One day this cloud could lift

I started out as an articled clerk and I couldn’t get articles. I was a solicitor for seven years. Murray Gleeson, who graduated at the same time as I, was only a solicitor for one year.

I think the reason I had a very practical approach to everything was that I spent an extra six years looking across the table at clients. I will always be very glad of the time I spent as a solicitor. I became a barrister and then a judge. And now, here I am, in this new, invigorated and non-retired role. This is a living, working example of endless energy.

My experience in the law and courts of NSW really affected the way we conducted the North Korea exercise. It was very different from the way all the other Commissions of Inquiry of the United Nations were conducted. When I was in Geneva recently, everybody was telling me – from the new UN High Commissioner for Human Rights, Prince Zeid of Jordan, to the most humble and adoring clerk – that the Report of the United Nations Commission of Inquiry on Human Rights in North Korea is the “gold standard” of commissions of inquiry, and it is the way future commissions of inquiry will be done. Maybe, in the end, our contribution to methodology may have a more lasting effect than the contribution to human rights in North Korea – at least in the short run. That is not an unimportant contribution, because if you get the methodology right the likelihood is that you will conduct the exercise in a way that is conducive to improving human rights.

Methodology and procedure was always the obsession of the English law – to such an extent I sometimes thought, as a judge, that these English legal systems we adopted were so obsessed with procedure that they were not always concerned with the justice of the outcome. But there was method in their madness, because if you do it the right way, and control very strictly the way it’s done, it is most likely you will get to the right answer in the end.

The way commissions of inquiry of the United Nations are normally conducted is, first of all, by professors. I have nothing against professors, but there is just something about us – people who have sat across from a client, who have heard their worries and problems, who have tried to deal with the case and who are not going to be adequate if they simply start raving on about some theory. The client wants an outcome or a solution – or at least for us to go through the paces and do the best we can for them.

Normally, the way the UN conducts inquiries is the civil law way. The fact of the matter is that the common law is not the major legal system of the world. The major legal system of the world is – and for very good reason – the Napoleonic French system. That is because it was invented by a dictator – a very powerful, effective and conquering dictator who took the law in his knapsack to all the places he conquered. And they, in turn, gave it to all the places they conquered.

The civil law tradition thus spread to the four corners of the world, whereas the common law of England, through the conquests of Britain, extended to about one third of the world. Dictators, once they get their hands on [the civil law system], tended not to want to give it up, because it is more authoritarian than the English tradition. The English tradition tends to make judges gods. In the civil law tradition, judges are not so significant. They are very high officers but they don’t have the god-like role of the judge in our tradition.

With that role, the judges gained great respect and independence of mind – including against the king – and were important in many occasions for liberty.

Therefore, the English way of doing things – at least to our humble eyes – tended to be a better way of doing it. It didn’t always get to the right outcome, but it generally did things in a very careful and regular way. The absolute core feature of the way the English did decision-making was transparency. It is very, very hard to close a court in our tradition – or an inquiry or a commission.

Hearings are a very important feature of the way we do things. Therefore, when I – a lawyer from the common law tradition – was appointed to chair the inquiry on North Korea, the first thing I wanted to know was why these things were usually done in private. The answer? “That’s the way the civil law does things. It’s more efficient. You can do things more quickly and more cheaply.”

But it isn’t as transparent. And the most important point is that if you do it in public, it builds up an expectation that something will come of it and that that something will also be in public and will emerge logically from the evidentiary material.

I suggested we should conduct our investigation in public. That led immediately to various suggestions that it wasn’t a good career move, because it would mean security problems. North Korea, after all, is a country that has had examples of violence, and it was reasonable for UN officials to say, “There is a very good reason we do our inquiries in private, because they deal with very vulnerable witnesses, vulnerable human beings who are doing the inquiry, and vulnerable staff of the UN who shouldn’t be exposed unnecessarily to risks”.

Our big problem was we knew North Korea would not allow us to go in. We would have been astonished if they had opened their doors and welcomed us. We knew that, at the end of our inquiry, the likelihood would be that the North Koreans would say, “You couldn’t come in and you couldn’t see things, so therefore the report is not reliable”. That’s exactly what China said: “Because you could not secure the cooperation of the state concerned, your report was flawed from the beginning and its outcome cannot be persuasive in the international community”. So how do you solve that problem? You solve it by as much transparency as you can get.

