Flaws serve to make the man
MICHAEL Kirby’s retirement from the High Court bench in February 2009 has proved a mini-boon for the publishing industry. This is the fourth book about him in as many years and the second biography. Daryl Dellora is an enthusiastic admirer of Kirby, the public figure and the private man. In 2010 he wrote and directed a documentary about him for ABC television.
His biography, however, breaks new ground. Late last year, Dellora was given access to a treasure trove of documents compiled across 40 years by Kirby’s father, Don. ‘‘ This,’’ Dellora sensed at the time, ‘‘[ was] material designed to elevate the blood pressure of a biographer.’’
Even so, he appears to have mined it skilfully. There are many extracts from private letters, mostly between Kirby and his parents.
The end product of Dellora’s labours is a moving and comprehensive portrait of Kirby the human being. His well-known strengths emerge, but so do his weaknesses, and this lends the book resonance. Dellora is not blind to Kirby’s tendency to self-promotion, or his ‘‘ enormous pride’’.
But all of us are sinners and Kirby, a faithful (liberal) Anglican, would appreciate that better than most. In Dellora’s eyes, Kirby’s flaws are greatly outweighed and outnumbered by his virtues.
Sheer diligence for one. Whether as a student, campus politician, solicitor, barrister, law reform commissioner, judge, conference delegate, AIDS campaigner, writer, public speaker or human rights advocate, Kirby gave 100 per cent. He understood that ‘‘ the devil is always in the detail’’ and tried to master it.
Moreover, he treated all people with respect, not merely formal courtesy. At the bar, for instance, there was no favouritism or skimping. According to Dellora, he dealt promptly and meticulously with his many briefs, in the order in which he received them.
He was similarly fair as a judge. Once, as a young solicitor, a case of mine came before the NSW Court of Appeal. I was acting for a large accounting firm against an embattled shopkeeper with a truly sad story to tell. We had lost badly at trial and felt some trepidation on learning that Kirby was sitting on the threeman appeal court.
This was not a glamorous matter. It would have been easy for a ‘‘ bleeding heart’’ judge to have dismissed my client’s appeal or, at least, farmed out the writing of the judgment to someone else. But Kirby saw that the trial judge had made lots of legal mistakes and he wrote an impeccably well-reasoned judgment allowing the appeal.
Another of Kirby’s best qualities is graciousness. One of Dellora’s most arresting passages concerns the Comcar affair of March 2002. Late one night in the Senate, under the protection of parliamentary privilege, Liberal hardman Bill Heffernan slurred Kirby without warning in a vile and reckless way. The allegations were rapidly proved baseless, and Heffernan had no choice but to make an abject apology. As Dellora reminds us, this was a horrendous experience for Kirby. Yet he accepted Heffernan’s apology without delay.
What else can we learn from this book? First and foremost, that the culture wars have poisoned our body politic to the point of absurdity.
There is a prevalent myth that Kirby was, and is, a ‘‘ left-wing radical’’ and/or a ‘‘ judicial activist’’ insufficiently respectful of elected governments. But the opposite is closer to the truth. At heart Kirby is a conformist and a conservative.
Although assisted at various stages of his legal career by Lionel Murphy, Neville Wran and Gareth Evans, he soon realised he did not fit in the ALP.
Nor despite his friendships down the years with people such as Tony Abbott, a fellow monarchist and Christian, could he ever have progressed far in the Coalition. He was right to feel party-political ambivalence.
Like Malcolm Turnbull, Kevin Rudd and Bob Carr, Kirby would have felt most at home in the British Liberal Party of 100 years ago: the era of high-minded achievers such as William Ewart Gladstone and Herbert Henry Asquith.
Kirby’s record as a judge is open to criticism but, here, the shallowness of Dellora’s legal knowledge is exposed.
In his discussion of certain notable High Court cases — Wik, for example, and those concerning the Hindmarsh Island Bridge and the Howard government’s anti-terrorism legislation — he is out of his depth.
Kirby’s decisions in those matters had much to recommend them, but Dellora tends to depict his hero as having been engaged in a battle for truth and good against reactionary evil. This is much too simplistic and quite unfair to other eminent jurists on the court. Dellora has not tried to understand their point of view: at times, indeed, even Kirby himself fell into that trap.
There are also vague gibes at religion and not a few careless errors. For example, Dellora suggests that ‘‘ after finally gaining office in 1972, [Gough] Whitlam gained enormous criticism for introducing state aid to nongovernment religious schools’’. It was the Menzies government that introduced state aid in 1964.
I mention these things not to nitpick but because Dellora’s mistakes are emblematic of the culture wars. His are typical biases of the Left, just as too much sloppy criticism of Kirby down the years has been sadly typical of the Right. It becomes tiresome.
In one respect, Dellora’s book is outstanding. Anyone who believes that a homosexual man can or should be ‘‘ cured’’ of his orientation must examine, in good conscience, the case of Kirby. Kirby knew the truth about himself as a boy, but abstained from intimacy until the age of 28.
His beloved father urged him to keep abstaining, and prayed for it. Kirby had read his Bible, and all the relevant scientific and sociological literature.
He was well aware of the law of NSW (male homosexuality was a crime until 1984). He’d had plenty of offers from attractive women but declined to exploit them.
After years of hopeless, miserable effort he found love; of course, it changed his life. For more than 40 years he has been in one relationship.
Yet he did not formally ‘‘ out’’ himself until 1999. He was terrified — not of God’s wrath but of scandal. And the terror was wellfounded, as people such as Heffernan are wont to demonstrate.
The new biography of Michael Kirby is a moving and comprehensive portrait