Michael Kirby (judge)

This article is about the Australian justice. For other people named Michael Kirby, see Michael Kirby (disambiguation).

The Honourable Michael Kirby AC, CMG
Justice of the High Court of Australia
In office 6 February 1996 – 2 February 2009
Nominated by	Paul Keating
Appointed by	Queen Elizabeth II
Preceded by	Sir William Deane
Succeeded by	Virginia Bell
Personal details
Born	18 March 1939 (1939-03-18) (age 72) New South Wales, Australia
Domestic partner	Johan van Vloten
Occupation	Judge, Jurist, Academic
Religion	Anglican

Michael Donald Kirby AC, CMG, (born 18 March 1939) is an Australian retired judge, jurist, and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009.

Biography

Michael Kirby attended Fort Street High School in Sydney. He received his Bachelor of Arts (1959), Bachelor of Laws (1962), Bachelor of Economics (1965) and Master of Laws (First Class Honours) (1967) from the University of Sydney. At Sydney University, he was elected President of the Students' Representative Council (1962–1963) and President of the Sydney University Union (1965).

Kirby was admitted to the New South Wales Bar in 1967. His first quasi-judicial appointment was to the Australian Conciliation and Arbitration Commission, a tribunal which adjudicated labour disputes, upon which he served as a Deputy President from 1975 until 1983.

From 1983 to 1984, he was a judge in the Federal Court of Australia and the youngest man appointed to the federal judiciary, before an appointment as President of the New South Wales Court of Appeal, a superior court in that state's legal system. During that period he was also the President of the Court of Appeal of Solomon Islands from 1995 to 1996. He was appointed to the High Court of Australia in February 1996. He has served on many other boards and committees, notably the Australian Law Reform Commission and the CSIRO. He is Patron of the Friends of Libraries Australia (FOLA) and many other bodies.

He was appointed a Companion of the Order of St Michael and St George (CMG) on 31 December 1982, for his services to law.^[1] He received Australia's highest civil honour when he was made a Companion of the Order of Australia (AC) in 1991^[2] and in the same year was awarded the Human Rights Medal. From 1984 until 1993, Kirby held the position of Chancellor at Macquarie University.^[3] In August 2008, Kirby was presented with the inaugural Australian Privacy Medal by Senator John Faulkner and Karen Curtis, the Australian Privacy Commissioner.^[4] He was awarded a honorary Doctor of Laws degree from the Australian National University in 2004.^[5] He was awarded a honorary Doctor of Laws degree from the University of New South Wales in September 2008.^[6] He is a fellow of the Hastings Center, an independent bioethics research institution in the United States. In 2006, he was elected an Honorary Bencher of the Inner Temple in London. In the same year the Australian Academy of the Humanities elected him an Honorary Fellow.

He retired from the High Court on 2 February 2009 and was succeeded by Virginia Bell.^[7] It was said upon Kirby's retirement that his original appointment to the high court "was an assurance to prime minister Paul Keating that the pro-monarchy judge would 'have to shut up' and it would upset 'the Tories'."^[8]

After his retirement Kirby was appointed to several honorary academic roles at Australian universities. These included appointments to: the Australian National University (ANU) in Canberra, as distinguished visiting fellow in February 2009;^[9] the University of New South Wales Faculty of Law as visiting professorial fellow in March 2009;^[10] and the University of Tasmania Faculty of Law as adjunct professor in July 2009. He has been appointed honorary visiting professor by 12 universities.

Jurisprudence

In November 2003, at the University of Exeter, Kirby delivered The Hamlyn Lectures^{[11] [12]} on the subject of judicial activism. Rejecting the doctrine of strict constructionism, Kirby declared that:

"Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced... contrary to myth, judges do more than simply apply law. They have a role in making it and always have."

These lectures sparked a debate in the Australian media, echoing an ongoing debate in the United States, as to whether judges have the right to interpret the law in the light of its intent and considerations of natural law or whether judges should (or can) simply follow the letter of the law, leaving questions of its intent and underlying principles to elected representatives.

