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Susan Kiefel, High Court judge
Susan Kiefel's appointment as a High Court judge is great for Australia, and one decision of Ruddock I not only applaud, but do so with gusto. Maybe after all his terrible deeds over the last decade he wants to leave something special behind as his career nears its end. I'm reminded of Paul Keating's appointment of Michael Kirby to the High Court just before he lost office.
I met Justice Kiefel in the early 1980's in Brisbane, when she was a junior barrister and I was an articled clerk briefing her on a case. She told me then that Tony Fitgerald had personally mentored her when she worked as a secretary in his chambers, convincing her that she talented enough to finish year 12 and take the bar exam. Tony Fitzgerald, Queensland's most brilliant QC, was destined for the High Court. He didn't get there because of his superb job in exposing police, legal and political corruption in Queensland through the Fitzgerald Royal Commission, and in recommending structural changes to ensure there were strong checks and balances to minimise the chance of such awful corruption in Queensland ever happening again. The Crime and Misconduct Commission, Queensland's version of ICAC, was the result. The Nats would never let him fulfil his destiny, and Peter Beattie has no time for him either, possibly because the CMC has caused his government a lot of pain. Tony, like so many others, was punished for doing the right thing.
Anyone who met Justice Kiefel knew, as I did, that she was destined for the top in the law. I thought she was one of the most impressive, and brightest, people I have ever met.
The Supreme Court of Queensland Library, which has always been a good place to go to get the facts quick, has, as publisher, very kindly given me permission to republish the chapter on Justice Kiefel in A Woman's Place: 100 years of Queensland Women Lawyers (Susan Purdon and Aladin Rahemtula editors (2005). Thank you.
I feel that with Justice Kiefel's appointment, Tony has fulfilled his destiny in spirit. Justice Kiefel is 53, so we could have a wise woman of the law on our most powerful and most influential court for 17 years.
It often seems that elevation to the Bench in the Australian legal system occurs through a predictable process: exceptionally good results at the completion of high school, acceptance into a university law school, admission to the Bar - sometimes after a sojourn in practice as a solicitor - appointment as Senior Counsel and, ultimately, judicial office. Justice Susan Kiefel of the Federal Court took a different path.
Susan Kiefel was born in Cairns in tropical Queensland in the idyllic 1950s. Hers was a happy, active, outdoors childhood with much swimming in the local waterhole - in those days fortunately free of crocodiles - spending afternoons enjoying the view from the roof of the family home, jousting with her older brother, or arranging committee meetings of the local children. She was free to be herself, to discover her own identity, and to be open to challenge, even physical danger. Her parents encouraged her to make her own choices, whether they led to success or disappointment.
Susan Kiefel thoroughly enjoyed her primary school years in Cairns, and at Geebung in Brisbane after the family moved south; she particularly loved music and sport of all kinds. However, the transition to secondary education was less enlivening. Apart from Miss Bailey's English lessons at Sandgate State High School, she did not relish the secondary school stage and was not inspired to complete her secondary education, partly because vocational guidance was less developed in the late 1960s. Most girls with academic ability were encouraged to become either nurses or teachers; Susan Kiefel did not fancy either as a future career, although she did consider journalism a possibility. Sport remained a joy and she became increasingly interested in the theatre. The young Susan Kiefel loved participating in community theatre, spending one season on stage with the Aspley Little Theatre before retiring to organisational positions backstage at the Brisbane Repertory Theatre.
Dreaming of financial independence, she decided to leave school at the end of Junior (Grade Ten), a decision she later said was unwise. Her parents accepted her choice and suggested she consider becoming a court reporter. Fortunately, Susan Kiefel always enjoyed a close and forthright relationship with her family and their consistent support, benefits which she felt could "never be underestimated". Her father's belief that success is its own reward was ingrained in her. However, although the road she chose after leaving school was interesting and varied, it was hard. After polishing the requisite skills on a scholarship at Kangaroo Point Technical College, Susan Kiefel became a secretary. She worked successively in a building society, for an architect, with an exploration company and then for a group of barristers. Their work appealed to her, partly because she wanted to be her own boss - a matter of personality, as she later described it.
