One of the things I’ve done in recent times — the last two decades — is to be involved in some aspects of HIV and AIDS. And in that work I used to go to a series of meetings on Lake Annecy in the very earliest days of AIDS — this is 1984 — with Jonathan Mann.

Jonathan Mann was the first director of the global program on AIDS and he was appointed to that job because the director-general of the WHO, Dr Halfdan Mahler from Denmark, had gone down to Congo while Jonathan Mann was there. In the middle of a thunderstorm Mann told Dr Mahler of this strange new virus that had broken out in Congo and that was really terribly important, very frightening and very urgent. Fortunately, in one of those moments in world history, Dr Mahler was listening, and he called Jonathan Mann back to Geneva and we began the huge world effort to respond to this great threat to our species.

One of the people who turned up to one of these meetings that Mann organised was a very young scientist who seemed a very modest and rather unimpressive sort of a guy, but I was later told that’s David Baltimore. That’s David Baltimore of Caltech, that’s David Baltimore who won the Nobel Prize — and he won his prize because he was very interested in a very strange virus which he’d detected in West African monkeys. About 15 years before HIV came on the scene he started work on this retrovirus and his work on the retrovirus put humanity 15 years ahead when HIV was detected, captured and analysed. It was his work on the pure science the Simian virus that gave us a good start.

So I couldn’t agree with you more that in science it’s the people who are just interested that make the breakthroughs. They don’t necessarily see any immediate profit or any immediate gain — they are just working because it’s fascinating. The science and technology that brings us together tonight is a science and technology that really grew out of the fascinating mind of human beings, and in our little ways we have been watchers and contributors to this development.

The Australian Law Reform Commission

In my own life I was really fortunate in that I was appointed to the Law Reform Commission. I had just been appointed to the Australian Conciliation and Arbitration Commission in 19 December 1974 and people say to me “but you knew you were going to go on to the Law Reform Commission and then on to other courts and so on”. But I didn’t.

It’s very hard for us in this day and age to realise how important the arbitration commission was in the fabric of our country back in 1974, next only to the High Court of Australia it was probably the most influential, powerful tribunal in the nation — deciding the national wage case, the loadings, the equal pay case, the aboriginal pay case and so on.

So I was just appointed to the commission and then Lionel Murphy met me in the lift at Temple Court, because his chambers as Commonwealth attorney-general were on the top floor, and my chambers as the deputy president of the arbitration commission were on level 7. He came in the lift and said “oh come up and see me. I’ll open a bottle of champagne”.

So I went up saw him and he offered me the chairmanship of the Law Reform Commission. And I have to tell you — and this is how important it is to have imagination — I was very dubious about this — I had just been appointed a judge! I was “Mr Justice” and I wanted to go settling all the great disputes of the nation. But Lionel was very persistent.

He opened his champagne and brought in Geoffrey Robertson of Hypothetical fame, who happened to be making a visit to our domain that week. Geoffrey knew about the English Law Commission and he knew about Lord Scarman, Sir Leslie Scarman then, and he said “you have to take this; it’s a wonderful job, a very important job”.

I ultimately took the job and the gratitude I feel for that opportunity is that it led my mind into something I may never have otherwise discovered and that is the fascinating interrelationship between the law and technology. It was inevitable that this interrelationship would become important — certainly after the Second World War because of the interconnection of the technologies.

To win the war the allies had to split the atom; they created the bomb; they had to have the rockets to deliver the bomb; and to have the rockets to deliver the bomb they had to reduce the technology to very small components. That put pressure on the development of the Enigma machine and the other developments of computerisation, and all of this led to computer analysis of genetic material which led to the genome. So it’s all interconnected. And law was not going to be left out in the cold.

ALRC and IVF

Early in the life of the ALRC, the successive attorneys-general were forward-looking. I have to pay a tribute to Bob Ellicott here — Bob Ellicott was very forward-looking in the early days of the Fraser government and he gave the ALRC the two projects which led my mind into this contact with technology: the project on human tissue transplants and the project on privacy.

