Former Justice of The High Court of Australia | Michael Kirby Pt:1

Hello and welcome to this special two-part finale for the Australian Law Student Podcast. I'm your host Oliver Hammond and in today's episode myself and guest Co host Francis Burfitt had the privilege of speaking with one of the most distinguished figures in Australian legal history, Justice Michael Kirby. As a former Justice of the Australian High Court, Justice Kirby has been a tireless advocate for human rights, social justice, and legal reforms throughout his remarkable career. His judicial philosophy and prolific contributions to both the Australian legal system and international law have left an indelible mark on the profession. During our conversation, Justice Kirby reflects on his decades of service on the bench, shares his insights into the evolving nature of the war, and discusses his ongoing work. We also explore the personal challenges he faced in the judiciary and how his identity shaped his approach to justice. This is certainly a conversation filled with wisdom, inspiration, and candid reflections that you won't want to miss. So without further ado, sit back, relax, and enjoy the podcast. Hello everyone and welcome to the Australian Law Student Podcast. I'm your host, Oliver Hammond and on today's episode I'm joined with my Co host Francis and a very special guest with me, the honourable former Justice of the High Court, Michael Kirby. Thank you so much for joining with me today. Thank you for having me. I'll start off with my first question. Your tenure on the High Court was marked by many significant contributions to Australian jurisprudence. Could you share what it's like to serve as a High Court justice and how do you navigate the dynamics of working alongside other justices, particularly when managing different personalities and viewpoints and and decisions? Don't forget that by the time I reached the High Court of Australia I had had 12 years in the Court of Appeal of NSW, and before that 10 years as chair of the Australian Law Reform Commission. So that by the time I was appointed to the High Court, I was a pretty experienced professional. And the main point of professionalism is to manage your rage and to manage your your disagreement and your puzzlement at the fact that your colleagues don't necessarily always agree with you. So that was not really a big problem. And the other justices of the court were all very experienced and able and self controlled professionals. But what is it like to be a justice of the High Court? Well, it's not all that different to the Court of Appeal of NSW, which was and is a very great court. The Court of Appeal was more personally agreeable because the justices of the Court of Appeal were more inclined to agree with me, and therefore life in a way was easier. But the range of work that you got on the Court of Appeal was broader because you were dealing with every aspect of state law and of federal law where the state court was exercising federal jurisdiction. And you had to keep at it. In my last year as a judge of the Court of Appeal, I think I signed something like 280 opinions, whereas when I was in the High Court the annual output was only something of the order of 80. So it's a much lower production rate. But of course everything in the High Court is difficult because it shouldn't be there if it's not a difficult or controversial or important case. So anyway, it's a wonderful thing to serve on a highest national Court. One of the things I did in my latter years in the High Court was to go to Yale University Law School every September and there were gathered judges from a number of final national courts, the House of Lords, as it was then the Canadian Supreme Court, the New Zealand Supreme Court, the South African Constitutional Court, the Supreme Court of Japan, and so on. And it was very interesting to see how many of the problems that you were getting in the High Court of Australia were similar to problems that were arising in very different societies at about the same time. So that was an exciting and privileged viewpoint for a lawyer to be serving as one of seven justices of the final national court. And I wouldn't have missed it for worlds, but it it there was a dynamic in the relationship and through accidental factors, I was for most of the time I was serving on the court in a minority in many of the important decisions which we had to reach. I never complained about that. I knew how that had arisen and I just accepted it and got on with it and express my view because one of the strengths of our system is that the judges are duty bound to express their own opinion. You may agree with them or you may disagree with them. And that is just how we were all trained and it's what we all did. And the fact that there were disagreements was not something I allowed to interfere with my daily work. I suppose perhaps in developing that that sort of skill and in being able to manage differing viewpoints and that sort of thing that that occurred earlier on in your career as just in in the the Court of Appeal in NSW. Perhaps reflecting on that. Was that, was there any time early on where you sort of was there a new, were there new skills that you think you had to develop? Oh yes, every stage in my career were new skills. Last night I went to a function at the University of Sydney to celebrate the 150th anniversary of the union, the University of Sydney Union, and