Former Justice Of The High Court Of Australia Michael Kirby Pt1

Hello and welcome to this special two-part finale for the Australian Law Student Podcast.

I'm your host Oliver Hammond and in today's episode myself and guest co-host Francis Burfitt

had the privilege of speaking with one of the most distinguished figures in Australian legal history,

Justice Michael Kirby. As a former Justice of the Australian High Court, Justice Kirby has

been a tireless advocate for human rights, social justice and legal reforms throughout

his remarkable career. His judicial philosophy and prolific contributions to both the Australian

legal system and international law have left an indelible mark on the profession.

During our conversation, Justice Kirby reflects on his decades of service on the bench,

shares his insights into the evolving nature of the law and discusses his ongoing work.

We also explore the personal challenges he faced in the judiciary and how his identity

shaped his approach to justice. This is certainly a conversation filled with wisdom,

inspiration and candid reflections that you won't want to miss. So without further ado,

sit back, relax and enjoy.

Hello everyone and welcome to the Australian Law Student Podcast. I'm your host Oliver Hammond

and on today's episode I'm joined with my co-host Francis and a very special guest with me,

the Honourable former Justice of the High Court, Michael Kirby. Thank you so much for joining with

me today. Thank you for having me. I'll start off with my first question. Your tenure on the

High Court was marked by many significant contributions to Australian jurisprudence.

Could you share what it's like to serve as a High Court Justice and how do you navigate the dynamics

of working alongside other justices? How do you navigate the dynamics of working alongside other

justices, particularly when managing different personalities and viewpoints and decisions?

Don't forget that by the time I reached the High Court of Australia I had had 12 years in the Court

of Appeal of New South Wales and before that 10 years as Chair of the Australian Law Reform

Commission. So that by the time I was appointed to the High Court I was a pretty experienced

professional.

And the main point of professionalism is to manage your rage and to manage your disagreement

and your puzzlement at the fact that your colleagues don't necessarily always agree with you.

So that was not really a big problem and the other justices of the Court were all very experienced

and able and self-controlled.

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It's not all that different to the Court of Appeal of New South Wales which was and is a very great court. The Court of Appeal was more personally agreeable because the justices of the Court of Appeal were more inclined to agree with me and therefore held a bit of generosity throughout my time there.

Life, in a way, was easier, but the range of work that you got on the Court of Appeal

was broader because you were dealing with every aspect of state law and of federal law

where the State Court was exercising federal jurisdiction, and you had to keep at it.

In my last year as a judge of the Court of Appeal, I think I signed something like 280

opinions, whereas when I was in the High Court, the annual output was only something of the

order of 80.

so it's a much lower production rate

but of course everything in the High Court is difficult

because it shouldn't be there if it's not a difficult

or controversial or important case.

So anyway, it's a wonderful thing

to serve on a highest national court.

One of the things I did in my latter years in the High Court

was to go to Yale University Law School every September

and there were gathered judges

from a number of final national courts.

The House of Lords, as it was then,

the Canadian Supreme Court,

the New Zealand Supreme Court,

the Senate,

South African Constitutional Court,

the Supreme Court of Japan and so on

and it was very interesting to see

how many of the problems that you were getting

in the High Court of Australia

were similar to problems that were arising

in very different societies at about the same time.

So that was an exciting and privileged viewpoint

for a lawyer to be,

serving as one of seven justices of the final national court

and I wouldn't have missed it for worlds

but there was a dynamic in the relationship

and through accidental factors

I was, for most of the time I was serving on the court,

but in a moment,

a minority in many of the important decisions

which we had to reach.

I never complained about that.

I knew how that had arisen

and I just accepted it and got on with it

and expressed my view

because one of the strengths of our system is

that the judges are duty bound to express their own opinion.

You may agree with them or you may disagree with them

and that,

that is a very important part of our system.

It's just how we were all trained

and it's what we all did

and the fact that there were disagreements

was not something I allowed to interfere with my daily work.

I suppose perhaps in developing that sort of skill

and in being able to manage differing viewpoints

and that sort of thing,

that occurred earlier on in your career

as just in the Court of Appeal in New South Wales.

Perhaps reflecting on that,

was there any time early on where you sort of,

were there new skills that you think you had to develop?

Oh yes, every stage in my career were new skills.

