Man of choice words and keen judgments
In March Patrick Keane will be sworn in as the 50th High Court judge, writes Lucy Battersby.
THE next judge to arrive at the High Court is a 60-year-old Queenslander who still writes his thousand-word judgments with a fountain pen and once dreamed of playing cricket professionally.
He is a voracious reader of history and literature, a strong family man and his personal opinions are considered left of centre. However, his peers say any personal opinions are unlikely to get in the way of what is considered one of the best legal minds in Australia.
Patrick Anthony Keane, QC, will move from the top job at the Federal Court to the High Court in early March.
He was appointed Chief Justice of the Federal Court in early 2010 and at the time journalists labelled him a "technophobe" because he did not have a mobile phone and preferred longhand to typing. However, his preference for fountain pens is not based on traditionalism, but quite reasonable concerns that technology encourages superfluous information and wastes time, particularly in litigation. He admits he is sceptical of technology, but does not agree that he is intimidated by it.
"What makes litigation efficient, quick and cheap is the application of critical human intelligence to data . . . The passive gathering of vast amounts of data does not help," Keane said in an extended interview in the court's Melbourne offices last week.
The truth is, Keane is known for writing judgments faster than his peers. And one can imagine that writing by hand concentrates the mind onto the simplest and most necessary words.
Keane now has a mobile phone - which he calls a "ball and chain" - and an iPad, which does not get much use.
In March Keane will become the 50th appointment to Australia's High Court. He is one of two appointments made by former attorney-general Nicola Roxon and replaces Justice John Dyson Heydon, who is on the record saying he also would have preferred to have been a cricketer.
Roxon's other appointment is former Commonwealth solicitor-general Stephen Gageler, who last year replaced Justice William Gummow.
On the way out the Federal Court doors, Keane spoke out against funding constraints and the government's decision to increase filing fees substantially. "I think, frankly, the Commonwealth gets a very big bang for its buck out of the [Federal] Court. They buy a lot of justice for that [amount]."
Funding shortages put judges and administrative staff under pressure and curtailed community programs.
Allocations to the Federal Court were $93.5 million in the 2010 budget, but were cut to $89.7 million in 2011 and raised slightly to $90.2 million in 2012. The number of judges has fallen from 50 to 44 in that time and staff numbers have stagnated, but the court's workload has increased 20 per cent, Keane says.
Despite the funding problems and a decline in the number of judges, the Federal Court still exceeds its performance targets.
"The judges have been absolutely heroic over the past three years," Keane says.
"When the global financial crisis hit, obviously money was really really tight and we had to ask the judges to do more with less. And they have been great, they have just been terrific. For three years they have stepped up and done it cheerfully, and, I have to say, really well."
But an important pilot program with the Queensland Public Interest Law Clearing House was cut because of shortages. Volunteer lawyers from QPILCH helped self-represented litigants either to clarify their cases so they had a better chance of winning, or explained why a case would never be successful. This kept unnecessary and time-consuming cases out of the court, a useful outcome given a recent survey of judges' workloads found more than half of magistrates and 15 per cent of judges reported their time was "often or always" taken up by unrepresented litigants.
"When money is not so tight it should be one of the first things we should renew and I would hope it is something that we will look at in the other cities," Keane says.
Attorney-General Mark Dreyfus said higher fees reflected the capacity of some litigants to pay more and encouraged mediation. "Courts have been expensive to operate and fees have been increased to help meet some of the costs," he said." It will allow additional funding of $38 million over four years."
A spokeswoman said the court got up to $26 million in services, such as office space, from other government departments. And would receive extra funding of just under $1 million annually for the next four years "to help maintain and improve services".
Keane grew up in Wilston, a middle-class suburb north of Brisbane city, and attended the local Catholic primary school. He loved cricket and dreamed of playing professionally. Unfortunately his natural gifts were more intellectual than physical. He started thinking about law when he was about 14, following a process of elimination.
