Flaws serve to make the man

The Weekend Australian - Review - - Books - Roy Wil­liams

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

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