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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-04 Daily Xml
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KIRBY, JUSTICE MICHAEL

The Hon. I.K. HUNTER (15:40): I rise today to pay tribute to the career of former justice Michael Kirby (now Mr Michael Kirby) who retired this week. I have no doubt that I was one of many who was saddened to hear of justice Kirby's early retirement—even though it was early by only one month. While I in no way begrudge him a well-deserved retirement, there is still part of me that is disappointed to lose his voice of reason and courage from the High Court bench.

It will come as no surprise to hear that there are a good many issues on which I agree with justice Kirby and, whilst I respect his position on the republic debate—we sit on differing sides of that issue—I note that we have lost a champion for human rights with his retirement from the bench.

Justice Kirby has become known as 'the great dissenter' for the regularity with which he dissented from the judgments of the court, much as he disagrees with that description of himself. In some years, his rate of dissent has been higher than 50 per cent, and the court is a better place for having had a man who had the courage of his convictions to eloquently—and often—express a view that differed from the majority.

When the High Court heard the challenge from the states and the unions against the constitutionality of WorkChoices, justice Kirby was one of only two members of the bench who supported the argument. Rather than a decision based on ideology, justice Kirby's dissent was based, as ever, on clear and rational thought. He believed that the decision of the majority 'effectively discarded a century of constitutional doctrine'.

The control order over Jack Thomas—in place subsequent to his conviction being quashed and before he was re-tried—is another example where justice Kirby demonstrated his dissent from the bench. Like many of us, justice Kirby was concerned that the fight against terrorism was going a step too far and that the liberties of Australians were being curbed in ways they should never have been. In his judgment, he said of the High Court:

It should reject legal and constitutional exceptionalism. Unless this court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure.

As we know, for all the clear-headed thinking in such a judgment, justice Kirby was once again in the minority.

The Roach v Electoral Commission decision was one of the important judgments made during justice Kirby's term in which he found that he did not need to dissent from his fellow judges: they agreed with him that Senator Nick Minchin's disenfranchisement of convicted prisoners was unconstitutional, and the court overturned this dangerous law.

Last year, the Rudd Labor government passed long overdue legislation that removed discrimination of same-sex couples from a wide array of commonwealth legislation, including in the area of superannuation. Like many of us, I think that justice Kirby would have been questioning whether that day would ever come, especially when just the previous year he had written to the then Liberal attorney-general, Philip Ruddock, requesting that such changes be made. The response that he received—that equal pension rights for those in same-sex partnerships would be 'inappropriate'—was disheartening. How far we have come in such a short space of time.

I sincerely hope that Michael Kirby will continue his commitment to human rights and to the struggle for an Australian Bill of Rights. Somehow, I cannot believe that retirement will prevent citizen Michael Kirby from continuing to advocate issues of justice and injustice, and we will all be better for that.

Of all the capacities in which justice Kirby has served, perhaps we should commend him most highly for his demonstration of human virtues, which we all prize but perhaps do not always display. I have highlighted his intelligence, thoughtfulness and introspection. His genuine decency—such a rare commodity in human beings—cannot go unnoticed, either.

In 2002, Liberal senator Bill Heffernan used the cover of parliamentary privilege to make scurrilous and unfounded accusations against justice Kirby, involving allegations of misuse of government resources, and worse. The grace with which justice Kirby handled the situation says much about the character of the man. He is an example for all of us who live our lives to a greater or lesser degree in the public eye.

While drafting this speech, I was reminded of an episode of The West Wing, in which president Bartlett is required to nominate a replacement for the Supreme Court. In a discussion with the brilliant conservative judge Christopher Mulready, Bartlett asserts half-heartedly, 'Plenty of good law is written by the voice of moderation.' Mulready offers a different opinion: 'Who writes the extraordinary dissent? The one-man minority opinion whose time hasn't come but 20 years later some circuit court clerk digs it up at three in the morning.' He then goes on to cite John Marshall Harlan's dissent on the US Supreme Court's infamous 'separate but equal ruling' as an example of how dissenters are often the voices heard before their time.

No doubt former justice Kirby's dissents will be held up in the coming years as being ahead of their time, such is his insight and brilliance. I offer my congratulations to former justice Michael Kirby, and his partner Johan, on his retirement, and offer my thanks to him for his years of service and activism in our community.

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