I’m meeting with the Hon Justice Michael Buss in early June, just six days into his retirement from the Presidency of the Court of Appeal. Despite having stepped down, he still seems like part of the furniture at the old Supreme Court building. After a remarkable 19 years as an appellate judge, it’s hard to imagine the Court without him.
I first met Justice Buss shortly after his appointment, when I was a young lawyer taking my first steps into the profession as an Associate in the Court of Appeal. Nearly two decades later, I find myself apologising for how green and naive I must have been back then. Ever the gentleman, Justice Buss assures me he has always valued the contribution of Associates during his time on the bench. In return, he hopes he has inspired a genuine love for the law in those who have worked alongside him.
“I hope that I have instilled in junior lawyers – in particular, my associates – a respect for the law and a sense of pleasure in practising law. I have found legal problems, especially novel ones, interesting. I have enjoyed studying and resolving the problems. I have endeavoured in my written reasons to explain the nature of the issues in an appeal and to determine those issues by a clear and transparent process of reasoning. I hope that I have passed to my associates and other junior lawyers a desire to pursue these objectives.”
At the time of our meeting, the announcement of Justice Buss’ successor is imminent. (Later that day, I learn it will be Joshua Thomson SC, the former Solicitor-General.) I can’t help but wonder what emotions might surface when handing over the reins after so many years. Trepidation? Relief?
“A small part of me is relieved to no longer carry the burden of being the President of the Court of Appeal. However, I have thoroughly enjoyed my judicial career. I thrive on pressure. I have relieved the pressure by working hard and endeavouring to produce acceptable results.”
And work hard he has. With an average sitting record of around 120 cases a year over 19 years, it’s fair to say that Justice Buss has determined an extraordinary number of matters. Yet despite the inherent pressure, he reflects that no individual case ever kept him up at night.
“I was conscious that every appeal on which I sat was important to the parties. The outcome of the appeal could have life‑changing consequences for one or more of them. Fortunately, I did not have difficulty in making decisions and I never lost sleep over a decision. I did, however, occasionally wake at night or in the morning with a fresh insight on a difficult case.
I sought to deal with difficult cases by formulating the relevant issues and pursuing each issue until I had arrived at a conclusion which I thought was correct. However, once I had arrived at a conclusion, written the reasons and delivered judgment, I stopped thinking about the case. There were always many other cases, including difficult cases, that required my attention.”
Justice Buss began his legal journey at the University of Western Australia, graduating with a Bachelor of Jurisprudence and a Bachelor of Laws, both with Honours. His path was clear early on, and he knew he wanted to study law from a young age.
“I decided in early secondary school that I wanted to be a lawyer. It is difficult to know now what I might have done instead. When I was an articled clerk I was approached to apply to join Australia’s overseas secret intelligence agency, ASIS. I declined. That may have been an alternative career path.”
For a moment, I contemplate this alternate version of Michael Buss; more Bourne Identity than Clerk & Lindsell on Torts. Then back to reality.
It occurs to me that many people who pursue a legal career from a young age do so with the advantage of a personal or familial connection to the profession. It’s therefore particularly refreshing to learn that a first-generation university graduate can become President of the Court of Appeal. Of course, forging your own path often comes with a steep learning curve.
“I realised when I was an articled clerk that although I had a good knowledge of the legal principles that were taught at law school, I knew very little or nothing about how those principles were applied in practice. No members of my family had been to university and no one I knew was involved in commerce. The manner in which businesses operated was mysterious to me.
I wondered from time to time, when I was a very junior lawyer, whether I had made the right decision in seeking to practise law. Fortunately, I received excellent mentoring and my competence and confidence gradually improved.”
Given that Justice Buss began his career articled to a lawyer who would later become Chief Justice of the High Court Australia, it’s no surprise that early mentorship played a role. He reflects on the formative lessons from those early years, which have served him well all the way to the bench.
“One lesson that has remained with me is that in dealing with a legal issue it is important to have a broad perspective of the issue and also to examine the issue in detail. Both stances are necessary. The issue must be considered as a whole and in detail.”
While Justice Buss’ career offers a compelling example of positive social mobility, this represents just one aspect of judicial diversity. He recalls that in 1995, all Supreme Court judges were men. Not only had no women been appointed, but there was also little diversity in the backgrounds of the male appointees. Thirty years on, the composition of the Supreme Court looks markedly different – a change that Justice Buss sees as a significant step forward. Progress in the Court of Appeal, however, has been slower.
