THE UNIVERSITY OF WESTERN AUSTRALIA
BLACKSTONE LAW SOCIETY
TEN PARABLES FOR FRESHLY-MINTED LAWYERS
The Hon Justice Michael Kirby AC CMG*
I congratulate the Graduating Class of 2006 of the University of Western Australia Law School. I am constantly reminded of your talent by the presence in my chambers of Travers McLeod, one of my associates, the President of the Blackstone Law Society in 20051.
I have been asked to draw on my own experience and to offer a few thoughts for young lawyers about to embark on their careers. I will do this in the form of ten parables. Of course, what was relevant to my life may not be relevant to yours. Every lawyer can tell their own story. Everyone's journey is unique; the parables different.
1. Fairness in the profession
I came up to Sydney University in 1956 with results in the Leaving Certificate which, even if I say so immodestly, were brilliant. But I found it difficult to secure articles of clerkship in the legal profession. They were essential if I was to progress in the law. I had no family connections with the legal profession. I applied to all the big firms. One by one they turned me down. I had no lever to pull in the Old Boy network.
Eventually I secured articles in a small firm of solicitors in Sydney, M A Simon and Co. There were two principals and three articled clerks. One of the principals later himself became a judge. One of my fellow articled clerks also became a judge. I would not have predicted these events in the humble premises I occupied in O'Connell Street, Sydney between 1959 and 1961.
I have never forgotten the sense of injustice and resentment at the procedures and outcomes of the recruitment. I hope things have become better in the law. When the time came for me to recruit my own staff - as a solicitor, as a barrister and as a judge - I always applied equal opportunity principles. No favours. No privileges because of Daddy. Strictly equal and on merit.
I think I have forgiven the big firms. Actually, they taught me a lesson. So the first parable instructs us that we, who serve the community in the law, must ensure that our own community is in order. We must be paragons of fairness in our dealings with each other. We must observe fair principles in our mutual relations. Influence, when it involves departure from basic principles, is a kind of corruption.
2. Honour and gratitude to colleagues
Mr Simon had many good qualities. His practice was mainly in litigation. I could not believe my good fortune when, on my second day at work, I had to sit behind a barrister in court. It was so exciting and emotion-charged. I could not believe my luck in getting such a job - and to be paid £6 per week!
If Mr Simon had a fault, it was that he had a perfect sense of weight when it came to the biscuit jar. Even in those junior days, I was an obsessive worker. Long hours at day and night and often in the weekends I worked on my cases - for Mr Simon's clients. Occasionally, the pangs of hunger would take me to the biscuit jar. I received no thanks or praise for my hours of devoted labour. Only castigation for consuming the Firm's creamy biscuits.
So this is the second parable. We must generous to each other. We must praise one another, when praise is merited. We must be on the lookout for extra effort and acknowledge it. It is the extra effort for clients that wins cases and demonstrates the professionalism of the law. Never be afraid to praise good work. We do not diminish ourselves by doing so. We enlarge our spirit and encourage those who work with and for us. Anyone in doubt should see Meryl Streep's performance as Miranda Priestley in The Devil Wears Prada. It should be compulsory viewing for all senior partners tempted to obsessive workplace behaviour.
3. To err is human
The third parable was taught to me on an Easter weekend in the early 1960s. I was preoccupied by statutes of limitations and time limits. Every good lawyer must be. In those days, courts were fairly rigid in enforcing limitation periods and time limits. If you slipped up, it was usually the client who suffered. Perhaps a negligence action would follow.
Late at night on the Easter weekend, working in the office, sustained by biscuits, I found a file where I had slipped up. It involved a workers' compensation case. Most forms of appeal to the Supreme Court of New South Wales at the time involved a requirement to file an appeal within 28 days. The Workers' Compensation Act 1926 (NSW) was an older statute. It fixed a period of 21 days for an appeal. Imagine how I felt when I saw that I was out of time. I was within the 28 days but outside the 21 days and I had instructions to appeal.
