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

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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

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. form of Evans’ political patronage organisations, and to speak, locally Sir Gerard’s naturally cautious instincts, however, and deep and internationally, on a wide range concern for the institution of the judiciary led him, on Kirby’s of topics which could potentially initial appointment to the Court of Appeal, to counsel Kirby imperil his ability to discharge his constitutional and institutional duty politely against his engagement with matters that were or as one of a seven member bench. could come before an appellate court. He was unable to sit, for example, on the Stolen Generations Case, because of an intervention by the and influence leading to Kirby’s Kirby’s relationship and interaction International Commission of Jurists, appointment to the High Court in with Gleeson is one topic that and on Croome’s Case, because of 1996, following Sir William Deane’s recurs as the progress of Kirby’s his past links to gay law reform. career is tracked. As Brown portrays surprise appointment as governor it, from Kirby’s perspective at general. Kirby’s relationship with Kirby is on record as saying that least, this relationship was deeply Sir Gerard Brennan, chief justice he would have felt more at home competitive, from law school days, at the time of his appointment to on the Mason Court. That may through the Supreme Court of New the High Court, also had its origins well be, however it is difficult to South Wales and to the High Court. with the law reform commission, imagine him in that very different Certainly the contrast in personality with Brennan an undoubted Kirby milieu not following his apparent could not be starker. Brown’s supporter. Sir Gerard’s naturally need to stand out and mark himself account appears to be given very cautious instincts, however, and out as different in his reasons for much from Kirby’s perspective deep concern for the institution judgment. Brown’s biography although he acknowledges of the judiciary led him, on contains a discussion of some of

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Kirby’s notable judgments on the High Court such as Wik, Kartinyeri, Cattanach, Al Kateb, Workchoices and Thomas v Mowbray. There is also a clear account of his judicial philosophy and methodology, based upon considerations of principle, policy and precedent which Brown links, presumably with input from Kirby, to Sir William Deane’s judgment in Oceanic Sun Line Special Shipping v Fay (1988) 165 CLR 197, and which was fully articulated in Kirby’s Hamlyn Lectures. in a case whilst in his later years the High Court and was a source of As to his time on the High Court, on the High Court, and perhaps institutional tension both within the anecdotal evidence suggests that driven by a desire to rationalise his court and in terms of its relationship there is much truth in Brown’s forced isolation, he spoke publicly with the then federal Attorney judgment that the professional and privately of the importance of General Daryl Williams. On Brown’s dynamic of the High Court was ‘vigorous intellectual independence’ account, the lack of support in the one to which Kirby ‘would never and the value of individual reasons form of the deafening silence of fully adjust, and which he never for judgment. Williams in response to a number of accepted’. Brown observes Kirby’s formal requests and inquiries from History will, of course, be the isolation on the High Court, noting the court on this topic do not do ultimate judge but it may well that whilst his ‘judicial approach him credit. Kirby’s quest to secure be that one of Michael Kirby’s was now resonating with greater equality of treatment in terms of more significant contributions authority in the outside world, entitlements and superannuation whilst on the High Court will within the court, his audience had was eventually only won with a not be jurisprudential at all but gone from small to vanishing’. change of government on the eve rather will be the determined and The awkward occasion of Kirby’s of his retirement. unofficial farewell sitting in Court principled change he caused to Room No 1 of the High Court upon be brought about in relation to The great intellectual and physical his retirement, apparently and, on the acceptance of his de facto demands of high judicial office one view, unedifyingly boycotted partner, Johan von Bloten, to the are well known. What is so by all of his sitting colleagues, was rights and entitlements of the striking about the Kirby story is a graphic illustration of his isolation. spouses of other justices, a matter that, for the vast majority of his Brown’s insight into the almost of principle with implications for domestic judicial career, there was institutionalised refusal of Kirby’s lawmaking well beyond the instant a concurrent international career colleagues to join in his reasons for case of the federal judiciary. Brown of breathtaking proportions which judgment in the many cases where gives a detailed account of Kirby’s included his work as chair of the there was agreement as to the campaign initially for equal travel OECD project on Transborder Data result, is interesting; he observes and social entitlements and then Flows and the Protection of Privacy, that Kirby had sought in his years more substantive superannuation as the Secretary General’s Special on the Court of Appeal to reduce entitlements. This was a campaign Representative to Cambodia, as a the number of separate opinions that spanned Kirby’s entire tenure at member of the Global Commission

on AIDS, as a member of UNESCO’s Other aspects of the international so many of his speeches contain Bioethics Committee, the Human engagement demonstrate how two or three opening paragraphs Genome project, and presidency the skills of the advocate, in the emphasising his own achievements of the International Commission of marshalling of evidence and the and career in a way which is entirely Jurists. clear and skilful presentation of unnecessary and, with the greatest rational argument based upon respect, often simply self-indulgent. With the possible exception of the With the possible exception of the connotation implicit in the connotation implicit in the title title to the final chapter – The Victory Lap – Brown does not to the final chapter – The Victory really delve into just what the forces were that underpinned Lap – Brown does not really delve and seemingly continue to underpin Kirby’s craving for into just what the forces were recognition and accolade. that underpinned and seemingly continue to underpin Kirby’s craving for recognition and accolade. that evidence, can be applied Perhaps David Ash will explore this Working with a vast library of well beyond the courts, and the in his prosopography of Kirby due speeches and correspondence, common law world. to be published in the 2023 winter Professor Brown skillfully weaves this issue of Bar News. extensive international engagement Unlike the recent biography of into the narrative and makes the Mary Gaudron by Pamela Burton, This last observation should not valid point that, notwithstanding this is a biography in which the detract either from the immense the burden of work assumed at subject not only cooperated but, contribution of the man himself both domestic and international it would appear, fully participated. to public life, both within Australia levels, such was the drive, industry So much so, indeed, that in the and globally, nor from the very high and diligence that Kirby never weeks following its publication, quality of the biography. It is a fine exposed himself to the charge it was Kirby who appeared to be work to be read not only by lawyers of spreading himself too thinly. running the book’s promotional but also by, to use a favourite Kirby The detail of Kirby’s international campaign and publicity. The book’s phrase, his fellow citizens. contribution will not be as well dust jacket makes reference to the Reviewed by Andrew Bell SC known to readers of this review author having been provided with as his judicial work, and Professor exclusive access to 117 metres Brown’s account creates a valuable of personal and official papers, historical record. It is a contribution no doubt meticulously kept and for which Kirby has justly won indexed. This leads to the one much praise internationally. paradox not really touched upon Some of the international work, or grappled with in the book, and such as the formulation in 1988 one that has puzzled me for many of the Bangalore Principles on years. That is why, for a man of the domestic application of such undoubted talent and ability, international human rights norms, generous spirit and sustained came to inform his domestic work. achievement in so many areas,

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