Hello and welcome back to part two of our conversation with Justice Michael Kirby.
In this episode, we continue our deep dive into his extraordinary career,
touching on some of the most important legal challenges he's faced.
So, without further ado, sit back, relax, and enjoy the rest of the show.
You famously held throughout your career that the Constitution's authority is granted the acceptance by the people.
I wanted to know if your view has ever changed,
or is ever likely to change in response with the people,
or perhaps you view it as perhaps a missed opportunity.
Recent examples, such as the Voice referendum,
are examples that are part of representative democracy.
Or do you think that the judiciary should play a more active role
in trying to help and shift society in a way which is,
perhaps, deemed correct?
Well, what is incorrect?
What is incorrect?
If the people decide, you have to accept that that is what the people decide.
And if you're a Democrat, you have to say,
well, that is the nature of the society I'm in,
and if I don't like it, I should think of migrating somewhere else
or spending my whole life doing some other activity.
I certainly did have a different view about the Constitution
and the Grundnorm of the Constitution,
the fundamental grounding of the Constitution,
when I was at law school,
because there we were taught
the Grundnorm of the Australian Constitution
was that it was an enactment of the Imperial Parliament in Westminster.
And the Imperial Parliament had enacted it,
they had the superior role and superior power to do so,
and that was why it had to be interpreted in a way
that was basically comfortable to the British legal tradition.
And although some things were kept out of the Privy Council
by the provisions of Section 74 of the Australian Constitution,
most of our legal cases,
right up to my time in the Court of Appeal,
the final Court of Appeal really was the Privy Council.
And that's why I had on my walls all the English law books.
That was just how I was taught law.
But that changed in the course of my life,
it became necessary for people to try and work out
what is the foundation now of the Constitution,
if it isn't the Imperial power in Westminster,
if that is so conflicting with the political realities
of the world we live in,
And in the case of Leith in the Commonwealth,
before my appointment to the Court of Appeal,
and before my appointment to the High Court,
had said, in the words of Justice Deane,
that the real foundation is the acceptance of the Constitution
in the referendums that were held in the late 19th century.
And so a historical explanation was given as to why
it was the wishes of the people.
Now, there were certain problems with that from a historical point of view,
because the numbers of people who voted in those referendums
didn't include women in most of the colonies,
and therefore, it wasn't an entirely comfortable theory,
but it was the theory that we began in Australia to adopt,
and it was one which was more respectful of our,
our independence, our legal independence.
And so I went along with that,
and I still believe that that is the foundation of our Constitution.
That's why I balk at the suggestion that opportunities are missed
because of the people.
Sometimes the people have shown great wisdom in rejecting constitutional amendments.
One of the instances
was the Communist Party Dissolution Act in 1950,
and the referendum in 1951 that rejected
– when that referendum was mooted after the High Court by 5 to 1
rejected the Constitutional validity of the Act.
When the referendum was proposed,
the votes in the opinion polls showed that
80% of Australians favoured a ban on the Communist Party
because we had soldiers fighting in Korea at the time.
So it was actually what Chief Justice Latham,
the sole dissenter, said,
being comes before well-being.
That was something that Oliver Cromwell had written.
Being, in other words, your existence
and your continued existence in a peaceful society
comes before well-being, your happiness and pleasure and so on.
But the majority of the judges, in a wonderful decision,
one of the greatest decisions of the High Court,
said that we can deal with communists
for the sake of our country,
not for what they do, but not for what they believe.
And you can't ban them from having a political party
and for seeking to get the concurrence of the citizens with them.
They never did. They never got a majority.
They never even won a single seat.
But a single seat in the federal parliament.
They won a seat in Queensland.
But they were protected by the Constitution
and I, my grandfather or my step-grandfather
had been a communist.
And he never thought the High Court of Australia,
the running lapdogs of the capitalist class,
would ever protect his rights.
But the High Court in the Communist Party case did.
And that left a very indelible impression in my mind
because a kind of a communist,
a kinder and better man, you could not have met.
He was the treasurer of the Communist Party,
but he'd fought in Gallipoli,
he was a New Zealander originally,
and he became a communist.
And it was sort of like a religion.
And therefore, at the time, there would have been a few people,
including Mr. R.G. Menzies, the Prime Minister,
who thought that the people had made a terrible mistake.
So he went to a referendum, and the referendum
was fought, and it was won by the opposition.