On the next working day, as soon as the Supreme Court Office opened, I filed my appeal. I waited for the respondent's defence. I feared a plea that I was out of time, and, the ultimate humiliation, an application to strike out the appeal for my default. When it came, the defence did not raise any objection as to time. The appeal sailed on and was dealt with on the merits. The time bar had not destroyed the cause of action. It had simply provided a defence that could be waived2. I was not obliged to bring my slip to notice. I simply said my prayers - which were answered on this occasion.
Later, when I was President of the New South Wales Court of Appeal, I often had to sit in cases where lawyers had slipped up in time requirements. I never forgot my own experience. If a very conscientious young lawyer could make such a slip, anyone could. To err is human. This experience coloured my approach to such questions and to searching for the substance of the merits of procedural applications, including for further time3. We should never forget that behind every lawyer is a client who looks to us, and to the system of law, for justice. Where we can, we should search for the substance of the case. We should always be understanding of the mistakes and oversights that can happen in busy lives. This is not an excuse for indolence or inattention. It is a requirement to avoid formulas and rigidities in the mind.
4. Maintaining professional friendships
On the first day of Law School a clever student, whom I had known in Arts, suggested to me that we should share our lecture notes. "That's a good idea, Murray", I said. And we did. For three years we alternated with providing perfect lecture notes and case studies. It was a good way to divide the labour. I still have those lecture notes. The law has moved on but our notes are still strong on basic legal principles. Little did I think that thirty and forty years later, in the Court of Appeal of New South Wales and in the High Court of Australia, Chief Justice Murray Gleeson and I would be sharing the writing of legal analysis once again.
If I sometimes display weaknesses in company and revenue law cases, I can sometimes detect his weaknesses in jurisprudence, international law and federal constitutional law in his work because of the sharing of the labours back in the 1950s and 60s. The moral of this experience is that we should realise that the colleagues with whom we graduate in law are likely to be with us throughout our professional lives. They grow up and work with us - for us and against us. It pays to be nice to one's colleagues at Law School. You never know whether, one day, they will end up being the Chief Justice.
5. A life outside law
Whilst at Law School I took part in student politics, having been nominated for this purpose by my friend Murray Gleeson. He claims that he thereby set in train a juggernaut of student politics that later got out of control. Certainly, I was twice elected President of the Sydney Student Representative Council. This, in turn, took me into the affairs of the National Union of University Students (NUAUS), as it was then named.
In 1965, NUAUS had its annual conference at the University of Western Australia (UWA). The hosts were the Guild of Undergraduates of UWA. I can still remember the conference held at this University. The two delegates from the Guild were Mr Rob Holmes-a-Court and Mr Daryl Williams. They talked endlessly about "We in the West" and "We of the Guild". They both went on to become notable national figures, as did other personalities at that conference, including Gareth Evans, John Bannon and Gordon Bilney.
At one point in the conference I stole away to the beautiful Winthrop Hall. What confidence the builders of the University of Western Australia had in creating such a magnificent space. In the Hall, a choir and orchestra were in the course of rehearsals for a performance on the ensuing weekend. As I now know, one of your lecturers, Dr Peter Johnston, was a young member of the choir rehearsing on that occasion.
I sat there entranced by the beautiful music. It was the St John Passion of J S Bach. It is a work of genius with a mysterious discordancy and a mathematical complication that somehow connected immediately with the hard wiring of my brain. Since the moment of first encountering J S Bach's music, I have been obsessed with it. It is a constant companion on my Ipod as I travel overseas. If I could only repay that debt by bringing Bach's music to even one graduate, it would be a blessing.
It is important to recognise that there are important things in life outside the law. Family and partners. Children and grandchildren. Theatre, music and sport. Every good lawyer needs a rounded life so as to understand the variety of humanity and its motivations and desires. And to imbibe life in its rich variety. Law is important and challenging. But on its own it is never enough.
As I passed by the Winthrop Hall during my present visit to Perth, I saw it standing there, strong and confident, just as it did in 1965. In front of the Hall were three flagpoles. On one flew the Australian flag. On another the University flag. And on the third, the Rainbow flag. I could not have imagined, back in 1965, that I would live to see this symbol in that place. It is fixed in my mind and will be remembered every time I now hear the St John Passion.