I had to speak to them. And I had to speak about those glorious times when I was the president of the Union and before that president of the SRC and before that president of the Law Society, the Students Law Society. And that was a very good preparation. And in fact, I often tell law student audiences that you should become involved in civil society or in the activities of student years because I found my grades always got better when I was busy working in areas where I was good, where I performed well, and where I learned the great skill of being a good chairman. I am a very good chairman of meetings, and I got that because I spent all of my university years chairing student meetings. And you've got to have a skill to encapsulate the point that has emerged in the discussion, to do so fairly so that you're not being dishonest in presenting what is emerging, to give everybody a chance to have a a bit of a sense of humour, but not too much. And that was something that I took from my life as student representative on to the courts that I later served on and into the Law Reform Commission, where I served before I was appointed to the Court of Appeal. I just wanted to ask, I thought it was interesting what you said before about the transferable skills and obviously the need to entertain a sense of humour to some extent. Do you think that there was a transferable skill in that sense, that you entertained similar senses of humour on the Court of Appeal or the High Court? I, I don't think ever anything was ever exactly the same. My time in student politics, it was a different sort of challenge. My time in the Law Reform Commission was a different sort of challenge. And then in the Court of Appeal, different again. And the federal court was in there for a short time. And after that, my time in United Nations commissions of inquiry and activities of that kind, different again. People say, oh, he's the great dissenter, but I wasn't a great dissenter in student politics. I was the great assembler and I had a career in student politics, which was astonishing. I got everything in student politics and people said, oh, this man is definitely going on his way to become a Prime Minister. But I just had to settle for being a justice of the High Court of Australia. In my growing up, when I discovered that I was gay, I in those days you had to hide that and you had to pretend that you were straight. And I was pretty good at that pretense. But it was because of that that when other students were out at the parties and drinking and enjoying themselves, I was running meetings. And I just became very good at running meetings, still AM. And that was a good experience for me. And it was. But it it, as I look back on it, it was really a product of the denial of an important part of any human life, which is the life of interpersonal relationships and of fun, enjoyment and so on. I was very serious, very focused and very hardworking and basically I'm still all of those things. It's a, it gets a bit late in your life to change that very much, but if you want to have an easy life, law is not a job for you. Law is a job for application, for dedication, for attention to detail, for service to others, to remember that this is not a fun thing for clients. It's a serious matter and you have to give your all to deliver the best that you can do, absolutely. I think, yeah, as we were discussing earlier, you've obviously spent a long time on the High Court of Australia and in that time, Australia since then has undergone some pretty radical change and still is continuing to do so. I just wanted to ask, throughout all your time on the court and in relation to that now, do you feel as though you've encountered any particular arguments or perspectives that have made you reconsider or change your mind on any topics of issue? Well, you keep your mind open. I mean, my general inclination is one very sensitive to human rights. And Chief Justice Spiegelman once said that the books that have been written on my life are all very interesting. But he's waiting for the psychodrama. He wants to, he wants to hear the psychological analysis of it. And so I, I just would always keep an open mind. And I so I think that was a very important feature of an independent judge, the rule of law, not going into court determined to do your thing, but determined to be yourself, to approach the problem in a way which is comfortable to you and your understanding of the law, but not to ignore where the principles of law if the law is valid and to apply it. A A good illustration of that was the case of Minister for Immigration against B, which was a, a migration refugee case. And it concerned 2 little boys from Afghanistan who were under orders of deportation because their parents had arrived without visas. And the question was whether the provision requiring compulsory detention of the boys was within the intention of the Migration Act in dealing with detention, or did that provision only apply to people who could be expected to get visas, namely adults? And the Family Court, which had jurisdiction in the particular case and decided the matter at first instance and on appeal at both levels, found in favor of the boys and said the ACT only applied to adults in that respect. But the problem was it was pointed out by the Solicitor General during argument that the ACT contained provisions for the searching of children in detention. And if the