Michael Kirby (judge)

This article is about the Australian justice. For other people named Michael Kirby, see Michael Kirby (disambiguation).

The Honourable Michael Kirby AC, CMG, , , , , , , , , , , , , , , , , ,
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Justice of the High Court of Australia
In office 6 February 1996 – 2 February 2009
Nominated by	Paul Keating
Appointed by	Bill Hayden
Preceded by	Sir William Deane
Succeeded by	Virginia Bell
Personal details
Born	Michael Donald Kirby (1939-03-18) 18 March 1939 Sydney, New South Wales
Nationality	Australian
Domestic partner	Johan van Vloten
Alma mater	University of Sydney (BA, LLB, BEc, LLM)
Occupation	Judge Jurist Academic Lawyer Barrister Solicitor
Religion	Anglican

Michael Donald Kirby AC, CMG, , , , , , , , , , , , , , , , , , (born 18 March 1939) is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009. He has remained active in retirement: in May 2013 he was appointed by the United Nations Human Rights Council to lead an inquiry into human rights abuses in North Korea, which reported in February 2014.

Early life and education

Born to Donald (Don) Kirby and Jean Langmore Kirby (née Knowles), Michael Donald Kirby was born the first of five children – Michael Donald; twins Donald William and David Charles, who died at 18 months from pneumonia; David; and Diana Margaret – on 18 March 1939 at Crown Street Women's Hospital.

Michael Kirby attended state schools, commencing at North Strathfield Public School, followed by Summer Hill Public School for Opportunity Classes, and then Fort Street High School (then Fort Street Boys High School) in Sydney.

After graduating from high school, Kirby later attended the University of Sydney, where he earned a Bachelor of Arts (1959), Bachelor of Laws (1962), Bachelor of Economics (1965), and Master of Laws (First-Class Honours) (1967). At university, Kirby was elected President of the University of Sydney Students' Representative Council (1962–1963) and President of the University of Sydney Union (1965).

Career

Kirby commenced his legal career as an articled clerk for Ramon Burke at the small Sydney firm M. A. Simon and Co.; the firm had two principals, Maurice Arthur Simon and Ramon Burke.

Kirby was admitted to the New South Wales Bar in 1967.

Judicial appointment

Kirby became the youngest man appointed to federal judicial office in 1975, when he was appointed Deputy President of the Australian Conciliation and Arbitration Commission, a tribunal which adjudicated labour disputes.

In 1983, Kirby was appointed a judge in the Federal Court of Australia, before an appointment as President of the New South Wales Court of Appeal, a superior court in that state's legal system, in 1984. During that period, he was also the President of the Court of Appeal of Solomon Islands from 1995 to 1996.

From 1984 until 1993, Kirby held the position of Chancellor at Macquarie University.

In February 1996, Kirby was appointed to the High Court of Australia. He has served on many other boards and committees, notably the Australian Law Reform Commission (ALRC) and the CSIRO. He is Patron of the Friends of Libraries Australia (FOLA) and many other bodies.

Dissent rate

Kirby was often at odds with his colleagues in the Gleeson High Court, and sometimes as the sole dissenter. 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%. His notable dissent rate has earned him the nickname the "Great Dissenter". Future High Court Justices who have been considered in contention for the title include Dyson Heydon and Patrick Keane, though neither have or will have dissent rates as high as Kirby's.

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".

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. 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.

Retirement and post-retirement life

Kirby retired from the High Court on 2 February 2009, shortly before reaching the constitutionally mandatory retirement age of 70, and was succeeded by Virginia Bell.

After his retirement, Kirby was appointed to several honorary academic roles at Australian universities. These included appointments to: the Australian National University (ANU) in Canberra, as distinguished visiting fellow in February 2009; the University of New South Wales Faculty of Law as visiting professorial fellow in March 2009; the University of Tasmania Faculty of Law as adjunct professor in July 2009; and Victoria University as an adjunct professor. He has been appointed honorary visiting professor by 12 universities.

Jurisprudence

In November 2003, at the University of Exeter, Kirby delivered The Hamlyn Lectures 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 United States, 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". 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.