Both of these projects led me into international activities, which in turn expanded my brain from the natural repository of an Australian lawyer in NSW in Phillip Street, Sydney, into seeing law in a much wider and global connection. In the project on human tissue transplants (ALRC 7), which was the first in the sequence, we had to look at multiple issues. Brain death was just one of them, but at that time the big controversies, when we got our terms of reference, were controversies on the subject of artificial insemination husbandry.

If you don’t believe me look at the law reviews of 1975. They are full of discussions arguing that if god had meant a person who was infertile to use artificial means to get the sperm into the egg, then that would have been done; but this is unnatural, it’s offensive, we don’t know where it’s going to lead, it’s very unsafe and unseemly, and anyway, suffering is the image of Christ on the cross and people have to suffer because that is the nature of the human condition.

The whole of the debate was full of this sort of discussion and it was soon succeeded by an artificial insemination donor. Now that really set the cat among the pigeons: “if you allow insemination outside the sacred bond of marriage then that is a form of adultery, the child will be illegitimate and you cannot allow this and the law must forbid it.”

Imagine the reaction when IVF came along and the issues that were presented there. There were so many meetings I went to with rather nice people who were still saying “but his is unnatural and it should be stopped, and we have got to stop it”. And then there were people who were infertile saying “look there’s a science here that can help us, it should go ahead”. So we developed our report and that took me to meetings of UNESCO and really into the field of AIDS when AIDS came along. And it encouraged me when I was connected with that devastation to be much more honest and open about my own sexuality.

International Bioethics Committee

In the area of the genome, in the area of the work of the International Bioethics Committee I saw this interface of technology. Law on an international scale and the work that we did in the ALRC became the foundation to show that law can respond to issues of technology, do so in effective way, and do so by consulting the experts, consulting the community and helping our democratic Parliament to face up to developments that have occurred in science and technology.

But the developments in the computer field came about because of Bob Ellicott’s terms of reference on the issues of privacy protection. At the time we were working on the terms of reference the OECD established its group to look into the principles that should govern transport data flows. That was quite a difficult task because of the different economic interests and the different historical experience of the countries of Europe, and getting common principles was not all that easy.

I was elected the chairman of the group, we developed the OECD principles, I then brought them back and then had to try to introduce them into Australian law and the principles ultimately became the foundation of the privacy act. Now, Philip Argy said to me tonight “I don’t think there’s a necessary tension between law and technology. If you get your fundamental principles right then law can keep place, the problem is lawyers keeping pace”. But I’m not quite so sure that that is right because when we designed the OECD principles, one of them was the use limitation principle.

Terminology out of step with technology

The use limitation principle was, at the time, quite a sensible principle: that if data containing private information about a person is accessible, the access should be limited to the consent of the data subject or authority of law. And it must be limited in its use to the use for which it was provided, or some other use that was sanctioned by law. If you look at the original privacy principles in the Privacy Act you’ll see this use limitation principle.

Now the only problem then was — and it was a good principle, and a sensible principle for giving the data subject the control over the access to information about themselves — when you develop Yahoo! and Google, and when you can permit the analysis of data supplied for multiple purposes, the principle become out-of-date and the principle itself needs to be reconsidered.

So this is an example of how in the fast moving world of technology you can get the principles right for the technology at the time, but the technology can then change and render the need to change the principles. The problem that democratic societies have is that legislatures are not always interested in these subjects. There are not many votes to be gained, it’s not a very sexy area of the law, it’s not likely to attract a lot of attention and interest, and therefore it tends to be left alone.

If it’s left alone we all know what that means. The newer a gap in our system of law, it needs to it comes to people like me in courts to try to develop the old principles of the law by analogy. Now, in my time on the court I’ve seen numerous instances of statutes that are expressed in very technology-specific language, which is then overtaken by events.

We had a case quite recently in Western Australia in which, for the very useful and proper purpose of ensuring the reliability of police confessions, confessions to police of accused persons in custody, the requirement was laid down by the statute that the confession be videotaped. To the extent that you write the technology into a statute, you run the risk that the technology will be overtaken by new technology and therefore that the use of the language in the statute may become inappropriate for the technology used late, the privacy use limitation principle is an example, the reference to “videotape” is another.