ACT didn't apply to children, why would it provide for the searching of children? And the ACT also had provisions which were contrary to the Convention on the Rights of the Child, which says the detention or imprisonment should be in the case of a child, a last resort. And in Australia it is a first resort. And so a question arose as to whether it was not consistent with the Convention in a way that was relevant to the case. But we we then looked at the record of the case and it was presented to us by the Solicitor General correctly. And it pointed out that the the Attorney General's Department officers had drawn the notice of the government and of Parliament to the fact that if this law is enacted, it'll probably make Australia in breach of the Convention on the right of the Child. And so it can't have been said that Parliament made a mistake, that it overlooked this, this conflict between its international obligations and it's political imperatives. So for those two reasons, when I walked in, I thought, well, I would not be too upset to make a decision affirming the Family Court. But when I heard the argument, I just couldn't do that because the argument convinced me that the decision, the Family Court was wrong in the case. So I had to say that and the High Court was unanimous in the matter. And the unanimous decision was very painful. The two little boys and their parents were sent back to Afghanistan and were last seen going through the Khyber pass. And it it's a sad thing, but I never lost any sleep about it. I went home, had my dinner, spoke with my partner, told him about the case, and then I forgot it and just got on on the next case. That's what you have to do in the law. Sounds hard, but unless you can protect your inner psyche, you're not going to be able to do your best. Do you think that I suppose on a bit more of a personal note, do you think that you disassociate yourself with cases after perhaps the day is done? Or do you? Perhaps is is something is is the law for you, Something that you live out every day, every living living second of of? Your day. No, it's the law is is my profession and I didn't, I didn't have and still don't have problems sleeping. You've got to be able to do that. You've got to psych yourself so you can go to sleep. But that of course means disciplining your life, not having late parties and others, other interruptions to a calm life. And fortunately my partner Jan, who's put up with me for 55 years, is very calm himself. And so and we decided very early in our relationship that we would not watch television. We would just talk. And that's important to have a partner that you can talk to, get things off your chest and then forget it and get on with the next case because tomorrow is another day and tomorrow was always another case and was often a very difficult case. Did you find it hard, though? I mean, it's often said that the lawyers are friends with lawyers they marry or in relationships with, with other people in the, in the legal fraternity, you know, they're, they're constantly, I suppose, surrounded by that, that dynamic. Do you think it can sometimes be hard I suppose, Or can you still be friends or and just not talk about things like that? Well, I think if you're all your friends and lawyers, you're having a very narrow life. You should you should be mixing with people with different interests and different backgrounds for various reasons. I came to have a lot to do with some medical practitioners and people in the medical area. And so I didn't spend my whole life with lawyers. And also I, I did a very strange thing before I was appointed to the bench, my partner Yarn said why don't we drive overland? And I said, oh, I don't think I can do that. I'm a busy barrister. I'm making a lot of money. I'll lose all my clients and, and, and that's what others said to me, including Michael McHugh, who was a colleague at the bar. He said it's the end of civilization, you'll never get the cases back and so on. But I was convinced that this was a good idea. And so that's what we did and we drove. Across India and into Pakistan, into Afghanistan, up into Iran during the time of the Shah and then into Europe. And it was a wonderful experience and we did it twice. And if I hadn't been appointed at the age of 35, that's probably what we would have kept on doing because we loved it. I. Think. One thing I find pretty interesting, something that I think a lot of law students don't take time to think about often, is the need for a judicial psyche. What you were saying earlier about not losing sleep over really tough cases like that. We often think about a judicial mind, but it's rare that we think about the spirit or the psyche of a judge. Is that something that took a long time to get used to? Did it come naturally to you? I think it came naturally. I wasn't conscious of, of, of training myself. I didn't do yoga. I didn't have psychotherapy or anything of that kind. I and I'm not criticizing people who, who do that. I've known judges who have yoga lessons and, and who have training. But I was lucky that my partner was, I suppose, a kind of therapist. And I think that's whether you're straight or gay, you, your partner has to share your life and share the stresses and that helps you get through them. And, and I, I didn't have too much trouble with that actually. And I still don't. You've got to learn to get on with the next day and that that means