Can swearing-in ceremonies offer clues to judges' future rulings

The High Court of Australia

How judges are appointed today and the qualifications they now have is very different to 1903. I want to explore what that tells us about the changing face of the judiciary.

“How does the personal identity of a judge make a difference to law and legal systems?” That was the lingering question that sparked Dr Heather Roberts’ return to academia and one she seeks to answer in an upcoming research project.

While society expects judges to make rulings based on legislation, the law is often open to interpretation. Can a judge’s education, ethnicity, gender, religion or politics influence the way he or she decides a case? While there is no clear answer to this question, jurists may offer clues in the form of a swearing-in ceremony.

Dr Roberts says swearing-in ceremonies are far more than a formality. When judges are sworn-in, she says, their ceremonies enable the legal community to explain to the public who a judge is and why they have the confidence of the profession.

“In a system like ours where we don’t have the scrutiny of senate confirmation proceedings, these ceremonies are absolutely vital for transparency and confidence in the judiciary,” she said.

“I want to go back in time and look at the courts as they were just after Federation and see what people expected from judges, what qualification they had, the degree of discussion of their journey to the bench and what led them to the bench.

"How judges are appointed today and the qualifications they now have is very different to 1903. I want to explore what that tells us about the changing face of the judiciary."

Because judges are often reluctant to make public commentary beyond their statements made in court, swearing-in ceremonies are often the only record of the judge's personal views and influences.

Just as aspects of Australia's history have helped to shape the nation, Dr Roberts will explore how among other things wars, migration, colonialism, the women's liberation and access to free tertiary education have shaped the judiciary throughout the country, and how it differs between states and regions.

Dr Roberts was at the High Court earlier this month as the country's first female Chief Justice, the Hon. Chief Justice Susan Kiefel was sworn in. Dr Roberts spoke to ABC News 24 about the new Chief Justice's unusual journey to the bench.

"She left school at 15, she completed her school studies part-time, working in the evenings while working as a legal clerk," she said.

"She then did the Bar Admission Board and she started as a barrister at a very early age so it's an extraordinary journey.

"She may have been the first Chief Justice of Australia ever to mention globalisation in her speech. She mentioned the importance of ensuring that Australia was not legally isolated, that we could look for inspiration and information from courts throughout the world."

Dr Roberts' interest in swearing-in ceremonies goes back to her time as an ANU Law undergraduate.

"I was doing an honours thesis on constitutional law and the decisions of Justice William Deane of the High Court. Professor Fiona Wheeler as my supervisor and she suggested I try to find his swearing-in speech," she said.

"It was pure gold for my project because there was this one paragraph in the speech that pulled together all of the things that I'd found when reading his judgment.

"It was a real predictor back at the beginning of his judicial career of some of the best cases that he decided over the next 13 years."

After graduating Dr Roberts went into legal practice at Freehills (no Herbert Smith Freehills) but the speech stayed with her.

"It kept nagging at me, this speech and this judge and what was he doing and why was he doing it?" She said.

"And so I came back to ANU to do a PhD and finish my research on him. After I finished that I thought why not have a look at these ceremonies and see what else I can find."

Dr Roberts recently appeared on the Law Report on RN and has written about the subject on the Australian Public Law blog.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team