Open verdict on reforming judge
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