Our first decision was that we would protect the witnesses. We would speak to them very candidly, and even if they said they would give evidence in public, they would still require our consent, because we would not allow it if there was any risk to them. Most of our witnesses were refugees. There are 26,000 refugees from North Korea in South Korea alone. When we advertised for witnesses, we had so many people wanting to give evidence that we were running out of staff to see them and running out of time. We had six months to get our report done, so we had to be disciplined.

International media was invited to come into the inquiry. It was like an open court, which is what happens [in Australia]. The proceedings were filmed and recorded. Shortly after the hearing, the film went up online. With the aid of the Korean Government, we had a transcript with the translation underneath. The inquiry was done courteously and, even if nothing comes out of it, just to allow people the affirmation of their dignity, to have their moment before the Commission of Inquiry and before the whole world, to speak up for people in a similar position, is a very important thing. It is a cleansing thing to allow that to be online. To the assertion by North Korea that these witnesses were human scum who were self-selected as opponents hostile to the regime, that is a fair thing for them to say. But the answer to it is, “You have to have a look. This is not something we have just written up in our very learned report. It is something that anybody in the world who has access to the internet can see for themselves and judge”.

The case of Fox v Percy says the so-called brilliance of judges to tell truth from falsehood from the impression of witnesses is a furphy and that science shows you can’t necessarily tell truth from falsehood. But to see all these witnesses, one after another, and conclude that they are all human scum … Some of them corroborated each other although they didn’t know each other and others were corroborated by objective testimony – sometimes satellite images when they talked of prison camps, sometimes documentary and statistical evidence. The power of testimony is a very important accumulating phenomenon and intuition builds as you watch the witnesses give open testimony.

Non-leading questions were very important. Because I was in the chair I had to do most of the work. There was no counsel assisting so I had to do most of the interrogation with non-leading questions – the way we do it here. “What happened then? What did you say to that? Where did you go then? What happened at that point?” It is a very important way not to control what people say. It is so much more powerful when they tell it than if you have put the words into their mouth.

Then there was the way we wrote the report. Civilians think the way our judges and decision-makers write a report is horribly long-winded. They think it’s amazing that so much verbiage goes into it. But that’s all part of telling the story – it should be open and as persuasive as you can make it. It’s the so-called discursive way of writing so that an ordinary, intelligent lay person can understand it. They are things we don’t often talk about or think about because it’s just the way we do law here.

Then there is the little matter of due process. When we had written the report, we provided a copy to the Supreme Leader himself. We were criticised for it, but this is just ordinary common law due process. We called to attention the fact that … we have concluded that crimes against humanity have been committed. That shocked a lot of people including within the United Nations. They said, “How can you do that? It’s never been done before – writing to a head of state and saying that [he could be liable for crimes against humanity]”.

I said, “This is just due process. If we did not do that, and subsequently that person was prosecuted, it may just be that they would say we had an opportunity to warn them and we did not take it”. These are the things we learn in the day-to-day grind. Lord Cooke once said, “Lawful, fair and rational”. They’re the three words that sum up the whole of administrative law. So that is the way we did it. Now people are saying it is the gold standard.

This is the way it should be done. It’s interesting because that’s not the way it’s normally been done. It’s normally done by professors who grew up in the civil law tradition who are extremely brilliant – they just do things in a different way. They are less discursive and they don’t do things as transparently.

They do it more efficiently, quickly and cheaply, but it doesn’t have the magic glue that is the feature of our system – of building up the expectation that something will happen, and that what happens will emerge logically from what they know. If it doesn’t, that is a matter for serious inquiry and criticism. I have had a small but useful role to play in carrying forward these items in a world that lives up to the rule of law and protects universal human rights. One third of humanity (i.e. common law countries) has things to teach the United Nations: more practitioners as commissioners; more transparency; more public hearings; more on the internet; more availability. Frame it in a way that people can read it and understand it – and then there will be an expectation that things
can happen.