Michael Kirby
Encyclopedia
Michael Donald Kirby AC, CMG, (born 18 March 1939) is an Australian retired judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

, jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...

, and academic who is a former Justice of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

, serving from 1996 to 2009.

Biography

Michael Kirby attended Fort Street High School
Fort Street High School
Fort Street High School is a co-educational, academically selective, public high school currently located at Petersham, an inner western suburb of Sydney, New South Wales, Australia....

 in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...

. He received his Bachelor of Arts (1959), Bachelor of Laws (1962), Bachelor of Economics (1965) and Master of Laws (First Class Honours) (1967) from the University of Sydney
University of Sydney
The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania...

. At Sydney University, he was elected President of the Students' Representative Council
University of Sydney Students' Representative Council
The University of Sydney Students' Representative Council is the representative body for undergraduate students at the University of Sydney.- Structure :...

 (1962–1963) and President of the Sydney University Union
University of Sydney Union
The University of Sydney Union is the student-run services and amenities provider at the University of Sydney. The Union's key services include the provision of food and beverages, live music and other entertainment, the Verge Arts Festival and other cultural activities, Orientation week and...

 (1965).

Kirby was admitted to the New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...

 Bar in 1967. His first quasi-judicial
Quasi-judicial body
A quasi-judicial body is an individual or organization which has powers resembling those of a court of law or judge and is able to remedy a situation or impose legal penalties on a person or organization.-Powers:...

 appointment was to the Australian Conciliation and Arbitration Commission, a tribunal which adjudicated labour disputes, upon which he served as a Deputy President from 1975 until 1983.

From 1983 to 1984, he was a judge in the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...

 and the youngest man appointed to the federal judiciary, before an appointment as President of the New South Wales Court of Appeal, a superior court in that state's legal system. During that period he was also the President of the Court of Appeal of Solomon Islands from 1995 to 1996. He was appointed to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 in February 1996. He has served on many other boards and committees, notably the Australian Law Reform Commission and the CSIRO. He is Patron of the Friends of Libraries Australia (FOLA) and many other bodies.

He was appointed a Companion of the Order of St Michael and St George
Order of St Michael and St George
The Most Distinguished Order of Saint Michael and Saint George is an order of chivalry founded on 28 April 1818 by George, Prince Regent, later George IV of the United Kingdom, while he was acting as Prince Regent for his father, George III....

 (CMG) on 31 December 1982, for his services to law. He received Australia's highest civil honour when he was made a Companion of the Order of Australia
Order of Australia
The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...

 (AC) in 1991 and in the same year was awarded the Human Rights Medal. From 1984 until 1993, Kirby held the position of Chancellor at Macquarie University
Macquarie University
Macquarie University is an Australian public teaching and research university located in Sydney, with its main campus situated in Macquarie Park. Founded in 1964 by the New South Wales Government, it was the third university to be established in the metropolitan area of Sydney...

. In August 2008, Kirby was presented with the inaugural Australian Privacy Medal by Senator John Faulkner
John Faulkner
John Philip Faulkner is an Australian politician. He has been a Labor member of the Australian Senate since 1989, representing the state of New South Wales. Following a period serving on various Senate Committees and as Deputy Whip, he was a Minister in the Keating Labor government 1993-96...

 and Karen Curtis, the Australian Privacy Commissioner. He was awarded a honorary
Honorary degree
An honorary degree or a degree honoris causa is an academic degree for which a university has waived the usual requirements, such as matriculation, residence, study, and the passing of examinations...

 Doctor of Laws degree from the Australian National University
Australian National University
The Australian National University is a teaching and research university located in the Australian capital, Canberra.As of 2009, the ANU employs 3,945 administrative staff who teach approximately 10,000 undergraduates, and 7,500 postgraduate students...

 in 2004. He was awarded a honorary
Honorary degree
An honorary degree or a degree honoris causa is an academic degree for which a university has waived the usual requirements, such as matriculation, residence, study, and the passing of examinations...