And that teaches that sometimes what appears to be wrong at the time
can become accepted as wise in retrospect.
I think that's a, I suppose that's a reality for some people personally
that might struggle with, but I think your mentions also previously
in engaging with civil society,
and with other people, I mean, we are social beings,
and I think that's something that's really important,
and I thank you for your comments on that.
Yes, well, it certainly is important,
and it's very important for Australians
to engage with the First Nations people.
And if I look back on my life,
when I was the President of the Union of the University of Sydney,
I never asked a question about the First Nations people.
I never asked a lecturer,
why do we have the white Australia policy?
I never asked anybody about the disadvantage
that women suffered in the law,
or people with disabilities, or gays.
I never asked any questions about,
I just accept it, that's the law,
and my job is to give it application.
I think it is quite interesting, the idea of what the people accept,
and often times not only is it necessary
just on a social perspective to mix with other people,
but I feel as though that gives you a bit more of a perspective
on what the people truly want.
Sometimes you can get your hopes up a lot
for a particular constitutional change,
and you realise the people you've been talking to about it
are not necessarily representative of the white population.
It may be that the voice referendum was defeated
because it didn't really fulfil the wishes
of the First Nations people,
or that those wishes may be more radical.
They may be for some form of treaty,
because treaties were not unusual in British dominions.
They existed in the United States,
in the American colonies, in Canada,
and certainly in New Zealand,
where they had the Treaty of Waitangi.
So it's more complicated than just foolish people
not willing to accept this proposal
for the dignity of the First Nations people.
I voted for the referendum,
but I can understand the point of view
that there were reasons why,
including some First Nations people themselves,
were not convinced that this was the way ahead.
And it wasn't really very well argued before the people,
and you've got to understand
that it was not to prepare people for constitutional change.
And if you live in Australia,
where it's a pretty well governed sort of society,
where the law is generally obeyed
and the corruption is not very obvious,
it's reasonable to be rather hesitant about changing things.
I think for a lot of current leaders,
law students, that is their first referendum,
their first Australian referendum.
And I think, speaking personally,
it was definitely something that you put a lot of interest,
keen interest into,
especially looking at the legislative side.
I mean, you yourself have lived through a couple of referendums,
including the referendum on Australia to become a republic.
Perhaps looking at that, was that something as well...
You see that, I suppose,
the political element of it is that referendums usually don't pass
unless both parties are supporting it.
And at times as well, even when both parties do support it,
the Australian people still vote no.
So is it something that relates to perhaps informing people more?
Or what do you think?
Well, informing people more rather implies
that the people have been foolish,
whereas sometimes, as in the Communist Party case,
the people proved themselves to be more prescient
about our liberties than did the Parliament.
So far as the Republic is concerned,
I wasn't convinced that that was a step that was timely,
certainly at that time,
certainly in the reign of Queen Elizabeth.
Because a person of my age had grown up...
The whole, whole life had been with the Queen,
whose importance was not for what she did,
but what she kept other people out of doing.
That is the system of constitutional monarchy.
If you look at the countries where you could actually live
and which are peaceful, stable and democratic,
the best of them seem to be constitutional monarchies.
That may just be an accident,
but it's a peculiar thing that you have a symbol,
but they have no power,
and they keep other people out of the job of the President.
Just look at the situation
in the United States at the moment.
And, you know, whatever happens there,
it's a sort of semi-chaotic system.
And it depends on having an awful lot of money
in order to be able to be the final candidate
for one side of politics.
And sort of looking at it from a...
Whilst being an active judicial officer in that process,
is this something that...
What's the sort of things that you look at, I suppose,
when these sorts of things are being passed?
You mentioned previously you weren't watching TV,
but are you keeping up with the news?
Are you following those sorts of things?
Well, I keep up with the news at the moment
because it's so fantastical,
the situation in the United States of America.
The parliamentary system which we have
would never have allowed a person like Mr Trump
to become the leader of government.
It just wouldn't happen.
And the Americans, poor things,
inherited as a result of their revolution
the constitutional arrangements of King George III.
And therefore they have a king with over-mighty power
and he's the head of state,
the head of government,
the head of the executive,
the head of the armed services.
It's too much power concentrated in one person,
whereas the British constitutionalism
continued to evolve into the 19th century
and there's a statue in this street,
in Macquarie Street, Sydney.
At the end, you've probably never even looked at it,
it's the statue of Prince Albert,
the partner of Queen Victoria.
