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Episode 29 Buy Episode

The Moment of Decision: How Judges Judge

Law as stated: 19 October 2020 What is this? This episode was published and is accurate as at this date.
In this episode, the Honourable Michael Kirby tells us about the difficult task that begins after closing submissions end - deciding a case according to law - through a deep-dive into one of his more difficult decisions: Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20.
Professional Skills Professional Skills
19 October 2020
The Hon Michael Kirby AC CMG
1 hour = 1 CPD point
How does it work?
What area(s) of law does this episode consider?How judges approach the process of making a decision, after a hearing ends.
Why is this topic relevant?While lawyers might spend their entire careers presenting and formulating the best arguments possible for consideration by a court, many do not understand the process by which a judgement is made. In this episode, the Hon Justice Michael Kirby discusses subconscious intuition, bias and values as obstacles by which judges must overcome in order to make a legal decision.
What legislation is discussed in this episode?
What cases are discussed in this episode?Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365

This case involved a family from Afghanistan who were part of the Hazara minority and fled to Australia due to a fear of persecution. In accordance with the Migration Act 1958 (Cth), when they arrived without papers they were placed into detention.Two of the children in their family (by their mother as their next friend) made an application in the Family Court of Australia seeking orders that the Minister for Immigration and Multicultural and Indigenous Affairs be required to release the children from detention, under the Court’s welfare jurisdiction.  At first instance, the Family Court declined to make the orders; Dawe J held that the Court had no jurisdiction, but on appeal, the Full Court of the Family Court held that it had jurisdiction to order the childrens’ release from detention, holding that the Family Law Act had conferred jurisdiction on the Court “in respect of children of marriages without limitation”.

The Full Court also held that an interpretation of the Act on those terms gave effect to the United Nations Convention on the Rights of the Child, to which Australia is a signatory. Further questions arose as to whether the provisions of the Immigration Act requiring the mandatory detention of “unlawful non-citizens” should be read down to exclude children. The definition of a “non-citizen” under that Act was merely “a person who is not an Australian citizen”. As Kirby J held in the case, ‘self-evidently, a child is a “person”’. In the episode, Kirby J discusses how his intuition initially led him to draw a conclusion that favoured the non-detention of the two boys, however upon consideration of the executive’s intention, ultimately, Kirby J and the other Justices of the High Court unanimously held that the application be dismissed.

 

Mabo v Queensland (No 2) (1992) 175 CLR 1

A case in which the High Court held that native title rights, deriving from Indigenous customary law existing before English settlement, were not extinguished by the doctrine of “terra nullius”, and were only extinguished by subsequent laws which were inconsistent with customary law (such as Crown grants of fee simple).  As a consequence, the potential for proprietary “native title” rights were recognised.

 

Wik Peoples v The State of Queensland (1996) 187 CLR 1

An influential native title case that determined that the granting of a pastoral lease does not extinguish native title rights, on the basis that a pastoral lease does not confer rights of exclusive possession on the leaseholder.  The case, while legally uncontroversial, was the subject of much political comment and controversy.

 

Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Mr Guo and Ms Pan were a couple from China who travelled to Australia in 1993 and made an application for refugee status due to a fear of persecution for their political opinions and possible forced sterilisation upon return. In 1994, their applications were rejected by the Minister as it was established that they had no real fear of returning to China. This decision was later ultimately upheld by the High Court.

What are the main points?
  • In the High Court, judges meet in the anteroom to discuss preliminary thoughts on a case after reading the written submissions. Then a week later after the hearing, they converse via video to have a more in-depth discussion.
  • Judges do not decide based on political views or personal values; the role of the judiciary is to apply the law to legal questions as it stands, and as was intended by the executive.
  • Dissenting judgments are valuable because they allow judges to express their true, honest opinions and validate the differences in logical legal conclusions.
  • Consultation with other judges to discuss cases safeguards against a particular judge’s overreliance on their own values, bias or intuition.
  • The judicature in Australia is an effective system in which one can disagree with a judge’s decision and have remedies available to them, which upholds the integrity of the office.
What are the practical takeaways?
  • ‘Where the rights of vulnerable persons under valid legislation are in question, it is often necessary to keep judicial intuition in check, for sometimes it will be based unconsciously on the very attitudes that the law is designed to correct and redress.’[1]
  • Judges and advocates may use different ways of analysing an argument, from Kirby J’s tree diagrams, compared with Mahoney J’s more formal sentence writing approach, to just ‘letting the case wash over’.
  • Judges’ decisions can vary within the limits of the law as they may adopt a more literalistic interpretation or a more purposive interpretation of statutory or constitutional language or of the language of the previous common law decision, depending on the case.
Show notesThe Hon Justice Kirby’s article ‘Judicial Dissent – Common law and civil law traditions’

John van Kooy’s research briefing note

The Hon Justice Kirby’s Symposium speech to mark the 50th anniversary of the publication of Province and Function of Law by Professor Julius Stone

The Refugee Council’s film ‘Stop the Boats’ (2018)

[1] Minister for Immigration and Multicultural and Indigenous Affairs v B 219 CLR 365 [121] (Kirby J).

David Turner:

 

 

 

 

1:00

Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple.

Our guest today, the Hon Michael Kirby, once said: ‘frequently enough one thinks one has the answer, but on sitting down, it will not write.’ For many of us our legal careers are spent presenting and formulating our best arguments for the consideration of the bench, waiting in anticipation for judgment. But many of us do not understand the process by which when judgment has been reserved and the judge has gone off the bench, that judgment is actually reached. We’ve been reading analysing and re-reading judgments since the day we entered law school, but we know little about the process by which they are crafted. When is the decision really made? Do judges discuss cases with one another, even at first instance? As a decision-maker how does one address one’s own conscious and unconscious biases? Who better to answer these questions than the very person I quoted at the top of this introduction! It’s my true pleasure to welcome to the show the Honourable Michael Kirby. Michael, thank you so much for joining us today on Hearsay.

