Michael Kirby (judge)

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This article is about the Australian judge. For other people named Michael Kirby, see Michael Kirby.
The Honourable Justice
 Michael Donald Kirby 
AC CMG, BA LLM (Hons) BEc
Michael Kirby (judge)
Incumbent
Assumed office 
6 February 1996
Appointed by Paul Keating
Preceded by Sir William Deane
Born March 18, 1939 (1939-03-18) (age 69)
Flag of Australia New South Wales
Nationality Australian
Domestic partner Johan van Vloten

Michael Donald Kirby, AC, CMG (born 1939) is a Justice of the High Court of Australia, the highest court in the Australian court hierarchy.

Contents

[edit] Biography

Justice 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. 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 received Australia's highest civil honour when he was made a Companion of the Order of Australia (AC) in 1991 and in the same year was awarded the Human Rights Medal. He is also a Companion of the Order of St Michael and St George (CMG).

[edit] Jurisprudence

Justice Kirby is regarded as the inheritor of the Mason court's "progressive tradition". His judgments are regarded as liberal in their approach as well as exhibiting compassion and thoughtfulness.

In November 2003, at the University of Exeter, Kirby delivered The Hamlyn Lectures [1] [2] 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 U.S., 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."[3] 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.[4]

He is 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." [1] 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.[5] 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.[6]

Under the Australian Constitution, Michael Kirby must retire from the High Court in 2009 when he turns 70.

[edit] Public life

Kirby was among the founders[7] of Australians for Constitutional Monarchy, an organisation which played a prominent part in the 1999 republic referendum.

Kirby is regarded as an eloquent and powerful orator, having given a vast number of speeches over his career on a diverse range of topics. [2]

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 Yeats' poetry.

[edit] Personal life

Kirby has been open about being gay since 1999, when he outed himself in Australia's Who's Who 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.[8] 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,[9] and as an Anglican he has expressed disappointment at his church's stance on gay rights.[10] In 2002, at the Sydney Gay Games VI, Kirby was the keynote speaker at the opening ceremonies. "The movement for equality is unstoppable. Its message will eventually reach the four corners of the world,"[11] he told a crowd of 35,000.[12] 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." [3] 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".[4]

[edit] Heffernan allegations

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 underage male prostitutes. However, the evidence Heffernan produced to support this claim was swiftly discovered to be a forgery; the incident is discussed in more detail at Bill Heffernan. When Heffernan eventually apologised for these 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."[13]

[edit] References

  1. ^ Michael Kirby. "First Hamlyn Lecture 2003 - "Judicial Activism" - Authority, Principle and Policy in the Judicial Method" University of Exeter (2003-11-19). Retrieved on 2006-10-14
  2. ^ Michael Kirby. "Second Hamlyn Lecture 2003 - "Judicial Activism" - Authority, Principle and Policy in the Judicial Method" University of Exeter (2003-11-20). Retrieved on 2006-10-14
  3. ^ Michael Kirby. "Bar Association of India Lecture 1997 - Judicial Activism" New Delhi Hilton Hotel (1997-01-06). Retrieved on 2006-10-14
  4. ^ "The Great Dissenter: Justice Michael Kirby". Sunday Profile. 2007-11-25.
  5. ^ Michael Kirby. "Judicial Dissent" James Cook University (2005-02-26). Retrieved on 2006-10-14
  6. ^ "Bold Enough: Justice Michael Kirby". Sunday Profile. 2007-12-02.
  7. ^ Michael Kirby. "Recollections of Sir Harry Gibbs" Canberra (2006-05-27). Retrieved on 2006-10-14
  8. ^ Australian Broadcasting Corporation News. "Kirby calls for united effort on gay rights", 2006-08-19. Retrieved on 2006-10-14. 
  9. ^ Michael Kirby. Interview with Michele Boyle. Leadership. Canberra. 2004-03-04.
  10. ^ Michael Kirby. Interview with Monica Attard. Michael Kirby. Sunday Profile. Canberra. 2003-11-16.
  11. ^ | source=Sydney Star Observer | url=http://www.ssonet.com.au/archives/display.asp?ArticleID=1969 }}
  12. ^ {{{last}}}. Interview. (Interview).
  13. ^ Fran Kelly. "Justice Kirby accepts Heffernan's apology", 2002-03-19. Retrieved on 2006-10-14. (English) 


Justices of the High Court of Australia
Chief Justices of Australia
Griffith · Knox · Isaacs · Gavan Duffy · Latham · Dixon · Barwick · Gibbs · Mason · Brennan · Gleeson
Puisne Justices
Barton · O'Connor · Higgins · Powers · Piddington · Rich · Starke · Evatt · McTiernan · Williams · Webb · Fullagar · Kitto · Taylor · Menzies · Windeyer · Owen · Walsh · Stephen · Jacobs · Murphy · Aickin · Wilson · Deane · Dawson · Toohey · Gaudron · McHugh · Gummow · Kirby · Hayne · Callinan · Heydon · Crennan · Kiefel
current Justices are in italics