Last night I went to a function at the University of Sydney

to celebrate the 150th anniversary of the Union,

the University of Sydney Union,

and I had to speak to them

and I had to,

I had to speak about those glorious times

when I was the President of the Union

and before that President of the SRC

and before that President of the Law Society,

the Students' Law Society.

And that was a very good preparation

and in fact I often tell law student audiences

that you should become involved in civil society

or in

the activities of student years

because I found my grades always got better

when I was busy working in areas where I was good,

where I performed well,

and where I learned the great skill of being a good chairman.

I am a very good chairman of meetings.

Yes.

And I got that because I spent all of my time,

Yes.

and I spent all of my university years

chairing student meetings.

And you've got to have a skill to encapsulate

the point that has emerged in the discussion,

to do so fairly so that you're not being dishonest

in presenting what is emerging,

to give everybody a chance

to have a bit of a sense of humour but not too much.

And that was something that I took from my life

as a student representative onto the courts that I later served on

and into the Law Reform Commission,

where I served before I was appointed to the Court of Appeal.

I just wanted to ask,

I thought it was interesting what you said before

about the transferable skills and obviously the need

to entertain a sense of humour to some extent.

Do you think that there was a transferable skill in that sense

that you entertained similar senses of humour

on the Court of Appeal or the High Court?

I don't think anything was ever exactly the same.

My time in student politics was a different sort of challenge.

My time in the Law Reform Commission

was a different sort of challenge.

And then in the Court of Appeal, different again.

The Federal Court was in there for a short time.

And after that, my time in United Nations Commissions of Inquiry

and activities of that kind, different again.

People say, oh, he's the great dissenter.

But I wasn't the great dissenter in student politics.

I was the great assembler.

And I had a career in student politics, which was astonishing.

I got everything in student politics.

And people said, oh, this man is definitely going on his way

to become the Prime Minister.

But I just had to settle for being a Justice

of the High Court of Australia.

And I was the High Court of Australia.

But in my growing up, when I discovered that I was gay,

in those days, you had to hide that.

And you had to pretend that you were straight.

And I was pretty good at that pretense.

But it was because of that that when other students were out

at the parties and drinking and enjoying themselves,

I was running meetings.

And I just became very good at running meetings, still am.

And that was a good experience for me.

But as I look back on it, it was really

a product of the denial of an important part

of any human life, which is the life

of interpersonal relationships and of fun, enjoyment,

and so on.

I was very serious, very focused.

And very hardworking.

And basically, I'm still all of those things.

It gets a bit late in your life to change that very much.

But if you want to have an easy life, law is not a job for you.

Law is a job for application, for dedication,

for attention to detail, for service to others,

to remember that this is not a fun thing for clients.

It's a serious matter.

And you have to give your all to deliver the best

that you can do.

Absolutely.

I think, yeah, as we were discussing earlier,

you've obviously spent a long time

on the High Court of Australia.

And in that time, Australia, since then,

has undergone some pretty radical change

and still is continuing to do so.

I just wanted to ask, throughout all your time on the court, and in relation to this,

to that now, do you feel as though you've

encountered any particular arguments or perspectives that

have made you reconsider or change your mind on any topics of issue?

Well, you keep your mind open.

I mean, my general inclination is one very sensitive to human rights.

And Chief Justice Spiegelman once said that the books that

have been written on my life are all very interesting.

But he's waiting for the psychodrama.

He wants to hear.

The psychological analysis of it.

And so I just would always keep an open mind.

And I think that was a very important feature

of an independent judge, the rule of law,

not going into court determined to do your thing,

but determined to be yourself.

OK.

To approach the problem in a way which

is comfortable to you and your understanding of the law,

but not to ignore where the principles of law,

if the law is valid, and to apply it.

A good illustration of that was the case of Minister

for Immigration against B, which was a migration refugee case.

And it concerned

two little boys from Afghanistan who were under orders of deportation

because their parents had arrived without visas.

And the question was whether the provision requiring

compulsory detention of the boys was

within the intention of the Migration Act

in dealing with detention.

Or did that provision only apply to people

who could be expected to get visas, namely adults.

And the Family Court, which had jurisdiction

in the particular case, and decided the matter

at first instance and on appeal, at both levels

found in favor of the boys and said the act only applied

to adults in that respect.

