcltics.cnlelties. ,,, All of these acts were faithfully recorded. On the for the United Nations Transitional Authority. My task there wallswa1is arcar~ photographs with the searing, reproachful eyes of was 10to take part in a course of instruction for the, new judges thousands of victims of lawlessness and brutality. Those eyes , who will servcserve under the constitution of that unhappy country. remain with me. haunting me. They are the visible warnings They are new judges because Pol Pot and his OK regime of what happens to a society without the protection of law. c.ltenninatede.ltenninated all the old judges. Indeed.Indeed, vinuallyvirtually all of the As I walked beside the great lake we knew as Nyassa in lawyers of CambOdia were killed or drh'cn into exile. CentralCcntral Africa and stumbled around the jungle undergrowth at IntellectualsIntcllcctuals were conceived to be dangerous. They were Angkor WacWat in Cambodia. I had several hours to renect upon simply exterminated. the blessings of our legal system. It has become ever so . Teaching these young men and women how to be judges fashionable to attack it and its temporary players. DoubtlcssDoubtless msuchashort time was not easy. I told them to take heart from many of the criticisms are fully justified,justified. But when we look the great tradition of the common law. This. after all, is how around the world and compare our lives with those of most of ou~ j~dge.made system began. By honest people of integrity the other human beings we should appreciate,appreciate. and reflect S~vmg to determinedetennine cases with fairness. Building on upon, the inheritance whose good features we must strive to precedents towards a coherent legal system. explain,justify,explain. justify, defend and improve. The class in Phnom Penh asked questions which would I am grateful forthis dinner offered in my honour,honour. What .'be be rudimentary to us. May the judge remain a member of a have we shared together? political party? How shOuldshould the judge deal with a problem of I suggest that we have shared together the familiar conflicting evidence? They asked for books. How can we features of life at the Bench and the Bar. A touch ofnostalgia,of nostalgia, have the rule of law without Jaws?Jaws: WeWc have neino laws. I told with a wistful look back to the figures who provided the i~ themIhem thatthai the books from Australia would all bebc the Enolisho examples which we must now provide. A hint of humour and language. They would portrayponray a cornmancommOn law,system.lawosystem.o No gossip; but not too\00 much for ours is a rather serious business. mauer, they said. We must have reference bookS and we will Some thoughrsofchangingthoughtsofchanging times and new ways which remind Struggle with the English. us that even things long settled in the law can be changed and The Minister ~f Justice of Cambodia told me of the must submit to the popular concerns about cost and delay,delay. the law's enduring double burden. And there hu.<;has been optimoptimismism and idealism when we look 17. The Constitution (:vtalawi)(Malawi) 1966, s 64(J)(c) [tc)Hc) "Where the to the future. It is a future which takes our service as lawyers President considers it desirable in the publicpubtic interest 10to remove even beyond our O\....n country to a concern about the rule of him from such office."]. even beyond our o\""n country to a concern about the rule of .Iaw in countries rinserlo"e at hand and far away. 18. ~PChnndlcr.DPChandlcr. Brm/icrNuflliJerBrOlhcrNumber One: A Political Biogral'lryofBiogral'iryoj TheseThcse are;If\! tbe things which binu the BCOI.:hBcm:h andanu the Bar 1011'01 PO(,POI, Allen and Cnwin. 1993. See notenotc lJ\\'La\\' InstorVictoriaInslofVictoria things Bar (ViC),(ViC}, AugustAugusl 1993.755. together. I seesec thcmthem lllllChnmch in evidencecvidence about me tonight. 0 ... =-1 L~ :-is\\, Bar A"'Ol'j;\li"n B;lr Ncws 199.1 Edlli.1I1 ~~.