The Honourable Michael Kirby AC really needs no introduction. He was called to the bar in 1967 and in 1975 became the youngest man to hold a federal judicial office when he was appointed as the deputy president of the Australian Conciliation and Arbitration Commission.
Later that year, he was also appointed as the inaugural chair of the Australian Law Reform Commission. In 1983, he was appointed as a Judge of the Federal Court of Australia and in 1984 became the President of the New South Wales Court of Appeal. There he served until 1996, when he was appointed as a Justice of the High Court of Australia, a position he held until his retirement from the bench in 2009.
In addition to his immense impact on Australia’s jurisprudence, Michael Kirby’s career has been marked by a commitment to human rights, law reform and social justice. On this episode of The Callover, he reflects on his career and hopes for the future of the legal profession.
I’d like to take you back to 1958 at the University of Sydney. Why did you decide to study law?
“Well, that decision, as with most people, was made many years before, decades before. In fact, when I was in primary school, some fellows from the Education Department came and asked all these clever little kids “what do you intend to be when you grow up?” and I wrote out “I intend to be a judge or a bishop”. So one way or the other, I was determined to get into fancy dress.
“I think after my high school, which was a high school in Sydney that has had judges for years, I really resolved that I wasn’t the type of person who could cut up rats and bodies and I wasn’t as good in mathematics and subjects like that as I was in English and History. So I thought, that’s the career for me, that’s what I’m destined to do.
“I’ve never regretted it. I mean, the law and law degrees opened out to so many opportunities in life, but for me, it put me on the golden path and I’ve been happy with that career choice.”
I’ve heard in other presentations you’ve given to law students that you’ve said it’s important to be a joiner. What do you mean by that? And do you think that philosophy carries through from university into professional law?
“Definitely, yes. Well, I mean by that that there are some people who spend the whole time with their profession or their family or their community group. But if you’re going to really be engaged with what the essence of law is about, which is about justice, fairness, protection, help to people, you’ve got to understand their predicaments and you’ve got to understand the injustices of our world.
“That’s more likely to be voiced in civil society organisations and you’ve got oodles of them up here in Queensland and similarly in New South Wales there was the Council for Civil Liberties, for example. There was the International Commission of Jurists. There was student politics when I was at the university. So there are plenty of bodies that look after others who run into problems or are less fortunate and that alerts you to the fact that the world is not a perfect place and that lawyers have a role to try to make it a bit less imperfect.”
With that kind of grounding in student politics. What made you choose to follow a career in the law instead?
“Well, I chose the career of law because that was what I had been preparing for. That’s what I did my degree for and I did think about political life but I was gay and therefore, at that stage, maybe even today, that was not a good look for political life. Therefore I thought “oh well, I’m not going to expose myself to that sort of attack. I’m just going to get on with my work as a lawyer.” And that’s what I did. But it was, it would have been a natural life for me in some sense. But looking back on it, the opportunities that I’ve had to influence society and to influence it for good, I think, have been very many in my life, in the legal profession and in the judiciary. So no regrets.”
Perhaps if we can turn now to 1983, when you were appointed to the Federal Court of Australia and the following year, became President of the New South Wales Court of Appeal. It’s probably, though, your tenure on the High Court of Australia, which began in 1996, for which you’re most renowned and celebrated. Are there any cases from your time on the High Court bench that are particularly memorable for you?
“Well, there are many cases in fact. People say “what is your favourite case? What was your greatest case?”. Students ask that and I say “I loved them all”. When I was a child, my father, I had two brothers and a sister and we would say now “who do you love most?” and he always said “I love you all the same.” And that’s the attitude I have to my cases.
“You don’t get into the High Court unless the case has a significant point or is interesting or important. So there were plenty that were interesting and important. Early in my career, as soon after I was appointed to the High Court from the Court of Appeal in New South Wales, we had the Wik case, which was a case about Queensland and about the Wik people up in the north of Cape York and it was the issue of whether the principle in the Mabo case that you could recognise the Indigenous people’s land title was applicable in the case of pastoral leases and that was argued in the High Court by a very skilful barrister, Walter Sofronoff, who later went on to become the President of the Court of Appeal of Queensland. The High Court was divided three three and I had just arrived. So I had the casting, the casting vote and I decided that the Mabo principle was a principle of general application and applied to pastoral leases.
