- Kirby set to retire
- The Herald Sun
- 01/02/2009 Make a Comment
- Contributed by: The Rooster ( 258 articles in 2009 )
MICHAEL Kirby will leave a huge hole when he leaves the High Court of Australia after 13 years of unprecedented dissent.
The "Great Dissenter" goes tomorrow, five weeks short of his 70th birthday when retirement from Australia's highest court is mandatory.
It's unlikely the court will see another quite like him - a judge who is a public intellectual and publicist for the law, a judicial activist and defender of human rights, a gay with a 40-year relationship, an Anglican monarchist.
Some who know him well believe he might have gone into politics if it hadn't been for his sexuality.
He's said that if he had his time again he'd be a historian.
Almost all his life he's been a boundlessly energetic reader, writer, speaker and all round engager in public issues - starting with Sydney University where, on his way to four degrees, he was president of the Student Representative Council and the university union.
His biographer, A J Brown of Griffith University, says he was heavily influenced at university by Julius Stone, who believed the law should be put into its social and economic contexts.
By the late 1960s he was active in the NSW Council of Civil Liberties.
In 1975 Kirby was appointed a deputy president of the Conciliation and Arbitration Commission and first chair of the new Australian Law Reform Commission.
Brown says he could have made the new body a technical forum where lawyers talked about lawyers' problems.
Instead, with his flair for publicity, he gave it a high profile as an agency engaged in the intersection of the law with the issues of the day.
An example was its work on privacy, which became the basis of the public sector's privacy regime and was later expanded to private companies.
After a brief stint on the federal Court, he became president of the NSW Court of Appeal in 1984.
Then premier Neville Wran told Brown that his choice was between an existing judge, or a young go-getter who'd bring cultural change to the court.
Kirby nailed his colours to the mast early by finding, in the Osmond case, that citizens have a common law right to be given reasons for government decisions affecting them.
It was a classic piece of judicial activism that was overturned by the High Court.
He also made the court more collegial with innovations like breakfasts where he plied his fellow judges with raisin toast.
He never found such congeniality on the High Court, to which the Keating government, shortly before its defeat, appointed him in February 1996.
Over the following years he became the court's best known figure, mainly because of his dissents and his innumerable speeches - over his career more than 2,000 published and no-one knows how many others.
Director of the Gilbert+Tobin Centre for Public Law at the University of NSW Andrew Lynch says Kirby's overall dissent rate was about 33 per cent, and up to 50 per cent in some years. The next highest in the court's history was Lionel Murphy at 21 per cent.
Yet Kirby believes, and Lynch agrees, that his dissent rate would have been much lower if he'd been a member of Anthony Mason's court.
Lynch says Kirby's defining methodology was that of an internationalist who refused to see Australian law in isolation from overseas ideas, particularly in relation to human rights.
Brown says Kirby is regarded as much less radical in Europe than Australia.
Kirby himself has said he's inspired by a love of fellow human beings and a duty to do, within the law, what he can to prevent the pain and misery that injustice can cause.
And he sees his dissents as an appeal to the future, with no doubt some of them will be revisited: "Everyone knows that, in the judiciary, today's dissent occasionally becomes tomorrow's orthodoxy."
In 2004 alone, his dissents included attempts to limit:
- The power of federal authorities to detain indefinitely a stateless person who couldn't return to his own country;
- the power of federal officials potentially to expel many British subjects as aliens;
- the power of state parliaments to engage judges in the indefinite detention of prisoners who have completed their jail sentences; and
- the expansion of the powers of military tribunals over civilian-type offences.
In the first of these, the Al-Kateb case, Kirby wrote that the majority view could have "grave implications for the liberty of the individual" and "tragic outcomes are best repaired before they become a settled rule of the constitution".
Kirby's sexuality - though he only made his long partnership with Johan van Vloten public in 1999 - was one of the wellsprings of his human rights concerns.
In 2002 he was keynote speaker at the opening of the Syd
ney Gay Games and he has criticised the Anglican and Catholic attitudes to gays. One of his worst moments came when Liberal se
nator Bill Heffernan used parliamentary privilege to accuse Kirby of misusing his commonwealth car entitlements and of kerb crawling
for under-age male prostitutes. Heffernan's evidence was forged and he had to apologise. Kirby accepted it gracefully. As eve
r, whatever the provocation or dispute, he was courteous. Kirby's extra-judicial activities were legion. They included p
resident of the International Commission of Jurists, UN Special Representative in Cambodia, member of the ethics committee of the Hu
man Genome Organisation, and a member of expert international panels on AIDS, privacy and data security. No one thinks that hi
s retirement from the High Court means we've heard the last of him.
