Inaugural Kirby Lecture in International Law
International Law in the House of Lords and the High Court of Australia 1996–2008: A Comparison
James Crawford∗
I. Introduction Michael Donald Kirby attended the University of Sydney, where he read arts, law, economics and more law:1 at a time when combined degrees were unusual he combined far more than most! He was admitted to the New South Wales Bar in 1967, and practised briefly as a solicitor, then as a barrister, before his first judicial appointment in 1975 as a Deputy President of the Australian Conciliation and Arbitration Commission. After a brief period as a judge of the Federal Court of Australia he was appointed President of the New South Wales Court of Appeal in September 1984. He served in that office for 12 years, until his appointment to the High Court of Australia in February 1996. He retired from the Court — no lesser instrument than the Constitution could have compelled it — on 18 March 2009, by which time he was Australia’s longest serving judge. Justice Kirby has also served on numerous boards and committees and held many positions, both at the national and international level, including board member of the CSIRO, President of the Court of Appeal of the Solomon Islands, the United Nations special representative in Cambodia and President of the International Commission of Jurists. He received Australia’s highest civil honour when he was made a Companion in the General Division of the Order of Australia (AC) in 1991; in the same year he was awarded the Human Rights Medal. He is a Companion of the Order of St Michael and St George (CMG). But the role which was most significant among the many — prior to his appointment to the Court of Appeal in 1984 — was his nine years as foundation President of the Australian Law Reform Commission (1975–1984), during which
∗ SC (NSW), LLD (Cantab), FBA, Whewell Professor of International Law and Director, Lauterpacht Centre for International Law, University of Cambridge; formerly Challis Professor of International Law, University of Sydney. This is an edited version of the First Michael Kirby Lecture in International Law, given at the ANZSIL Conference in Canberra, 27 June 2008. My thanks to Stephanie Ierino, former Research Associate, Lauterpacht Centre for International Law, now in the Office of International Law, Attorney-General’s Department, Canberra, for her assistance with this paper. 1 BA (1959), LLB (1962), BEc (1965); LLM (H1) (1967).
1 2 Australian Year Book of International Law Vol 28 time he was the voice of law reform in Australia. Others — including Gerard Brennan, Gareth Evans, David St Leger Kelly, Tim Smith, Murray Wilcox, Michael Chesterman — contributed to the important work the ALRC did in these foundation years. Over them all, Michael was the presiding genius, giving voice to the reformers’ plans. During his time on the High Court, Justice Kirby has been an outstanding proponent of internationalism, often citing international human rights principles and writing judgments against a background of international and comparative law. I say outstanding in several senses: he has been prominent; his colleagues have for the most part not followed his lead. Indeed they might have been heard to say that, while human rights and comparative law are all very well as background, they can too readily become foreground and distract from the real legal issues. But Michael Kirby has not been deflected: he responds courteously to criticism, but not normally by any change of position. As he has said:2 At first, my repeated references to the utility of international human rights principles, to afford a context for elucidating problems of Australian law, was regarded in some circles as heretical. Some Australian judges still consider it to be so. Yet I persisted and still do to this day. The reconciliation of international and domestic law is one of the greatest challenges affecting contemporary judges and the future of municipal legal systems everywhere. While acknowledging that problems presented before Australian courts do not always have international resonance, he has emphasised the universality of the quest to protect basic human dignity and rights. He has always proceeded on the basis that: …a legal question has not only a text but a context and the text takes on its meaning from context and a wider range of materials, including human rights materials. I have no doubt that on the issue of the use of international human rights principles, given the way the world is developing, given the way this is happening all over the world that this will be an established and uncontroversial and entirely orthodox way to go about legal decision-making in 20 or 30 years’ time, if not earlier.3 Since the Bangalore Principles of 1988, 4 courts throughout the British Commonwealth (Michael retains a touching faith in the Commonwealth) have been looking to international human rights law to resolve ambiguities in enacted law and gaps in the common law. There has been an increased interaction of international law and national law. International law, at least as a contextual matter but often as the basis of decision, is of growing importance in common law courts of final appeal. This is true not just in Australia but also in New Zealand,5 Canada,6 South
2 Justice M Kirby, ‘To Judge Is to Learn’ 48 (2007) Harvard International Law Journal 36, 41–2. 3 ABC Radio, ‘Bold Enough: Michael Kirby’, Sunday Profile, 2 December 2007