Michael Kirby: Paradoxes and Principles

| Book Reviews | Michael Kirby: Paradoxes and Principles By Professor AJ Brown | The Federation Press | 2011 life has been lived extraordinarily political patrons were very much publicly for the past 50 years. For of the ALP – Lionel Murphy, Neville the most part, that has not only Wran and Gareth evans, each of been a matter of choice but desire whom was instrumental in key and indeed tactic. even the private appointments. Notwithstanding dimension, shielded so deliberately such connections, part of the Kirby and carefully from the public eye paradox, captured by Professor for so many years, became an Brown in the title to the book, is increasingly important part of that this liberal progressive was the public dimension following and is also an ardent constitutional Kirby’s famous 1998 amendment monarchist who worked closely to his Who’s Who entry and thus with conservative figures such as publicly, but without the usual Tony Abbott and Lloyd Waddy in Kirby fanfare, ‘outing’ himself and the republican debates. This is not acknowledging his long-standing the only paradox to which Brown relationship with Johan von Bloten. points. Once public, Kirby, as if to make up Absence from party politics did time, referenced that relationship not mean that Kirby was not to illustrate continuing inequality Professor AJ Brown’s long awaited a skilled politician, and those and discrimination in the treatment biography of Michael Kirby political skills were refined during of same-sex couples when it came deserves much acclaim. As with no less than a 14 year period of to matters of fundamental social all biography, its interest in part engagement with student politics and economic importance such lies in the degree of interest of at Sydney University, overlapping as superannuation arrangements. the underlying subject. This was with his years at Hickson Lakeman Brown skillfully integrates the never going to be a problem & Holcombe and then at the personal, private side of the Kirby with Michael Kirby who, it must junior bar. Brown attributes story with the public dimension. be acknowledged, has had an Kirby’s prolonged involvement extraordinary career. Indeed one might venture he has had a number Correctly described by Malcolm Turnbull at the book’s launch of extraordinary careers. But good as the best Australian judicial biography since David Marr’s biography does much more than biography of Barwick, this is the account of a singularly simply relate the narrative of the driven individual whose life has been lived extraordinarily careers of famous and impressive publicly for the past 50 years. people. It puts the subject career in the wider political, social and institutional context, bringing it The biography follows a in public student life in part to a alive and bringing its importance conventional chronological loneliness occasioned by the lack out against that background. This path, and thus tracks the Ulster of a private life bound up with biography achieves that goal, and background, the modestly Kirby’s homosexuality and the does so in a highly readable and circumstanced upbringing, the social constraints of the time. In attention holding style. opportunity classes and the selective due course, Brown demonstrates high school, Fort Street, the those political skills being deployed Correctly described by Malcolm story of whose then most famous in the early work of the Australian Turnbull at the book’s launch as the alumnus, HV evatt, in many ways Law Reform Commission to which, best Australian judicial biography suggested a pathway for future Brown discloses, Kirby was a slightly since David Marr’s biography of achievement. Unlike evatt, Kirby reluctant appointee but through Barwick, this is the account of a never followed a party political path which he began to build both a singularly driven individual whose although, as Brown makes clear, his domestic and international public Bar News | Winter 2011 | 145 | Book Reviews | profile and reputation. truth only discharged for a handful recently argued but still reserved of months – throughout his many case in one of his many public Brown makes the valuable point years as permanent chair of the international addresses, leading to that many of the early law reform Australian Law Reform Commission. a stubborn impasse only ultimately projects were not necessarily ‘big The public perception of him as a resolved, it would appear, by Sir ticket’, attention grabbing sweeping ‘judge’ was further reinforced by Laurence and Justice Slattery joining reforms but rather involved the his 1983 Boyer Lectures entitled in a terse and delphic judgment of reform of areas of great practical ‘The Judges’ which, Brown correctly such an unusual character that it importance. early projects were to observes, not only further raised was bound, on further appeal, to be of lasting significance including Kirby’s profile but also shed result in a retrial, the only result that the