 Doctor of Laws degree from the University of New South Wales
University of New South Wales
The University of New South Wales , is a research-focused university based in Kensington, a suburb in Sydney, New South Wales, Australia...

 in September 2008. He is a fellow of the Hastings Center
Hastings Center
The Hastings Center, founded in 1969, is an independent, non-partisan, non-profit bioethics research institute based in the United States. It is dedicated to the examination of essential questions in health care, biotechnology, and the environment...

, an independent bioethics research institution in the United States. In 2006, he was elected an Honorary Bencher of the Inner Temple
Inner Temple
The Honourable Society of the Inner Temple, commonly known as Inner Temple, is one of the four Inns of Court in London. To be called to the Bar and practise as a barrister in England and Wales, an individual must belong to one of these Inns...

 in London. In the same year the Australian Academy of the Humanities
Australian Academy of the Humanities
The Australian Academy of the Humanities was established by Royal Charter in 1969 to advance scholarship and public interest in the humanities in Australia...

 elected him an Honorary Fellow.

He retired from the High Court on 2 February 2009 and was succeeded by Virginia Bell
Virginia Bell
Virginia "Ding Dong" Bell is a topless model and actress. She started her career in the 1950s as a burlesque dancer....

. It was said upon Kirby's retirement that his original appointment to the high court "was an assurance to prime minister Paul Keating
Paul Keating
Paul John Keating was the 24th Prime Minister of Australia, serving from 1991 to 1996. Keating was elected as the federal Labor member for Blaxland in 1969 and came to prominence as the reformist treasurer of the Hawke Labor government, which came to power at the 1983 election...

 that the pro-monarchy judge would 'have to shut up' and it would upset 'the Tories
Tory
Toryism is a traditionalist and conservative political philosophy which grew out of the Cavalier faction in the Wars of the Three Kingdoms. It is a prominent ideology in the politics of the United Kingdom, but also features in parts of The Commonwealth, particularly in Canada...

'."

After his retirement Kirby was appointed to several honorary academic roles at Australian universities. These included appointments to: the Australian National University (ANU) in Canberra, as distinguished visiting fellow in February 2009; the University of New South Wales Faculty of Law as visiting professorial fellow in March 2009; and the University of Tasmania Faculty of Law as adjunct professor in July 2009. He has been appointed honorary visiting professor by 12 universities.

Jurisprudence

In November 2003, at the University of Exeter
University of Exeter
The University of Exeter is a public university in South West England. It belongs to the 1994 Group, an association of 19 of the United Kingdom's smaller research-intensive universities....

, Kirby delivered The Hamlyn Lectures
on the subject of judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

. Rejecting the doctrine of strict constructionism
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...

, Kirby declared that:
"Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced... contrary to myth, judges do more than simply apply law. They have a role in making it and always have."


These lectures sparked a debate in the Australian media, echoing an ongoing debate in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, as to whether judges have the right to interpret the law in the light of its intent and considerations of natural law or whether judges should (or can) simply follow the letter of the law, leaving questions of its intent and underlying principles to elected representatives.

He had also addressed this topic in a 1997 speech to the Bar Association of India, in which he spoke approvingly of "a kind of "judicial activism" that is often in tune with the deeply felt emotions of ordinary citizens." Nonetheless, Kirby is critical of the term "judicial activism" as applied to himself and other judges, and considers it hurtful. Kirby believes the term is "code language", applied chiefly by conservative commentators to views and to people with which they disagree.

He was often at odds with his colleagues in the Gleeson
Murray Gleeson
Anthony Murray Gleeson AC QC is a former Chief Justice of the High Court of Australia, the highest court in the Australian court hierarchy.-Biography:Gleeson was born in Wingham, New South Wales, the eldest of four children...