He had also addressed this topic in a 1997 speech to the Bar Association of India, in which he spoke approvingly of "a kind of "judicial activism" that is often in tune with the deeply felt emotions of ordinary citizens."^[13] Nonetheless, Kirby is critical of the term "judicial activism" as applied to himself and other judges, and considers it hurtful. Kirby believes the term is "code language", applied chiefly by conservative commentators to views and to people with which they disagree.^[14]

He was often at odds with his colleagues in the Gleeson High Court. In 2004 he delivered a dissenting opinion on nearly 40% of the matters in which he participated, almost twice as many as any of his High Court colleagues; in constitutional cases, his rate of dissent was more than 50%. Legal researchers Andrew Lynch and George Williams observed that "even allowing for 2004 as a year in which Kirby J had a particularly high level of explicit disagreement with a majority of his colleagues, it is neither premature nor unfair to say that in the frequency of his dissent, his Honour has long since eclipsed any other Justice in the history of the Court... [Kirby] has broken away to claim a position of outsider on the Court which seems unlikely to pass with future years."^[15] Kirby has responded, stating that "on their own, statistics tell little." To understand Kirby's rate of dissent, it is necessary to examine what his disagreements have been about and consider who he has dissented from. Kirby explains "there have always been divisions, reflecting the different philosophies and perspectives of the office-holders", and that throughout the High Court's history, many dissenting opinions have ultimately been adopted as good law.^[16] Further, Kirby argues that the rate of dissent, if seen within its context, is relatively small. Cases heard before the full bench of the High Court have proceeded through a series of lower courts and special leave hearings. They are thus likely to test the boundaries of the existing law, and raise opposing, though no less valid, views of the law.^[17]

Public life

Michael Kirby was among the founders^[18] of Australians for Constitutional Monarchy, an organisation which played a prominent part in the 1999 republic referendum.

Kirby has a reputation as an eloquent and powerful orator, having given a vast number of speeches over his career on a diverse range of topics.^[19]

Kirby has strong links with the Australian National University College (formerly Faculty) of Law, being Patron of the Law Students' Society and has been a member of the advisory board. Kirby has also starred in the ANU Law Revue. Kirby is also on the Board of Advisors of The Sydney Globalist, a global-affairs magazine produced by students at his former university, the University of Sydney.

In July 2009, Kirby accepted a position as adjunct professor in law at the University of Tasmania Faculty of Law. He is also the (founding) Chairman of the Editorial Board of the Journal of Law, Information & Science, which is published by that Faculty; a position he has held since 1981.^[20]

Since 2010 he has been one of the 11 members of the Eminent Persons Group set up to advise on reform of the Commonwealth of Nations.^[21]

Kirby is an avid supporter of the arts. He has appeared in the University of Queensland Law Revue twice since 2004. In May 2007, he appeared in Melbourne alongside hip-hop impresario Elf Tranzporter at the launch of Victorian Arts Law Week, performing a rap of W. B. Yeats's poetry.

Personal life

Michael Kirby has been open about being gay since 1999, when he came out in Who's Who in Australia by naming Johan van Vloten as his long-term partner. Van Vloten, who migrated to Australia in 1963, has lived with Kirby since 1969. Kirby has often spoken publicly in support of gay rights.^[22] While President of the International Commission of Jurists he encouraged that organisation to give more consideration to human sexuality as an aspect of human rights,^[23] and as an Anglican he has expressed disappointment at his church's stance on gay rights.^[24] In 2002, at the Sydney Gay Games VI, Kirby was the keynote speaker at the opening ceremony. "The movement for equality is unstoppable. Its message will eventually reach the four corners of the world," he told a crowd of 35,000.^[25][26] In 2006, he attended the International Conference on LGBT Human Rights in Montreal, presiding over the Asia-Pacific Plenary.

