Q and A with Asian Law Centre's visiting Japanese judge, Judge Aya Kobayashi
Ms Stacey Steele, Associate Director (Japan) at the Law School's Asian Law Centre, caught up with the Centre's 12th Japanese Judge-in-Residence after a recent presentation at MLS. Judge Kobayashi shares her views about her life in Australian and her preliminary thoughts about Australian class actions.
Judge Kobayashi, welcome belatedly to Australia!
Thank you. I am having a wonderfully productive time at the Asian Law Centre as a Visiting Research Scholar since arriving in June 2014. Thank you for having me. I can't believe that I will be going home to Japan in 3 months' time.
Judge Kobayashi, many MLS graduates would wonder why a judge from Japan needs to spend 12 months in Australia on exchange. What is the purpose of your stay?
I have come to Australia as a part of the program provided by the Supreme Court of Japan. The purpose of the program is that to give junior judges opportunities to expand their views and gain pregnant insights through living abroad and researching judicial systems or practices outside of Japan. I think the program is very important for junior judges given that basically judges in Japan are appointed at much younger age than here with no experiences as lawyers.
Can you describe the pathway to becoming a judge in Japan?
Under a new system introduced in 2004, we have to go to law school to study a Juris Doctor
degree, and then sit the national bar examination. After passing the national bar examination, we have to complete one year practical training at the Legal Training and Research Institute to become a judge, a public prosecutor or a lawyer. Lower court judges are appointed by the Cabinet from lists of candidates nominated by the Supreme Court. As a rule, the nomination of lower court judges requires the advice of the Advisory Committee for the Nomination of Lower-Court Judges.
Assistant judges are allowed on the bench, but are not authorized to act as the only judge hearing a case. They sit as a member of a three-judge panel and assist the presiding judge. The Supreme Court may assign assistant judges with more than five years' experience to sit on the bench alone.They are under a lot of pressure and must keep up with latest legislation and thinking. The Supreme Court offers many training programs, but I think learning on the job with senior judges is the most rewarding and effective training in Japan.
So, what do you think you have learned during your time in Melbourne?
My research has focused on family law and class actions. I am extremely grateful for the generosity of Justice Victoria Bennett at the Family Court of Australia. Justice Bennett is a Hague Convention Network Judge, and assisted me to develop my understanding of cross-border family disputes. I have been able to attend many cases, sit with Justice Bennett and read case materials where appropriate. This area of law is a hot topic in Japan, which only adopted the Hague Convention on the Civil Aspects of International Child Abduction last year.
We are very fortunate to have the support of many MLS alumni and other legal professionals in Melbourne for our Judges-in-Residence program! Tell us more about your research on class actions.
I am also grateful for the generosity of judges and lawyers who have been helping me with my research on class actions. In Japan we have the proceedings which one of group of people can seek for judgement for the group but the structures are very different from Australian class actions, and as far as I know those proceedings are not widely used. Japan will introduce new consumer class actions but again the structure is very different from Australian class actions. Those cases which would be filed as class actions here are usually filed as a normal proceedings by number of plaintiffs represented by the same lawyers. The goal of resolving disputes is the same here and Japan, but we have different procedures. It is very interesting to me to find those differences.
What is your view of Australian class actions?
I am still developing my thinking on class actions, but it has been of great assistance to me to observe litigation and speak with judges and lawyers involved in the Bushfires' class action, for example. I plan to present my findings and observations at a special lecture hosted by the Asian Law Centre in May before I return to Japan. I hope that everyone who assisted me with my research will attend, and we can discuss this issue further.
Judge Kobayashi, it sounds like you have been very busy in Melbourne. What will you miss most when you return to Japan in June?
All the people I have met here. I had set my research theme on family law and class actions but my interest is expanding to other areas since I came to Melbourne and I have met a lot of people, judges, lawyers, professors and so on. I have been very much enjoying talking with them about judicial system and practices in Australia and I have been always impressed by their kindness and generousness. I can never thank them enough. When I was in Japan, I only knew that Melbourne is the most liveable city in the world, but now I know that people in Melbourne is the most generous people in the world.
Judge Kobayashi, during your time at MLS, you've taken a JD and LLM subject. Did you notice any differences between teaching and students in Australia and Japan?
I think that students of law schools in Japan spend almost all the time including weekends and holidays preparing and reviewing lectures as well as studying for the national bar examination. When I was in law school, study room was always full from early morning till late night every day and there were few students who had part time job or did things other than studying except for doing internship or externship at law firms. But here, I am amazed at all of the extra-curricular activities that the students undertake in Australia. Your research assistants have been a wonderful help to me and my judicial colleagues who have visited Melbourne on a short-term basis during my time here. Just recently, Ms Sarah Yang, a JD student, helped organise an intensive visit by a judge and court clerk who were researching the Hague Convention.
Tell us more about these short-term visitors.
Each year, the Supreme Court of Japan sends a few visitors on a short-term basis to Australia with specific research topics or tasks. This week, for example, another visiting judge researching about legal education, visited numerous institutions, including the Federal Court of Australia, Victorian Bar Council, Supreme Court of Victoria, Judicial College of Victoria, Leo Cussens and Ashurst. I accompanied her on all of these visits.
It must have been helpful for the short-term visitors to have you accompany them given your knowledge of the Australian legal system and excellent English. Did you learn English when you were a student in Japan?
Yes. English is compulsory subject at junior high, high school and university in Japan. But I think most Japanese is not good at speaking English when you think about the duration we study English at schools. My English improved a lot when I took one year leave from high school in Japan and studied in the USA. You say my English is good but I want to apologize to people who have helped me with my researches and thank them for being patient with my poor English.
Judge Kobayashi, I am so glad that you have found your time with us productive and enjoyable. Thank you very much for your time today to talk about your experiences. We hope that you enjoy the rest of your stay at the Asian Law Centre and MLS.
Thank you for your generous hospitality!