Michael Kirby
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- This article is about Australian High Court judge Michael Kirby. For the article on the Canadian Senator of the same name see Michael J. L. Kirby.
Michael Donald Kirby, AC, CMG (born 1939), is a Justice of the High Court of Australia; the highest court in the Australian court hierarchy.
Kirby attended Fort Street High School in Sydney, and received his Bachelor of Economics, Bachelor of Arts and Master of Laws from the University of Sydney.
Kirby was admitted to the New South Wales Bar (earned the right to practice as a barrister) in 1967. His first quasi-judicial appointment was to the Australian Conciliation and Arbitration Commission, a body that adjudicates labour disputes, where 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 person ever appointed as a Federal judge, before an appointment as President of the New South Wales Court of Appeal, the highest 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).
He received Australia's highest civil honour when he was made a Companion of the Order of Australia (AC) in 1991. He is also a Companion of the Order of St Michael and St George (CMG).
Legal career
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. He is often activist in his approach. This makes him often at odds with 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]
Social activism
Kirby publicly supported the "no" case in a prominent role with Australians for Constitutional Monarchy in the 1999 Republican referendum - see republicanism in Australia for more information - a position perhaps superficially at odds with his "progressive" views on many other issues.
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. In November 2003, at the University of Exeter, Kirby delivered two lectures[2][3] 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."
These lectures sparked a debate in the Australian media, echoing an ongoing debate in the USA, as to whether judges have the right to interpret the law in the light of its intent and considerations of natural law or simply follow it to the letter, leaving questions of its intent and underlying principles to elected representatives.
Homosexuality
Kirby is open about his homosexuality, having outed himself by mentioning his long-time male partner Johan van Vloten in Australia's Who's Who. He has on occasion spoken publicly about his views on the recognition of homosexual partnerships.
This openness has on occasion drawn criticism. Kirby's Who's Who entry indicates that his relationship with van Vloten began well before 1984, the year that homosexuality was legalised in New South Wales. His critics have queried whether a man who (apparently) disobeyed the law as it then existed should be serving as a judge; this criticism has been somewhat dampened by a widespread modern-day belief that the law of the time was in the wrong.
One of Kirby's best-known critics is Liberal senator Bill Heffernan. In 2002, Heffernan used parliamentary privilege to accuse Kirby of trawling for rent boys. 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."