UN Report into North Korean Human Rights Abuses

Further information: Human rights in North Korea

File:Michael Kirby, Chairman of the UN Commission of Inquiry on the DPRK.jpg

The commission of inquiry presided over by Kirby recommended that North Korean leadership be prosecuted for human rights violations.

In May 2013, the United Nations Human Rights Council appointed Kirby to lead a commission of inquiry into human rights abuses in North Korea, with Sonja Biserko and Marzuki Darusman. The report is dated 7 February 2014. It identifies "[s]ystematic, widespread and gross human rights violations" by a "totalitarian state", including "unspeakable atrocities" in the political prison camps. It makes many recommendations for internal reform and international action, including prosecution of the North Korean leadership in the International Criminal Court or before an ad hoc international tribunal.

As the report was being finalised, on 20 January 2014 Kirby wrote to North Korea's Supreme Leader, Kim Jong-un, informing him that he would be advising the United Nations to formally refer the situation in North Korea to the International Criminal Court, where Kim could be tried for his personal culpability as head of state and leader of the military, but proposing that the commission come to Pyongyang to discuss the issues with the North Korean government. At a press conference to launch the report, on 17 February 2014, Kirby said that there were "many parallels" between the evidence he had heard and crimes committed by the Nazis and their allies in the Second World War. North Korea refused all co-operation with the inquiry and, just before the report was launched, issued a statement claiming that it was based upon "faked" material. On 22 April 2014 the official news agency of North Korea, KCNA, claimed that the "fabrications" are meant to "undermine the ideology and social system of the DPRK".

Public life

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

Kirby has a reputation as an eloquent and powerful orator, having given a vast number of speeches over his career on a diverse range of topics.

Kirby has strong links with the Australian National University College (formerly Faculty) of Law, being Patron of the Law Students' Society and has been a member of the advisory board. Kirby has also starred in the ANU Law Revue. Kirby is also on the Board of Advisors of The Sydney Globalist, a global-affairs magazine produced by students at his former university, the University of Sydney.

Kirby is a fellow of the Hastings Center, an independent bioethics research institution in the United States. In 2006, he was elected an Honorary Bencher of the Inner Temple in London. In the same year, the Australian Academy of the Humanities elected him an Honorary Fellow.

In July 2009, Kirby accepted a position as adjunct professor in law at the University of Tasmania Faculty of Law. He is also the (founding) Chairman of the Editorial Board of the Journal of Law, Information & Science, which is published by that faculty; a position he has held since 1981.

Since 2010, Kirby has been one of the 11 members of the Eminent Persons Group set up to advise on reform of the Commonwealth of Nations.

In 2011, Kirby, suggesting that "There is nothing so powerful in the world as an idea whose time has come, and animal protection is just such an idea", became a patron of Voiceless, the animal protection institute.

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 W. B. Yeats's poetry.

Personal life

Michael Kirby has been open about being gay since 1999, when he came out in Who's Who in Australia by naming Johan van Vloten as his long-term partner. Van Vloten, who migrated to Australia from the Netherlands in 1963, has lived with Kirby since 1969. Kirby has often spoken publicly in support of gay rights. 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, and as an Anglican he has expressed disappointment at his church's stance on gay rights. In 2002, at the Sydney Gay Games VI, Kirby was the keynote speaker at the opening ceremony. "The movement for equality is unstoppable. Its message will eventually reach the four corners of the world," he told a crowd of 35,000.

In 2006, he attended the International Conference on LGBT Human Rights in Montreal, presiding over the Asia-Pacific Plenary.

Kirby is religious, describing himself as a "Protestant Anglican Christian" and criticising clerical opposition to homosexuality: "I don’t want any old gent in frocks to take my religion from me and to me it is still an important aspect of my life". In November 2007, he 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". 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".

Kirby was selected by readers of samesame.com.au as one of the 25 most influential gay or lesbian Australians in every year that this list was published, from 2007 to 2010.

