THE Chief Justice of Australia’s highest court has scrutinised how an advocate’s personality and personal values impact their administration of justice.
Speaking at the NSW Bar Association bench and bar dinner, High Court Chief Justice Robert French told the legal profession that “who we are” is relevant because “it properly informs our advocacy and our judging”.
He questioned how relevant who a judge is to the administration of justice. “We regard it, and rightly regard it, as fundamental that judging requires the reality and appearance of impartiality on the part of the judge.”
But the Chief Justice added that the law is a human institution, and that “advocacy is the human art of communication and persuasion”.
In his speech about ego and identity in the administration of justice, the judge said the question ‘don’t you know who I am?’ is fraught with difficulty because it usually poses the implication that “the person asking it stands outside a framework of rules or conventions applicable to the ordinary run of humanity”. But, the judge added in reference to the judiciary and advocates: “Does it matter who you are?”
He said a judge's personality or personal values should have no impact on the outcome of a case. “There should be no basis upon which a reasonable person could say that a judge's conduct or decision in a case is affected by personal interests or agendas or extraneous influences.”
But in his assurance that the judging requires impartiality, Chief Justice French said “who you are as a person can properly inform you advocacy”, assuming the essential requisites of legal knowledge, high integrity, diligence, and good oral and written communication skills.
“There are some advocates who have a strong belief in the justice of the case in which they appear because it reflects their personal values. That of itself is not necessarily a bad thing although it can be an impediment to critical judgment.
“But there is a small subset of such advocates who seem to think that it is enough to be on the side of the angels and that rigorous consideration of the law is a black letter approach, which somehow pollutes the moral purity of their case. They are seldom of much help to anyone,” Chief Justice French said.
But, he said, who we are is relevant because it properly informs our advocacy and our judging. “How we do the job, according to well-established standards of integrity and excellence, is much more important.”