 High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

. In 2004 he delivered a dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

 on nearly 40% of the matters in which he participated, almost twice as many as any of his High Court colleagues; in constitutional cases, his rate of dissent was more than 50%. Legal researchers Andrew Lynch and George Williams observed that "even allowing for 2004 as a year in which Kirby J had a particularly high level of explicit disagreement with a majority of his colleagues, it is neither premature nor unfair to say that in the frequency of his dissent, his Honour has long since eclipsed any other Justice in the history of the Court... [Kirby] has broken away to claim a position of outsider on the Court which seems unlikely to pass with future years." Kirby has responded, stating that "on their own, statistics tell little." To understand Kirby's rate of dissent, it is necessary to examine what his disagreements have been about and consider who he has dissented from. Kirby explains "there have always been divisions, reflecting the different philosophies and perspectives of the office-holders", and that throughout the High Court's history, many dissenting opinions have ultimately been adopted as good law. Further, Kirby argues that the rate of dissent, if seen within its context, is relatively small. Cases heard before the full bench of the High Court have proceeded through a series of lower courts and special leave hearings. They are thus likely to test the boundaries of the existing law, and raise opposing, though no less valid, views of the law.

Public life

Michael Kirby was among the founders of Australians for Constitutional Monarchy
Australians for Constitutional Monarchy
Australians for Constitutional Monarchy is a group that aims to preserve Australia's current constitutional monarchy, with Elizabeth II as Queen of Australia...

, an organisation which played a prominent part in the 1999 republic referendum
Australian republic referendum, 1999
The Australian republic referendum held on 6 November 1999 was a two-question referendum to amend the Constitution of Australia. The first question asked whether Australia should become a republic with a President appointed by Parliament following a bi-partisan appointment model which had...

.

Kirby has a reputation as an eloquent and powerful orator, having given a vast number of speeches over his career on a diverse range of topics.

Kirby has strong links with the Australian National University College (formerly Faculty) of Law, being Patron of the Law Students' Society and has been a member of the advisory board. Kirby has also starred in the ANU Law Revue. Kirby is also on the Board of Advisors of The Sydney Globalist
The Sydney Globalist
The Sydney Globalist is an international affairs magazine published bi-annually by students at the University of Sydney, Australia. It is currently staffed by 31 undergraduate students from a range of academic disciplines...

, a global-affairs magazine produced by students at his former university, the University of Sydney.

In July 2009, Kirby accepted a position as adjunct professor in law at the University of Tasmania Faculty of Law. He is also the (founding) Chairman of the Editorial Board of the Journal of Law, Information & Science, which is published by that Faculty; a position he has held since 1981.

Since 2010 he has been one of the 11 members of the Eminent Persons Group set up to advise on reform of the Commonwealth of Nations
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...

.

Kirby is an avid supporter of the arts. He has appeared in the University of Queensland Law Revue twice since 2004. In May 2007, he appeared in Melbourne alongside hip-hop impresario Elf Tranzporter at the launch of Victorian Arts Law Week, performing a rap of W. B. Yeats's poetry.

Personal life

Michael Kirby has been open about being gay
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....

 since 1999, when he came out
Coming out
Coming out is a figure of speech for lesbian, gay, bisexual, and transgender people's disclosure of their sexual orientation and/or gender identity....

 in Who's Who in Australia
Who's Who in Australia
The Who's Who in Australia is an Australian biographical reference first published by Fred Johns in 1906 as Johns's Notable Australians. It has been used by academics as a resource that identifies Australia's leading individuals, and has been analysed when studying the social backgrounds –...

 by naming Johan van Vloten as his long-term partner. Van Vloten, who migrated to Australia in 1963, has lived with Kirby since 1969. Kirby has often spoken publicly in support of gay rights. While President of the International Commission of Jurists
International Commission of Jurists
The International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...

 he encouraged that organisation to give more consideration to human sexuality as an aspect of human rights, and as an Anglican
Anglicanism
Anglicanism is a tradition within Christianity comprising churches with historical connections to the Church of England or similar beliefs, worship and church structures. The word Anglican originates in ecclesia anglicana, a medieval Latin phrase dating to at least 1246 that means the English...

 he has expressed disappointment at his church's stance on gay rights. In 2002, at the Sydney Gay Games VI, Kirby was the keynote speaker at the opening ceremony. "The movement for equality is unstoppable. Its message will eventually reach the four corners of the world," he told a crowd of 35,000.
In 2006, he attended the International Conference on LGBT Human Rights in Montreal
Montreal
Montreal is a city in Canada. It is the largest city in the province of Quebec, the second-largest city in Canada and the seventh largest in North America...

