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Kirby biography records High Court dissent

Kirby biography records High Court dissent

AJ Brown's Michael Kirby biography explores a controversial period of the High Court and the man who stood at the centre of it all. The writer tells Angela Priestley how he won access to Kirby…

AJ Brown's Michael Kirby biography explores a controversial period of the High Court and the man who stood at the centre of it all. The writer tells Angela Priestley how he won access to Kirby through an essay-writing contest

It was in 1986 that AJ Brown first met Michael Kirby.

The encounter with the man who would soon become a High Court judge was unusual; meeting Michael Kirby was the first prize in a law school essay writing content organised by the University of NSW.

"I put a bit of effort in [to the essay] thinking it would be wonderful to meet Michael Kirby," AJ Brown tells Lawyers Weekly. "Consequently, I won the prize and got to have morning tea with him. That was the beginning of my understanding of what a paradoxical character he is."

Fifteen years later, Brown continues to be perplexed by the paradoxical nature of Kirby. But, having spent a number of years researching his life and career, he is closer to understanding the man than most of us could ever hope.

Today (5 April), he is launching his biography of the man, Michael Kirby Paradoxes | Principles at two events in Sydney and Brisbane.

Brown, a professor at Griffith University, maintained contact with Kirby ever since that initial encounter, noting his continued curiosity regarding how the Michael Kirby he knew from the media and his law reform persona could be so different from the Michael Kirby he met in person.

"He was a much more conservative, traditionalist character in person than the progressive, modern and slightly radical reformist figure that his public reputation suggested," says Brown.

It was during a later encounter that Kirby told Brown a number of people had approached him regarding an interest in writing his biography. He made it clear he wanted a lawyer to write it, rather than a journalist.

Realising that somebody would eventually become Kirby's biographer, Brown decided to pitch it as his first major academic project. "I thought, it needs to be written by somebody who is conscious and aware of the extent of these paradoxes because otherwise it could be a really inaccurate biography," Brown says.

When Brown started his research, Kirby was still on the High Court. Indeed, plenty of the controversies to plagues the High Court and Kirby's career had either just, or were still yet to break, giving Brown a front-seat view.

Of particular interest were false allegations made by Senator Bill Heffernan that Kirby had used Commonwealth cars for sexual purposes that consequently divided the High Court.

In the book, Brown reveals that the judges were the first to know that the accusations were false. Justice Mary Gaudron became the High Court's "first whistleblower" after her urgings to chief justice Murray Gleeson to put out a joint-statement declaring their united support for Kirby fell on deaf ears.

The author provides some clarity to what was a controversial period for the High Court of Australia and the Howard Government, telling Lawyers Weekly he's provided "his best assessment" of the incident via extensive document research, FOI requests and interviews.

But, just as importantly, Brown sought to document the general inner workings of the High Court and Kirby's unique working character by exploring the man's draft judgments, memos and communications with associates after judgments were handed down.

Consequently, Brown uncovered some significant issues regarding the process of joint judgment writing.

"Some people will find that controversial," says Brown. "There's always been this traditional illusion that judgments get completed by the court whole and complete, but they are the product of months and months of drafting and circulation of drafts, refinement. It's a process that's very important."

It was not until much later in the research process that Brown actually interviewed Kirby, using, he says, his "forensic instinct" as a lawyer. "I zeroed in on the documents first, and anything relevant to his life," he says. "I figured I would cross examine him on the evidence at the end of the process, rather than at the beginning."

As for Kirby's initial reactions to the manuscript, Brown says Kirby has offered little response just yet.

"He's working from the presumption that it's factually accurate and well researched," says Brown, who concedes their may be some arguments regarding some interpretations of events. "We're going to have some interesting discussions for years to come."

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