The Australian Law Journal – “The Legal Observer”

Transcript of interview with the Hon Robert Shenton French AC

The upcoming May special issue of The Australian Law Journal features an interview with recently retired High Court Chief Justice, The Hon Robert Shenton French AC, twelfth Chief Justice of Australia. This is published in a new Section called “The Legal Observer” written by Mr Michael Pelly.*  Meanwhile, you can read the transcript of the interview below.

Q: Can we talk about leadership and the role of the Chief Justice?  How do you lead a group of people as interesting as High Court judges?

 I’d be a bit careful about the word lead.  The Chief Justice acts as the chairman of the group.  That means you’re more a facilitator of the function of the group.  I use the term ‘one among equals’ rather than ‘first among equals’ because I think that more accurately reflects the relative status of the Chief Justice and the other judges.  You have the same vote as they have.  Your voice in discussions about decisions that the Court is considering counts for no more than any of the others.  The most important function I think so far as the decision-making of the Court is concerned, is to ensure that the process is a collegial one and that everybody has an opportunity to be heard.

Q: The chair sometimes steers discussion.

Yes, you have to have an ordered discussion.  So, I might begin a discussion by asking — is this the first question we have to look at?  Then the discussion might go to that question and then the next question and questions after that which we have to look at in order to decide the case.  Sometimes of course I might ask — is this the first question? And somebody else might challenge that, saying no I think there is a more fundamental question.  It doesn’t bother me as long as we have an ordered sequence.

Q: Were there any more active members inside the discussion than others?

Well it depends on the case.  Sometimes one or two members of the Court might have a particular expertise or interest — and have more to say than others.  And what they say might be seen by others as really saying all that needs to be said.  So it will vary according to the circumstances…

We had a pre-hearing conference at the beginning of each week of sitting.  We would talk about the cases that were coming up that week.  That would be a general discussion about the issues in the cases.  The justices would obviously not lock themselves into particular positions.  They might have provisional views.  We had all read the written submissions at the time of those discussions.  Following each oral hearing we would have a discussion about the outcome of the case.  In that conference, I would suggest somebody to do a first draft if there was a clear consensus of a majority or if we were unanimous.  Whether there was a majority or unanimity I would suggest somebody to do a first draft.

That would be suggested in part on the basis of a fair distribution of first draft judgment writing.

Q: Did you like to keep it going around?

Yes, that’s right.  Everybody has to have an opportunity to write.

Q: This stops any one dominant character coming in as a –

But it didn’t stop people from writing separately anyway if they wanted to.  I think we’ve moved in the last few years towards a greater emphasis on joint judgments.  That’s been a collegial movement. And a positive thing.  But I’ve been very clear on the proposition that there’s no protocol, no rule, no requirement that a judge not write a separate concurring judgment if he or she wants to.

Q: Does a judge lose his or her individuality or make a lesser contribution by not writing alone?

Absolutely not.  So far as the justices of the High Court are concerned, if a justice agrees with another’s draft judgment it is because they give intellectual assent.  That sometimes follows a discussion about the draft.  There may be a memorandum suggesting alterations to the draft.  And then if the alteration is made the justice suggesting it might come in and agree.  Sometimes a justice will agree saying, “Here are some suggestions I have — they are not critical to my concurrence but you might like to consider them.”

Q: Does it come down to something as simple as the willingness to compromise?

I don’t know that compromise is involved in it.  There may be compromise in terms of expression but not in terms of substance and I think that’s the important thing.  The justices will not sign up to something they don’t agree with by way of compromise.  If they don’t agree with something they will write separately and say so.

Q: You got very close to having almost a perfectly harmonious court, but you always had one or two outliers who preferred to do their own thing?

There are always people who will want to write separately on particular topics of interest to them.  Some write separately for a time for part of their judicial career and then tend to write more joint judgments.  It’s part of a natural evolution as I said but you cannot control it with rules and protocols.  You have to have an atmosphere of cooperation and collegiality which recognises that the efficiency of the Court and the clarity with which it speaks is aided by joint judgments particularly in key areas.  One of the most important areas of course is in the field of criminal law where what the Court says has to be applied by trial judges in giving directions to juries.  Now I’m not sure that we reached a perfect standard in that regard.  But I think it’s something which the Court is conscious of.

Q: So if you had six people signing up to a judgment you didn’t think you would like to have got the seventh?

Oh no it never concerned me.