“That was very important because Australia, unbeknownst to most citizens, is very substantially divided up into pastoral leases and so it had very great economic significance. So that was a very important and interesting case. At the very end of my career in the High Court, my very last case was a case concerning the Northern Territory intervention and the First Nations people challenged the constitutional validity of the Howard Government’s action with a Northern Territory intervention.
“The High Court again was divided, but I took the view that the Northern Territory was not subject to a lawful intervention because the constitution of Australia says if the federal authorities move in to take over your property or acquire control of your property, they have to give you just terms. Now remember those two words, just terms. In the American Constitution, there’s a different phrase. We were copying them, but the phrase is just compensation.
“The federal legislation gave compensation, but it didn’t consult the Indigenous people. And the official report, which had led to the intervention and the claims of sexual and other abuse and drunkenness and so on. That said, whatever you do, you must consult the people who are affected and that wasn’t done. So I said “yes, there’s just compensation, but there’s no just terms “. Just terms after 150 or 200 years requires that we actually talk to the indigenous people and I was alone, in my view, about that. One of the judges of the High Court said that my comments were “gratuitous”, but I said “they were not local, they were absolutely central to the reason why I thought this was an invalid exercise of power” and more recent examinations of the intervention have shown that a lot of mistakes and wrongs were done and I think that was because of the lack of consultation.”
During your 13 years on the High Court of Australia, you earned the nickname “the Great Dissenter”. What advice would you give to any lawyer who finds themselves in a difficult position of perhaps not agreeing with a decision being made or with something they’re seeing happening around them?
“Well, when I was a young law student, there was a very famous judge in England, Lord Denning, and Lord Denning was called “the great dissenter” in England and he said “when I came upon a problem and the law seemed to stand in the way, I would search the case books high and low” he said. I remember reading this when I was a law student and search for a different approach that could be lawful but which would have a better outcome.
“And so when I became a Judge, and especially when I was in the Court of Appeal of New South Wales, which was contingently, a final court, depending on whether special leave to appeal was given or refused to the High Court, that made me concentrate on what you can find in the principles of law and where you can find leeway of choice.
“New approaches to problems. So it’s true a young lawyer can’t go around saying “well, look, I’m just going to ignore what the High Court has said and I’m just don’t pay any attention to the Court of Appeal or the trial Judge.” That is not how the system works. But just the same an idea has to start somewhere.
“And usually in our system, the judges are so flat out just solving the cases and applying the law that even in the High Court there isn’t a great opportunity for creativity and for reconceptualisation of the law. How does that happen? It happens because a lawyer plants the idea in the mind of a judge. I mean, this is the challenge of our profession that it is mostly fairly automatic and applying the law and finding what it says and then giving it effect in the particular case, that that can be done automatically.
“But there are cases which you come across in life where you have a chance to challenge what has been accepted like the Walgett cinema or like the Mabo case. That had to start somewhere. The Mabo case actually started in Papua New Guinea when a very able Melbourne lawyer, Ron Casten QC, went up to Papua New Guinea with his wife and his wife said “why does they recognise a native title up here but not in Australia?”
“And that got him thinking and that got him looking at the case books high and low, and that got him raising these issues that challenge the minds of Justice Deane and Justice Brennan and Justice Mason and Justice Gaudron. They these are the stimuli to the legal system and lawyers have to keep the creative element under check and control.
“But there are opportunities, and that’s when we come into our own. That’s where lawyers have to be joiners. They have to find the ideas in society and they have to give them voice when they have the opportunity in courts of law and in the community generally.”
What do you consider your greatest achievement?
“I don’t like to think of what my greatest achievement is. I know lawyers love to think in those terms. I think I’ve had many opportunities and as in that wonderful film, Dead Poets Society, with Peter Weir, an Australian, telling the story of his English teacher who taught him poetry at school. It’s a wonderful movie and it had a certain point in the movie the teacher jumps on the desk and tells the students a wonderful poem, an American poem, to try to encourage them to challenge the injustices that they see in the world and I think that’s been my endeavour to stand on the desk sometimes. Most of the time being very, very respectful and very respectful, but sometimes stirring things up. But the greatest achievement, if you like to say it, was not really in my professional life, it was finding a loving family to raise me and wonderful parents and brothers and sister, and keeping those loving relationships even today.