In November 2007, Kirby accused the Anglican and Catholic archbishops of Sydney, Peter Jensen and George Pell respectively, of hindering the acceptance of gay people in Australian society, stating that homophobia was "reinforced even to this day by religious instruction, and it has to be said, religious instruction from the two archbishops of Sydney".^[27] Kirby also expressed disappointment in his "minority of one" status among his High Court of Australia colleagues, and indicated that "some of the justices perhaps have less liberal views than I have".^[27]

In both 2009 and 2010, Kirby was selected by readers of samesame.com.au as one of the 25 most influential gay Australians.^[28]

Heffernan allegations

See also: Bill Heffernan

One of Kirby's most high-profile critics is Liberal Senator Bill Heffernan. In 2002, Heffernan used parliamentary privilege to accuse Kirby of misusing government resources to solicit under-age male prostitutes. However, the evidence Heffernan produced to support this claim was swiftly discovered to be a forgery, and Heffernan was censured by the Senate.^[29] After Heffernan eventually apologised for making the allegations, Kirby promptly responded: "I accept Senator Heffernan's apology and reach out my hand in a spirit of reconciliation. I hope my ordeal will show the wrongs that hate of homosexuals can lead to."^[30]

Honours

According to Australian protocol, as a Supreme Court and High Court Justice, he is styled The Honourable for life.
He is a National Trust Australian Living Treasure.
Awarded the Gruber Prize for Justice in 2010.

• Companion of the Order of Australia (AC) in 1991.
  
• Companion of the Order of St Michael and St George (CMG) in 1982.
  
• Queen Elizabeth II Silver Jubilee Medal in 1977.
• Centenary Medal in 2001.^[31]

Honorary Degrees

• University of Newcastle (D.Litt) in 1987
• Macquarie University (LL.D) in 1994
• University of Sydney (LL.D) in 1996
• National Law School of India University (LL.D) in 1997
• University of Ulster (D.Litt) in 1998
• University of Buckingham (LL.D) in 2000
• University of South Australia (D.Univ) in 2001
• James Cook University (D.Litt) in 2003
• Australian National University (LL.D) in 2004
• Southern Cross University (D.Univ) in 2007
• Charles Sturt University (D.Univ) in 2008
• University of New South Wales (LL.D) in 2008
• Griffith University (D.Univ) in 2008
• Murdoch University (LL.D) in 2009
• Bond University (LL.D) in 2009
• University of Melbourne (LL.D) in 2009
• University of Technology, Sydney (LL.D) in 2009
• University of Indiana (LL.D) in 2009
• University of Colombo (LL.D) in 2010
• La Trobe University (D.Univ) in 2011