Deciding to study law was one thing; realising that ambition was quite another. The first step was completing her secondary education at night, which required studying two subjects each year while continuing to work. Next came the Bar Board examinations. The course contained no lectures and no formal tutors, so studying relied greatly on self reliance and a willingness to work independently, two characteristics Susan Kiefel has since demonstrated consistently. It also requires courage, a quality she later identified in the lawyers she most admired. Many of the barristers she had met supported her and assisted with discussion of the cases and issues in the Bar Board syllabus, an important initiation into the collegiality of Bar life at its best. Susan Kiefel completed the course with Honours in the minimum possible time of three years.
After working as a law clerk for the solicitors Cannan and Peterson, Susan Kiefel was admitted to the Bar in 1975 at the minimum required age of 21 years. This success required determination as well as intellectual ability. One of the many addresses she has given to encourage younger people provides an insight into the characteristics she values: "Life is a bit like a running conversation with yourself: you can do this; don't give up; don't be a whinger; look at the opportunity here - it's not a burden." A positive outlook, she says, is a critical quality, because it is essential to be enthusiastic and focused with a strong sense of self, supported by effective planning and time management.
Susan Kiefel developed a broad practice during her 18 years at the Bar, although she preferred not to practise in criminal law or family law. Her work in defamation and local government law became highly regarded, as was her probate work. She found considerable work in matters involving estates: questions of probate, sometimes in solemn form, construction of wills and claims upon the estates. Local government law provided her with a first solo appearance in the High Court a few years after her admission and honed her skills in statutory interpretation, which stood her in good stead. Susan excelled in commercial law; and equity - its principles, ethical constructs and history - fascinated her. She was known to be very thorough and hard-working, relentless in her pursuit of the right answers for her clients, with skills which made it possible for her “to make seemingly complicated legal issues appear rather clearer than many can.”
In 1977 Susan Kiefel appeared for the plaintiff as junior to Peter Connolly QC (later a judge of the Supreme Court), in a case which tested the boundaries of equitable relief in the era before legislation protecting intellectual property rights in plants. The original wrong — the theft of four budwood cuttings from a nectarine tree — appears relatively insignificant. Justice Dunn agreed to the request for the destruction of all the productive budwood which the defendants had propagated from those cuttings. The order was based on the finding that it would be unconscionable for the theft to yield future commercial benefits by further propagation from the original cuttings; each cutting was likened to a safe containing the formula for a unique variety of nectarine.This legally tricky case, and others which presented legal and evidentiary challenges, were filed in Susan Kiefel’s memory as being of equal significance as her first solo appearances before the Full Court of the Supreme Court and the High Court of Australia.
Her stature as a junior barrister was well illustrated by an anecdote on the occasion of Justice Bill Pincus’s retirement from the Bench in 2001, recalled by Pat Keane QC (now a judge of the Court of Appeal). An early morning meeting followed some hours of concentrated effort on a testing case. After perusing the young Keane’s draft outline of argument, his leader tossed it aside with the disparaging remark that it was unhelpful: “You know, that Sue Kiefel is a very helpful junior. She actually identifies the points that are likely to win the case.”
Much of Susan Kiefel’s success relied on scrupulous preparation and carefully planned tactics. A former colleague remembered her as a “brilliant cross-examiner” who always demonstrated that cross-examination at its best does not need to be cross.” Her tactical prowess was evident in one case where she enticed a witness to demonstrate inconsistency in his own evidence. He had claimed that an injury resulted from lifting heavy objects, rather than from its actual cause, a
The Queensland Bar in the late 1970s was relatively small and it was accepted practice for senior members to assist more junior members, particularly if they demonstrated promise. Susan Kiefel recognised that she might not have succeeded without the recommendation of more senior colleagues and remained grateful for “the advantage of access to all members of the Bar, senior and junior, for much needed advice or words of comfort when my courage was about to fail me.” She also found that such assistance and support was blind to gender and that success did not depend on gregarious personality: shy, retiring people could be successful barristers; the belief that aggression is an important quality had become a myth.