The Hon Michael Kirby AC CMG:Thank you for having me.
DT:Now, today we’ll be discussing intuition, values, bias and reconciling the disjunct between one’s intuitive response to a case and the one that the law demands. And there’s one judgment in your career that is emblematic of that difficulty, the Minister for Immigration and Multicultural Affairs v B, a 2004 decision of the High Court. Michael, tell us a bit about that case. What was the background to it?
MK:

2:00

Well, I’m not supposed to elaborate or put extra thoughts and therefore what I’m going to say has to be read subject to the text of what I wrote because otherwise judges would go for 20 or 30 years trying to improve, polish and refine what they wrote in the actual decision of the court.
DT:An important and necessary disclaimer.
MK:

 

 

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That’s right, I just thought I’d get that on the table. But the case of B was a very sad case about two young boys from Afghanistan they were from the Hazara minority in Afghanistan, which is a minority which is partly ethnic but also partly a variant of Islam, and it makes them very unpopular amongst people who don’t share that ethnicity and religion or its variation. They were from Afghanistan and their parents asserted that they had a well-founded fear of persecution if they were returned there. That is the language of the Refugees Convention and it’s that language which is imported into our Migration Act.

TIP: It’s section 5J of the Migration Act 1958 (Cth) that Michael is referring to here, which says that a person will be taken to have a well-founded fear of persecution if:

(a)   They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; AND that’s the conjunctive rather than the disjunctive,

(b)   There is a real chance that that person would be persecuted.

Now as Justice Kirby mentioned, the language of these provisions was informed by the United Nations’ 1951 Convention Relating to the Status of Refugees, to which Australia is a signatory. According to the UN Refugee Agency, the Convention aims to protect the rights of refugees under international law under its “core principle of ‘non-refoulement’ which asserts that refugees should not be returned to a country where they face serious threats to their life or freedom.”

So when they came without papers, the parents were sent straight away, as the law requires, into detention and the children went with them. The parents then made a claim for refugee status and that was proceeding through the process of the then Refugee Review Tribunal but an appointed distinction was raised concerning the children. The argument was advanced in the Family Court where it first went, that they should be treated differently from their parents, that their parents were caught by the provisions of the Migration Act requiring the detention of a person who arrives without immigration papers, visas and so on. But that a child was not caught by ‘person’, that you would read the word person down so as not to include the child because the child has been conscious, not had the thought evading our migration law, but that could be blamed on the parents not the children. And that argument was upheld by the trial judge in the Family Court by a majority in the Full Court of the Family Court, and it came by special leave to the High Court. And the High Court had to decide, who would we set aside the judgment of the primary judge and the Full Court by majority, or would we say that person must be read down because to require the children to get a visa was unrealistic, in terms of the children and to send back to a country that might persecute them was a cruel outcome which a court would struggle to avoid if possible and the Family Court had avoided. So that was the problem that I faced, and it wouldn’t be letting any secrets out to say that when I had that problem I thought ‘well this looks a pretty arguable case, it’s convinced three of the judges in the court below, it’s well-written,’ and it’s not an unusual thing to read legislation down if that will advance the purposes of the law, and in this case the purpose is protecting refugees within the migration system. And therefore I left the court thinking, ‘well I think the Family Court probably got this right.’ We had a talk about it and I then went off into my chambers and very quickly, that was always my way, and I had to write my decision, or at least compose the decision. And that’s when I struck two icebergs.

DT:

 

 

 

 

 

8:00

And we’ll speak about those icebergs in a moment, but I wanted to talk about that moment that you come off the bench because I think that’s really the moment when the decision-making process for many advocates, many solicitors ceases to be visible. Perhaps it’s not even visible before that. And I suppose we’re talking here about a descriptive view of decision making rather than a normative one, of course normatively we should all expect that decisions are not made at all until proper consideration of all the issues and evidence has been made, but you say there that in B you stepped off the bench with a preliminary view of how the case would be determined, is that common? Is it often the case that when the judge’s associate calls for the court to rise, that the judge has reached, at the very least, a preliminary view in their mind of how the decision will be made?
MK:

 

 

 

 

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I think it’s perfectly regular and indeed the whole point of seeking as we now do written submissions, and detailed written submissions and very good written submissions, when you get to the High Court that the judges will have read the written submissions. And it would be defying gravity to say that you go through those and you don’t really think about where they’re leading your mind. You’ve got to have insight into yourself. And so I mean the whole process would take some describing. I had a very good teacher actually when I was appointed to the Court of Appeal and that was Justice Dennis Mahoney.

TIP: Dennis Mahoney served on the NSW Supreme Court from 1972 – 1996, spending most of that time on the Court of Appeal. As it said in his Honorary Award letter from the University of Sydney, “his judgments were marked by his compelling vision of the law as a practical institution of social regulation that must be interpreted in a manner that places the social function of law in the foreground. His judgments were imaginative, challenging, and acute in their probing of foundational issues.” Talk about a good teacher!

I saw every time he was sitting to my right or on my left, and I saw him writing the whole time. And I said, ‘Dennis what are you doing?’ and he said ‘Michael, we are not here to enjoy ourselves. We are here to prepare the product. We are an assembly line and we must get our product out and judges who don’t get their product out and who hold everything up are a menace. And so what you’ve got to do is be working on how you’re going to deal with the case.’ And so I took that very seriously and from that moment on, I did what I had done at high school actually. I began doing tree diagrams of the arguments, the principal argument, the subordinate argument, the problem with the subordinate argument and so on. And so when I left the bench, I already had tree diagrams that helped me with my approach to the problem. Then when I actually sat down to try to convert thinking into resolution and into the page or the text. So that was the method I did and of course there were discussions, well the High Court’s got a very developed procedure for discussions within the court and all of this is relatively new. I remember when I was a junior to Dennis Mahoney, these are sort of war stories…

DT:We like war stories on Hearsay.
MK:

 

 

 

