The concept of judicial values- or perhaps, more accurately, extra-judicial values - touched a nerve with academics and two former judges last week at Sydney University Law School. Laura MacIntyre reports
German-born scholar and judge Bernhard Schlink, better known in international circles for his best selling novel The Reader (see box), was in Australia last week to attend the Sydney Writers Festival, introducing his latest collection of essays Guilt about the Past, based on the Weidenfeld lectures he delivered at Oxford University in 2008.
As part of his Australian tour, Schlink took part in a panel on the topic of judicial values at Sydney law school last Thursday. The forum was hosted by Damien Carrick from Radio National's The Law Report. Schlink was joined in the discussion by former justice Michael Kirby, Sydney Law School Professor Reg Graycar and Monash University Professor Justin Malbon.
Carrick opened the session by discussing the role of the judiciary in Nazi Germany, before moving onto controversial Australian cases including Wik, Mabo and Al-Kateb.
The differing legal traditions of the Australian and German courts revealed some intriguing contrasts between the former judges' views on judicial values and legal reasoning. Schlink, while not familiar with the text of Kirby's extensive body of judgements, had studied an article by fellow panelist Malbon and found the Australian approach to analysing legal reasoning distinctly strange.
"There were two things I found really interesting - that you [Malbon] drew a distinction between strict legal reasoning and other extra-legal reasoning that felt so alien to me," he said.
"Most of what you put under the rubric 'extra-legal reasoning' under my [German legal] tradition would be regarded as legal reasoning - looking at not just international law, but [also] the reality, means and ends, results and the consequences in our tradition is all part of legal reasoning."
However, despite having a more open approach to the process of legal reasoning itself, Schlink referred several times to his disinterest in the personal preferences and prejudices of judicial officers.
"I would be interested in the legal reasoning of a consistent body of legal reasoning, but ... where he [the judge] gets his inspiration from I think 'Who cares?' ... I think the consistency of legal reasoning is more interesting than consistent values."
Kirby said he believed that the judiciary was most likely to reach the goal of consistent reasoning "if you tame your own values, and use the developing law of international human rights".
When asked if his own values and reverence for international law had ever been thwarted by strict legal interpretation on the bench, Kirby drew on an analogy that became a reoccurring theme of the discussion.
"One of the cases that comes to mind is the case of the Minister for Immigration vs B. Now that was a refugee case that involved locking up children," he said.
In his determination, Kirby said he seriously considered reading down the case in accordance with the International Convention on the Rights of the Child.
"I was sailing towards a decision where I would read down the statue in a very orthodox judicial way, but two icebergs loomed up: one was the [relevant statutory] provision and the other the parliamentary record."
The iceberg motif loomed again later in the discussion, with Carrick querying Kirby's stance on the interpretation of domestic law through the prism of international law, particularly in relation to the Al-Kateb case (Al-Kateb v Godwin was a 2004 decision of the High Court of Australia which ruled that the indefinite detention of a stateless person was lawful. Chief Justice Gleeson and Justices Gummow and Kirby dissented.)
"I didn't see icebergs there at all," Kirby said, "and neither did Justice Gleeson or Justice Gummow: it was a 4:3 decision."
Kirby feigned exhaustion as the probing of his own values and their role in his judicial decision-making drew to a close, likening the experience to being dissected like a specimen in the medical school.
Often controversial during his time on the bench, Kirby admitted that not all members of the judiciary would, or even should, open themselves to such scrutiny.
"I think there is a spectrum of opinion between those who are very open [about their values] and those who say 'That way lies danger because then you leave yourself open to attack' - and I think that danger does exist."