Open ver­dict on re­form­ing judge

Frank Car­ri­gan

The Weekend Australian - Review - - Books -

IN early Fe­bru­ary, Michael Kirby re­tired from the High Court of Aus­tralia. Af­ter 13 years’ ser­vice at the apex of the Aus­tralian ju­di­cial sys­tem, he had reached the com­pul­sory re­tire­ment age of 70. It would be hard to con­ceive of any­thing but manda­tory re­tire­ment bring­ing to a close one of the most tur­bu­lent and creative ju­di­cial ca­reers in Aus­tralian his­tory.

Kirby was in­de­fati­ga­ble right to the end. He con­tin­ued to work seven days a week, evinc­ing the same en­ergy and drive he had di­rected at es­tab­lish­ing a ju­di­cial rep­u­ta­tion that would echo down the years. He was one of the most as­tute and ac­tive pub­lic in­tel­lec­tu­als in Aus­tralia, putting his for­mi­da­ble in­tel­lect at the ser­vice of equal­ity and civic val­ues.

Kirby had glit­ter­ing in­tel­lec­tual gifts and a warm heart, but his­tory’s judg­ment will rest on his 13 years as a High Court judge. It will prob­a­bly be a long time be­fore a true pic­ture of Kirby’s ju­rispru­dence, and thus his legacy, can fi­nally be drawn. But as the ti­tle of this vale­dic­tory col­lec­tion of es­says about Kirby sug­gests, there is no short­age of torch­bear­ers ready to pro­mote his cause.

The bulk of con­trib­u­tors cel­e­brate Kirby’s sta­tus as a rebel judge and con­trar­ian re­spon­si­ble for set­ting a High Court record of dis­sent­ing in nearly 50 per cent of his cases. The prom­i­nent Aus­tralian lawyer Ge­of­frey Robert­son presents a holis­tic ap­praisal of Kirby, drawn from close ob­ser­va­tion dur­ing a num­ber of decades of friend­ship. While lav­ish in his praise, Robert­son also chides Kirby gen­tly for sup­port­ing the monar­chy and help­ing to im­pede the emer­gence of a repub­lic.

He is less for­giv­ing of some present and past High Court judges from whom Kirby had to en­dure wound­ing snubs. Robert­son re­calls an oc­ca­sion when he rep­re­sented a client be­fore the High Court. When Kirby was ask­ing ques­tions from the bench, a num­ber of his brethren were chat­ter­ing away and mak­ing it ob­vi­ous that they thought lit­tle of Kirby’s line of in­quiry. This os­tracism would have cut deep, but Kirby would have known bet­ter than most that the study of law nar­rows the fo­cus of the mind and ru­ins the main­springs of creative and crit­i­cal in­tel­li­gence.

Robert­son also iden­ti­fies the key weak­ness of this col­lec­tion of tributes to Kirby: the dearth of

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