12:00

In the Mikasa case, which is resale price maintenance case in the High Court and I was his junior, and at the end of the argument he handed up a written outline of what he had just said. And so Garfield Barwick, who was presiding as Chief Justice, said ‘what’s this?’ And he said, ‘well your Honour, it’s a brief outline of the main points of my argument.’ And at that time the High Court didn’t require, and according to Barwick, didn’t permit supplementation of the oral argument. Barwick had been such a brilliant advocate; he was a great advocate. He used to come to my school Fort Street High because he was from Fort Street. He was very good speaking to kids, and he was very good speaking to judges, and he knew that was his strength. And here was this menacing document, a creature of the civil law of France coming up towards a hedge-
DT:Most unwelcome.
MK:And he said ‘no, no, we don’t receive that’ and one of the judges, I think it was Justice Menzies said, ‘oh well I actually I would find it quite helpful Mr Mahoney,’ and he defied the Chief Justice. And Barwick I remember was so angry, so upset that his authority was beaten but then the written document was handed up and that really was the beginning of the end civilisation for the oralists.
DT:You were there for the moment that-
MK:

13:00

I saw and I told you about it and that was Dennis Mahoney. And Mahoney was a strong advocate and strong judge, and so he handed it up and it became then an informal procedure and now of course, it’s all formalised.
DT:We’ve spoken before on Hearsay about the progression from oral advocacy to written advocacy, and we’ve also spoken before on Hearsay about the visualisation of some of the concepts of an argument. We’ve spoken about another method similar to your tree diagrams of preparing a matrix of every legal principle that is relevant to a case and what facts would be necessary to be proved for it to become germane to the outcome of it. Is your technique the one that Mahoney perhaps described unromantically, but in a very craftsman-like way, as producing the product from the assembly line, is it a common technique? Or in your experience have you learned of others that judges use?
MK:

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15:00

Some judges don’t do anything. They let the argument wash over them and leave their minds in a state of flux and they get the benefit of the argument. But Justice Mahoney didn’t use tree diagrams, I don’t think anybody else used those. In fact, there’s a photograph in one of the books on my life I think by A.J. Brown which has a photograph of one of those tree diagrams, just happens to be picked up on my desk and you can see how you know, it was a particular case I think it Thomas, Jack Thomas the security terrorism case that was caught on the photograph. But Justice Mahoney wrote in sentences, but I worked in concepts and my training in the Law Reform Commission had also been a peculiar training in preparation for appellate courts of thinking in concepts. The common law tends to think in problem terms and resolving the problem that is tended for decision. But to do that, I learned in law reform that you’ve got to resolve the particular decision, especially if you’re in a Court of Appeal or in the High Court, by thinking of the concepts and the context with which you’re dealing and putting the particular problem into the concept problem.
DT:

 

 

Which is something we’ll come back to with B and its sitting within the conceptual framework of the Convention on the Rights of the Child and the international human rights instruments to which Australia had voluntarily given its consent to.

I now want to speak about what you described as being a formal process in the High Court of conferring with other judges on the bench. Tell me a bit about those discussions between judges after the hearing has concluded.

MK:

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17:00

Yes this isn’t a secret because it’s been revealed by myself and other Justices, during earlier times Chief Justice Barwick, again very powerful personality, I mean he had the power of will, it was his will that got the building erected in Canberra and he wanted also to have all the Justices living close to each other, presumably so that his influence could wash over them and make sure that they agreed with his opinions. I mean he was a very very powerful personality, but the other justices didn’t like it, and they said so. And they said, ‘no we don’t want to be living with you, it’s enough for us to be with you all day, that’s quite enough and we’re not going to live in a circular group of buildings,’ you know they do that in India. The British in India established an area where the judges would live together, presumably in those days because they were British and those around them were not, and that was congenial, or reasonably congenial, and so they would live together, work together and that was just how it was. That didn’t work in Australia. People wanted to go home and have a gin and tonic and finish with their colleagues.
DT:It reminds me of something else you’ve said about the judge’s profession, that judges are a bit like monks without a binding common faith, and that sounds very similar to a monastic life living in a compound.
MK:

 

 

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Yes, well I don’t know that I said that, sounds like one of my Catholic colleagues would say that, but anyway it is true that there is, in a sense, a common faith, it’s the faith in the realm of law and in doing the job without corruption. You know when I used to get visitors from Asia and other parts of the world come into the High Court and I would see lots of them and tell them the proudest thing I could say was that I have never had a Minister telephone and say, ‘the government would appreciate this matter having your special attention.’ That just doesn’t happen in Australia and no envelopes stuffed with dollars, and no inappropriate interventions, you know there’s a sort of feeling at the moment that might be breaking down in another branches of government and we’ve got to make sure that does not breakdown in the judicial system because it’s really one of the jewels of our system. But anyway, you asked about the High Court and its message, we would meet on the morning of the case in the anteroom. The court is a very well-designed place and there are beautiful chambers, and very nice anterooms before you go onto the court and sit. And in those anterooms, there would be discussion about the case, very preliminary and not very long generally, about quarter of an hour or so. That was just sharing the first impressions of the case. Keep in mind that you don’t get into the High Court, nowadays, except by special leave basically in most matters. Sometimes on the constitutional writs, but it’s a very special jurisdiction but that’s what we’d do, we’d have discussion before we went in, we’d have a desultory discussion at lunchtime. There would normally be a discussion at the end of the day and most cases are finished in a day or less. And then the senior judge, the presiding judge, usually the Chief Justice, would provide a cup of tea and then people would get together and talk about it. In the Court of Appeal, we had a very similar system. And there, the workload was very much greater. The cases weren’t all as difficult as they tend to be in the High Court, but there were a lot of cases and therefore we had to be processing the product at all times to get it done. But in the High Court, there would be this discussion immediately after the case and then in the week after the sitting, in which the case had been argued, there was a video link. We established webinars long before COVID-19 and we would be sitting in the Chief Justice’s chambers, or the senior justice, in Sydney, there would be judges sitting in their chambers in Brisbane, in Melbourne, Perth and that would lead to the exchange of views of a much more detailed discussion of the case and that would happen in the week after the sitting. So two weeks of sitting, and then the week after on the Tuesday, there would be the video link, then there would be detailed discussion and then the Chief Justice or senior judge in the case would ask one of the Justices to do the first draft, if that conformed to what appeared to be the emerging majority in the case.
DT:

 

 

 

 

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Well that’s just what I was going to ask about, I imagine at either that Tuesday video link the following week, but perhaps even earlier, dissenting opinions or perhaps even opinions consistent with the majority but determined on a different basis, would come to life fairly early on. To what extent do judges seek to be swayed by one another that their initially crafted opinions are wrong?

