By Joe Aharfi
Content warning for mentions of sexual harassment and suicide (no explicit detail).
It’s no small thing to become a judge.
You probably did alright in high school. Then in law school. Then in the courts.
One day, you’re called up to the bench. At this point, your colleagues will have good reason to call you “learned” – one has to be, if one is to police the limits of the law as between the ruler and the ruled.
On good days in court, you cast judgement on unsettled areas of law where silks fear to tread. These displays of raw juristic horsepower will be talked about in classrooms for decades to come. On great days, people confess and ask for your forgiveness.
So, you’re across all the case law as well as the scholarship. You dine with the right people and can talk at length about things like habeas corpus or Magna Carta. Like the major in that Gilbert and Sullivan play, you can “quote in elegiacs all the crimes of Heliogabalus.”
My main point here is that judges are important people. Most of them know it.
But, too often, we see that a good grip on the law does not necessarily equate to good character.
This is not a new dilemma. Back in the Middle Ages six hundred years ago, an English poet called Geoffrey Chaucer wrote a collection of stories that together form The Canterbury Tales. In one of these, he paints a satirical portrait of barristers that may hold true today, and certainly extends to many of us at the law school:
“And nowhere could you find a busier man;
And yet he seemed much busier than he was.”
This stuff is very tame compared to what Chaucer has to say about morally bankrupt judges. In The Physician’s Tale, Justice Apius takes a liking to a young lady who catches his eye in town. Moments later he declares that “this maid shall be mine.” Too clever to think he’d have much chance with “force nor by bribery,” the lecherous judge turns to a more familiar tool of the trade – legal trickery. But Apius’ plan fails and he learns the hard way that not even those who execute justice are above the law.
It is a lesson too often learned by our own judiciary.
Dyson Heydon who sat on the High Court once wrote that it is in the public interest for the moral failings of judges to “be exposed with a view to their eradication.” His wish came true just a few years later in 2020; an investigation into Heydon’s sexual harassment of staff at the court saw him become persona non grata in the legal world.
In Victoria this year, Magistrate Rodney Higgins raised eyebrows when he claimed the death benefits of his court clerk fiancée Ashleigh Petrie just one day after she tragically took her own life. His claim was a bad look partly because Ms Petrie had nominated her struggling mother to receive the $180,000 payout. Mr Higgins, who at the time earned $324,000 a year as a magistrate, said that he refused the mother’s pleas to share the money because he felt hurt that he had not been given a portion of Ms Petrie’s ashes.
This sort of behaviour might explain why many have a visceral loathing for those trained in the law. It is particularly poor form from judges. As we all learned in PPL, judicial integrity is important when it comes to upholding the rule of law. For them to act in ways that fall so short of basic decency doesn’t quite inspire public confidence in the judicial system.
Of course, there still remains the theory that judges’ personalities are irrelevant. But it is just that — a theory. No one really believes it. Just look at Momcilovic v The Queen. In his judgement, Heydon quotes one of Shakespeare’s more heinous villains to express how he feels about the “odour” of human rights: “a comforting drug stronger than poppy or mandragora or all the drowsy syrups of the world.”1 This was an odd choice of words, yes. But it also goes to show how one views the world will shape how they apply the law.
So we are left with the idea that being clever enough to quote Othello in court does not quite cut it when it comes to being a good judge. This should be obvious, but if a mind as sharp as Heydon’s can miss it then we could all be in a bit of strife.
As it turns out, real moral fibre is required. Unfortunately, real moral fibre is not something that law schools can teach. Disputes and Ethics might be the next best thing, but even that is doubtful as most lawyers in the country have already completed some version of the subject.
So, how do we get good people on the bench — people with the quality of justice? The good news is that some of them are already there. It was the High Court’s Chief Justice Susan Kiefel who launched the investigation into Heydon that exposed his pattern of predatory behaviour. Independent commissions and reform proposals soon followed. But, more remarkable was the Chief Justice’s decision to take that extra step and apologise in person to each of the women who were wrongfully treated. By making a special point that “accounts of their experiences at the time have been believed,”2 Her Honour went beyond what the law strictly demanded from the High Court.
“We’re ashamed,” Kiefel CJ said in a letter on behalf of the whole bench. You will rarely, if ever hear a politician use this sort of language; most of the time, the word ‘sorry’ is beyond them. Through this apology, she alludes to the role those within the legal profession must play in making sure that the institution is not insulating and enabling the bad guys. In doing so, Her Honour showed us what it really means to be a justice of the court — someone who is able to move past the letter of the law and live up to its spirit.
I have no doubt that there are many Kiefel CJs on the bench. People who are as compassionate as they are intelligent — who embody those judicial virtues that almost sound as if they come from an old fairytale for children. If you squint your eyes and read carefully, you can sense these people in some of the judgements we go through each week. And, if we do not see these judges on the front page of The Age as often we do the Higgins and the Heydons, it may well be because they are too busy wielding judicial power with the care it demands.
I speak of these thoughts because out of the furnace of them there comes the curious realisation that before too long, most of you reading this will be practising lawyers. Later, some of you will become judges. Having a good grip on the law will be a given, but there are far fewer guarantees when it comes to being a good person. If we can keep in mind the standard that those like Chief Justice Kiefel have set and aspire towards that quality of justice, then I reckon the legal profession is in safe hands.
- Othello, Act III, Scene 3; Momcilovic v The Queen  HCA 245 CLR 1
- Renee Knake Jefferson, ‘Judicial Ethics in the #MeToo World,’ Fordham Law Review 89(4), pages 1215-7, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5800&context=flr.