Q: No?

I wrote separate concurring judgments myself on quite a few occasions.  If we have dissents or separate concurring judgments that tends to reinforce the proposition that when justices join in they are joining in because they are signing up to the substance of what is said.  There is no compromise on substance.

Q: You would have seen the description of the French Court as a quite collegial court?

I’m very pleased with that description.  I don’t take credit for it.  I think it’s a joint exercise.

Q: You had some helpers?

All the people on the court, yes.

Q: Were some more helpful than others?

I’m not going to get into the internal dynamics.

Q: Fair enough.  Just move on.  But getting back to that notion about the Chief Justice though; he or she still has an important leadership role, expounding on the rule of law and everything like that do they not?

I think each Chief Justice marks out his (or her) own way of doing things.  I’ve adopted a particular approach.  I’ve given quite a lot of speeches — probably more than some of my predecessors.  I’ve regarded that as an important way of being able to communicate on important areas of the law without being constrained by the boundaries of the judgment writing discipline and being seen to, some extent, to be accessible to different constituencies within the profession and within the community at large.  And –

Q: The media?

I think with the media, and this goes to the question of my reluctance to give media interviews, a lot of the media stuff is pretty ephemeral.  I did not regard anything that I said as having such urgency that it had to be reported the next day.

Q: You decided at a certain point, ‘I’ll just take my leave and no more interviews until the end of my term’.

I gave entry interviews when I arrived as you’ll recall.  I think I gave some interviews after I was appointed.  Largely they were with student magazines.  At some point you and I had a discussion in relation to your biography of former Chief Justice, Murray Gleeson. You wanted to interview me about something else and I indicated I would not be giving media interviews.[1]

Anyway, you turned a non-interview into an interview.  And then I thought no I’ll stick with that rule generally.

Q: Can we go into one of the things we’ve mentioned.  The concern I heard of internally and that you have expressed publicly about Ms Gillard’s criticism of the Malaysia case as a “missed opportunity” for the Court?

The position I have taken publicly and it’s a position I maintain, is that the Court shouldn’t respond, unless absolutely necessary, to criticism of the Court by politicians or in the media generally.  There are plenty of people on either side of the argument in the community who will respond to that sort of criticism.  There was plenty of response to what was said on that occasion.  I did not ever comment directly on the ‘missed opportunity’ criticism.  I did on one occasion offer some humorous comment about the academic use of the term ‘missed opportunity’ which has appeared in countless articles.  That was part of a broader comment on the difference between the judicial function and the academic function.

Q: But your comments whether they were directed at academics or in a roundabout way what was said by the Prime Minister.  Those comments they do go to the role of the Court don’t they?  And you were making a point about the role of the Court that you might have felt hadn’t been made in the argument.

It wasn’t so much the Gillard issue.  As I said before, if you can’t just shrug off that sort of thing and get on with the job you shouldn’t be in judicial office because it does happen from time to time.

Q: But it would have annoyed you wouldn’t it having the Prime Minister of the day coming out and saying “Well hang on the law’s changed what are these guys doing?  They’re moving the goal posts.”

No I think it’s fair to say I’ve been around long enough and I’ve been subject to far more criticism than that.  Sometimes I found it more amusing than annoying.  My favourite criticism, which occurred when I was President of the National Native Title Tribunal emanated from Senator Bill O’Chee who said — ‘he’s in charge of this hillbilly tribunal and he’s responsible for all the blunders and stuff ups that have occurred.’  We put the quote in one of our reports.

Q: In our first discussion you talked a lot about the boundaries of the law.  And about how far the boundaries go and where they –

The judicial function.

Q: When you actually sit down and you think about your legacy or if you –

Not a word I use actually.

Q: Can we say the body of work with the Court while you were there?

Fair enough.

Q: Is it fair enough to say that has been an overriding thing; setting boundaries or maybe resetting boundaries?

I think you could say that about almost any period in the Court’s history.  The function of the High Court after all — its constitutional function — concerns the limits of power — legislative power and executive power.  That is all about boundaries.

Q: Did you just strike a period where there were more cases coming before the Court?

Well I think that’s right in a way.  There were cases of a kind which threw up those issues in a significant way.  The executive power cases were obvious examples.