TIP: Now Michael Kirby, Australia’s longest serving judge, has earnt himself the nickname “the great dissenter.” But what value do dissent opinions have in our judicial system? In his article entitled ‘Judicial Dissent – Common Law and Civil Law Traditions’, Michael Kirby identifies common criticisms of dissenting opinions in that they “weaken the role of the courts in expressing…the law” and “amount to a self-indulgence on the part of their writers.” Instead, he favours the argument that dissent opinions are valuable because they “represent a sincere and honest attempt by the judge to explain the deployment of public power within the judiciary.” I can’t help but agree with him.

We’ll leave a link to his article in the episode’s show notes.

MK:

 

 

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Well don’t forget at the time you’re having these oral discussions we don’t have crafted opinions in the sense that the written document has not been prepared by the Tuesday conference. That comes later and as a result of the discussion. Sometimes you know, rather mischievously as I look back, I would say ‘there it is!’ and my colleagues would look up, they’d raise an eyebrow and I would say ‘there is the San Andreas fault. There is the San Andreas fault!’ And I felt during my time on the High Court, not in the Court of Appeal, and not in the Law Reform Commission, not on the Federal Court, and not in my work for United Nations on North Korea or Cambodia, but in the High Court there were deep differences about law and its purposes, and I was in a minority. And that would emerge reasonably quickly. Somebody will one day do an analysis perhaps of what was that San Andreas fault, why did that emerge? And should I have worked harder to overcome it? Or is it the very essence of our system, for good or for bad, that the judges say what they truly and honestly believe is the law and the proper outcome of the case according to law?
DT:It’s still a live question, much has been written about the Kiefel High Court about the importance of majority or joint judgments and the asserted importance of a clear rule being drawn from the High Court’s decisions.
MK:

 

 

 

25:00

I agree with that too. But not if one or more judges don’t agree. That’s the essence of it. We are not there in Tammany Hall. The judges don’t do a trade ‘well you decide this way for me, and I will decide next week for you.’ That doesn’t happen and it shouldn’t happen in my humble opinion. And as well as that, dissent is one of the special features of the English tradition which we have inherited. And I don’t know it’s a long time since I’ve been a solicitor and a barrister, but I think that when I was a young practitioner, it was a source of great pride and comfort to me to know that this person with all their imperfections was striving to give an honest and not a distorted or traded decision. And we shouldn’t be afraid of it, we shouldn’t be ashamed of it. And we should acknowledge that it is the way our legal system advances and it’s the way it is honest about the legitimate space of difference that undoubtedly exists at least by the time you got to the High Court of Australia, and also in my experience, by the time you got to the appellate court.
DT:

 

26:00

As well as the comfort in the integrity of the judicial system that you described, I think it’s certainly my experience in my legal education that a lot of discussion about the conclusions or conclusions to be drawn from cases, was often decided by discussion about the difference between a majority and a dissenting opinion, of which no small number were yours.
MK:

 

 

 

 

 

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That last observation, ‘no small number were yours’ now why was that so? And we’re entitled to, I’m entitled, and I’m required to ask myself, why so? And the first really big case I decided on the High Court was the Wiks case.

TIP: Now I’m sure you’re all aware of the significance of the 1996 Wiks case as a fundamental turning point in Australian history regarding the interaction between native title and pastoral leases. The decision was delivered just 4 years after the even more famous native title decision of Mabo. Now in Wik v the State of Queensland, the WIk people of Cape York Peninsula, together with the Thayorre People of South Cape York, argued that their right to native title coexisted with pastoral leases. Unlike the Mabo case, the concerned land was of great economic and political interest to government agencies, most notably the Queensland state government. Ultimately the High Court ruled in a 4:3 majority that pastoral leases don’t extinguish native title rights, and that therefore pastoralists didn’t have exclusive rights to the land. Interestingly, each 4 majority judges, including Justice Kirby, wrote their own reasons for their decision.

However, after the decision there was a lot of backlash from some parts of the Australian community with many claiming that the decision in Wiks threatened even suburban backyards to be claimed under native title and that “the pendulum had swung too far in the interests of Indigenous people.” The Howard government responded by introducing the Native Title Amendment Act, known as the 10 Point Plan, which effectively limited opportunities and increased requirements for Aboriginal people claiming native title. Despite legal recognition of Aboriginal peoples’ relationship with the land arising from a 60,000+ year history of inhabitation, today they’re still required to bear the onus of proving ‘an ongoing connection to the land’ in order to satisfy native title requirements, a process which takes up to 3 years to be assessed.

It came in my first year and that was decided and that led to an explosion and Mr Tim Fisher, an otherwise very nice man, said ‘well the coalition has to appoint capital ‘C’ conservatives.’ And I think that’s fundamentally what happened. We had a series of extremely talented, very experienced, very able and uncorrupted judges of the High Court who were very conservative about legal doctrines. And I was a sort of leftover from the Mason court, from the latter days of the Mason court and I just kept doing it in a way that I think, mostly but not always, the Mason court might have done in the case. And it’s that divergence and difference and different views about formalism in the law that is an important point of distinction between individual judges.