“In a couple of nights, I’ll be going for a wonderful dinner with my brothers and their partners, and that has been a great blessing, and having my partner, Johan, who’s very Netherland’s, I don’t know if you know people from the Netherlands, but they are very difficult people and they are always telling you as it is, they’re in your face.
“So everybody’s gotten used to it. We’ve all become a sort of quasi Netherlands family. We are now treating other Aussies in the same way and they’re all very shocked from time to time. But finding and keeping a partner for in our case, 55 years still going strong, is a wonderful achievement and I’m quite proud of it.
“But I can’t get too full of myself about it because I’ll be pulled down and told, well, “you’ve got a lot of lessons to learn. You’ve got to be better and there have got to be more holidays” as that’s what Johan is constantly telling me.”
What is your hope for the legal profession?
“Well, my hope is that it will continue to be vigilant for universal human rights and we’ll learn more about the principles of universal human rights. We haven’t tended to know these things in Australia because we haven’t had a constitutional Bill of Rights and people aren’t really taught about it. But I hoped that getting copies of the Universal Declaration of Human Rights at school, that’s what happened to me. I got a copy from my teacher, Mr. Gorringe. He gave it to us, and he had been a soldier in the second World War and he said “unless you kids learn this and take it seriously, we’ll just go on blowing each other up and killing each other” and so that I think is the alternative for our world.
“And it’s a very dangerous alternative in the era of nuclear weapons and global pandemics and climate change and all the other problems that face humanity. So my hope for the legal profession is that we will serve that world and that we will serve it with knowledge about human rights, that we will develop a human rights Act for Australia.
“You have one in Queensland, but most parts of Australia don’t, and they can be very good instruments for teaching children at school that you’re living in a society with many people and you’ve got to have a basic principle of getting on with people and respecting them and not causing violence or upset. So there’s plenty for the legal profession to do. Continuing its service, but also extending its service into the area of universal human rights, which has been neglected in the past in Australia.”
What is one piece of advice you would give to your younger self?
“Well, if I look back, I think I would tell myself to be more courageous. I’ve been courageous on many occasions and that’s a good thing. But there have been times when I haven’t been courageous enough. In 1997, an impediment had arisen in tackling the laws against LGBT people in Tasmania and I knew two activists in Tasmania, Rodney Croome and Nicholas Stern, and they telephoned me in my chambers in Sydney and they said “we’re thinking of taking Australia to the International Human Rights Committee to challenge the fact that Tasmania’s Parliament said that they would not change the law, the criminal law against gays. And we’ve got two questions for you. They said, will you send us some money to support us?” and I said “sure, I’ll send you some money, not much, but I’ll send you what I can afford.
“Secondly they asked “do you advise us, do you think we should take this to the Human Rights Committee?” Now, I was then president of the Court of Appeal of New South Wales, but I was in New South Wales and there was no way that anything I decided there could have influenced the state of the law in Tasmania.
“But I said to them “no, don’t do it. There’s no way you will succeed before the United Nations. The United Nations is a timid political body. They’ve got to be very careful for those countries who hate gays and therefore it’s premature or it won’t succeed. Don’t do it.” And they said, “thank you very much, Justice Kirby. Thank you for your time, and we’ll look forward to your money.”
“And subsequently, I learned they went straight away and by the procedure, the technology that was in available fax, they sent a fax of their communication to the Human Rights Committee. The United Nations of the Human Rights Committee of the United Nations upheld their complaint. The principle that was then established that LGBT rights were part of universal human rights became a principle for every country in the world and they were right and I was wrong.
“But the principle, I think, teaches that if there is a sort of inherent professional fault of lawyers, it’s often that we are very cautious and sometimes there are times for caution, but often there are times for courage and for action, determination. And you’ve got to know the difference between what was the time and they were right and I was wrong.
“And I think the lesson is be courageous. Be a joiner, get involved with your society, realise you can’t change everything in the world and many things don’t need to be changed in a country like Australia. But there are things that need to be changed and lawyers have an important role. Their profession gives them an important role in making change where it is possible through law and lawyers should grasp those opportunities and do it in a lawful way, In a respectful way, in a quiet way.
“Don’t frighten the horses too much, but don’t be too timid.”
Listen to this episode of The Callover.
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