My friend Justice Kirby


Frank Brennan and Michael Kirby in CanberraI have been asked to reflect on Michael Kirby who is fond of signing letters to me: 'Your Protestant friend'. After 35 years, he is no longer a judge. He is no longer 'Your Honour', 'the Honourable Justice Kirby'. A lover of titles, he has just published his latest chapter in a book reminding readers that in 1983, 'in the last federal list of Imperial Honours, I was appointed to the Order of St Michael and St George'.

He has always loved form, manners, tradition and due deference. Yet he has long thrived on conflict and change. His output is prodigious and will continue to be, and yet his humble self-doubt is no artifice. He is fond of saying, 'Occasionally progress is only attained by candid disclosure of differences, by planting the seeds of new ideas; and waiting patiently to see if these eventually take root.'

In recent years, I have had the privilege of dining with him in Chambers at least annually, surrounded by photos and trophies of his international and national activities, marking a passionate commitment to human rights. At the end of each lunch, the judge's associate would be summoned to take the mandatory photo which would then arrive in the post with some recent speeches as a memento of the event.

Yesterday Justice Kirby published his last dissenting judgment as a justice of the High Court of Australia. While his fellow justices basically upheld the legal validity of the legislative scheme underpinning the Howard Government's Intervention in the Northern Territory, Kirby found that the laws were suspect and that Aborigines should have their day in court. There was nothing surprising in either the majority decision nor in Kirby's dissent.

But by his last day on the Bench, Kirby had exhausted both his power of persuasion and his charm with his fellow judges. Kirby observed:

If any other Australians, selected by reference to their race, suffered the imposition on their pre-existing property interests of non-consensual five-year statutory leases, designed to authorise intensive intrusions into their lives and legal interests, it is difficult to believe that a challenge to such a law would fail as legally unarguable on the ground that no 'property' had been 'acquired'. Or that 'just terms' had been afforded, although those affected were not consulted about the process and although rights cherished by them might be adversely affected.

The mild mannered new Chief Justice Robert French, who was after all the first president of the Native Title Tribunal and who made special mention of the traditional owners at his swearing in as chief justice, felt compelled to observe:

The conclusion at which I have arrived does not depend upon any opinion about the merits of the policy behind the challenged legislation. Nor, contrary to the gratuitous suggestion in the judgment of Justice Kirby, is the outcome of this case based on an approach less favourable to the plaintiffs because of their Aboriginality.

To some, Kirby's words will stand as a definitive, cogent moral judgment against the High Court for decades to come; to others they will sound like the indulgent musings of an unworldly prophet in the wilderness.

Prior to delivering his last judgment, Kirby the fervent monarchist broke with High Court tradition and convened his own farewell ceremony after 13 years on the High Court Bench, replete with TV cameras. On the High Court, farewells are convened by the Court only for Chief Justices. Other judges simply retire. No doubt Kirby thought that he owed it to his many admirers that the occasion be formally marked.

Kirby has always been a respectful traditionalist and a ruthless reformer. This polarity may well hold the key to his failure to be more persuasive with his fellow judges while enjoying a messianic status with law students and those lawyers who delight in his dissents.

Holding together the contradictions, he has always worked tirelessly and prodigiously. I remember him arriving at Georgetown Law School three years ago. He flew in from a conference in Iran, spoke three times at the law school in the one day, had breakfast at the Supreme Court next morning, and then flew home to sit on the High Court immediately on return. No wonder he ended up in hospital for heart treatment a few days later.

In 2000, he visited Riverview, a Jesuit school in Sydney. The boys invited him to speak about judicial activism at the 'Hot Potato' club. He thought that topic too political and was then invited to speak on social justice. He came and spoke on homophobia.

I gave a speech making some criticism of his visit to the school and of his remarks to the boys. He graciously wrote a private critique of my speech and then invited me to lunch. As ever we had a delightful conversation canvassing issues of law, morality and religion.

Meanwhile he had submitted for publication his account of his visit to Riverview. I later wrote to him saying:

Your publication of 'Riverview: A Modern Morality Play' in Quadrant did cause some concern in the circles in which I mix ... In future it may be necessary to tell the boys that anything they say could be taken down and used in evidence!

Though there will continue to be a difference of views between us on the appropriateness of church teaching and on the requirements and refinements of the church-state separation, I trust we can maintain our respectful dialogue in good humour and with good grace.

And we have. He has done a power of good and will continue to do so. The nation is more tolerant and respectful of human rights thanks to his labours. The churches are more critically reflective of moral teachings on sexual ethics thanks to his plaintive pleas for love and mercy. We have not heard the last of the nation's most iconoclastic and eloquent monarchist.

'Michael, may your retirement be blessed, and anything but a retirement. Looking forward to our next lunch. Your Jesuit friend, Frank.'

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University, and Chair of the National Human Rights Consultation.


Topic tags: frank brennan, justice michael kirby, jesuit, protestant, high court, northern territory intervention



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Existing comments

For an article written on the occasion of Michael Kirby's retirement, I found it ungracious - the percentage devoted to criticism was much higher than that devoted to praise.

Margaret Peoples | 03 February 2009  

I rarely if ever use these feed back columns but today I wanted to thank you for your comments about and encouragement to Michael Kirby.

Robyn Ashley-Brown | 03 February 2009  

Frank, thank you for such a respectful, intelligent and moving article today.

Breda O'Reilly | 03 February 2009  

I was in the High Court, watching Kirby's farewell yesterday. Yes, he convened it himself. But the counterpoint to this was that it was an event marked by relaxed good humour and witty stories rather than over the top pomposity.

A highlight was hearing Kirby acknowledge his partner of 40 years, Johan van Vloten. Having seen the movie Milk two nights before, I felt glad that in our country such a champion for human rights had made it to the High Court.

We need our prophets in the wilderness, challenging us to reconsider our prejudices. Let's see how Virgina Bell,who joins the High Court today and is also known for her dissenting voice, interprets the role.

Margaret Rice | 03 February 2009  

Frank, What a wonderful and honest tribute to a man who, while controversial, always makes us stop and think through the issues at stake.

John F Swann | 03 February 2009  

I find it hard to understand how Frank Brennan can claim friendship with Michael Kirby while at the same time implying that he has a problem with the fact that Kirby is open about his homosexuality. Is it possible to dissect the person from their sexuality, particularly when he quite reasonably links his sexuality to social justice? Or was his crime just to speak openly at Riverview about gayness which may have inspired and motivated gay boys in the audience?

Gavin Pilz | 03 February 2009  

Hallelujah, hagiography and sycophancy live on!

Claude Rigney | 04 February 2009  

Thank you for your gracious and respectful acknowledgment of Michael Kirby's amazing ability through his "dissent', to have reached out to so many, and to have contributed to so much toleration in our community.

Mary Maraz | 07 February 2009  

I have read most of Justice Kirby's judgements, in fact most of the judgements of the High Court, pronounced in recent years. I am going to miss his logic, analysis and ability to convey an understanding. I wish him well, and thank you Frank, for the glimpse into such a remarkable man. Justice Kirby, if I may say, God Bless noble Sir!

Bill Roddick | 11 February 2009  

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