On being a judge Public Lecture, 15 January 2013 The Chinese University of Hong Kong The Hon Justice Susan Kiefel AC High Court of Australia In what I shall discuss this evening about being a judge, I will be speaking from an Australian perspective. An observation made by Sir Harry Gibbs, a former Chief Justice of the High Court of Australia, seemed to me a fitting opening. Judges are fond of quoting others. That may be because it is part of the judicial method. On the other hand, it may suggest a lack of original thought. Sir Harry said1: "In a democracy, every educated citizen should have an understanding of the role of the judiciary, the manner in which the courts function and the history of the relationship between the courts and other organs of government. This is particularly important because … the independence and authority of the judiciary, upon which the maintenance of a just and free society so largely depends, in the end has no more secure protection than the strength of the judges themselves and the support and confidence of the public." What is required of a judge is reflected in the oath taken upon appointment, which is "to do right by all manner of people without fear or favour, affection or ill will." Before discussing what this commitment entails, I will first consider why a lawyer might decide to take up judicial office. What is it about the office of judge which attracts men and women to it? It is hardly the financial rewards. Although generous by the standards of many in the community, a judge's salary is far less than most judges could earn in practice as a lawyer. In most courts, this differential is ameliorated, to an extent, by a pension provided at the end of a judge's service. Without that aspect of a judge's remuneration, it might be difficult to attract experienced lawyers of ability to the higher courts. It is not the lifestyle. On taking appointment as a judge, a person is largely cut off from the camaraderie of the Bar, where most judges will have spent a long time. It is not always possible for judges to mix with barristers as much as they formerly did. That is not to say that judges do not get on with other judges. Some even enjoy each other's company. But for the most part, judges call it "collegiality", which implies that it is not as much fun as a barrister's life. The life of a judge does not have the excitement of that of a barrister. A barrister's working life may involve long hours and pressure, but, in the case of advocates, it is punctuated by success in court. A judge's life is more of a continuum, with a workload which is constant. In some courts it has been described as "relentless". The hours may not be quite as demanding as those of a barrister in a long, complex trial but they are long and at the end of the trial, when the lawyers leave, the judge starts the important work of writing a 1 Cunningham (ed), Fragile Bastion: Judicial Independence in the Nineties and Beyond, (1997) at v. 2 judgment. Judges feel pressure to write judgments within a reasonable time. But they do not receive compliments for managing a complex trial well nor for writing a concise and correct judgment. To the contrary, their judgments may be the subject of public criticism, to which they are unable to respond. The position of a judge is still afforded a high status in our society. But, as judges well know, the status and the respect which accompany it are afforded to the office, not the person. Nonetheless, given that status and the importance of the role, most lawyers who are offered an appointment feel a sense of honour. Indeed the older view, still maintained by some today, is that a person has a duty to accept appointment. Most obviously, judges must enjoy managing the progress of matters in court and writing judgments if they are to derive personal satisfaction from their work on a day to day basis. There can be great satisfaction felt – in managing a difficult day in court or a long trial; in finding a path through the jungle of issues sometimes presented by the parties to litigation; in providing redress to those wronged; in resolving a difficult legal question; and in writing a judgment well – albeit that success is assessed according to a judge's own standards, which must necessarily be high. Enjoyable as is the role of a barrister, there is something infinitely more satisfying about reaching a solution to a problem than there is in composing a clever argument. That satisfaction is enhanced on the occasions when a judge is able to contribute to the development of the law or the maintenance of its certainty. Judges also have the advantage of a belief in the social importance of the work they are doing and the social recognition of its importance. Not all jobs have this attribute. Judges have a strong sense of the institution of which they are a part and of the judiciary as a body of persons having a common and deep understanding of our legal traditions and the importance of the rule of law to our way of life. Judges may be reticent in saying that they enjoy their work, particularly if they are a judge in, say, a criminal court, but those suited to it really do enjoy it. However, it is not a job for everyone. Where do judges come from? It is well known that, in Australia and England, judges are mostly drawn from the ranks of senior barristers. This has not always been the case in Australia. In the early days, the new colonies were not able to induce the best and brightest lawyers to travel from England to be judges. It was, in any event, just as important that the appointee have the physical ability to withstand the journey by sea to Australia and then to survive the deprivations of the colonies. As a result, many of the early judges were young and inexperienced. In 1973, a study of the High Court of Australia2 offered a snapshot of a typical High Court Justice. That person was a male, white, Protestant raised in Sydney, Melbourne or, less frequently, Brisbane, and of British ethnic origin. He was from an upper middle class background, went to a high status school, often private, and then proceeded to one of the main universities where he had a brilliant academic record before proceeding to the Bar. 2 Neumann, The High Court of Australia: A collective portrait 1903-1972, 2nd ed, (1973) at 105-106. 3 Today three of the Justices of the High Court are women. The Justices have different religious backgrounds. Not all have been to private schools and the majority do not come from particularly privileged backgrounds. The diversity of judges in the lower courts is even greater. The reasons most judicial appointments come from the ranks of barristers are obvious. Barristers have an understanding of courts as institutions. They have been imbued with a sense of duty to the courts. They are experienced in courtroom procedures, the rules of evidence and legal reasoning. They have had to make hard decisions under pressure and have the confidence to do so. They are used to digesting large amounts of information in areas outside their own discipline. This is a skill not to be underestimated when it comes to judging. When I was a new barrister, a senior barrister at the Queensland Bar explained this use of memory and its aftermath by analogy with water in a bathtub. During preparation for a trial, he said, the barrister retains a lot of information. When it is over, all that is left in the memory is the equivalent of a ring around the tub. There are some aspects of a barrister's method which are not suited to the role of a judge. Advocates are trained to argue. By comparison, even if there is the occasional lively exchange, a judge for the most part listens and enquires. But some judges I have known have found it difficult to throw off the robe of a barrister. Further, barristers write opinions, not judgments. Although successful barristers must see the possibility of a contrary argument, they are only required to hold to the argument for which they contend, which favours his or her client, and to seek to persuade the court to accept it. As I shall later discuss, writing a judgment involves more than the mere expression of a justifiable opinion. What qualities are necessary in a judge? Here I speak of course of the model judge. Integrity comes highest on the list. In the words of the former President of the Supreme Court of Israel3, "judging is not merely a job but a way of life … that includes an objective and impartial search for truth. It is … not an attempt to please everyone but a firm insistence on values and principles; not surrender to or compromise with interest groups but an insistence on upholding the law; not making decisions according to temporary whims but progressing consistently on the basis of deeply held beliefs and fundamental values." Lord Radcliffe, who was widely regarded as a fine judge, described a model judge as "wise, learned and objective"4. Clearly knowledge of the law is a prerequisite. To knowledge of the law must be added knowledge about society, about cultural, political and social influences, and about the relationship of the law to society, not just in the present, but also historically.