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A reasonable person
In a career spanning over three decades, High Court Justice Michael Kirby has emerged as one of Australia’s most prominent and controversial judges. Dubbed “The Great Dissenter”, Justice Kirby is widely regarded as a champion of the minorities. Often citing international human rights principles and aligning judgments with wider perceptions of justice, he has injected humanity and compassion into a system renowned for its unyielding conservatism.
Now Australia’s longest-serving judge, Justice Kirby is nearing the end of his tenure and questions are being raised about his legacy. Will he be remembered as a brilliant mind, or his pioneering approach to justice and service to the Australian community? Or will he be resigned as a footnote in the public consciousness as the High Court’s first openly gay justice?
Born into a working-class family of Irish descent, Kirby grew up in Concord. He attended the local public school and was later accepted into the selective Fort Street High School, which has produced four justices of the High Court. Describing his upbringing as “rather ordinary”, Justice Kirby believes that his background has heavily influenced his values and approach to decision-making.
“I went to public schools, and I think that gives you a sense of contact with the values of all Australians. That’s because the children in the schools were of people of different backgrounds, different religions or no religion, different ethnicity, different parental wealth,” Justice Kirby says.
“That is a good thing in a democracy for a judge to grow up with, because it means you can empathise with everybody, not just the big end of town.”
Upon completing high school, Kirby went on to study law at the University of Sydney, describing this decision as a “process of elimination”.
“I worked it out very methodically,” he recounts. “Mathematics wasn’t my best subject; I didn’t feel I was spiritual enough to be a minister of religion; I wasn’t patient enough to be a teacher; and the idea of cutting up frogs and rats at university put me off medicine. So I ended up with law.”
Admitted to the NSW Bar in 1967, Kirby’s early career was characterised by tribunal work. In 1983 he became the youngest man appointed to the Federal Court of Australia, after which he served as president of the NSW Court of Appeal. In 1996 he was selected to become the 40th Justice of the High Court, an appointment that came as a surprise to many political commentators.
“I hope they weren’t surprised because they didn’t think I was up to it. Perhaps if people were surprised – [and] no one told me at the time – it was because there has been a bit of a tendency to appoint to the High Court people who have never said too much about their values,” Justice Kirby says.
“Because I had served as chairman of the Australian Law Reform Commission for 10 years and in other public positions, I’d been quite candid and transparent about what mattered to me,” he says.
“With most lawyers you don’t quite know what their values are and therefore how they will act as a judge, but in my case, everybody who bothered to look at the newspapers over the last 20 years would know where I was coming from and the matter that were important to me.”
During his time on the bench, Justice Kirby has often been criticised for allowing his personal beliefs to impact his decision-making. But he says it is an unavoidable consequence that is common to all judges, and those making such criticisms show a lack of understanding of the judicial system. The judge rejects suggestions that judges should and can be objective, arguing that every judge will have a different take on the law.
“Every judge’s personal feelings affect their judgments. Judges have to interpret the constitution, which is a very brief document. Judges have to interpret and give effect to laws made by parliament, which are expressed in language of great generality. Judges have to find and declare the common law in completely new circumstances,” he says.
“This is not ‘automatic pilot’ business. This is the matter of determining value-loaded decisions. I’m just more open about it … It’s very important for judges to be completely candid and honest and truthful about themselves and their lives and their values.”
While acknowledging this personal element to the judicial process, Justice Kirby stops short of embracing the term “judicial activist”. He believes the label is problematic as “it tends to be used by conservative people as code language for people who make decisions improperly”. He does admit, however, that there is a degree of activism in the law, something that he argues should be embraced where necessary.
“For hundreds of years judges in our legal tradition have been expressing and developing the law. No one calls that activism. That is simply the process of the way the common law evolves,” the judge says.
“If I see injustice I don’t just sit there and accept it. I see whether within the law I can cure the injustice according to law. That’s in effect what I swore I would do when I became a judge. Law is about upholding the rules but also upholding justices.”
It is perhaps for these reasons that Justice Kirby has dissented from his notoriously less-liberal colleagues on so many occasions, leaving him with the highest rate of dissent of any justice in the High Court’s history. He is candid in admitting that his relationship with the six other justices is one of professionalism rather than love, but despite being seemingly isolated on the bench, Justice Kirby says he has never felt any external pressure to follow suit.
“It’s much easier for you if you do. All you have to do then is send around a piece of paper saying ‘I agree’ and you don’t have to write anything. You can just swim in the pool and have another gin and tonic on the weekend. So that’s a sort of indirect pressure, but I don’t think it’s a correct pressure and it’s one to which I never succumb,” he says.
Justice Kirby believes that the history of the law in Australia is that dissent can influence the way future generations think about problems. “As such, I express my opinion … and then it’s over to others to consider whether in the future they will accept the approach that I have suggested, or persist with the approach that others in the majority have accepted.”
Though he often disagrees with the judgments of his learned colleagues, Justice Kirby says he has never regretted the decisions that have not gone his way. “That’s they way the legal system works … I don’t lose any sleep over it because I know in the court, as in parliament, we live by the rule of democracy.”
Perhaps because of his tendency to be more in line with public opinion, Justice Kirby is one of the better-known justices of the High Court, with his judgments often cited in law schools across the country. Justice Kirby attributes this to his working-class background, as well as to communication skills.
“Law students tell me that my reasons are more accessible than others. I think that’s partly because of my background, but also partly because I know the value of the full stop and of the subheading and of white space on a page and of dot-points.”
While in the past, outgoing High Court justices have voiced preferences for their replacements, this is something the usually outspoken Justice Kirby refrains from doing. Though he acknowledges that this is an unusual position, he deems it the correct one.
“I don’t believe judges should be involved in the appointment of their successors, otherwise clone-like reproductions occur, and that’s not how the world develops creatively. The societies in history that have been most creative have been polyglot societies made up of people of different ethnicities and backgrounds and attitudes.”
But while stopping short of naming a specific replacement, Justice Kirby does comment on the qualities he would like to see in future High Court appointees.
“A great court is made up of a diversity of opinion and values. I think we can do with a few ‘capital-L’, or ‘small-l’ liberals on the High Court, and I would hope that is what will happen … Australia is changing, and it’s important that the values of the highest court in the nation should approximate, or at least be aware of the differing values in the whole nation,” he says.
“There’s never been an Asian-Australian on the High Court, probably because when I was growing up, the composition of the community at that time was not reflective of the changing composition today. But I hope I live to see a change in the composition of the judiciary over time to reflect the increasing numbers of Asian-Australians, Arab-Australians, and more recently African-Australians. It is very boring to live in a monochrome society.”
Despite a tendency to err on the side of caution, or respect, when speaking of his fellow High Court justices, Justice Kirby does comment positively on the recent additions to the bench.
“I think it’s a good thing to have women in the High Court. It’s a good thing to have a diverse judiciary because our country is diverse,” he says. “The appointment of justices Crennan and Keifel has meant that now we have two very firm and unwavering voices who can express the different experience of women in society and in the law.”
Of his plans for the future, Justice Kirby says he looks forward to a “quiet old retirement”. But having stated in the past that “my life is work”, Justice Kirby is unlikely to fade into the background. Having worked on a number of boards and committees, and with a strong interest in human rights, it is expected that Justice Kirby will further pursue these interests. But when pressed to elaborate, he provides an ambiguous response.
“I’m so busy surviving from day to day that I don’t worry about what will happen in the future. Something will turn up. It always has in my life.”
Michael Romei and Zoya Sheftalovich are freelance writers for Lawyers Weekly
23-Apr-2008
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