DT:

 

You’ve said in the past about Wiks that it was not a legally controversial case in the sense that there was clearly a legal question to be determined, the Attorney-General had received the existence of the question well before it had reached the High Court for example, but that it was politically controversial. Is it that the catalyst for the formation for the court as you described and is that where the San Andreas fault lay?
MK:

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Well if you’re asking do the judges there, did you, meaning me, decide it on a political ground, no I don’t think so, and I don’t believe my colleagues anything quite so brazen, but you’ve got to be wide-eyed and you’ve got to understand the political importance, constitutionalism in a written constitution and a federal constitution is politics in the form of law. And therefore, I learned in my law school days from Professor Julius Stone that judges have leeways for choice.

TIP: Let me give you some background on Julius Stone. He was born in Leeds, England and later completed his undergraduate and postgraduate studies at Oxford University and Harvard University respectively, talk about a pedigree! He then became the Professor of Jurisprudence at the University of Sydney from 1942 – 1972 and wrote 27 books on jurisprudence and international law. He was widely regarded as one of Australia’s most prominent legal theorists and in 1999 the University of Sydney even established a Julius Stone Institute of Jurisprudence in honour of his memory. His Jewish heritage is said to have influenced his passion for jurisprudence and international law as he advocated strongly for the protection of minorities in legal institutions. In 1996, Justice Kirby gave a speech at the Symposium to mark the 50th anniversary of the publication of Province and Function of Law by Professor Julius Stone. We’ve left a link to that in our show notes. Michael Kirby has commented extensively on the influence that Stone’s teachings have had on his own jurisprudential approach, so let’s go back to the episode and hear what he has to say.

That doesn’t mean that they are free to do whatever they want, but they have a space. And the space will be between outer boundaries that fix where they will be what you might call a more literalistic interpretation, and a case where there will be a more purposive interpretation of statutory or constitutional language or of the language of a previous common law decision. So peoples’ inclination to find that space and to recognise it and to see its availability and then to explain why they move the needle a little bit to the right or to the left on the particular occasion, is both the exciting and interesting aspect and it’s the way our legal system has operated for centuries. The difference is we are now, since Julius Stone and Roscoe Pound before him, we’re more honest about it. Some people don’t like you to be honest about it. Some people like to pretend. Lots of people, I mean I went through a lifetime of pretending I was straight. Lots of people in law love to pretend. Well when you get into the appellate courts, it’s about time we just still started calling it as it is and saying, ‘well this is an ambiguous word, how do we resolve the ambiguity’ and then you have to have a dialogue about how you do that. But I wasn’t the great dissenter in the Court of Appeal, and I wasn’t a great dissenter in the Federal Court, and I wasn’t a great dissenter in the Law Reform Commission, and I wasn’t a great dissenter on the Commission of Inquiry on North Korea. On all of those I either didn’t dissent at all or I was within margins. But in the High Court, I was the great dissenter, so I’m told. And that was because there was the San Andreas fault and it’s up to others, and up to ultimately history, to decide whether or not on some things I was right, and the majority were wrong.

DT:

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Well B is an example of a case where you weren’t in dissent. The conclusion that you drew as to the dispositive order to be made was consistent with the majority, but for different reasons. And I think the determination of B is one that really brings to life these issues about the exercise of intuition and to what extent values can be drawn upon as a guide or as a touchstone for the credibility or the reliability of legal reasoning. And I just want to, I guess, start this discussion with a quote from your judgment in B, this is at [121]: ‘Intuition can be a useful check where the law appears to have taken a wrong turning. In the courts, it is commonly based on long years of experience in the law, even if the exact reasoning is not at first consciously identified. On the other hand, intuition can sometimes be misleading or wrong. Where the rights of vulnerable persons under valid legislation are in question, it is often necessary to keep judicial intuition in check “for sometimes it will be based unconsciously on the very attitudes that the law is designed to correct and redress.”’ Now at the top of the episode you described the stepping off the bench, your intuitive response was that a reading down of the legislation in that case was appropriate until you, upon sitting down to write your judgment, struck two icebergs. Tell me a little bit about how your intuition led you to these icebergs.
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Well it won’t be surprising that intuition led me to the quandary because we had been told that these were two Islamic boys, and they were in a dusty migration detention centre in the middle of South Australia. And very nice Christian families in Adelaide had said ‘we will offer to be foster parents and we will take the children to the local public school and they will get education with people their own age, children of their own age.’ And so you couldn’t be a decent human being if you didn’t feel well any system of law that delivers the children to the local public school, as I went to the local public school, and gives them the beginnings of their education and respects them as human beings, sounds as though it’s going in the right direction. So sympathy for that outcome, I think everybody would have had sympathy for the outcome, but the question was: did the law permit it? And the argument of giving the word person special meaning to an adult person was not unarguable because 3 very clever judges had decided that way. But the first iceberg was the discovery, which was put to us by the solicitor general for the Commonwealth, that when the legislation had been under consideration of Minister Gerry Hand, this was legislation amendments of the Migration Act adopted by the Labour government. And that legislation required the automatic compulsory detention of people who arrive in Australia without proper documentation. And the Minister had been informed by the Attorney General’s Department, whose job it was to do this, Australia is a party to the Convention on the Rights of the Child. The Convention on the Rights of the Child says that a child should not be detained except by authority of law and as a last resort. A last resort. And, Minister, in this legislation you are detaining the children not as a last resort, but as a first resort. And therefore, it is arguable that Australia would be in breach of the Convention on the Rights of the Child. And essentially the Minister said, and he had the support of his party and of his caucus and of the opposition, ‘well we’ll deal with that if and when that comes up. That’s not going to deter us, we have to have a clear policy.’ Essentially, though he didn’t put it this way, ‘stop the boats.’ And so that was the Minister’s reaction and that was in the Labour government.