The "Great Dissenter" goes tomorrow, five weeks short of his 70th birthday when retirement from Australia's highest court is mandatory.
It's unlikely the court will see another quite like him - a judge who is a public intellectual and publicist for the law, a judicial activist and defender of human rights, a gay with a 40-year relationship, an Anglican monarchist.
Some who know him well believe he might have gone into politics if it hadn't been for his sexuality.
He's said that if he had his time again he'd be a historian.
Almost all his life he's been a boundlessly energetic reader, writer, speaker and all round engager in public issues - starting with Sydney University where, on his way to four degrees, he was president of the Student Representative Council and the university union.
His biographer, A J Brown of Griffith University, says he was heavily influenced at university by Julius Stone, who believed the law should be put into its social and economic contexts.
By the late 1960s he was active in the NSW Council of Civil Liberties.
In 1975 Kirby was appointed a deputy president of the Conciliation and Arbitration Commission and first chair of the new Australian Law Reform Commission.
Brown says he could have made the new body a technical forum where lawyers talked about lawyers' problems.
Instead, with his flair for publicity, he gave it a high profile as an agency engaged in the intersection of the law with the issues of the day.
An example was its work on privacy, which became the basis of the public sector's privacy regime and was later expanded to private companies.
After a brief stint on the federal Court, he became president of the NSW Court of Appeal in 1984.
Then premier Neville Wran told Brown that his choice was between an existing judge, or a young go-getter who'd bring cultural change to the court.
Kirby nailed his colours to the mast early by finding, in the Osmond case, that citizens have a common law right to be given reasons for government decisions affecting them.
It was a classic piece of judicial activism that was overturned by the High Court.
He also made the court more collegial with innovations like breakfasts where he plied his fellow judges with raisin toast.
He never found such congeniality on the High Court, to which the Keating government, shortly before its defeat, appointed him in February 1996.
Over the following years he became the court's best known figure, mainly because of his dissents and his innumerable speeches - over his career more than 2,000 published and no-one knows how many others.
Director of the Gilbert+Tobin Centre for Public Law at the University of NSW Andrew Lynch says Kirby's overall dissent rate was about 33 per cent, and up to 50 per cent in some years. The next highest in the court's history was Lionel Murphy at 21 per cent.
Yet Kirby believes, and Lynch agrees, that his dissent rate would have been much lower if he'd been a member of Anthony Mason's court.
Lynch says Kirby's defining methodology was that of an internationalist who refused to see Australian law in isolation from overseas ideas, particularly in relation to human rights.
Brown says Kirby is regarded as much less radical in Europe than Australia.
Kirby himself has said he's inspired by a love of fellow human beings and a duty to do, within the law, what he can to prevent the pain and misery that injustice can cause.
And he sees his dissents as an appeal to the future, with no doubt some of them will be revisited: "Everyone knows that, in the judiciary, today's dissent occasionally becomes tomorrow's orthodoxy."
In 2004 alone, his dissents included attempts to limit:
- The power of federal authorities to detain indefinitely a stateless person who couldn't return to his own country;
- the power of federal officials potentially to expel many British subjects as aliens;
- the power of state parliaments to engage judges in the indefinite detention of prisoners who have completed their jail sentences; and
- the expansion of the powers of military tribunals over civilian-type offences.
In the first of these, the Al-Kateb case, Kirby wrote that the majority view could have "grave implications for the liberty of the individual" and "tragic outcomes are best repaired before they become a settled rule of the constitution".
Kirby's sexuality - though he only made his long partnership with Johan van Vloten public in 1999 - was one of the wellsprings of his human rights concerns.
In 2002 he was keynote speaker at the opening of the Syd
ney Gay Games and he has criticised the Anglican and Catholic attitudes to gays. One of his worst moments came when Liberal se
nator Bill Heffernan used parliamentary privilege to accuse Kirby of misusing his commonwealth car entitlements and of kerb crawling
for under-age male prostitutes. Heffernan's evidence was forged and he had to apologise. Kirby accepted it gracefully. As eve
r, whatever the provocation or dispute, he was courteous. Kirby's extra-judicial activities were legion. They included p
resident of the International Commission of Jurists, UN Special Representative in Cambodia, member of the ethics committee of the Hu
man Genome Organisation, and a member of expert international panels on AIDS, privacy and data security. No one thinks that hi
s retirement from the High Court means we've heard the last of him.
Source: https://www.news.com.au/heraldsun/story/0,21985,24991948-662,00.html
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