Judges, she came to realise, often regarded blustering techniques as covers for poor preparation. In Susan Kiefel’s view, the essential qualities were to be “quite courageous and strong,” a quiet confidence arising from “knowing what you are doing and that you are doing it well” was far preferable to irritating over-confidence. Barristers, she felt, needed a “talent for communication combined with courtesy and cheerfulness in the face of a sometimes difficult and tense situation.”
Susan Kiefel thoroughly enjoyed the camaraderie of the Bar and the close friendships which developed among people who, through the nature of their work, were actually very competitive. She did not find that the overwhelmingly male atmosphere at the Bar presented particular difficulties, even though most male barristers enjoyed the historical advantage of coming from private schools and networking in male-only clubs. She recalled with amusement that council workers would hoot with laughter at the sight of a woman in robes walking along George Street, but was very irritated during the 1980s when people asked her what it was like to be a woman barrister: such a question focused on a perception of sex discrimination within the profession, rather than on the professional and intellectual calibre of its female members. However, she did note that many people continued to believe that women were somehow “different” in their thought processes, and that many solicitors, including women, briefed men because they thought their clients wanted them to: a myth which, she believed, should be dispelled.Susan Kiefel noted with some regret in the 1980s that the proportion of women at the Bar had not grown much overall, a matter of disappointment, given that it was a career offering extraordinary variety and richness of experience.
However, Justice Kiefel told the Australasian Law Student Association conference in 1997 that it can be difficult for women to find the same opportunities in the legal profession as men, particularly when family responsibilities are difficult to combine with the long hours demanded by work at the Bar.
After almost ten years of vigorous practice at the Bar, Susan Kiefel decided to give herself sabbatical leave. However, this year became a productive and intellectually stimulating sojourn. She decided to apply for admission to Cambridge University to study for her LLM. Admission was no foregone conclusion: she did not have a first degree. The Chief Justice, Sir Walter Campbell, provided a reference and an introduction to Professor Sir David Williams, then president of Wolfson College, who facilitated her admission to the course. Comparative Law was one of her LLM subjects and Susan Kiefel developed an enduring interest in it. She won the university's CJ Hamson prize for Comparative Law as well as the Jennings prize from Wolfson College. She remained very grateful for this experience and for professors who reminded a "then jaded practitioner just how important and fascinating the process of law in society is". This period of study and reflection was a great benefit and she recommended overseas study to everyone for the different perspective it can give: "For the first time I could sit back and think about how litigation operates; its origins; how the same question may be viewed differently and by different systems; and how the pieces of our legal jigsaw puzzle (mostly) fit together."
Life at Cambridge was not all serious study: Susan Kiefel threw herself into college life. She met her husband when she became a member of the college rowing crew; he was the coach. Returning to Australia in 1985, she did not relinquish her interest in comparative law; marriage to a social anthropologist gave her additional insight into the way in which concepts of law operate in a wide range of societies. It seemed to her to be a shame that comparative law was not much encouraged in Australia, even in the twenty-first century.
In 1987, at the age of 33, Susan Kiefel was appointed Queensland's first woman Queen's Counsel, one of a select few then practising in Australia. Although she attributed her appointment to perseverance, her personality and outstanding achievements had made her well liked at the Bar. She was always conscious of benefiting greatly from the QCs she worked with, both before and after becoming a QC. They included most leading Silks, but most frequently McPherson QC, Callinan QC, Hampson QC, Jackson QC and Pincus QC. Her six years as a Silk were very busy and enriching, providing her with the opportunity to lead in several important trials. There was an increase both in appellate work and in work before the Federal Court. She was briefed as senior counsel in a leading trade practices case on misuse of market power in the late 1980s (Dowling v Dalgety Australia), in a leading case on tax-avoidance schemes, and numerous cases involving consumer protection provisions of the Trade Practices Act, including one involving a foreign exchange loan. She was also briefed to defend a person charged with tax fraud because of her commercial knowledge; after Susan Kiefel’s cross-examination on the books of account the judge directed the jury to return a verdict of not guilty; she also appeared for Queensland newspapers in a long and highly publicised defamation trial.