They were unusual cases because they concerned expenditure of money.  It’s not often you get people challenging expenditure of money by the executive.  Brian Pape who represented himself before us and who struck me as a very nice man, was challenging a law made by the Commonwealth Parliament under which he would receive a cheque.  He argued that he didn’t want the cheque and that the Commonwealth did not have the power to send it to him.  I described him once as the man who tried to bite the hand that tried to feed him.  And then of course we had the challenge to the expenditure on the school chaplaincy program.

Q: Tying Commonwealth power to the express words of the Constitution; it’s not a novel concept but it seemed to have been revived during your tenure.  Is that a fair enough comment?

I’m not sure about that generalisation.  The problem is that express words of the Constitution leave a lot to be filled in.  Take the executive power in section 61. What is the content of executive power?  It really is not explained by the text. We all know the interpretation and application of the Constitution involves the application and application of a document that was designed to operate over a long period of time and in unimagined circumstances.  The founding fathers themselves recognised this.  There is a nice statement by Sir John Downer, who was one of the South Australian delegates. He referred to the Court as applying principles in the minds of the delegates to cases ‘which are very little thought of by us’.[2]

Q: Does a West Australian look at the Constitution differently maybe to someone from the east?

No I don’t think so.  And I’ve made this point –

Q: Because you know where that’s coming from?

Yes and there have been people from various parts of Australia who have taken what you might call an approach which seems to favour Commonwealth powers and others who seem to give greater emphasis to the federal character of the Constitution.

Q: All those not from Sydney or Melbourne?

No I don’t think that is right.  Take Sir Daryl Dawson for example from Melbourne.  He was a strong federalist in his approach.  So was Sir Harry Gibbs from Queensland and Sir Ronald Wilson from Western Australia.  John Toohey took a more expansive view and he was from Western Australia.

Q: Only one not from Sydney or Melbourne so far.

I can probably find others as well.

Q: Fair enough.  Now when you were appointed, the Attorney-General said at the time “He’s a black-letter lawyer who’s shown an interest in the evolution of law.”  Is that true of you, do you think?

First of all, I’m pretty uncertain about the actual meaning of ‘black-letter lawyer’.  It tends to fall into the same category as the word ‘activist’.   Do you know where the word ‘activist’ came from?

Q: Go on.

Arthur Schlesinger used it in the January 1947 edition of Fortune Magazine published in the United States.  He published an article about the Supreme Court of the United States and described one subset of the judges as ‘judicial activists’.  Another subset he called ‘champions of restraint’.  As far as I can tell that is the first usage of the term ‘judicial activist’ and there have been thousands and thousands of journal articles on it ever since.  And of course people use it as a label depending on whether they agree or disagree with the result.

Q: It’s not meant as a complimentary term is it?

Absolutely not, but on the other hand – as I said in a speech I made in 2007 at the Gilbert and Tobin conference – the nature of judging requires the judge to do things.  The real argument is not about labels such as ‘activist’ or ‘black-letter lawyer’.  It’s really about separation of powers.

Q: Boundaries?

There’s a fuzzy boundary between the judicial function and the legislative function because when final appellate judges make decisions in the area of the common law they are often engaging in incremental law-making.  The judicial role involves law-making but within loosely defined boundaries that people regard as appropriate to the judicial function and which do not trespass into the parliament’s role.  Sometimes that’s a judgment call.  Sometimes a court might be asked to take a particular approach to a development of the common law or to overturn some of the common law principle.  Sometimes courts have said — this common law principle has been so settled for so long that the only proper way of changing it is by legislation.  There may be many policy considerations attaching to such a development.  In other cases, the court will say ‘it is appropriate for us to make this development’.  These are judgment calls and there is a boundary between the judicial function in incremental law-making and the law-making proper to parliament, which is where most law-making happens.

Q: If I could just go over a few things we canvassed. Are we heading to the not necessarily the era of the professional judge?  We see Justice Edelman going in very early and other judges Justice Perram going in quite early.  You were one of the earliest people to do that.  What did you gain out of it?

I think it’s good to have a mix of pathways leading to appointment to the courts.  A traditional mainstream pathway has been what Sir Francis Burt, a former Chief Justice of Western Australia, once described to me ‘as the celestial blueprint’ — you get experience in a law firm, you go to the bar, you take Silk, you get a reputation as a Silk and then you go to the bench.