6. Seizing chances
My life as a solicitor gave way to a life as a barrister, under the pressures of advocacy. Eventually, in late 1974, I was invited to join the Bench of the Australian Conciliation and Arbitration Commission. Friends at the time warned me not to do so. My then and future colleague, Michael McHugh, told me that, if I took the position of Deputy President of the Commission, I would "sink like a stone", without trace. But I took it and was soon seconded to chair the Australian Law Reform Commission whose work brought me back to Perth where I renewed acquaintance with many of those whom I had met in my student days.
In life, critical decisions must often be made that affect not only our professional but also our personal futures and well being. We must be ready for these decisions and hope that they lead on to good fortune. It is not given to us to see the future. So we cannot know. But making wise choices is essential for success and happiness in life. When the graduates come to a fork in the road, I hope that their choices will be wise and happy ones, as mine have generally turned out to be.
7. Never say never
By the time I had been appointed President of the New South Wales Court of Appeal, I hoped (but did not presume to expect) that my appointment to the High Court might one day be considered. I had seen three fine judges, Justice Toohey from Perth, and Justices Gaudron and McHugh from Sydney, ascend to the High Court. Frankly, by 1995 I thought my time had passed.
Then, on 12 December 1995, I received a morning telephone call from a person who said he was telephoning from the Office of the Prime Minister and Cabinet. He asked where I would be that evening. I told him that I would be chairing a committee of the users of the New South Wales Court of Appeal. I put the call out of my mind, although I knew that Friday was a Cabinet day in Canberra and that Sir William Deane had resigned from the High Court in order to become Governor General.
In the late afternoon of that day I was sitting in the Judges' Conference Room of the Supreme Court of New South Wales chairing the committee. My associate came to the door, itself an unusual event. A yellow post-it sticker was passed along the participants towards me. The blood drained from my face. The sticker invited me to telephone the federal Attorney-General. When I did this he said: "I have the honour to invite you to accept appointment as a Justice of the High Court of Australia". I did not let too much water flow under the Sydney Harbour Bridge before I accepted.
This shows that in life, we can never say never. I was the fortieth Justice appointed to the High Court of Australia. That is not many in a century. Not everyone can be a Justice, and not everyone wants to be. It is hard and unremitting work. But in whatever we seek to do in life, we should remain optimistic and strive and work for excellence on every day. This might, or might not, be rewarded in worldly terms. But it has its own rewards in service for others and in upholding the good name for the profession of law.
8. Remembering teachers
Now as I sit in the High Court I remember my law teachers. Especially I remember Julius Stone who taught me jurisprudence. Such a subject should be compulsory in every Australian law course. Otherwise, one is pursuing the study of law without sufficient reflection on what it is all about - what our values are and the choices that we make throughout our professional lives.
I honour my law school teachers and indeed all my teachers, as you should do. Their minds have sought to implant in ours the insights of legal history and of legal principle and of justice and legal policy. So the eighth parable is to remember and cherish the teachers of law. Their labours sometimes take years or decades to take their effect. The variety of legal realism taught at the Sydney Law School in the 1960s provides a significant explanation of the great period of legal development that occurred in the High Court of Australia in the 1990s under Chief Justice Mason. The work of famous teachers continues, great beyond their knowing, long after law school days are over.
Each one of us must strive, every day, for excellence in what we do. As we were taught, law is highly technical. It is not enough to speak in the riddles of generalities. Law must be mastered. Its rules are complex. We need expertise, diligence and devotion to keep on top of this unruly horse. Training in the law does not finish with graduation. It is a lifetime's duty, to be renewed every working day. But graduation signals that the graduate has the basic tools to master the skills of a lawyer, wherever those skills may take us.
9. Awareness of law's injustices
The most important lessons in my life were taught before I entered the Sydney Law School. They were taught in my family, in my religious upbringing and in the local public schools where I was educated by fine teachers, inculcating in me strong values.
