On the eve of his retirement, New South Wales Supreme Court Chief Justice Tom Bathurst is calling the court out for failing Indigenous people and dragging the chain on diversity.
A decade after he was chosen to lead a team of about 50 judges, some things about the Supreme Court are changing quickly, he says, but others not quickly enough.
The 74-year-old has welcomed the increased use of audiovisual technology forced on the court by COVID-19 lockdowns.
"Communities change, so courts need to change. There are always new ideas to make the court more efficient," he said.
However, the top judge said the court still did not have enough women in senior roles and it needed to become more culturally diverse.
"That diversity means the community can feel closer to the court and it promotes trust in the court.
"People who come from different ethnic backgrounds, different gender and different sexual orientation, are part of the structure."
Chief Justice Bathurst also retires feeling troubled by Australia's high Indigenous incarceration rate and says the justice system is letting Indigenous people down.
"It is a tool of injustice because there is a lack of appreciation of Indigenous customs, so in a sense it is white man's justice."
In 2018, he was on a New South Wales Court of Criminal Appeal panel that ruled a man should not be retried for the murders of two Indigenous children, or tried for the murder of a third child at Bowraville on the state's Mid North Coast.
The man was acquitted at separate trials of the murders of Evelyn Greenup, 4, and Clinton Speedy-Deroux, 16, after their bodies were found in bushland in the early 1990s.
The third child, Colleen Walker, has not been seen since 1990 and was later ruled dead by a coroner.
Chief Justice Bathurst said he arrived at his appeal decision with a heavy heart, because the initial police investigation into the deaths was appalling.
"To lose children like that and to wait for 30 years and finally have it rejected, was devastating for the families. It's one of the hardest things I've done.
"As soon as judges act idiosyncratically, there's a total lack of confidence in the profession."
Striving to build confidence in the court is part of his legacy.
New South Wales Law Society President Joanne van der Plaat said he had shown respect for every litigant who came before the court.
"He has also maintained the independence of the judiciary," she said.
New South Wales Attorney-General Mark Speakman said he had been a champion of striving to make the court more accessible to the public.
"There's a lot of mystique and misunderstanding about the law. It's important that the court explains what it does," he said.
Chief Justice Bathurst flagged that cutting edge DNA evidence, such as the evidence presented at the trial for Robert Xie, who was convicted of murdering Sydney's Lin family, would become more common, challenging future juries and the judges that have to explain it to them.
He said he was shocked by the evidence of endemic corruption that recently emerged during the criminal trials for former Labor politicians Eddie Obeid and Ian Macdonald.
"It shows that there needs to be a continuing vigilance of it and when it's found out, dealt with severely."
While the court has recently had to deal with unprecedented challenges to COVID vaccine mandates, the Chief Justice said the cases were not about whether the policies were a good idea.
"That is not the court function, which is to ensure the appropriate processes have been followed.
"The balance of rights and public health protection is not up to the court, it is up to legislators. The facts were new, but legally the cases were not new."
The Chief Justice said his mother, Australian tennis champion and Wimbledon finalist Joan Hartigan, taught him perseverance and empathy, which he said was an important part of being a judge.
He said he hoped the court would continue to be outward-looking and would adapt to changing conditions, but said it would be presumptuous to give any advice for his successor, Justice Andrew Bell, who takes over after March 5.
"Sooner or later you have to work it out for yourself."