For me it was a good decision to accept appointment at an early age to the Federal Court.  It was a court whose jurisdiction I was particularly interested in.  I had appeared quite a lot in it.  It was a jurisdiction which was obviously broadening and it was a national jurisdiction.  The chances of boredom or burn out were pretty low.  That was wrapped up in the kind of instinctive decision I made in 1986 when I was approached to join the Federal Court.

Q: Did you see Justice Edelman coming through and think ‘I remember what that was like’?

Well he came from a slightly different background.  He came from a much stronger academic background.  He was a serious academic as well as a practitioner.  But I think and hope that he will enjoy the judicial experience as much as I did.  I spent 22 years on the Federal Court.  That is a different experience from 28 years on the High Court which is what Justice Edelman will be facing. My 22 years on the Federal Court involved both trial work and appellate work.  I highly valued both of those experiences and their combination.

Q: What did the experience as a trial judge teach you on the wider note when you’re sitting as an appellate judge?

I think that kind of experience is a very useful thing.  I think all appellate judges should have had experience as trial judges.

Q: Not all have.

I know but I think it’s desirable if they do.  If they haven’t then I think they should take the opportunity if they can to sit as a trial judge from time to time and risk being overturned.

Q: What is next?  I mean everybody says “Surely he’s not done yet.”

I am looking forward to the next phase of my life because it won’t be retirement.  But if you want to sum it up in a few words they would be writing, teaching and doing good works.

Q: Hong Kong?

An announcement was made a few weeks ago that the Chief Executive of Hong Kong has recommended to the Legislative Council that I be appointed to the Hong Kong Court of Final Appeal.  I have also been appointed as an Adjunct Professor at the University of Western Australia and an Honorary Professor at the Australian National University.

In August, I will be visiting Monash University for a couple of weeks and delivering lectures and seminars and making a short visit to the University of Tasmania Law School after that.  And then there are other lectures which have already been put in place.

Q: In various bits, we’ve been referencing the USA. Have you been taking an interest in what’s been happening over there?

Oh yes, it’s hard not to notice.

Q: Thoughts?

I’m not better informed than anybody else.  I am involved … I had always had an interest in the US Academy and the law.  I am a member of the American Law Institute.  And I’ve visited a number of American Universities during my time as Chief Justice.  But I’ve always enjoyed interacting with them because there are some common questions there.  They have a written constitution.  They have a federal structure.  So they’re very intellectually interested in how we do things and how it compares with what they do and so forth.  One lecture I gave to Emory Law School in Atlanta in 2011 seemed to have attracted a good deal of interest.  I tried to give an overview of our Constitution and how we protect human rights.

Q: But we are … but our Constitution largely, wasn’t it not about the division of power between the states?

It was based on the American Constitution. We have some limited protections in our Constitution. Then there are the implications which have come out of Chapter III. I remember at the end of the lecture one of the American Faculty members said to me “It seems that you have a bill of rights, but you just don’t call it that.”

Q: Well the basic common law rights have become pretty much part of our constitutional interpretation? 

There is the principle of legality which affects the approach we take to statutes.  Then there is the entrenchment of judicial review of administrative action which occurs at both Federal and State levels thanks to s 75(v) of the Constitution and the result of the decision of the Court in Kirk.  The position of the Supreme Courts and their traditional supervisory role is entrenched and their essential and defining characteristics protected, a protection which brings with it things like procedural fairness and reasoned findings in open courts.

There are specific protections in the Constitution itself.  Section 92, apart from protecting free trade and commerce, protects freedom of movement across State borders.  Section 117 protects discrimination between residents of different States.  Section 80 provides for trial by jury.  Section 116 protects religious freedom.

Q: I was interested when you were looking through those chapters (ALJ articles on the “French Court”) that you said “Oh good they’ve mentioned Kable.”  Where does Kable sit as part of the Court’s jurisprudence?

Well I think the significance of Kable was the protection of the position of the State Supreme Court.  So it supports the judicial function at all levels in Australia.  And what followed from it is a development of that basic idea.  And maybe goes beyond that basic idea.  You have the entrenchment of the supervisory role of the Supreme Courts which followed from Kirk.  Further, the courts can’t be told what to do by the executive so there’s an entrenchment of judicial independence.  It doesn’t create a constitutional separation of powers but maintains the distinctive independence of the judicial system throughout Australia and its distinctive character.  These things are important to the protection of the rule of law.  The rule of law in that context involves the proposition that there is no such thing as unlimited public power.  That nobody can do anything to anybody else, no official can do anything to any other, to anybody else … unless they do so with lawful authority.