But the problem was it was pointed out

by the Solicitor General during an argument that,

Act contained provisions for the searching of children in detention, and if the Act didn't

apply to children, why would it provide for the searching of children? And the Act also

had provisions which were contrary to the Convention on the Rights of the Child, which

says that detention or imprisonment should be, in the case of a child, a last resort.

And in Australia, it is a first resort. And so a question arose as to whether it was not

consistent with the Convention in a way that was relevant to the case. But we then looked

at the record of the case, and it was presented to us by the Solicitor-General correctly,

and it pointed out that

the

Attorney-General's Department officers had drawn the notice of the Government and of

Parliament to the fact that if this law is enacted, it will probably make Australia in

breach of the Convention on the Rights of the Child. And so it can't have been said

that Parliament made a mistake, that it overlooked this conflict between its international and

its national obligations and its political imperatives. So for those two reasons, when

I walked in, I thought, well, I would not be too upset to make a decision affirming

the Family Court. But when I heard the argument, I just couldn't do that, because the argument

convinced me that the decision of the Family Court was wrong in the case.

So I had to say that, and the High Court was unanimous in the matter, and the unanimous

decision was very painful. The two little boys and their parents were sent back to Afghanistan

and were last seen going through the Khyber Pass, and it's a sad thing. But I never lost

any sleep about it. I went home, had my dinner, spoke with my partner, and I went home and

told him about the case, and then I forgot it, and just got on with the next case. That's

what you have to do in the law. It sounds hard, but unless you can protect your inner

psyche, you're not going to be able to do your best.

Do you think that, I suppose on a bit more of a personal note, do you think that you

disassociate yourself with cases after perhaps the day is done? Or do you perhaps, is something,

is the law for you something that you live out every day?

Every living second of your day?

No, the law is my profession, and I didn't have, and still don't have, problems sleeping.

You've got to be able to do that. You've got to psych yourself so you can go to sleep.

But that of course means disciplining your life, not having late parties and other interruptions

to a calm life.

And fortunately...

Mm-hmm.

Mm-hmm.

...my partner Jan, who's put up with me for 55 years, is very calm himself, and so, and

we decided very early in our relationship that we would not watch television. We would

just talk.

Huh.

And that's important, to have a partner that you can talk to, get things off your

chest, and then forget it, and get on with the next case, because tomorrow is another

day, and tomorrow was always another case.

And it was often a very difficult case.

Did you find it hard, though? I mean, it's often said that lawyers are friends with lawyers.

They marry or are in relationships with other people in the legal fraternity. You know,

they're constantly, I suppose, surrounded by that dynamic. Do you think it can sometimes

be hard, I suppose? Or can you still be friends, or, and just not talk about things like that?

Well, I think if you're, all your friends are lawyers, you're having a very narrow relationship.

Mm-hmm.

But in real life, you should, you should be mixing with people with different interests

and different backgrounds, for various reasons. I came to have a lot to do with medical practitioners

and people in the medical area, and so I didn't spend my whole life with lawyers. And also,

I did a very strange thing. Before I was appointed to the

bench, my partner, Jan, said, why don't we drive overland? And I said, oh, I don't think

I can do that. I'm a busy barrister. I'm making a lot of money. I'll lose all my clients.

And that's what others said to me, including Michael McHugh, who was a colleague at the

bar. He said, it's the end of civilization. You'll never get the cases back, and so on.

But I was convinced that this was a good idea.

And so that's what we did. And we drove across India and into Pakistan, into Afghanistan,

up into Iran during the time of the Shah, and then into Europe. And it was a wonderful

experience. And we did it twice. And if I hadn't been appointed at the age of 35, that's

probably what we would have kept on doing, because we loved it.

Mm-hmm. I think one thing I find pretty interesting

is that something that I think a lot of law students don't take time to think about often

is the need for a judicial psyche, what you were saying earlier about not losing sleep

over really tough cases like that. We often think about a judicial mind, but it's rare

that we think about the spirit or the psyche of a judge. Is that something that took a

long time to get used to? Did it come naturally to you?