Family

Donald Kirby, Michael's father, was the only child of Alma Caroline (Norma) Grey, a single working mother, and was of English-Irish descent. Norma's Catholic grandfather, Harry Lyons, emigrated from Dublin to Sydney in the 1850s, following the Great Famine. Annie Lyons, Harry and his wife Mary's daughter and Michael Kirby's great-great-grandmother, married John Emmanuel Gray, an English brick- and boilermaker. Donald Kirby's father, Victor Kirby, was a Catholic who had also arrived after the Great Famine. At 15 years of age, Norma commenced a relationship with then-17 Victor Kirby and soon fell pregnant with Donald Kirby.

Jean Langmore Knowles was born in Berwick, Victoria to William Knowles, an Ulster Scot from Ballymena, and Margaret, as one of four daughters. Jean was a graduate of Sydney Girls High School, obtaining a Leaving Certificate, a rarity for a woman at that time, and worked in numerous paid jobs by virtue of her own successes and ability. Donald Kirby, aged 16, and Jean Knowles first met at Saint Martin's Anglican Church, Kensington. Donald attended Sydney Technical School in Ultimo, and afterwards worked as a general assistant, then tool and machinery salesman, at a hardware firm. The two became engaged on Jean's 21st birthday and were married in March 1937, a month after Donald turned 21; their first home was in Bloomfield Street, South Coogee.

Kirby's brothers have also been lawyers: David was a judge of the Supreme Court of New South Wales, retiring in 2011; Donald was a solicitor until retiring in 2006. Sister Diana was a nurse in the Colorectal Unit of the Royal Prince Alfred Hospital in Sydney, retiring in 2011.

Honours

As a Supreme Court and High Court Justice, Kirby is styled "The Honourable" for life, according to Australian protocol.

• Companion of the Order of Australia (AC) in 1991; citation: "For Service to the Law, Law Reform, to Learning and to the Community".
• Companion of the Order of St Michael and St George (CMG) in 1982; citation: "Services to the law".
• Queen Elizabeth II Silver Jubilee Medal in 1977.
• Centenary Medal in 2001.
• Gruber Prize for Justice in 2010.
• Human Rights Medal in 1991.
• National Trust Australian Living Treasure in 1997.

In August 2008, Kirby was presented with the inaugural Australian Privacy Medal by Senator John Faulkner and Karen Curtis, the Australian Privacy Commissioner.

Honorary degrees

• University of Newcastle (DLitt) in 1987
• Macquarie University (LL.D.) in 1994
• University of Sydney (LL.D.) in 1996
• National Law School of India University (LL.D.) in 1997
• University of Ulster (D.Litt.) in 1998
• University of Buckingham (LL.D.) in 2000
• University of South Australia (D.Univ.) in 2001
• James Cook University (D.Litt.) in 2003
• Australian National University (LL.D.) in 2004
• Southern Cross University (D.Univ.) in 2007
• University of New South Wales (LL.D.) in 2008
• Griffith University (D.Univ.) in 2008
• Murdoch University (LL.D.) in 2009
• Bond University (LL.D.) in 2009
• University of Melbourne (LL.D.) in 2009
• University of Technology, Sydney (LL.D.) in 2009
• Indiana University (LL.D.) in 2009
• University of Colombo (LL.D.) in 2010
• La Trobe University (D.Univ.) in 2011
• Victoria University (LL.D.) in 2011
• Deakin University (LL.D.) in 2011
• Central Queensland University (D.Univ.) in 2011
• Monash University (LL.D.) in 2015

External links

• Catalogue of Michael Kirby's public speeches
• Video: Michael Kirby on his career of public engagement March 2009 at Sydney University
• DVD Biography Michael Kirby: Don't Forget The Justice Bit

Legal offices
New title	Chairman of the Australian Law Reform Commission 1975–1984	Succeeded by Murray Wilcox
Preceded by Robert Ellicott	Judge of the Federal Court of Australia 1983–1984	Succeeded by Bill Pincus
Preceded by Athol Moffitt	President of the New South Wales Court of Appeal 1984–1996	Succeeded by Dennis Mahoney
Preceded by Sir William Deane	Puisne Justice of the High Court of Australia 1996–2009	Succeeded by Virginia Bell
Academic offices
Preceded by Percy Partridge	Chancellor of Macquarie University 1984–1993	Succeeded by Tim Besley