Q: Kable was the dog – before you arrived – that had barked but once.

That’s what was said, yes.

Q: We’ve talked about cases coming before the Court; that you don’t decide that. But is there a logical evolution running through?

I think so.  It’s a matter of the cases which come before the Court.  There were a number of cases in which the legislation under challenge was within what the Court saw as appropriate boundaries.  The challenges didn’t succeed.  Then some of the legislation pushed a little further and the judgment was made that it intruded into the judicial function of in a way that we was beyond the pale.

Q: It comes back to what you said boundaries and setting boundaries.

You can reduce a lot of what the court says in this area to defining boundaries fuzzy boundaries.  Rarely are they bright line tests because they do involve evaluative judgments, questions of degree.

Q: One issue on which you had made your thoughts quite clear towards the end was on mandatory sentencing. What strikes me is the fascinating boundary between what you might think personally and what you decide as a judge.[3]

That’s right. The duty of the judge is not to decide the case on the basis of agreement or disagreement with the policy of legislation but by asking the question whether the impugned law is a valid exercise of legislative power if that is the question put before you.  There is, of course, nothing new about mandatory sentencing.

Q: There’s a lot more enthusiasm for it these days.

Capital punishment was a mandatory sentence for a variety of offences and imprisonment for life.  Traditionally, mandatory terms reflected the high social value that legislators put on prohibiting or deterring the offence for which mandatory sentence was imposed.  One can always have a debate about whether it’s right to impose mandatory sentencing for lesser crimes or offences.  The downside of such laws is that they do not draw a distinction between people of different moral culpability.  Such laws run the risk that the court may be forced to treat quite different cases in the same way.  Equal justice normally involves treating the same cases alike and different cases differently.  The risk with mandatory minimum sentencing laws is that a court can be forced into imposing a sentence which everybody agrees in the circumstances is absurd.

Q: It has a particular effect on aboriginal people indigenous people, doesn’t it?

The criminal justice system generally and its intersection with indigenous people is an ongoing and terrible problem that we have to address and it’s multi-dimensional. There is no single factor that can be blamed for it.

Q: Are you free now to make more iconoclastic judgments or are you going to still feel constrained by the fact that you are a former chief justice? 

I think it is necessary for any former member of a court to have in mind the reputation of the court in making any public statements.  The fact that I was Chief Justice doesn’t go away.  I don’t expect I will be engaging in political controversy.  I do think that I may have an ongoing contribution to make in terms of talking about legal issues and perhaps in a wider context.

Q: Wider context?

In a wider societal context.

Q: Could we see maybe Robert French advocating for a constitutional recognition?

I think constitutional recognition would be a very fine thing.  Obviously, there is a great debate going on about whether or not there should be some substantive section in the Constitution flowing from that recognition.  I don’t want to comment on that because that’s a policy debate going on at the moment.  I think constitutional recognition, however, is utterly appropriate.

Q: How about advocating for a republic?

As for the question of the republic, I would be happy to participate in our national discussion at some stage if I think I can add anything useful.

Q: A final question: Is there anything Robert French couldn’t do as Chief Justice that he looks forward to doing now?

Well it will be the avoidance of zipping up suitcases on a regular basis for travel between Perth and Canberra.  It has been a wonderful experience and a great honour to occupy the office of Chief Justice. The people I have worked with have been quite extraordinary.  However, I am very much looking forward to the next phase of my life.  My wife asked me whether, if somebody were to offer me a further two years as Chief Justice, I would want to accept that offer.  My response was ‘that I am ready to move on and do different things.  I have been a judge for 30 years and that is a long time.

* Michael Pelly is a highly regarded journalist and legal writer, with over 30 years experience, including at The Sydney Morning Herald and The Australian. He has also been a senior adviser to Federal and State Attorneys-General.

[1]  Author’s note: It was about the court proceedings being available on video delay.

[2]  Official Record of the Debate of the Australasian Federal Convention, Melbourne, 28 January 1898, p 275 (provided by the Hon Robert French AC).

[3] In Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40, [47], the High Court, by a 6-1 majority, upheld the validity of a mandatory sentencing provision for those involved in people smuggling. French CJ was one of five judges to put their name to judgment which said that while “adjudging and punishing criminal guilt is an exclusively judicial function … (the sentencing) exercise is always hedged about by both statutory requirements and applicable judge-made principles’’.