In 1991 she was appointed to the Commonwealth Human Rights and Equal Opportunities Commission as a part-time hearing commissioner. Her appointment to the Queensland Supreme Court in June 1993 was well received and very popular. She noted later a developing tendency for senior women barristers to be appointed to the Bench within a very few years of taking Silk, which risked denuding the senior ranks of the Bar of leadership and a valuable repository of mentoring for more junior women. Justice Margaret White preceded her to the Supreme Court and, in the early 1990s, they were two of the four women at that level in Australia. Susan Kiefel felt that men and women could possess equally the most important judicial qualities: detachment, dispassionate adjudication and equable temperament.
In October 1993, less than 18 months after her appointment, Susan Kiefel was appointed to the Federal Court. Justice Kiefel came to be regarded by her peers as a clear and logical thinker, whose style in court is firm but courteous, and whose reasons are “direct, concise and readable”. Her long-established methodology of pursuing the question rather than the answer and using both the logical and the creative sides of her brain continued to stand her in good stead. The jurisdiction of the Federal Court had been growing more varied, embracing new areas of Australian law such as native title and environmental law. Decisions in both areas can be widely publicised and eagerly awaited. An action brought by the Queensland Conservation Council and the World Wide Fund for Nature, Australia, for instance, challenged an environmental impact study conducted under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 2001. Argument centred on the proper scope of the environmental assessment of the proposed Nathan Dam, and whether the likely effects of agriculture made possible by the proposed dam should be considered an impact of the dam itself for the purposes of the Commonwealth assessment and approval process. In interpreting the statute, Justice Kiefel found that the Commonwealth Environment Minister is required to include the effects of agriculture enabled by the dam in considering the potential impact of the dam on the environment, because the Act provided for a wide approach to environmental assessment and, therefore, extended to consideration of the whole, cumulated and continuing effect of the activity. 2 Cases such as this attract wide publicity.
The way in which the media report on the courts was the subject of a paper Justice Kiefel delivered to the Oceania Regional Conference of the Press Council in 1999. In this, she highlighted flaws in the general level of Australian understanding and knowledge of the relationships between the various wings of a parliamentary democracy. She was particularly concerned about "a lack of knowledge and understanding of the courts, as institutions, the procedures involved in the trial process and a judge's part in them". This fundamental problem seemed to indicate that the media required a better understanding of the courts as institutions; Justice Kiefel noted that appropriate, accurate reporting often seemed only to be possible if the journalist had legal training.
Recognising that the media is most interested in human drama, whereas judges must be most concerned with ensuring the "integrity of the process itself", Justice Kiefel supported the appointment of court public information or media liaison officers, and also thought that courts could try to accommodate better the needs of the media and to understand more clearly what the media wants from the courts. She suggested that judges could ensure that sufficient hard copies of summaries of judgments are available for the media, particularly given recent controversies on sentencing, where a sentence was about to be handed down in a controversial case: "It might be as well for the Chief Justice of that court or the media officer to prepare a short explanatory note on how sentencing is undertaken; what limitations there are placed upon judges by the statutory mechanisms and that there is an accepted range for most sentences which, if departed from, would simply result in it being overturned on appeal, with the attendant costs."
Although courts can help the media with clearly stated information, the relationship between them should, in Justice Kiefel's view, be limited: "A democratic government, an independent judiciary and a free press co-exist and, to an extent, need each other, but it would not be desirable for them to develop a close relationship. The Courts decide actions involving the other two; and the press has a function as both reporter, commentator and monitor of judicial decisions and conduct."