, presiding over the Asia-Pacific Plenary.

In November 2007, Kirby accused the Anglican and Catholic archbishops of Sydney, Peter Jensen and George Pell
George Pell
George Pell AC is an Australian cardinal of the Roman Catholic Church. He is the eighth and current Archbishop of Sydney, serving since 2001. He previously served as auxiliary bishop and archbishop of the Archdiocese of Melbourne...

 respectively, of hindering the acceptance of gay people in Australian society, stating that homophobia was "reinforced even to this day by religious instruction, and it has to be said, religious instruction from the two archbishops of Sydney". Kirby also expressed disappointment in his "minority of one" status among his High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 colleagues, and indicated that "some of the justices perhaps have less liberal views than I have".

In both 2009 and 2010, Kirby was selected by readers of samesame.com.au as one of the 25 most influential gay Australians.

Heffernan allegations

One of Kirby's most high-profile critics is Liberal
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...

 Senator Bill Heffernan
Bill Heffernan
William Daniel Heffernan, more commonly known as Bill Heffernan, , Australian politician, has been a Liberal Party member of the Senate, representing the state of New South Wales, since September 1996.-Early life:...

. In 2002, Heffernan used parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...

 to accuse Kirby of misusing government resources to solicit under-age male prostitutes. However, the evidence Heffernan produced to support this claim was swiftly discovered to be a forgery, and Heffernan was censured by the Senate. After Heffernan eventually apologised for making the allegations, Kirby promptly responded: "I accept Senator Heffernan's apology and reach out my hand in a spirit of reconciliation. I hope my ordeal will show the wrongs that hate of homosexuals can lead to."

Honours

According to Australian protocol, as a Supreme Court and High Court Justice, he is styled The Honourable
The Honourable
The prefix The Honourable or The Honorable is a style used before the names of certain classes of persons. It is considered an honorific styling.-International diplomacy:...

for life.

He is a National Trust Australian Living Treasure
Australian Living Treasures
Australian Living Treasures are people who have been nominated by the National Trust of Australia. The first list of 100 Living Treasures was published in 1997....

.

Awarded the Gruber Prize for Justice
Gruber Prize for Justice
The Gruber Prize for Justice is one of five international prizes awarded by The Peter and Patricia Gruber Foundation, an American non-profit organization based in the U.S. Virgin Islands with offices in New York City...

 in 2010.
  • Companion of the Order of Australia
    Order of Australia
    The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...

     (AC) in 1991.
  • Companion of the Order of St Michael and St George
    Order of St Michael and St George
    The Most Distinguished Order of Saint Michael and Saint George is an order of chivalry founded on 28 April 1818 by George, Prince Regent, later George IV of the United Kingdom, while he was acting as Prince Regent for his father, George III....

     (CMG) in 1982.
  • Queen Elizabeth II Silver Jubilee Medal
    Queen Elizabeth II Silver Jubilee Medal
    The Queen Elizabeth II Silver Jubilee Medal was a commemorative medal created in 1977 to mark the 25th anniversary of the accession to the throne of Queen Elizabeth II...

     in 1977.
  • Centenary Medal
    Centenary Medal
    The Centenary Medal is an award created by the Australian Government in 2001. It was established to commemorate the Centenary of Federation of Australia and to honour people who have made a contribution to Australian society or government...

     in 2001.

Honorary Degrees

University of Newcastle (D.Litt
Doctor of Letters
Doctor of Letters is a university academic degree, often a higher doctorate which is frequently awarded as an honorary degree in recognition of outstanding scholarship or other merits.-Commonwealth:...

) in 1987 Macquarie University
Macquarie University
Macquarie University is an Australian public teaching and research university located in Sydney, with its main campus situated in Macquarie Park. Founded in 1964 by the New South Wales Government, it was the third university to be established in the metropolitan area of Sydney...

 (LL.D) in 1994 University of Sydney
University of Sydney
The University of Sydney is a public university located in Sydney, New South Wales. The main campus spreads across the suburbs of Camperdown and Darlington on the southwestern outskirts of the Sydney CBD. Founded in 1850, it is the oldest university in Australia and Oceania...