TIP: The phrase ‘stop the boats’ became a common slogan in 2013 describing the Abbott government’s so-called ‘zero tolerance’ approach to what it termed ‘illegal maritime arrivals.’ The ‘stop the boats’ policy was enacted in the operation Sovereign Borders which involved intercepting and turning back boats carrying people seeking asylum that are headed to Australia. Operation Sovereign Borders continues today. In 2018, the Refugee Council of Australia released a film also titled ‘Stop the Boats’ that the Refugee Council says “tells the story of how Australia used a three-word slogan to demonise people seeking asylum, fleeing war and persecution, condemning them to indefinite offshore detention and torture in prison camps on Manus Island and Nauru. The story is told by people seeking asylum including children from within detention centres, secretly filmed in Nauru and on Manus.” We’ll leave a link to the film in our show notes.

The second iceberg was also drawn to our notice by the solicitor general, and this was when you actually went into the legislation there were particular provisions in the legislation for the searching of children in detention. And that made it difficult textually to say that this is legislation which you can read down because it will only apply to adult persons, when the legislation itself has specifically addressed itself to children persons. And of course, I had other colleagues saying ‘what is your problem with the word person? Person is an English word. Person means any living human being, it is not just a child, it’s any human being person.’ So others found it an easy problem to solve. I found it not so easy to resolve. And my intuition told me our parliament would not put little children into detention when there are perfectly good Australian mums and dads who will take them into their homes as foster parents and send them, whilst that issue is being determined, to the local school and they’ll get an education. So that was my quandary, but the problem was the icebergs, and the icebergs were intolerable, and my mind could not say ‘well our Minister overlooked the Convention on the Rights of Child or overlooked the possibility that you had to read the legislation down and in fact that that by the way was drawn to the notice of parliament, that the advice received from the Attorney General’s Department. And specifically, there were searching provisions and therefore when I went to write my reasons, I could not persist with my inclination.

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And in your judgment at [169] having in the preceding paragraphs gone through all of the material that parliament was on notice of, including that advice, you said, ‘From the foregoing it must be inferred that the Australian parliament was fully aware of the operation of mandatory detention for unlawful noncitizens arriving in Australia; of its application to children of the special problems that prolonged detention of children in such detention centres occasions; and of the concerns expressed by departmental officers and individual committee members about breach of the requirements of international law. In effect the position of the Parliament has not altered since the view expressed a decade ago.’

I want to talk about bias as well. I suppose I’m asking about the bias as an abstract from the decision in B, but that is something that all judges must grapple with in the same way that one’s influenced by one’s conscience, one’s values, one must also be influenced by one’s biases, and those can be conscious or unconscious. What I want to ask you is have you ever felt, or been conscious of biases that were operating on your mind when making a decision and how have you freed yourself of them or keep them under control?

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Well I hope I have been conscious of biases because Julius Stone my great teacher told me that there were leeways for choice and some of those would spring out of deep feelings of human rights, and that was one of the cases I was biased in favour of the principle expressed in the Convention on the Rights of the Child and in the great objective of the Refugees Convention. With my partner I went through the Khyber Pass in the days when a lot of Australians didn’t, I went through all those lands, many of them under communist rule at the time. There was a very short period when you could drive through Afghanistan and through Iran, and then I went through Eastern Europe and I went through the lands of the Holocaust and I went to the Netherlands, went to the Anne Frank house, and they had a map of the world in the Anne Frank house with a list of the countries that had accepted Jewish refugees in the 1930s. And Australia was one of the smallest intakes of, we didn’t want refugees. And so did I have a bias in favour of those boys? Probably I did. But it was a bias harnessed by my obligations as a judge in Australia acting under the constitution. I had as Julius Stone taught me, leeways for choice. But those leeways for choice were within a metre that had an arm, and it was pointing to an extremity and I couldn’t push it beyond that, and I couldn’t even try and I shouldn’t try to push it beyond that point. Because of my own life experience, I had a bias in favour of getting rid of laws that were unequal to minorities and discrimination against people; forgive me I have that bias. Growing up as a gay youth and man in Australia, I tasted the bitter dregs of discrimination and I didn’t like it. But in the court I wasn’t able to just go in there and say, ‘oh well every gay person is going to get a free kick.’ And I had cases, one case from Hong Kong where somebody was arguing that errors had happened in the Refugee Tribunal, that hadn’t been corrected by the Federal Court, because he had a well-founded fear of persecution if sent back to Hong Kong. And I didn’t accept that, and I rejected the claim and joined with the other judges in the court in rejecting that claim.

TIP: The case that Michael’s referring to here is the Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, a 1997 decision of the Federal Court where Mr Guo and Ms Pan, husband and wife, had previously travelled to Australia from the People’s Republic of China in 1992 but were unsuccessful in their claim for refugee status and were deported. In 1993 they made a second journey to Australia via boat and were detained under the Migration Act s54B. The couple lodged another application for refugee status saying they would be persecuted for their political opinions if they returned to China, and that they feared forced sterilisation due to the ‘one child policy.’ Their applications were again rejected by the Minister, so they applied to the Refugee Review Tribunal without success, and then finally sought judicial review in the Federal Court according to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under s 39B of the Judiciary Act 1903 (Cth).

So it has limits, your attitudes inform your values, and the values inform your decisions. Some people don’t think you should go there at all. You should just look at that word ‘person’, and I don’t think it’s as easy as that.