In 1951, soon after my grandmother had remarried, I discovered that the law was not always just to minorities. My grandmother's new husband was a communist. Indeed, he was the national treasurer of the Australian Communist Party. Suddenly, this new member of our family was on a list. He was threatened with loss of important civil liberties when the Parliament enacted the Communist Party Dissolution Act 1950 (Cth). Fortunately, the High Court of Australia in the Communist Party case struck down that Act4 as unconstitutional. It was the first time I had heard of the great Court on which I now have the honour to serve. I was eleven years of age. The people of Australia affirmed the Court's decision when they rejected the subsequent referendum to amend the Constitution. It was a searing experience, burned into my memory.
Looking back, I came to understand that my grandmother's new husband had political views that were misguided. But I am glad that Australia did not take away his civil liberties. In retrospect it was a wise and prudent decision. We lawyers cannot be aware of every injustice in the law, still less repair them all. But we should be aware that law is sometimes unjust, particularly for unpopular minorities5. It is our duty, as lawyers, to defend minorities and unpopular people. Democracy is not simply the rule of majorities. Parliamentary governance in Australia operates within the principles enshrined in the national Constitution. It upholds the rights of all - including those who are different in some way from the majority.
10. Know yourself
The final parable also arises out of events that I discovered in 1951. It was about that time, on reaching puberty, that I learned of the report of Dr Alfred Kinsey in the United States6. At the time, the report was in all the Australian newspapers. It talked of the variety of human sexual experience and the irrationality of punishing people who did not fit into the binary model of the majority. I learned that the law on this subject was targeted at me, personally. In its implementation, in those days, it was cruel and unjust.
I have just returned to Australia from Bloomington, Indiana. My purpose was to attend a meeting of the Board of Governors of the Kinsey Institute. It still operates within Indiana University, just as it did in the 1940s with Dr Kinsey was doing his important research. His independent inquiry was defended by that University at the time against attacks suggesting that he was an agent of communism and of immorality. The University insisted on Dr Kinsey's freedom to gather empirical research and to analyse and report on it. All universities should defend academic freedom. They should be supported in this by their graduates. The challenge for the Kinsey Institute today is not the acceptance of sexual minorities in countries like the United States and Australia. In time, such acceptance will come. The challenge now is to address prejudice, stigma and unjust laws in China, India and Arab lands where Kinsey's message is still to be heard.
It is an irony of life, but a sweet one, that I now repay my debt to Dr Alfred Kinsey by serving on the Board of his Institute. We should all remember our debts, emotional and intellectual, and repay them.
In Australian law we have made progress, through law reform and popular culture. There is still some way to go. We all have to learn from our own experiences and not to be obsessed only with our own perceived injustices. The law teaches us to reason by analogy and to extrapolate from single instances to the application of wider rules and principles. This I have endeavoured to do in my life.
Soon the responsibilities will pass to new generations. You will make your own mistakes and pursue your own life's course. You will strive for success and many will make great achievements. However, the greatest achievement that a lawyer can hope for is to contribute, through law, to a just society. Even the rule of law, that great foundational principle of our Constitution7, is not alone enough. Germany under the Nazis was a country of rules and laws. It is the quality of the rules and the justice of the law that makes the difference.
The banner of the Australian legal profession is equal justice under law. The words "under law" are vitally important for they proclaim that we live and work in a community that is governed by rules, not by power, force or whim. But, "justice" is also important for we must constantly be testing the rules by the principle of justice and striving to understand what justice is and how we, in our lives as lawyers, can contribute to its attainment.
I hope that the fine education that the graduating class of 2006 has received from the University of Western Australia will result in lives of achievement and happiness. But also in contributions to a just society where all, without exception, are treated with respect for their basic human rights and human dignity.
THE UNIVERSITY OF WESTERN AUSTRALIA
BLACKSTONE LAW SOCIETY
TEN PARABLES FOR FRESHLY-MINTED LAWYERS
The Hon Justice Michael Kirby AC CMG