Transcript
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.
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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.