you've got to have a good sleep. And I was always a very early worker. I still am. I, I would get up some of the silks I've worked with when I was at the bar. The NSW bar tradition is start early. The Melbourne bar is start late and work late. But the NSW bar, I was often in my chambers by about 5:00 AM and I would then go and work with Busy Silk who was there. And at that time you didn't have emails and other forms of digital technology, but you did have the risk of the telephone and the telephone would start taking you over by about 9:00 or or 10:00 or 9:30. And so this was a clear time and a good time for preparing. And I was always very conscientious. I wouldn't want you to think that I took law as a lightweight topic or profession. I always treated very conscientiously and, and I always gave my all and I still do. And I think that's, that's in one sense, objectively a downside of choosing law as your vocation, because you then don't have enough time just to enjoy yourself. When I enjoy myself, I start to feel guilty after that. But so that that was just my experience. But I was very lucky in my partner who's from the Netherlands. And the people of the Netherlands are very direct and very honest, very clean, very hard working and he has been a wonderful force for equanimity in my life and in the life of my family. All the members of my family, they've all become a bit Dutch. You know, we're very direct people and we are very honest people. And it actually was my partner Jahan, who said after I was appointed to the High Court, it's time that we stop this pretense. You have to stand up. And I said, oh, don't you think we should postpone this until I leave the the bench? And Yarn said, no, we've got to stand up. We've got to stand up for the young people who are coming along. They should not have to suffer the duplicity and the obligation to pretend that we had to suffer. And of course, this was coinciding with the HIV pandemic. And ultimately, I agreed with what he said. And I think that was a good thing. I think that was a good thing for me, good thing for Yellen, good thing for the judges, the courts, and a good thing for society. But there are still horrible people out there who who have an irrational and unscientific attitude towards sexual variation and that is just something that we've got to work out and improve. Also, women have to overcome prejudice against them. But it's amazing the change in the status of women in the legal profession that's come about in my lifetime. One thing this sort of flows on what we're saying earlier about the early days in your career and developing a legal mind. Obviously the legal psyche came to you quite easily, but one thing I've always thought was interesting was the experience of a newly appointed member of the bench at the Court of Appeal or wherever it may be, rising up through the ranks of the legal system. How often in the early stages of your career did you feel overwhelmed? Another any early decisions that you made that you think you might decide differently today? I've told you that I was always a hard worker and my solution when I was a young solicitor and when I was a young barrister was to get in early to work very hard on my cases, to have as much as possible in my head. Not to be in a position, which was a horror thought for me, where a judge could work out that I hadn't read up a particular issue. I wanted to be on top of everything and that was just, I suppose, a psychological flaw on my part. I always wanted to do well in exams or in anything else. When I was at primary school at the North Strathfield Public School, I was asked by departmental officials to fill in a form which said what I wanted to be when I grew up. And I wrote I want to be a judge or a Bishop. And this was must have been, I must have been aged about 8:00. So I, I was obviously a bit psychologically disturbed, but that, that was just my personality and it, it, it's a good personality to be obsessive for the law, but you've got to be obsessive, be hard working, do your work and give your guts to the case, but then be able to relax your mind. Otherwise you know, you'll go mad. A lot of there is a problem of alcoholism in the law. There is a problem of people having use of drugs and alcohol just because their personality can't cope with this sort of pressure or with the disappointments of life. I had some disappointments, but mostly my life has been really blessed by many opportunities and and jobs and challenges. And so I'm, I'm not complaining about my life, but you've got to be able to take roll with the punches, but not be a punchy type. You've got to be able to absorb it and then get on with the day's work. It's a professional job. Thank you for listening to part one of our interview with Justice Michael Kirby. This season has been packed with incredible guests and we truly hope you've enjoyed listening to these conversations as much as we've enjoyed bringing them to you. If you're enjoying the show, please consider giving us a five star rating on Spotify and Apple Podcasts and following us on LinkedIn, Instagram, and TikTok. Your support helps us to continue to provide valuable content for law students across Australia. Also, don't forget to check out Part 2 of our conversation with Justice Kirby in the next episode, where we dive even deeper into his remarkable career and insights as one of Australia's most esteemed former High Court justices.