Justice Kiefel retains her enthusiasm for comparative law which, she has said, "often serves to provide a greater understanding of one's own legal system since that understanding is necessary for the process of comparison.” Her interest has been attracted by the possibility that English and Australian public and private law might diverge further as English law comes increasingly under the influence of European community law, with the Human Rights Court already involved in the domestic law of England. This trend, combined with the tendency in Australian law to look more to the United States and Canada, poses an interesting question for the Australian High Court: “It will be a matter of choice for the High Court as to whether it will look to developments in European standard laws or the solutions provided by other systems. The question for it, and its judges, may be whether its role ought to evolve, to an extent and where possible, with developing European law, or whether it ought to remain a custodian of the common law tradition.”
As a visiting fellow at Cambridge in 2001, while on sabbatical leave from the Federal Court, Justice Kiefel studied the European Court of Justice. She was then asked to put an Australian perspective to a seminar at the Max Planck Institute in Hamburg late in 2001. The seminar examined the Australian federal system of courts to see if it provided any useful solutions to some of the issues facing the future operation of the European Court of Justice. Justice Kiefel has also drawn attention to interesting lessons which can be learnt from the development of the European Court of Justice since the 1950s. Only a tiny minority of national jurisdictions in the growing European community draw on the common law tradition, a factor which could also influence the style of British judgments because the continental model is more conceptual and collegiate, rather than individual. Justice Kiefel has also written recently on other aspects of comparative law; her Kriewaldt Lecture to the Northern Territory Law Society, “English, European and Australian Law—Convergence or Divergence?” was published in 2005.
Other appointments in Australia both preceded and followed Justice Kiefel’s appointment to the Federal Court. She was appointed a judge of the Supreme Court of Norfolk Island in 2004 and a part-time commissioner of the Australian Law Reform Commission in 2004. In October 2001 she was appointed Deputy President of the Federal Police Disciplinary Tribunal and became its president in April 2004. Other appointments have reflected her commitment to the profession. She was, for instance, honorary secretary of the Bar Association of Queensland in 1978 and a member of its committee in 1993, before her appointment to the Supreme Court, and she was appointed chair of the Supreme Court Library Committee in 1994.
Several appointments reflect the primacy Justice Kiefel places on ethics. She was a lecturer in Ethics for the Bar Practice Centre between 1985 and 1988, a board member of the National Institute for Law, Ethics and Public Affairs in 1998 and 1999 and a member of the advisory board at Griffith University's Key Centre for Law, Ethics, Justice and Governance from 1999, until she succeeded GE Fitzgerald QC as its chair on 10 September 2002. She has expressed her concern that, while the application of philosophical ethics to governance, public administration and business is frequently discussed, there is much less discussion and education on ethics in a professional sense. This situation is further complicated by the general public's perception of the ethics of lawyers, often led by the media, which tends to be excited by the big breaches of ethics, usually approaching crime, but less interested in the ethical requirements of day-to-day practice. Justice Kiefel believes that it is essential to frame a personal ethical enquiry courageously and accurately, and to develop and use individual conscience: "Ethical issues, and sometimes real dilemmas, are answered after quiet inner reflection, identifying carefully what the issue is and then deciding what the appropriate behavioural response is."
In Justice Kiefel's view, the ethical approach often calls for courage: "How else can you handle the pressure of a client and sometimes your partners combined with your economic self-interest?" However, sound ethics remains necessary to the good reputation of the profession and is essential if it is to continue to develop: "Each practitioner is the custodian of the profession and what will be passed on to the next generation of lawyers. If there is not a strong moral 'glue' holding the profession together then lawyers will just become conveyancers, corporate workers and combatants for clients in court." For this reason, she does not favour the apparently growing practice among barristers of taking all points because they can scrape up an argument for each of them; rather, Justice Kiefel expressed the view that it can be a matter of legal excellence when a lawyer exercises independent judgment in deciding which points should be pursued. The alternative course, in her view, prolongs litigation.