 (LL.D) in 1996 National Law School of India University
National Law School of India University
The National Law School of India University is the leading institution for undergraduate and graduate legal education in India. By popular estimates, the school consistently ranks as the most prestigious law school in India...

 (LL.D) in 1997 University of Ulster
University of Ulster
The University of Ulster is a multi-campus, co-educational university located in Northern Ireland. It is the largest single university in Ireland, discounting the federal National University of Ireland...

 (D.Litt) in 1998 University of Buckingham
University of Buckingham
The University of Buckingham is an independent, non-sectarian, research and teaching university located in Buckingham, Buckinghamshire, England, on the banks of the River Great Ouse. It was originally founded as Buckingham University College in the 1970s and received its Royal Charter from the...

 (LL.D) in 2000 University of South Australia
University of South Australia
The University of South Australia is a public university in the Australian state of South Australia. It was formed in 1991 with the merger of the South Australian Institute of Technology and Colleges of Advanced Education. It is the largest university in South Australia, with more than 36,000...

 (D.Univ) in 2001 James Cook University
James Cook University
James Cook University is a public university based in Townsville, Queensland, Australia. The university has two Australian campuses, located in Townsville and Cairns respectively, and an international campus in Singapore. JCU is the second oldest university in Queensland—proclaimed in 1970—and the...

 (D.Litt) in 2003 Australian National University
Australian National University
The Australian National University is a teaching and research university located in the Australian capital, Canberra.As of 2009, the ANU employs 3,945 administrative staff who teach approximately 10,000 undergraduates, and 7,500 postgraduate students...

 (LL.D) in 2004 Southern Cross University
Southern Cross University
Southern Cross University is a university based on the North and Mid North Coast of New South Wales, Australia. It is a regional University with more than 14,000 students. The University's primary campus is in Lismore, with other campuses located at Coffs Harbour and Tweed Heads.The University is...

 (D.Univ) in 2007 Charles Sturt University
Charles Sturt University
Charles Sturt University is an Australian multi-campus university located in New South Wales, Victoria, and the Australian Capital Territory. It has campuses at Bathurst, Canberra, Albury-Wodonga, Dubbo, Goulburn, Orange, Wagga Wagga and Burlington, Ontario...

 (D.Univ) in 2008 University of New South Wales
University of New South Wales
The University of New South Wales , is a research-focused university based in Kensington, a suburb in Sydney, New South Wales, Australia...

 (LL.D) in 2008 Griffith University
Griffith University
Griffith University is a public, coeducational, research university located in the southeastern region of the Australian state of Queensland. The university has five satellite campuses located in the Gold Coast, Logan City and in the Brisbane suburbs of Mount Gravatt, Nathan and South Bank. Current...

 (D.Univ) in 2008 Murdoch University
Murdoch University
Murdoch University is a public university based in Perth, Australia. It began operations as the state's second university in 1973, and accepted its first students in 1975...

 (LL.D) in 2009 Bond University
Bond University
Bond University is a private university located in Robina, Gold Coast, Queensland, Australia. It is also the first private university established in Australia...

 (LL.D) in 2009 University of Melbourne
University of Melbourne
The University of Melbourne is a public university located in Melbourne, Victoria. Founded in 1853, it is the second oldest university in Australia and the oldest in Victoria...

 (LL.D) in 2009 University of Technology, Sydney
University of Technology, Sydney
The University of Technology Sydney is a university in Sydney, New South Wales, Australia. The university was founded in its current form in 1981, although its origins trace back to the 1870s. UTS is notable for its central location as the only university with its main campuses within the Sydney CBD...

 (LL.D) in 2009 University of Indiana (LL.D) in 2009 University of Colombo
University of Colombo
The University of Colombo is a public research university located primarily in Colombo, Sri Lanka...

 (LL.D) in 2010 La Trobe University
La Trobe University
La Trobe University is a multi-campus university in Victoria, Australia. It was established in 1964 by an Act of Parliament to become the third oldest university in the state of Victoria. The main campus of La Trobe is located in the Melbourne suburb of Bundoora; two other major campuses are...

 (D.Univ) in 2011

External links

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