DT:Might not be possible.
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And well, it isn’t desirable. It’s desirable to be honest, candid, without going into a tedious psychoanalysis of yourself and spouting out all sorts of irrelevant material. You’ve got to be conscious of it and say ‘well I don’t have a commission to sit in this court just to give effect to my values’ and I never took that view, I don’t think the other justices did. But they often found it simpler. This issue is being argued even as we speak in the Senate confirmation hearings of Judge Barrett in the United States in America and she says, ‘I am a person who believes in the literal application of the law.’ But that is often the question. If you are not attuned to seeing the discretionary and other factors, then you won’t see them.
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And that answer that my job is to apply the law, skips an important question which ‘what is the law?’ And that precedes it, but that reminds me of something that you’ve said about the confirmation of another US Supreme Court Justice Sotomayor and about how the US confirmation system promotes or encourages candidates for the Supreme Court to say things that perhaps aren’t true about their capacity to be impartial on certain issues because they need to in order to be confirmed.
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Well Justice Sotomayor, as I remember it, said ‘I cannot expunge entirely from my being and my person the experiences I had of prejudice, of discrimination. In her case, on the grounds of race and on the grounds of gender. And Australia has a bad record. I’m sorry but we have a bad record on Aboriginality, we have a poor record on race in the age of white Australia, we have a poor record on gender. We took so long to remove a lot of the discrimination in the law against women. And on disability, on refugees, on prisoners, we have no armoury with which to have adjustment as they can in countries with a Bill of Rights or with a Charter of Rights. So we’ve got a particular problem with this, but just the same there is a limit and I think Justice Sotomayor would not believe that she could just go into court and every Latino American will win whatever the argument, whatever the law says. But she believes as Pound taught and as Julius Stone taught and as the Mason court practised, that there are leeways for choice and that that is just how our system works. And honesty and integrity and openness and putting it on the table, is the way we operate and it’s not corrupted and it’s not predetermined, but it is honest to the role that values play and purposes play in giving meaning to words whether in a constitution, or in statutes, or in language of judges in expressing the common law. Look at Mabo, look at the great decision of Mabo before I came onto the court, that was 1992, I came in ‘96. And ‘92 they reached a decision which was bitterly attacked at the time, but I think most Australians now would say belatedly not our elected parliaments, but our unelected judges, reached a conclusion that we do not disrespect the land rights of the Indigenous, the first people. But we will find a way that the common law will respect it 200 or 150 years after the arrival of the settlers.
DT:One question I wanted to ask you Michael was about your brief time on the Federal Court between your time at the Law Reform Commission and on the Court of Appeal. Many of our listeners will not be lucky enough to present an argument to the High Court of Australia, many will do most of their work in courts at first instance. From your experience in the Federal Court and indeed from your experience of reviewing the decisions of many first instance judges, how does the task of making a decision at first instance differ to the task of making a decision on the High Court or the Court of Appeal? Do you still discuss your conclusion before you deliver it?
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Keep in mind that I spent I think it was ten years as a deputy president of the Arbitration Commission, that was where I was originally appointed to work in the industrial relations area because that had been part of my, a large part, of my practise towards the end of my time at the bar. But I was on leave to the Law Reform Commission within weeks of arriving, I was snatched rather unwillingly I must say, to the Law Reform Commission and so I really didn’t have a lot of experience as a primary judge. I had some in the arbitration Commission and some in the Federal Court but not a lot. But judges do discuss things. My brother David was a judge in the Supreme Court of New South Wales and he sat in a lot of murder trials. That was his job. Very hard work. And there would be informal consultations by judges with each other about particular problems there in the same corridor of the judge’s chambers and that’s a sensible course so long as the judge of trial keeps their own responsibility for the decision and doesn’t hand it over to somebody else or like Justice Dixon write the opinions of Sir George Rich which is mildly shocking and scandalous now that we hear about it. But so, a degree of consultation is not unusual and that informal consultation can also take place even if another judge hasn’t sat with you in a particular case. In the Court of Appeal that would be more common because there the bench was normally three judges and the court was nine. Whereas in the High Court more often than not, the bench was five or the full seven justices and that meant everyone was there to be consulted and to agree or disagree. But consultation and exchange of views and exchange of experience is a good thing and I don’t see any problem with it myself.
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I suppose it’s a useful guard against the over-reliance or the undue influence of values or bias in a case. We’ve spoken earlier today about the tension between preserving one’s independent judgment, the value of the dissenting opinion in our judicial system, and on the other hand the importance of a majority clear judgment. But I suppose even at first instance at that level of consultation is a useful guard against relying too much on intuition.
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Yes and I remember my very first day as an article clerk, I remember vividly because I couldn’t get a job, I had maximum pass in the leaving certificate and by and large I was pretty brilliant, but I couldn’t get a job because daddy hadn’t been in the legal profession and that was how it was in those days. But I remember the first day I went up it was to the compensation court and I saw Judge Rainbow and then the next day Judge Conybeare and they heard the argument, they heard the evidence and I remember Judge Conybeare would have a glass of water and then he would launch into his reasons. And I was absolutely astonished at the way he could digest all of that material that I’d sat in court and heard coming from all angles and cross examination and then launch into reasons and make orders. I mean it is a wonderful thing. And I saw that, that was my view of the judiciary. That is how judges did it and it’s less so now, I think there’s much more reserving of decisions, but in those days of jury trials where it had to be decided by the jury, matters of substance, and judge alone trials which there would have been 12 cases in the list of those two judges I named and most of them would be settled, but those that weren’t they just had to sit there, concentrate and make notes and then give it at once. Otherwise they would be deluged with the avalanche. And I remember being very impressed with that and that was the sort of standard that we had in the law and when I became a judge, I was determined in judicial work to try to reach that standard. It’s a very high standard of people who are very dedicated and work very hard and are uncorrupted and honest, and they have their biases as you’ve called it, they have their differences and their values and some are very conservative and some are not so conservative, but it’s not a bad system and it’s a system which you can disagree with what a judge has done and how a judge has decided and what he or she is decided. But it’s one that respects the integrity of the office. And I hope that that can be continued in Australia.
DT:Absolutely. That work ethic, that ability to process so much information and digest it quickly is still exercised by magistrates at the local court in this state who face overwhelming workloads and who I imagine must have to rely particularly so on intuition.
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And not everybody is as good at it, you know, I’m pretty good at it because I have lots of stamina and I have a very good concentration. But we’ve seen in Victoria and in Queensland recently, judicial officers who committed suicide because of the pressure, and not everybody can tolerate this sort of pressure and if you can’t it’s very important whether you’re a lawyer, or a judge, or whatever you are in life that you have someone to talk about it to, and I’ve always had my partner Johan you know I’ve gone home and I’ve said, ‘you’ll never believe what happened today!’ And he always kept my feet on the ground and that was a very good thing for me, and it was a very good thing for my work as a judge.