"I was hopeless at maths and I knew I couldn't bear the sight of blood. So I couldn't be an engineer and I couldn't be a doctor. But I did like words and I liked English and I liked languages. I liked the idea of the rule of words and putting arguments together and I liked history. And the law is the natural place for people with those interests to go," he says.
After attending St Joseph's College, Gregory Terrace, in Brisbane, Keane moved to the University of Queensland. He studied law until 1976, and received numerous prizes along the way.
Keane started as a clerk at Roberts & Kane Solicitors and was then headhunted by a firm called Feez Ruthning [now Allens Linklaters], by one of the partners, Martin Kriewaldt.
He took a year off work after receiving a scholarship for postgraduate study at Oxford University. He returned to Feez Ruthning, where he worked as a solicitor even though he was admitted to the bar in 1978.
Kriewaldt says the firm had heard of Keane's reputation while he was still at university.
Kriewaldt describes him as an intelligent and quick learner who reads widely and rapidly - a genuine "Renaissance man".
"I would be staggered if there is a lawyer in Australia who knows [Keane] who does not think his is an absolutely perfect appointment to the High Court," Kriewaldt says.
While Keane's social views are "left of centre", this is unlikely to affect how he interprets law, Kriewaldt says.
"I think Pat is too fine a lawyer to allow his personal ethical views of what is right and wrong to get in the way of his legal duties. I would back Pat's legal duty to win every time."
Keane became a Queen's counsel at age 36 in 1988, and practised as a barrister until 2005. In 1992 he added Queensland solicitor-general to his list of duties.
He says it was nearly 30 years before he felt a desire to move to the other side of the bench. "Being an adversary in the adversarial system means you make an argument, you put it up and then someone else decides it. And eventually you just do start to feel that you would like to finish the story yourself," he explains.
"I think if you ask any Australian lawyer if they would like to go to the High Court, the answer would be yes. I didn't think about being a judge for long, long time because I was very happy doing what I was doing, especially when I was solicitor-general for Queensland."
In 2005 Keane became a judge on the Queensland Court of Appeal. After five years he was appointed Chief Justice of the Federal Court, the third person to hold the role after Sir Nigel Bowen and Michael Black.
As to what kind of High Court judge Keane will be, former attorney-general Robert McClelland, who appointed him Chief Justice, says 13 years as Queensland's top legal gun will have an influence.
"Coming from a background of the Queensland solicitor-general, [Keane] will be anxious to ensure any intrusion on state laws is appropriate and justified, whereas Stephen Gageler, coming from the perspective of the Commonwealth solicitor-general, will have a greater inclination to uphold Commonwealth executive law. But I am sure they will work out that tension. They are such fine lawyers and very decent people," McClelland says.
Keane's public speeches reveal what he thinks about in spare time and the influence of his Catholic upbringing. In 2011 he argued that the US Supreme Court was wrong to find the Second Amendment did in fact allow citizens to buy and carry weapons freely. "I thought that was a radical reading of the words of the constitution that were giving effect to a view of the world that was not warranted by the constitutional language. And judges should be very careful about doing that sort of thing. Judges should have a modest view of their place in, and ability to interpret, history," he explains.
Keane says he will interpret the Australian constitution by looking at the words and using precedents already set by the High Court. He describes the Australian constitution as a spare - as in thin - document that does not seek to "tie the hands of future generations".
There are also hints to Keane's personal moral compass in some of his speeches. In 2010 he described the Book of Deuteronomy - part of the Old Testament - as a story that gave "an example of a shared national morality that inspires its people to be generous, even to strangers".
"The idea [of Deuteronomy] is that we should treat everyone who comes within our borders, including complete strangers afflicted by misfortune, not just with respect and dignity, but with generosity, because we too have - at some time - been ourselves saved, without any particular merit on our part, from the misfortunes which are part of the human condition," he said in a speech at Monash University.
Keane will be sworn in to the High Court in Canberra on March 5.