References

1. ^ Companion of the Order of St Michael and St George, CMG, 31 December 1982, itsanhonour.gov.au Citation: Services to the law
2. ^ Companion of the Order of Australia, CMG, 26 January 1991, itsanhonour.gov.au
   Citation: For Service to the Law, Law Reform, to Learning and to the Community.
3. ^ High Court Bibliography. Retrieved 22 January 2010.
4. ^ Media Release: Justice Michael Kirby wins inaugural Australian Privacy Medal. Retrieved 9 February 2009.
5. ^ Australian National University, Michael Donald Kirby, Citation for an Honorary Degree. Retrieved 9 February 2009.
6. ^ AAP (2008). Kirby urges lawyers to think globally. Retrieved 10 September 2008.
7. ^ High Court gets fourth woman. Retrieved 15 December 2008.
8. ^ Kirby given court post 'to shut him up': The Australian 2/2/2009
9. ^ "Kirby takes on new job at ANU law school". SMH Online. 9 February 2009. http://news.smh.com.au/breaking-news-national/kirby-takes-on-new-job-at-anu-law-school-20090209-81mu.html. Retrieved 9 February 2009. 
10. ^ news@unsw
11. ^ Michael Kirby (19 November 2003). First Hamlyn Lecture 2003 - "Judicial Activism" - Authority, Principle and Policy in the Judicial Method (Speech). University of Exeter. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_19nov.html. Retrieved 14 October 2006. 
12. ^ Michael Kirby (20 November 2003). Second Hamlyn Lecture 2003 - "Judicial Activism" - Authority, Principle and Policy in the Judicial Method (Speech). University of Exeter. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_20nov.html. Retrieved 14 October 2006. 
13. ^ Michael Kirby (6 January 1997). Bar Association of India Lecture 1997 - Judicial Activism (Speech). New Delhi Hilton Hotel. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_indialt.htm. Retrieved 14 October 2006. 
14. ^ "The Great Dissenter: Justice Michael Kirby". Sunday Profile. 25 November 2007.
15. ^ http://www.gtcentre.unsw.edu.au/news/docs/HighCourtStatistics_2004.doc
16. ^ Michael Kirby (26 February 2005). Judicial Dissent (Speech). James Cook University. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_feb05.html. Retrieved 14 October 2006. 
17. ^ "Bold Enough: Justice Michael Kirby". Sunday Profile. 2 December 2007.
18. ^ Michael Kirby (27 May 2006). Recollections of Sir Harry Gibbs (Speech). Canberra. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_27may06.pdf. Retrieved 14 October 2006. 
19. ^ High Court of Australia - Publications - Speeches
20. ^ See "Contributions to the JLIS by Hon Prof Michael Kirby AC CMG." < http://www.jlisjournal.org/briefs/kirbypapers.html >
21. ^ Commonwealth (of Nations) Secretariat (2011). "Who's in the EPG?". http://www.thecommonwealth.org/Internal/228488/228492/whos_in_the_epg/. Retrieved 28 October 2011. 
22. ^ Australian Broadcasting Corporation News (19 August 2006). "Kirby calls for united effort on gay rights". http://www.abc.net.au/news/newsitems/200608/s1718903.htm. Retrieved 14 October 2006. 
23. ^ Michael Kirby (4 March 2004). Leadership. Interview with Michele Boyle. Canberra. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_29mar04.html. 
24. ^ Michael Kirby (16 November 2003). Michael Kirby. Interview with Monica Attard. Sunday Profile. Canberra. http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_16nov.html. 
25. ^ Margo Kingston (5 November 2002). "Kirby Courage". Archived from the original on 18 December 2007. http://web.archive.org/web/20071218100105/http://www.ssonet.com.au/archives/display.asp?ArticleID=1969. Retrieved 17 February 2009. 
26. ^ Andrew West (10 November 2002). "Thanks for having us Sydney, say gays". The Sydney Morning Herald. http://www.smh.com.au/articles/2002/11/09/1036308532773.html. Retrieved 17 February 2009. 
27. ^ ^{a b} . http://www.news.com.au/story/0,23599,22819908-2,00.html. ^{[dead link]}
28. ^ "Samesame 25". samesame. http://www.samesame.com.au/25/2010/. Retrieved 31 March 2011. 
29. ^ Greg Jennett (19 March 2002). "Heffernan apologises to Kirby". http://www.abc.net.au/lateline/stories/s508589.htm. Retrieved 6 May 2009. 
30. ^ Fran Kelly (19 March 2002). "Justice Kirby accepts Heffernan's apology". http://www.abc.net.au/7.30/content/2002/s508367.htm. Retrieved 14 October 2006. 
31. ^ Centenary Medal, 1 January 2001, itsanhonour.gov.au
    Citation: For service to law reform and as a Justice of the High Court of Australia.

External links

• Michael Kirby's official website.
• Catalogue of Michael Kirby's public speeches.
• Video: Michael Kirby on his career of public engagement March 2009 at Sydney University
• DVD Biography Michael Kirby: Don't Forget The Justice Bit

Legal offices
New title	Chairman of the Australian Law Reform Commission 1975 – 1984	Succeeded by Murray Wilcox
Preceded by Robert Ellicott	Judge of the Federal Court of Australia 1983 – 1984	Succeeded by Bill Pincus
Preceded by Athol Moffitt	President of the New South Wales Court of Appeal 1984 – 1996	Succeeded by Dennis Mahoney
Preceded by Sir William Deane	Puisne Justice of the High Court of Australia 1996 – 2009	Succeeded by Virginia Bell
Academic offices
Preceded by Percy Partridge	Chancellor of Macquarie University 1984 – 1993	Succeeded by Tim Besley

Persondata
Name	Kirby, Michael
Alternative names
Short description
Date of birth	1939-03-18
Place of birth	New South Wales, Australia
Date of death
Place of death