“Gender equity, including numerical equality, as one aspect of diversity has certainly improved in recent years in the Magistrates Court, the District Court, the State Administrative Tribunal and also the General Division of the Supreme Court. However, the Court of Appeal does not yet reflect these pleasing developments.
The difficulty with the Court of Appeal is that there are only a limited number of suitable candidates of any gender. Some people are not willing to accept an appointment. That is an impediment to increased diversity.
I think that, in addition to continuing the pursuit of gender equity, including numerical equality, for women, it is important that there be representation or greater representation in the courts of suitable candidates from different ethnic backgrounds, including, importantly, Indigenous people. It is pleasing that in recent years newly admitted lawyers have come from a range of backgrounds. The administration of justice is enhanced by lawyers who bring a variety of experiences and perspectives to the practice of the law.”
Judicial diversity is not, of course, an issue that can be addressed in isolation. It is closely tied to broader challenges around workplace culture in the wider legal profession. With nearly 50 years of experience watching the profession evolve, I’m curious to understand Justice Buss’ perspective on how legal culture has changed over time.
One positive change, he explains, is that the judicial system has become more transparent, and judges and magistrates have become more accountable.
“Judges sit in public. Court hearings take place in public. The hearings may be attended by members of the community. Judicial decision making and the writing of reasons involves time and reflection. That must necessarily occur in private. However, decisions and reasons for decision are published and available to members of the community. Judges sit in a hierarchical system and are accountable for their decisions within that hierarchy.”
Despite this, Western Australia is still waiting for the government to establish a judicial commission for our State. Justice Buss is supportive of progress on that initiative.
“Judicial commissions have been set up in a number of jurisdictions. A judicial commission is proposed for Western Australia. I think that is a desirable step. However, it must be remembered that, given the adversarial nature of civil litigation and criminal proceedings and the nature of human beings, one of the parties (and occasionally more than one) will usually be dissatisfied with the outcome.”
Turning to consider the less desirable cultural changes he has seen in the legal profession over time, Justice Buss points to several.
“First, it is not uncommon for junior lawyers to be subjected to unrelenting work pressure, both in the intensity of the working environment and the length of time spent working.
“Second, specialisation in legal practices has become increasingly common. This reflects, to some extent, the increasing complexity of the law. However, specialisation reduces a lawyer’s understanding of the law as a whole. If a junior lawyer specialises early in their career it can become difficult to adapt later to other areas of legal practice.
“Third, in recent years an increasing number of senior lawyers, both at the independent bar and within law firms, have refused to make themselves available for judicial appointment. If judicial appointment is no longer regarded as the pinnacle of a successful legal career, that will have a significant and detrimental impact on the justice system. In my opinion, absent a good reason, a senior lawyer has an obligation to the justice system, including the legal profession, which has fostered their success, and to the community to accept an appropriate judicial appointment.”
There are also some entrenched problems with the justice system that Justice Buss would tackle if given the chance. “I think the amount charged for legal fees in some cases is extraordinary”, he remarks. If he could wave a wand to fix one systemic flaw, that would be it.
“I would change the extent to which lawyers can, by written agreement, contract out of the scale of costs set by the Legal Costs Committee and charge significantly more than the scale. However, a change of that kind would require a uniform approach throughout Australia, which is extremely unlikely.”
Reflecting on his recent decision to retire, Justice Buss admits that stepping away from judicial work will be a challenge. However, he is interested in acting as an arbitrator and mediator and in teaching law. He is also looking forward to having more time for travel and family – especially his wife, Virginia, their five children and their two-year-old grandson.
So, at the end of the day, what does he see as his legacy? Is it something he has deliberately shaped, or has it taken shape naturally over time?
“I do not believe in actively or passively shaping a legacy. I think that judges should simply perform their judicial and other public duties to the best of their ability. Self‑promotion is an unattractive quality. If a judge performs their work well and makes a positive contribution to the administration of justice, their work and their positive contribution will not go unnoticed.”
And indeed, it is precisely that – a career defined by humility, excellence and a quiet dedication – that will stand as the legacy of Justice Michael Buss: now former President of the Court of Appeal of Western Australia.