insurance reference which led unprecedented public light on the chief justice saw as acceptable to the passage of the Insurance the role and importance of the following Kirby’s foray into the Contracts Act 1984 (Cth) and the third arm of government. The public arena. Brown notes that, admiralty reference which resulted significance of those lectures in despite counsel of varying degrees in the Admiralty Act 1988 (Cth). terms of building the public’s of directness from friends and The account of the Australian Law understanding of the work of the colleagues upon his taking up the Reform Commission years, the courts and their societal importance presidency of the Court of Appeal, intellectual vibrancy and energy cannot be underestimated. Kirby continued to speak publicly harnessed under Kirby’s leadership, and the very significant legislative reforms which emerged from its The story of the six days following Senator Heffernan’s work serve sadly to highlight the cowardly assault on Kirby under the cloak of parliamentary diminished institution it has become privilege and based upon forged Commonwealth car records as a result of successive funding makes for compelling reading. cuts, with now only one permanent commissioner. on topics which could compromise Brown gives a fine account of Kirby’s drive and ambition is his ability to participate in cases Kirby’s years on the Court of referenced in his somewhat including following his elevation to Appeal, his notable judgments audacious request, on being the High Court. This was one of a such as Osmond and the BLF case, appointed president of the Court number of matters that contributed and what is generally acclaimed of Appeal in 1984 to continue to considerable tension from time as the ‘rescue’ of that court, under concurrently as chairman of the to time with his judicial colleagues. his courteous leadership, from a Australian Law Reform Commission, low period of unattractive incivility The biography tracks a number of a request not acceded to. Brown which reflected poorly on the Kirby’s key professional relationships captures well the paradox that, at institution and which was corrosive through the course of his career. the time of the announcement of of relations between bench and These include his early encountering his appointment as president of the bar. The important role of Sir in law student politics of the New South Wales Court of Appeal, Laurence Street in easing Kirby’s younger Mary Gaudron, of whose Kirby was Australia’s best known entry to the Supreme Court of forceful style, it appears, Kirby judge but had hardly ever sat in New South Wales and embracing was somewhat disapproving. Her that capacity. This flowed largely the Kirby enthusiasms and energy, later rapid elevation to the deputy from the fact that he had retained, when a less welcoming course was presidency of the Conciliation and exercised, the right to refer to open, is given some emphasis. The and Arbitration Commission himself as Mr Justice Kirby – a title Street/Kirby relationship was tested, was something of a professional to which he became entitled on however, in the case of Bailey v DPP wake-up call and challenge to appointment as a deputy president where, as Professor Brown records, the ambitious Kirby, and it was of the Conciliation and Arbitration Kirby fell foul of failing to resist to that same commission in an Commission but which role he in the temptation of referring to a identical role that Kirby was soon 146 | Bar News | Winter 2011 | | book Reviews | after appointed. For all this rivalry, more apparent on Kirby’s part than Gaudron’s, it was Gaudron, Brown points out, of all the High Court judges who stood up most for Kirby in relation to the Heffernan Affair, dealt with by Brown in a dramatic and absorbing chapter entitled ‘Six Days that shook the Court’. The story of the six days following Senator Heffernan’s cowardly assault on Kirby under the cloak of parliamentary privilege and based upon forged Commonwealth car records makes for compelling reading. The partial disclosure of interviews with Gleeson in 2009 Kirby’s initial appointment to the the stances taken by individual and 2010. Court of Appeal, to counsel Kirby politely against his engagement justices during that period may be Other key relationships tracked with matters that were or could viewed by them, with the probable include those of Kirby with Gareth come before an appellate court. exception of Mary Gaudron, evans and Sir Gerard Brennan. The The Brennan–Kirby relationship as involving gross breaches of relationship with evans originated evidently became further strained confidence and it remains to be in national student politics, was on Kirby’s elevation to the High seen whether or not they, and in harnessed through the law reform Court as he continued to be particular Chief Justice Gleeson, will commission and ultimately took the engaged in and with an array of choose to respond.

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