Even today I was working on a case which stands for judgment, which raises yet again a question which is presented by the advance in technology, and the question arises in the unlikely context of a pleading point in defamation. A less exciting area of the law one can scarcely imagine — Justice David Ipp in his paper for the 80th anniversary of the Australian Law Journal, described defamation law as the “Galapagos Island Division of the law of torts”.

The problem arises because in the common law of defamation the defence of fair comment is restricted to fair comment upon facts truly stated. The question is whether or not the common law will continue to insist that in order to continue to make their own judgment about the fair comment, the facts must effectively be stated about the same time as the publication and the matter complained of.

In the days of print media only, you could check the facts against the content of the print. But in the current age — when information is so often communicated in short and ever-shorter electronic forms — it may be that in the matter complained of there is not the statement of facts that are said to provide the foundation for the fair comment; and yet the technology by hyperlink can provide instantaneous, immediate and perhaps too much information about the context in which the comment is made.

So that’s just an illustration where there hasn’t been a great deal of specific attention to the need to advance and develop the law. Indeed, the parties suggested that it was not necessary to look at any policy questions or any questions of legal principle — just at what the High Court said in earlier cases involving print media. You immediately faced the question of (if you think and puzzle about the problem) how can you adapt the principles of the common law to the real world of communication in which we live today?

Twenty-five

So when I look back on first meeting of the NSW Society for Computers and the Law back in 1982 in the Masonic Centre, and I look at the interesting stories of our three speakers tonight, I really think we a very lucky to have lived through these exciting times and the most exciting times are certainly yet to come. Julian Burnside may be there in 25 years time for the 50th anniversary — you’ll be wheeled in and there’ll be whistles and fanfare — but I am not absolutely sure that I’ll be there, so I’m getting in my apologies just in case.

But it’s been an astonishing 25 years, and I do urge the three speakers today — including Brendan Scott’s very interesting perspective trying to conceptualise the two streams — to write their speeches up. I don’t know if they’ve been recorded here. I mean, they’ve taken the Queen down and they’ve taken away all the other remnants we used to have here at Parliament House — the Crown is still there I noticed. But they should write down those things and they should be published somewhere, because it’s an astonishing story.

Now Julian Burnside rather unkindly said his introduction would finish up or start with “and the less said about him the better” which seems an appropriate note on which to say that in a few minutes I have to leave. Because across the park, lit there in the distance is the Art Gallery of NSW, there is another function on over there tonight which I have to go to.

It’s a function which in a sense is a counterpoint to the stories which I’ve just told you and which we’ve been told by the other speakers, because this is a function of the gay community with the announcement of the “top 25”. This is the top 25 Australian citizens who are openly gay. I don’t know quite who the other 24 are. My partner said he didn’t think it was wise and that he’s not going, but I’m going to head over there and heaven only knows what I’ll find when I get there. If it’s too disruptive I’ll come back here. However, that’s the counterpoint.

We sit here thinking of the explosion in scientific and technological knowledge and advances, we think of the enormous changes that have come about in our world in commerce, economics and society and in the law, we think of the way we’ve adjusted so rapidly and taken our minds on the journey with the technology. And over the park, not far from here are people who are still working towards basic equality and respect for their human dignity in our society.

It’s a strange thing the human being. It can have these wonderful mental explosions, it can dream of the farthest planet and distant galaxies, it can send new technologies and vehicles out there to explore, and it can plumb down to the depths of the ocean, it can analyse the genome, break up the gene, split the atom, and yet here on earth we can still do unkind things to each other and still be unequal and unjust.

That’s why we need independent courts, and that I suggest is why we need people like you who are interested in the technology but realise that the technology isn’t everything. We also have to move the spirits, hearts and minds of human beings so that we make the most of the technology, and put it to the service of humanity in kindness and goodness to each other, and upholding the dignity and rights of everyone.

So I congratulate the society on being 25 years young.

This is an edited transcript of a speech presented by the Honourable Justice Michael Kirby, at the 25th anniversary of the NSW Society for Computers and the Law at NSW Parliament House on 9 October. Lawyers Weekly has added sub headings for readers’ convenience.