Justice Michael Kirby:      Influencer, Activist or Just Himself?

On 2 February 2009, one of Australia’s most accomplished Jurists is forced to take retirement as he slides gently past his 70th year. Michael Donald Kirby AC CMG might be known more broadly from a 2002 ugly episode from a sexuality fixated senator. The real Justice Kirby is an articulate, enduring, independent champion of human rights and social justice with a lifetime of achievement.
As an internationally respected authority on human rights, Justice Kirby has advocated a Charter of Rights and Responsibilities. The GLBTIQ community is one of many minorities that may benefit from the adoption and community acceptance of such a charter. On 21 August 2008, he told the law institute of Victoria that the “dangers for lawmaking in Australia today derive from what is, at once, the large challenge and great opportunity of life in Australia: its racial, religious and cultural diversity. It is when a society becomes so diverse that a need may present to collect and state the basic values that the society accepts as being held in common.”

Some may argue he is but a dangerous judicial activist who discards the doctrine of law for mamby-pamby, leftie, commie, pinko propaganda and his departure from the biggest bench in the land is long overdue.

Others admire the authenticity of a committed thinker who will consider the problem from a slightly more social justice perspective than his bench-mates. Justice Kirby holds the distinction of delivering the most dissenting judgments in the history of the High Court.  In 2007 he told the SMH “dissenting judges frequently offered a beacon whose views were ultimately accepted as correct by subsequent courts. Occasionally progress is only attained by candid disclosure of differences; by planting the seed of new ideas; and waiting patiently to see if these eventually take root."

In a famous case he challenged the use of Control Orders with Joseph Thomas (better known as Jihad Jack). With independent, articulate brinkmanship, His Honour spent 57 pages telling all of his fellow high court judges how wrong they were in allowing control orders that deprive liberty without a fair trial.

Perhaps prophetic (or just wisdom), Justice Kirby saw what was coming just 13 days after the Coalition were voted in for a fourth term, with a Senate majority to take effect in the following year. His Honour put capitalist idealists on notice to a room of industrial relations aficionados on 22 October 2004, “The breaches of agreements to the young, the powerless and the vulnerable do not matter to them one jot. But a society that allows such injustices to cumulate eventually loses the trust of its citizens”. Three years and 50 days later, the Howard government was sent dismissed and for only the second time since Federation, the sitting PM lost his seat.

Advancing human rights on the world stage. Promoting innovative legal inclusion to help mitigate the spread of HIV in third world countries. The lone voice on the High Court who spoke out against the deprivation of liberty without a trial. Elegant under fire. Knowing the consequences of removing industrial relations safe guards. Judicial activist. Committed partner. Hero to many.