After the dinners given in honour of my appointment to the Court of Appeal and as Chief Justice of the Federal Court of Australia, I think that you could have been forgiven collectively and individually for taking the view that I have enjoyed far more than my fair share of the hospitality of the Queensland Bar.
All I can say is that I promise, with my hand on my heart, that I will not do it to you again.
On occasions like this there is a small temptation to be parochial about the merits of Queensland. You will, of course, understand that I will have none of that.
On the day of the announcement of my recent appointment, when I came home Shelley informed me that some sections of the media were making the comment that I am a member of the Pineapple Mafia.
Imagine my surprise when, prompted by my lack of reaction to this news, Shelley explained to me that there are some parts of this country where that description is not regarded as a term of endearment.
The ignorance of some members of the media about us and what we do, can be remarkable.
I noticed in The Australian newspaper of April 12 a slighting reference by that journal’s legal affairs writer to “the statusâmad world of the judiciary”.
May I say, on behalf of my judicial colleagues, that I have never detected any obsession with status among Australian judges. I rather think that that has long been the case.
When New Zealand’s Sir Robin Cooke was appointed to the House of Lords, he stopped signing his correspondence “Robin Cooke” and began affecting the signature “Cooke of Thorndon”. Sir Anthony Mason, having received a missive so signed asked Sir Gerard Brennan whether he should change his signature to “Mason of Mosman”. Sir Gerard replied: “No, people will think you’re a used car salesman.”
May I also say on behalf of my judicial colleagues that we long ago ceased to worry about vanities of this sort, such as our place in the history books and whether our judgments will be read in fifty years’ time. We know that the best that we can hope for in fifty years’ time is that people will say: “Isn’t it marvellous that he’s still sexually active.”
And speaking of vanities, as you may know, the Bar has kindly commissioned a portrait of me.
Portraits of judges can be dangerous things, both for the judge and the public.
Earlier this year a new picture of Sir Garfield Barwick was unveiled in the public area in the High Court building in Canberra. It is an informal portrait of the great man. It is huge and quite lifelike. Unfortunately, it looks like the portrait of Vigo from Ghostbusters II.
Our colleague, Susan Kiefel, tells me that since the unveiling, the number of weekend visitors to the building has halved. I predict that the picture will become known as “Gar the Impaler”.
Many of you will not remember Sir Garfield on the Bench, but those of us who do, remember him as a brilliant judge who wrote beautifully lucid judgments. He was also perhaps the leading exemplar of the angry old man school of judicial deportment. Appearing in the courts presided over by the angry old men of whom Sir Garfield was primus inter pares put one a little in mind of Churchill’s description of the Royal Navy in Nelson’s time, that is, a place of “rum, sodomy and the lash.”
Compared to those angry old men, even Churchill had some endearing qualities. Tomorrow is Anzac Day, a day when Churchill is not well remembered in this country, but he did have some endearing moments. When he turned 90 he said: “People say to me: ‘Who would want to live to 90 years of age?’ I say to them: ‘Anyone who is 89.'”
And in 1940, after he returned to the government, one of his senior civil servants, observing that Churchill did not wash his hands after urinating, said: “Sir, at Eton we were taught to wash our hands after using the urinal.” Churchill replied: “At Harrow, they taught us not to piss on our hands.”
Getting back to my portrait, I viewed it when it was half-finished. The artist had done a great job. He seemed to have discerned the glimmerings of a personality. Unfortunately, that personality was that of a very angry, very old chicken.
Happily, the artist, Bill Leak, subsequently toned it down a little. I am very grateful to him for that kindness. And I am very grateful to the Queensland Bar for the honour it has done me.
As I have said previously, I have always felt deeply indebted to the Queensland Bar.
I began my time at the Bar in the glory days of the great all-rounders. It is, I think, a sad thing that ever narrowing specialisation has made it difficult for a barrister nowadays to sustain an all-round practice. These days the furrows we excavate are ever deeper, but much narrower than in times past. The narrower our specialty, the greater the economic power of the client and its solicitors over the barristers who practise in that field. That increase in economic power poses a significant threat to our professional independence.
The process of specialisation has been going on for a very long time. At the beginning of the modern world it was possible for an educated person to take an interest in all existing knowledge. As Sir Owen Dixon observed, “Francis Bacon in his day could accomplish it.” 1
And even 150 years ago, Lord Brougham L.C. could affect an interest in all broad fields of knowledge. But it was, sadly, affectation. He became the butt of the unkindly remark that if he, as Lord Chancellor, knew a little law then he would know a little of everything.
But even though the all-rounders may be becoming rare, and specialisation accelerating, the professional independence of the Bar remains essential to the due administration of justice.
Notwithstanding the complaints of the shock jocks on radio and the tabloid press, the administration of justice in this country is very successful in terms of the maintenance of public confidence.
One reliable practical measure of the level of public confidence is that judicial appointments in this country almost invariably attract bi-partisan support. That state of affairs stands in marked contrast with the United States where, at the federal level, the executive and legislature struggle to agree on appointments to the federal bench.
On 6 April, the New York Times reported that, of the 856 federal district and circuit court seats in the United States, 85 are unfilled. The problem is getting worse. That ten per cent vacancy rate is nearly double the vacancy rate at the beginning of President George W. Bush’s second term.
The problem is now of such long standing that more than a third of the current vacancies have been declared “judicial emergencies” based on court workloads and the length of time that the seats have been empty.
The problem is due to the unwillingness of the United States Senate to confirm presidential appointments for reasons described by the New York Times editorial board as “politics, ideology and spite”.
We are witnessing the pathology of the separation of powers as the attitude of the legislative branch for the executive’s nominees to judicial office sours from a healthy but respectful scepticism to a jealous suspicion.
The most striking example of the judicial emergency in the U.S. Federal Courts is afforded by the prestigious and important United States Court of Appeals for the District of Columbia Circuit. It is an important feeder to the Supreme Court of the United States. It decides most appeals from federal regulatory agencies and exercises exclusive jurisdiction over national security matters.
It is an eleven seat court; four of those seats are vacant, and the last time that the Senate could bring itself to agree to confirm an appointment was in 2006.
That we have avoided this appalling state of affairs is, no doubt, due to a number of factors structural and cultural. But I would venture the suggestion that prominent among these is the professionalism which characterises the work of our courts in which, faithful to the model established so long ago in the relationship between the Inns of Court and the Courts at Westminster, the judges and the Bar share a common experience of professional development, and advocates regard themselves first and foremost as servants of justice.
The professionalism of the Australian Bars who serve the administration of justice is such that our advocates are not, and are not seen, as mere mouthpieces for the client, mere spear-carriers for agenda pursued by others. With us, professional advancement does not depend on the cultivation of a client network or partisan support.
And the professionalism of our judges is fostered, in turn, by the standards inculcated by this experience at the Bars from whom our judiciary are largely drawn.
By professionalism, I mean, first of all, the crucial difference between competence and mere self-confidence. The former can only be gained by dedication and hard work. It is the ability and willingness of our advocates to engage in the rigorous, and often tedious, process of ensuring that the facts are marshalled and presented in the most efficient way and that a given legal issue is turned over and looked at from all sides, that identifies the competent professional.
And secondly, I refer to a dedication to the clients’ interests above a concern for the success of one’s own business, but not a dedication which slides into subservience to the client at the expense of the advocates’ primary duty to the court. Independence does not mean merely independence from the State; it also connotes a degree of independence from the client.
What Sir Owen Dixon said in a lecture on professional conduct delivered in 1953 remains true:
“From these minor matters I return to the basal principles which should govern the conduct of counsel. He must keep steadily before him the duty of doing all he legitimately can in the true interests of his client… But it is the true interests of the client he must safeguard or consult and that is a more extensive duty than to use his best exertions in the conflict in the arena. After all he is his client’s counsel and the name signifies a good deal more than a forensic gladiator. He must also keep steadily before him the necessity of justly gaining and retaining the confidence of the court. That means that he should feel that the court knows that it can rely upon him without misgiving as one who will competently ascertain and present for judicial examination his client’s real or strongest case and will do so intelligibly, definitely and with candour. The obligation of candour rests on simple moral grounds. But at the same time it is a paradoxical if cynical truth which needs no elaboration that in advocacy candour is a weapon.”2
The professional competence of a barrister and his or her independence from clients and from the influence of ideology and political partisanship are, I think, mutually interdependent.
It is this professionalism, on display every day in our courts, which is the best antidote to the growth of the toxic partisanship which now seems to beset the legal profession and the judiciary in the United States, where advocates’ duties are not shaped by status as an officer of the court, and where anything short of actual criminal conduct seems to be permitted in the interests of the client.
When I made a speech on the occasion of my previous appointment to the Federal Court, I expressed my gratitude to the members of this Bar for all they have given me personally and professionally. Tonight, in reaffirming that sense of gratitude and admiration, I would also emphasise the vital importance of the professional ethos we share to maintaining the trust and confidence placed in us by our fellow citizens. It is that independent professionalism which makes the best barristers, and also, in the end, makes an unelected judiciary acceptable as the third branch of government in a democracy.
The lecture by Sir Owen Dixon, from which I quoted earlier, concluded with “some fine Elizabethan language with which Francis Bacon begins his preface to his Maxims of the Law“.3
As in so many things, Sir Francis Bacon put it better than anyone else:4
“I hold every man a debtor to his profession; from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavour themselves, by way of amends, to be a help and ornament thereunto. This is performed in some degree by the honest and liberal practice of a profession, when men shall carry a respect not to descend into any course that is corrupt and unworthy thereof, and preserve themselves free from the abuses wherewith the same profession is noted to be infected; but much more is this performed if a man be able to visit and strengthen the roots and foundation of the science itself; thereby not only gracing it in reputation and dignity, but also amplifying it in perfection and substance.”
Notwithstanding the gender bias in the language, that is an eloquent statement of the ambition that has motivated the best barristers for four centuries; and it is an ambition still worth pursuing.
Thank you for your attention yet again.
Footnotes
- Dixon, Jesting Pilate and Other Papers and Addresses, 2nd Ed (1965) at 150.
- Dixon, Jesting Pilate and Other Papers and Addresses, 2nd Ed (1965) at 134.
- Dixon, Jesting Pilate and Other Papers and Addresses, 2nd Ed (1965) at 134.
- Dixon, Jesting Pilate and Other Papers and Addresses, 2nd Ed (1965) at 134.
