Lawyer's Lawyer Captive To Neither Side Of Politics

The Age

Saturday August 18, 2007

Cosima Marriner - Cosima Marriner is Age Brisbane correspondent

Appointed to the High Court this week, Queensland judge Susan Kiefel has confronted and confounded the nay-sayers in her rise to the top.

WHEN 19-year-old legal secretary Susan Kiefel decided to become a barrister in the 1970s, her male boss tried to talk her out of it. Lawyer Brian Burke, then senior litigation partner at Brisbane firm Cannan and Peterson, told his assistant that the Barristers Board exam was too hard, and warned her the bar would be a difficult place for a woman.

Not so easily deterred, Kiefel studied hard and graduated with honours, the first person to do so since the 1930s. Some years later, Burke rang Kiefel's chambers and asked her to act for his major client. That request gave Kiefel "great joy", recalls a close friend. "It was a sign she'd made it."

The ultimate confirmation Susan Kiefel has made it in the legal profession came this week when federal Attorney-General Philip Ruddock appointed her to the High Court. But perhaps an even greater tribute was that the 53-year-old's appointment was greeted with approval from both sides of politics, and across the legal spectrum. Her father, Alf, sums up the reactions of many when he says: "It's well earned. I feel it is something which should have happened years ago."

Although she is regarded as conservative, Kiefel is not expected to be captive to either side of politics. Decisions by the High Court, the country's final court of appeal and arbiter on the constitution, are often viewed through the prism of which government appointed the judges. But Kiefel's non-partisan approach to the law is vindicated by the fact that it was a Labor attorney-general who appointed her to the Federal Court and a Liberal attorney-general who appointed her to the High Court.

"I don't think the Government has got their capital 'c' conservative. I don't think she's a rabid leftie either," a Brisbane senior counsel who knows her socially says. "I think she's more of a free thinker."

Kiefel's appointment to the High Court marks the first time there will be two women on the seven-member bench in the court's 104 year history (Susan Crennan was appointed in 2005). Ruddock stressed that the Cairns-born judge was selected because of her "extraordinary attainment", not her gender.

Kiefel herself believes merit alone determines success in the field of law. "Society has yet to deal with the more deeply entrenched and subtle institutionalised discrimination, but women will find that the bar and the judiciary will treat them simply as a professional person and on merit," she said when she was sworn in as a judge of Queensland's Supreme Court.

Her rise to the pinnacle of Australia's judiciary is a case in point. Despite being one of the brighter students at Sandgate High in northern Brisbane, she left school at 15 to go to business college.

Kiefel's father confesses this was his idea. "I thought she'd end up the usual way with women, she'd go to school, become a secretary or typist, get married and have children, settle down and rear a family," he says.

Kiefel had other ambitions. As Alf tells it, sitting there typing up barristers' opinions at her rapid-fire 90 words per minute pace, "she thought if they can do this, I can do it". Thirty years later, Kiefel would tell school students: "You can usually do whatever you determine to do. The constraints and limits placed on a person's life and career usually come from themselves."

Luckily for Kiefel, before Burke she had worked for three barristers who not only recognised her ability, but encouraged her ambitions - Tony Fitzgerald, Martin Moynihan and Ross Mack. While she was close to the eccentric Mack, it was Moynihan, now the senior judge administrator in Queensland's Supreme Court, who mentored Kiefel throughout her career.

Admitted to the bar at 21, Kiefel became Queensland's first female QC at 33. She was made a judge of the state's Supreme Court in 1992 and joined the bench of the Federal Court the next year.

Her first marriage, to solicitor Bill Martin in her 20s, was not a success. Friends say the pair weren't suited. It was partly the break-up of her marriage that prompted her decision to go to Cambridge in 1984, in a bid to escape the claustrophobic world of the Queensland bar.

It was at Cambridge that Kiefel met her current husband, social anthropologist Michael Albrecht, who coached her college rowing team.

Albrecht had arrived at Cambridge from a similarly unconventional background: a coalminer from Lancashire, he won a scholarship from the British police to study sociology and at one point was the youngest inspector in the force.

Kiefel thrived at Cambridge. Studying a master's of law at Wolfson College, she won the C. J. Hamson prize for comparative law.

Her professor would later tell people that she was "the most brilliant comparative law student I've ever taught".

It is a somewhat esoteric achievement, and indicative of her cerebral nature. Variously described as having a "piercing intellect", and "very diligent", Kiefel looks and sounds a bit of a swot.

But federal Arts Minister George Brandis, a lawyer who has been friends with Kiefel since the pair worked closely together on a number of cases in Brisbane in the early 1990s, insists "she's not a nerdy person . . . who goes home and reads law books at night".

He describes Kiefel as "a lawyer's lawyer". "She's the last person who would do a subject like law and social justice, or law and contemporary problems. She's interested in the law as a coherent discipline."

This means Kiefel is unlikely to be an activist judge like one of her brethren on the High Court bench, Michael Kirby. "I don't think she'll be a judge who strays into the area of creating law; she'll be more interpreting and construing law," one contemporary predicts.

Throughout her career Kiefel has confronted and confounded male prejudice. In the early 1990s, she and Brandis successfully defended three big pastoral companies, Dalgety, Elders and Primac, accused of breaching the Trade Practices Act by refusing a livestock auctioneer access to the Goondiwindi saleyards they owned. It became a landmark case in trade practices law - but at first the blokes from the bush took some convincing a woman could do the job.

"We had a conference in her chambers with representatives of the three clients, all big country blokes in moleskins," recalls Brandis. "They were quite sceptical about having their case in the hands of a female QC. But by the end of that meeting, because of her calm, professional, matter-of-fact, quietly spoken manner, they were eating out of her hand."

Brandis echoes others when he says Kiefel has "the perfect temperament" for a judge. "There are no eccentricities about Susan, as there are about some other judges. She's always in control, she's quietly spoken, she's almost always very calm."

The schoolmarmish air Kiefel projects in official photographs is on display in her court. While barristers enjoy appearing in front of her, they're also painfully aware they better know their stuff. "She's pretty scary to appear in front of if you're not prepared," one senior counsel says. "It's a very unpleasant experience."

Others say the auburn-haired Kiefel is a tough, no-nonsense type. "I don't know that there would be much fun in her court," one Brisbane magistrate observes. "She just ploughs through the stuff."

Her penchant for hard work will stand her in good stead for the draining business of the High Court, wrestling with difficult questions of law.

Cosima Marriner is Age Brisbane correspondent.

LAYING DOWN THE LAW

Some of Justice Kiefel's key rulings as a Federal Court judge

1995 Dismissed then Aboriginal affairs minister Robert Tickner's appeal against the overturning of his 25-year ban on the building of the controversial Hindmarsh Island Bridge.

1999 Upheld then customs and justice minister Amanda Vanstone's decision to extradite Peter Foster to Britain to face fraud charges.

1999 Struck out a claim for damages against then industrial relations minister Peter Reith by non-union dock workers used to break the strike during the waterfront dispute.

2003 Found then environment minister David Kemp had not assessed the downstream impact of a proposed dam that he had approved for the Dawson River in central Queensland.

© 2007 The Age

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