And it was he who taught Victoria,
that if you reign, you do not rule,
and therefore the system of constitutional monarchy evolved
and it's a mystery,
but the question is,
why are the countries like Spain,
the Netherlands, and so on,
generally peaceful and keep politicians in their place.
I think that's a very important feature.
And before you change it,
you've got to be sure you're not mucking things up.
I suppose one of the things that law students learn first
is the separation of powers.
And I think, as a concept,
it's pretty amazing that humans thought of that,
that these sort of ruling bodies
and people ruling
tend towards things like absolute,
sometimes corruption,
sometimes abuse of those powers
and sort of strong use.
And so for humanity to then set up barriers
in order to, or sort of...
For the greater good.
It's quite an amazing thought,
especially in sort of not making that power
concentrated into one person or several people.
And so, yeah, it is an amazing thing.
And I mean, yeah, I think...
It's interesting as well, though,
because obviously in the United States,
the separation of powers is quite strict,
probably a lot stricter than in Australia,
that the dev and executive sit in different houses.
Not only do they sit, but they must.
They can only be out of parliament
for, I think, it's three months
and they've got to find a seat
or they're out of the ministerial position.
And the good thing about our parliamentary system,
for all of its weaknesses and faults,
is that they've got to sit on that front bench
and answer questions.
At the end of the day
or at the beginning of the parliamentary day,
they will have to answer the questions
of the opposition.
Making accountability
is really very important
for a politically benign society
that doesn't let people get too big for their boots.
Now, I have a sort of home constitutional monarchy
and my partner makes sure with me
I never get too big for my boots.
And I think that, on a micro level,
is good for a human being,
but on a macro level,
it's good for a society.
You've got to control great power
because there are people
who want to use it for crazy ideas
and that's why we've got to put checks on it.
But it's still amazing, I suppose, to me,
that the people...
You're instantly amazed, Oliver.
No, but it's amazing
that the people that established that
were people that had that power to begin with.
And so it's almost as if you're limiting yourself from,
or limiting future people in that position as well,
but limiting yourself in your own power.
Well, let me just for a minute
give you a little legal history.
Albert came from Germany
and he married Victoria,
but he had a teacher
and his teacher was Baron Stockmar.
And Baron Stockmar taught him
in Saxe-Coburg and Goethe in Germany
that if this system is going to last,
it'll only last if you accept limitations on your power.
And that's what he taught Victoria.
She wasn't a very good student of it,
And Albert taught his children
and that really made a big difference
in British constitutional history
and that's why, you know,
when most of the other empires,
the German, the French,
and others have collapsed
and the British Empire
in the Commonwealth of Nations continues
and people want to continue to have connection with them.
And I'll be going to Samoa in October
for the latest Chogham meeting
and it's still a viable institution.
People share their experiences
and that's a good thing for humanity.
We're approaching towards the end of the podcast.
I'd just like to ask you now some standardised questions
that we ask all of our guests.
They're a little bit more personal
and give a bit more insight into you.
So starting off with the first one,
what was your favourite subject in law school and why?
It was legal history
plus constitutional law
plus international law.
Don't forget in my day everything was compulsory.
You had virtually no choices.
You had to do not the Priestly 11
but the 1959-40 subjects
and that had its weaknesses
but it meant everybody got a fairly good grounding
and I just, I loved theoretical issues
and when I go to legal functions
oh, we've got to make lawyers more practical
and they've got to be practical,
I say yes but they've got to get the theory.
They've got to understand the sorts of things
that we've been talking.
It didn't take us long
to get round to the rule of law
and to the separation of powers
and to the division and why we have that
and as you say it's amazing
that we have accepted it
but we have that.
So there was a wonderful professor
at the University of Sydney.
He later became a professor
at the University of New South Wales
he's shared by both the law schools
of that time in Sydney,
Professor Julius Stone
and he was a great theoretician of the law
and he was a well-famous teacher
and he taught jurisprudence
and he took a shine to me
and I think that was partly because
I was big time in the SRC
well this man's going somewhere
he kept notes on outstanding students
and apparently I was in those notes
and so I loved and admired him
and he gave me opportunities.
He got me writing a chapter
in his second volume,
second edition of a book he'd written
on jurisprudence.
So all of that made me very interested
And you've got to be interested in legal theory
if you're going to be a successful
and useful member of a court of appeal
or the High Court of Australia
you're dealing not just with the little case,
you're dealing with what happens
if you decide that in a particular way
and the facts are a little bit different.
you've got to see down the years.
