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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.

Biography

Kirby attended Fort Street High School in Sydney, and 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 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).

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

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."

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'.

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.

He is 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] 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.

Public life

Kirby was among the founders 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]

Homosexuality

Kirby has been open about his homosexuality since 1999, when he outed himself in Australia's Who's Who by naming newsagent Johan van Vloten as his long-term partner. He 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 homosexuality.

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 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."

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