She retains a lively interest in changes in the legal profession. With regard to the accreditation of solicitors as specialists in various legal fields, she has suggested that, although there were advantages to the public in the move towards specialisation, there could be reasons for caution: Should practitioners be wary of becoming too insular by reason for their specialisation? Do they need to maintain an awareness of the larger legal picture and, in particular, how the various areas of law interrelate? Specialisation, she suggests, underscores the need for a strong grounding in the principles of law, "how they interact and overlap". For this reason, practitioners should not take the path of specialisation too early and should maintain a commitment to continuing education in general developments in the law, as well as in specialist areas. She has also offered some thoughts on whether judges should specialise, citing the American view that judicial specialisation develops a club culture where views tend to become entrenched for long periods. To Justice Kiefel, it is important to recognise that judges provide answers to questions put to them and, therefore, judges' minds must be open to persuasion rather than approaching a case with a strong sense of predetermination, a possibility if judges were to consider themselves to be experts in any particular field. On the other hand, she sees some arguments in favour of judicial specialisation in some aspects of intellectual property law and admiralty law.
Listening to music - all kinds from Bach to Jimi Hendrix -and enjoying the performing arts which were part of her youth and childhood remain part of Justice Kiefel's life. She sometimes wishes for more time to improve her piano skills, but gives her time generously to cultural organisations. She has been a fellow and council member of the Queensland Academy of Arts and Sciences since 2003 and chair of the Southern Cross Soloists Advisory Board since December 2003. Susan Kiefel has many extra-curricular interests: reading, cooking, bushwalking, fly-fishing, cello playing, watching cricket and enjoying good conversation. Much focuses on her life at home: the company of family and friends or simply relaxing with a good book or journal, or a new recipe book to plan the next meal with friends.
Many friends both inside and outside the legal profession appreciate her dry wit and gentle digs at herself, sometimes stated publicly: "An elderly professor in Cambridge, who seemed to me at the time to be about as wise as one could get, explained that when he was a young academic he had no difficulty with his state of knowledge. In his youth he was quite confident that he more or less knew everything, or at least as much as he needed to. As the years passed, however, it occurred to him that in fact he had only acquired a little of the knowledge available in his field and, I suppose, of life. With each year the gaps in his knowledge became more apparent to him. I am therefore grateful, Mr Attorney, that my appointment was not too much later." And, as a very new judge in 1993, she said: "One of the most difficult hurdles I have had to overcome is the desire to stand up when the court is adjourned. I cannot tell you how difficult it is, after 18 years, to remain seated. But at least it gives the bailiffs a laugh."
The Federal Court has been a very rewarding experience for Justice Kiefel. She thoroughly enjoys the collegiality of life full of interactions with practitioners from all over the country and richly studded with stimulating conversations. She has protected herself against the boredom which, she believes, can be a danger in the lives of judges by her lively interaction with people overseas, particularly at Cambridge and in Germany at the Max Planck Institute or with judges there.
Justice Susan Kiefel thinks deeply and many benefit from her reflections. She relishes laughter and the love of friends yet enjoys her own company; she is self-reliant, but always willing to share her wisdom and experience when it is sought; she is dignified, but never pompous. In all that she has done, she has shown courage and determination. Perhaps that is why she enjoys the work of the Australian poet, Judith Wright (The Forest Path):
And if we had not been afraid - if terror had not
The final stanza of one of her favourite poems, Matthew Arnold's 'Dover Beach', seems particularly appropriate to her:
Ah, love, let us be true
Yet, in one of her frequent addresses to young people, Justice Kiefel herself provided the most succinct summary of her thoughtful, honest approach to life: "You can usually do whatever you determine to do. The constraints or limits placed upon a person's life and career usually come from themselves. I hope you will focus on the possibilities open to you and not dwell on problems that others may tell you about too much."