TIP: I think it’s safe to say it’s common knowledge in our profession that judges are overworked and overstressed and as a result their mental health Is at risk. Recently, Judge Guy Andrews and Victorian magistrate Stephen Myall, both tragically took their lives. In both cases, their loved ones and the legal professionals that worked with them noted the increased pressure that the judges are constantly under to quickly deliver judgments and deal with an increasing caseload. Following Judge Andrew’s death in October 2020, Former Queensland Law Society President and lawyer Bill Potts urged the state to provide greater resources, support and training to its judges, acknowledging that “judges hold one of the loneliest positions in the world … they’re often dealing with very bad stress brought on by the types of cases and things that they have to deal with and see.” For more discussion on mental health in the legal profession, check out our episode of Hearsay with Michael Tooma from Clyde & Co.

DT:We’ve spoken to other judicial officers on the show before about the value of having friends in the law that you can discuss your victories and losses with and your challenges with, but also having friends outside of the law to discuss them with because it’s a useful touchstone to the way the challenges you face in your profession are received by someone who’s not a lawyer.
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Yes well that I think is a corrective. You’ve got to allow that your obligation is to give effect to the law or the proper understanding, and that you have been trained in the law and you can’t just turn to the palm tree to see what it requires in this particular case. But I found it very useful walking along the waterfront at Rose Bay after I had heard a case and just talking it over with my partner, because I knew he was totally discreet and totally he would never talk about it or mention it to anybody. And that gave me an intelligent layperson’s perspective. And when I would then explain to him what the law said he would say to me sometimes ‘the law says that?!’ And would be shocked and at least, at the very least, that would lead me to think again and go back and look at the law. Lord Denning, my hero in my youth, used to say, ‘I would look at the law and if it came to a conclusion that I regarded as totally unacceptable I would look and I would look and I would look again until I found in the common law the principles that could find a just conclusion.’ Because the oath we take at the outset of our journey as judicial officers is to do right to all manner of people and to do it according to law. But there has to be a justice component, and that really is the genius of the common law system and it’s why when the viceroys all got on their ships and went home, the English language and the common law remained in a quarter of humanity and it’s still being exercised in Nigeria, Malawi, and in Belize, and in Singapore, and in the Pacific islands, and day by day judges are like Judge Conybeare and Judge Rainbow coming into court and sitting there and concentrating and then doing their best to explain the reasons and to make their orders, and both of those tasks, making orders is very important not postponing the day. But if any of your listeners are thinking ‘well maybe one day I may become a judge’ it’s much to be recommended. It’s a very honourable and I think a noble vocation and you don’t have to end up a dissenter. I was not the great dissenter until the last stretch and I’m not ashamed of that stretch. And I believe I did my duty in accordance with our high traditions, and if I was in the minority well one day others may see things differently and even if they don’t I believe in our system our lawyers would say ‘well I don’t agree with him there, but at least you can understand what he did and why did it and I concede that it’s arguable, but I think the better view is the majority view.’ Well that’s fine and I can live with that.
DT:Well said. Concluding on the topic of your remarkable career and a record-breaking long run on the bench, you’ve served the law in so many different roles from the Law Reform Commission to the High Court, to conclude today Michael is there one moment from your career that you hold most dear? Is there one that you look back on most fondly?
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I look back on it all fondly, but I believe in the retirement age. Look at the problems that poor old Americans have got at the moment without having a retirement age, I think it’s better to have and I voted for, the compulsory retirement age because let’s face it I’ve gone on to do all sorts of interesting things for the United Nations and elsewhere and I still am doing well that. Well I remember the day I was pointed to the High Court. I had come to the view that I was always the bridesmaid, never the bride, and that I had missed that opportunity. And then Justice Deane was appointed Governor General. And I knew that in a particular week there would be a decision by the Federal Cabinet and so just as at the moment there must be all sorts of people who are watching and waiting about the filling of positions. And then I was sitting in my chambers at 8:00am, and I got a phone call saying, ‘Mr Kirby where will you be at 4:30 this afternoon?’ And I said this is Smith from the Department of Prime Minister and Cabinet and I thought ‘that’s interesting.’ I said I will be in a meeting of the Users Committee of the Court of Appeal because we are very supportive of our users, and he said, ‘I didn’t ask that, I just wanted to know where you will be.’ And so at 4:30 I was sitting in the judge’s conference room and there was a knock on the door. And my brother, a solicitor was sitting in the room and he had his eyes on me and he said when my associate came in with a post-it sticker and passed it down the members of the committee, I was chairing the committee as the president of the Court of Appeal, and it said, ‘please ring the Attorney General immediately.’ So when I did I got the request: ‘Justice Kirby I have the honour to invite you to accept appointment to the High Court of Australia.’ I didn’t pause to ask the salary or the emoluments, I said, ‘I have the honour to accept that appointment, I will do my best’ and that is what I did.
DT:What an incredible moment. Michael, thank you so much for joining us today on Hearsay.
MK:Thank you for having me.
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You’ve been listening to Hearsay The Legal Podcast. I’d like to thank my guest today the Honourable Michael Kirby (gee it felt good saying that!) for coming on the show. Now if you liked this discussion about the difficult task of judging, listen to my interview with Justice Lucy McCallum for more insights from the bench. Or, if you’d prefer an advocate’s view, listen to my interview with Talitha Fishburn about how online court and digital delivery is changing advocacy skills. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest that this episode constitutes an activity in the professional skills field. If you’ve claimed five CPD points for audio content already this CPD year, you might need to access our multimedia content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points on the Hearsay platform. The Hearsay team is Tim Edmeades, Kirti Kumar, Araceli Robledo, Zahra Wilson, and me, David Turner. Nicola Cosgrove is our executive producer and fearless leader. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions – making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening.