One cannot imagine him giving up his role as public speaker on a wide range of topics, yet many of us expect our judges to be silent ciphers of a mystical law written in stone tablets in the sky that only those versed in the law are permitted to read.
We do not have a free-speech ethos in Australia. We are shocked when the Governor-General says something other than obvious platitudes. We do not like our judges saying things out of court and conversely judges do not say things out of court, except rarely.
Only recently have doctors and lawyers, for example, come out of their silly “”professional” rules of not being named in public comment. We have an Australian ethos of “”It’s not for me to say”.
But we need more intelligent, provocative speakers on the public stage to dilute the present oligopoly that often treats us with ignorance or boredom. We often see some people at first dipping their toe timidly into the waters of public discourse to find it a self-gratifying experience. Before long they are wallowing full-bodied in publicity. Alas, all too often they become rent-a-mouths or bores. They either say the same thing many times over becoming predictable and boring or they stray too far from their field of expertise and become asinine.
Fortunately, one cannot say that of Michael Kirby. Invariably he is thought-provoking or outright provocative, but always in a reasoned way. Richard Ackland, editor of Justinian and Australia’s most barbed critic of lawyers and the legal profession, says that Kirby may be outspoken, but anyone with any sense listens.
How does this sit with a man who is charged with the duty of judging? He has come under some fire as president of the NSW Court of Appeal for being too outspoken. On the High Court he will have even more eyes upon him. With so many extra-judicial, personal views expressed in speeches, people may think he is prejudiced and will not listen to and judge their case fairly? Should he not be silent, except in his judgments?
This is to confuse the literary artist with the judge. A novelist or dramatist might well say, “”If you want to know what I think, read my novels, or plays.” But a judge, at least a good judge, cannot say, “”If you want to know what I think, read my judgments.”
This is because a good judge cannot write exactly what he thinks in his judgments. A good judge is constrained by the precedent of common law and what Parliament has decreed. And Kirby is not such a radical as some people have portrayed him that he would ignore precedent and Parliament.
It is a mistake for people to read or listen to a Kirby speech and imagine that if a case comes before him, he will rule that way. In his speeches and in his work on the law reform commission he has often said what law should be, but in judgments has followed a different path because that is what the law is.
For example, having slammed the excesses and unaccountability of the media in speeches, he followed English precedent to deny local councils the right to sue newspapers for defamation, and in two major cases struck down excessive damages awards against mass-media publishers.
Kirby put his approach very succinctly in the Court of Appeal in the Breen v Williams case on patients’ access to medical records; “”What this court has to decide is not whether there should be a right of access; but whether there is.”
This is not to say that judges are trapped by a legal method akin to the scientific method. Judges do not investigate the body of the law as the scientist investigates the body of natural phenomenon, pronouncing on what is there. Judges have at least some room for movement.
In any event, there is no cause for alarm at a judge publicly expressing views about what the law should be or how people in society should behave. If the law is immutable and discoverable like science, the judge’s personal view is of no moment. If, however, there is room for a judge’s personal bias, it may affect the decision whether expressed in speeches previously or not. At least if the judge’s view has been expressed publicly in the past, he will be that much more careful to explain his reasoning in his judgment. The difference is that the prejudices of the extra-judicially silent judges are not so widely known.
The Breen case is a good example of both Kirby’s approach and the judicial process in general. A judge cannot say, “”I think people should have a right of access to their medical records, so there”, as if they were answering an opinion poll. They have to give reasons.
As Kirby said, the Court of Appeal reviews lower court decisions “”taking into account the usual considerations of legal principle, decided authority and policy”.
Herein lies an ancient debate. Is the law discovered by the judges or is it made up by them? A bit of each is the most likely answer. Parliament can make up law. That is the legislative function. It makes law to apply for all. The judges, however, can only apply law … both the law made by Parliament and the common law … to particular cases as they arise. They apply the law only to the parties before them. This is the judicial function. In doing so, however, the judges create precedents which can be followed and built up in later cases, through use of logic, analogy, common practice and common sense.
But judges are bound by precedent and can be overruled by higher courts. The latter constraint is now removed from Justice Kirby. In his time on the Court of Appeal he has been overruled by the High Court with some force.
But precedent and the requirement to reason are still constraints, as are the opinions of the other six judges. If his opinion is to prevail he must form part of the majority.
So any idea that Kirby can automatically convert his personal view on what the law should be into what the law is, is misconceived. But within the constraints of the common law he, like all judges, can allow his view of the world to affect his judgments. Judges can find good reasons for doing what they think is the right thing. This has been the genius of the common law. It worked best in the nineteenth century and the first half of this century when judges built up a great body of commercial law based on the practice of English traders, and extended tort law to protect people who are injured. This law had the benefit of carefully balancing the need for certainty in commercial dealings with the flexibility needed for justice.
Then the judges became timorous. They refused to make major changes to the common law, preferring to follow precedent even if it offended feelings of justice and common sense. They even would announce this in their judgments, saying it was for Parliament to change the law.
Parliament took up the job with a vengeance … in England and all the English-speaking common-law countries. Statute law invaded every nook and cranny of life. The judges were left to the sterile interpretation of reams of black-letter law … the phrase now used to capture the attempts by parliamentary draftspeople to anticipate every possible future eventuality. It is a largely futile enterprise.
Kirby is very much like an old-style common-law judge. But whereas they developed the commercial law, Kirby is interested in developing the law on human rights.
Kirby has been likened to Justice Lionel Murphy. There may be a superficial likeness in that they both have spoken out on human rights, but their judicial technique is very different. Rather Kirby shares judicial traits with the best of the earlier judges. The medical-records case, is a good example of his technique.
First, relevant precedent must be dealt with. Old cases must either be followed or distinguished on the facts. This, of course, requires a great deal of hard work … something that Kirby is not shy of.
Secondly, the law is not frozen. It can be extended by analogy. For example, in the medical records case he said the categories of fiduciary relationships (ones of trust) were not limited to those spelt out in the past, mainly family and commercial, but could be extended to a doctor’s duty to put his or her patients’ interests first.
Thirdly, if Parliament has made a quite specific law it must be followed, but if it has not made a rule, it is quite acceptable for judges to leap into the gap and make their own, especially in matters of detail, as justice requires. Kirby said, “”In this matter of detail it is unrealistic to wait for Parliament to Act. For centuries courts have been imposing duties.”
Fourthly, policy is an important ingredient of the common law. Last century the policy of the law included striking down things that restrained freedom of trade. With the expansion of tort law, the adventurous judges cited things like insurance as reasons for finding for plaintiffs. Policy is not to be confused with personal opinion, though. Usually it is couched in terms of practical context and as an aside. In the records case, Kirby cited modern mobility as a good reason for patients to have a right to records. Conversely harm to third parties could be best protected by the doctor before writing the records. And the accountability arising from giving the patient access would improve record keeping and permit corrections to bad records.
Citing those policy elements might be seen as radical or reformist. In fact, they show a very traditional approach to the law. Eventually judges’ policy statements are the footing for later legal principle. And the law develops further.
So Kirby’s approach is not like Murphy’s. Murphy frequently ignored precedent, rather than meet it and distinguish it. And he often contorted the plain meaning of statutes. For him the end justified the means. The traditional common lawyer, on the other hand, will find the means to justify the ends … and those means must be reasonable and supportable.
Outside his judgments, though, Kirby no doubt will state what he thinks the law should be, as distinct from what it is.
For example, he has stated his objection to changes to the Migration Act which prevented recourse to courts by refugees.
The question in the public mind might be: having made that statement how will he rule if a case comes before him on it? His judgments and statements to date show he would follow the tough and, to him, unjust law laid down by Parliament.
However, in cases where Parliament is silent or ambiguous you might expect his personal view to have some influence, but you’ll get solid reasons for it. And in the end it will be no different from any other less out-spoken job.
Let us not kid ourselves that judges who cocoon themselves do not allow their upbringing and personal views to influence their decisions … that somehow judges whose views or politics are less known to the public discover and apply the law like a pure science.