I think it came naturally. I wasn't conscious of training myself. I didn't do yoga. I didn't

psychotherapy or anything of that kind i and i'm not criticizing people who who do that

i've known judges who have yoga lessons and and who have training but i was lucky

that my partner was i suppose a kind of therapist and i think that's whether you're straight or gay

your partner has to share your life and share the stresses and that helps you get through them

and and i i didn't have too much trouble with that actually and i still don't you've got to

learn to get on with the next day and that that means you've got to have a good sleep

and i was always a very early worker i still am i i would get up some of the silks i've

worked with when i was at the bar the new south wales bar tradition is start early

the melbourne bar is start late and work late but the new south wales bar i was often in my chambers

by about 5 00 a.m and i would then go and work with busy silk who was there and at that time

you didn't have emails and other forms of digital technology but you did have the risk of the

telephone and the telephone would start taking you over by a

i didn't know that at the time i was working at the bar it was about nine o'clock or ten half past nine

and so this was a clear time and a good time for preparing and i was always very conscientious

i wouldn't want you to think that i took law as a lightweight topic or a profession i always

treated it very conscientiously and and i always gave my all and i still do and i think that's

uh that's

in one sense objectively a downside of choosing law as your vocation because you then don't have

enough time just to enjoy yourself when I enjoy myself I start to feel guilty

but so that that was just my experience but I was very lucky in my partner who's from the

Netherlands and the people of the Netherlands are very direct and very honest very clean very

hard-working and he has been a wonderful force for equanimity in my life and in the life of my

family all the members of my family they've all become a bit Dutch you know we're very direct

people and we are very honest people and it actually was my partner Johan who said

after I was appointed to the High Court it's time that we stop this pretense you have to stand up

and I said oh don't you think we should postpone this until I leave the bench and Johan said no

we've got to stand up we've got to stand up for the young people who are coming along

they should not have to suffer the duplicity and the obligation to pretend that we had to suffer

because this was coinciding with the HIV pandemic and ultimately I agreed with what he said and I

think that was a good thing I think that was a good thing for me good thing for Johan good thing

for the judges the courts and a good thing for society but there are still horrible people out

there who who have an irrational and unscientific attitude towards sexual variation and

that is just something that we've got to work at and improve also women have to overcome prejudice

against them but it's amazing the change in the status of women in the legal profession that's

come about in my lifetime fair enough I think um one thing this sort of flows on from what we're

saying earlier about the early days in your career and developing a legal mind obviously the legal

psyche came to you quite easily but one thing I've always thought was interesting was the experience

of a newly appointed member of the bench of the Court of Appeal or wherever it may be rising up

through the ranks of the legal system how often in the early stages of your career did you feel

overwhelmed and are there any early decisions that you made that you think you might decide

differently today I've told you that I was always a hard worker and my solution when I was a young

solicitor and when I was a young barrister was to get in early to work very hard on my cases to have

it possible uh in my head not to be in a position which was a horror thought for me where a judge

could work out that I hadn't read up a particular issue I wanted to be on top of everything and

that was just I suppose a psychological flaw on my part I always wanted to do well in exams or

in anything else when I was at primary school at the North Strathfield Public School I was asked by

departmental officials to fill in a form which said what I wanted to be when I grew up and I

wrote I want to be a judge or a bishop and this was must have been I must have been aged about eight

uh so I was obviously a bit psychological

disturbing but that that was just my personality and it it's a good personality to be obsessive

for the law but you've got to be obsessive be hard working do your work and give your

guts to the case but then be able to relax your mind otherwise you know you'll go mad

hmm a lot of

There is a problem of alcoholism in the law, there is a problem of people having use of

drugs and alcohol just because their personality can't cope with this sort of pressure or with

the disappointments of life.

I had some disappointments but mostly my life has been really blessed by many opportunities

and jobs and challenges and so I'm not complaining about my life but you've got to be able to

roll with the punches but not be a punchy type, you've got to be able to absorb it and

then get on with the day's work, it's a professional job.

Thank you for listening to part one of our interview with Justice Michael Kirby.

This season has been packed with incredible guests and we truly hope

you've enjoyed it.

We hope you've enjoyed listening to these conversations as much as we've enjoyed bringing

them to you.

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Your support helps us to continue to provide valuable content for law students across Australia.

Also, don't forget to check out part two of our conversation with Justice Kirby in the

next episode where we dive even deeper into his remarkable career and insights as one

of Australia's most esteemed former High Court Justices.

Thank you.