You've got to be able to see into the future.
I have a suspicion there might be
a common denominator amongst members
of the court and other judges.
I spoke to Chief Justice Andrew Bell
and one of his favourite subjects was Roman law.
So again, a very similar historical element
in relation to law.
So moving on to the second question,
do you have a book that's significant to you
and one you'd recommend to students?
Well, you could do worse than to pick up
Julia Stone's book,
Province and Function of Law.
Which was the book on jurisprudence
from which we were taught in New South Wales
the subject of legal theory.
But there are other books on international law
and on legal history.
It's a shocking thing that legal history
is not compulsory in my humble view.
Because how can you be a lawyer
in a system of like,
a common law system
where it's all written in the cases
going back to 1100 and 1066?
How can you be a lawyer if you don't know
at least generally how it emerged
and why it emerged?
To answer your question,
it's amazing that these things happen.
But it's all bits and pieces of a long drama
which begins in England
and which was a history of struggle
of struggle of people
for their dignity and rights
which was ultimately declared
in the Universal Declaration of Human Rights.
So these are the books
but nowadays I don't read only legal books.
I read the London Review of Books.
The London Review of Books has all these books
I will never have time to read.
But then you get a potted version of it
and at the moment I'm actually reading
a very interesting book called
and it's about the Vichy France
during the German occupation
and Pétain who'd been a great general
in the First World War
and became effectively the dictator
of German sympathetic France
during the Second World War
and it's a very interesting story
about the struggle of the remnants of law
to try to control the Vichy regime
and what happened after the war.
History generally is very good.
I came top of the state
of New South Wales in history.
If I had my time over again
I would probably become
a professor of history.
But I just had to settle for the law
which is all history.
Were you more inclined to modern or ancient history?
The ancients are very important
but where do you start?
Why do you exclude China's ancient history
which is even longer than that of Mesopotamia
and the Western European tradition?
I did modern and ancient in year 12.
I was definitely more inclined
towards modern history.
We actually studied Chinese history
as a part of that as well
which I think was really interesting
and as you say, a lot of the time
you don't get as much exposure
to different perspectives
but that was something
that I really liked studying as well.
We've got to study the history
of our relationships
with the First Nations people
because nobody asks the questions
well, certainly in my time
nobody asked the questions
nobody asked the question
what right did we have
to barge into this huge country
and just take it over
and deny the indigenous original inhabitants
any respect for their dignity
and their culture and tradition.
But I think we've got that message
but there are plenty of other things
and to improve our minds
and improve our practice.
And I never put my hand up
and asked about the denial
of the dignity of the indigenous people.
And you young lawyers
have got to ask yourself
what are the subjects now
that in my old age
I'm going to be looking back
I never asked anything about that.
and I'm ashamed of the fact
that I never asked anything about it.
Because those subjects will exist.
They will include
the way we treat refugees
the way we treat migrant, immigrant people
the way we treat people
who have drug addiction
and people who have
who are disabled in some way.
enacted a provision
to deny the provision
of sexual therapy
to people with disabilities
who cannot have a sexual life
without assistance and therapy.
You know, if anybody stops
and thinks about their own life
and their own sexual life
that is a very wrong thing
for our parliament to have done.
And I hope that the Federal Court
or a court in the House
I suppose now moving on
to our next question
you mentioned it a little bit previously
but did you always envision yourself
practising as a judge
what did you think you would do?
I don't regard being a judge
You practise as an advocate
you practise as a solicitor
you practise as a barrister
and you are removed
from the hurly-burly
but did I ever envisage
doing anything else?
Well I've told you
at the North Strathfield Public School
at the age of eight
I already wanted to be a judge.
Now why was that?
Because I'd seen a film
called The Paradigm Case
I don't think it was
the North Strathfield Public School
I think it was probably
Fort Street High School
it was a case about
and there was a great actor in it
called Charles Lawton
who was the judge
he's a bit pompous
he's so in control
that doesn't look
that I aspired to
and I've never regretted it
and I recommended it
for total concentration
long hours of study
and long hours of reading
the briefs and the papers
listening attentively
the back of your mind
the theory of the constitution
and the theory of our
form of democracy
and trying to ensure
that in the little tasks
we all contribute
At what point in your life
did your aspiration
to become a bishop
I went the other night
magnificent service
really appreciated