Transcript
Hello and welcome back to Part 2
of our conversation with Justice
Michael.
Kirby.
In this episode, we continue our
deep dive into his extraordinary
career, touching on some of the
most.
Important legal challenges he's
faced.
So without further ado, sit
back, relax, and enjoy the rest
of the show.
You famously held throughout
your career the constitution's
authority is is granted the
acceptance by the people.
I wanted to know if your view
has ever changed and or is ever
likely to change in response
with the people or perhaps you
view it as perhaps a missed
opportunity.
Recent examples such as the
voice referendum or are examples
like that are part of
representative democracy or do
you think that the judiciary
should play a more active role
in trying to help and and shift
society in in a way which is
perhaps deemed correct or?
Well, what is incorrect?
What is incorrect?
If the people decide, you have
to accept it.
That is what the people decide.
And if you're a Democrat, you
have to say, well, that is the
nature of the society I'm in.
And if I don't like it, I should
think of migrating somewhere
else or spending my whole life
doing some other activity.
But I certainly did have a
different view about the
Constitution and the Grund norm
of the Constitution.
The fundamental grounding of the
Constitution when I was at law
school, because there we were
taught the Grund norm of the
Australian Constitution was that
it was an enactment of the
Imperial Parliament in
Westminster and the Imperial
Parliament had enacted it.
They had the superior role and
superior power to do so, and
that was why it had to be
interpreted in a way that was
basically comfortable to the
British legal tradition.
And although some things were
kept out of the Privy Council by
the provisions of section 74 of
the Australian Constitution,
most of our legal cases right up
to my time in the Court of
Appeal, the final Court of
Appeal really was the Privy
Council.
And that's why I had on my walls
all the English law books.
That was just how I was taught
law, but that changed in the
course of my life and therefore
it became necessary for people
to try and work out what is the
foundation now of the
Constitution.
If it isn't the imperial power
in Westminster, if that is so
conflicting with the political
realities of the world we live
in, what is it?
And in the case of Leith in the
Commonwealth, the High Court,
before my appointment to the
Court of Appeal and before my
appointment to the High Court,
had said, in the words of
Justice Dean, that the real
foundation is the acceptance of
the Constitution in the
referendums that were held in
the late 19th century.
And so a historical explanation
was given as to why it was the
the wishes of the people.
Now there were certain problems
with that from a historical
point of view because the
numbers of people who voted in
those referendums didn't include
women in most of the colonies.
And therefore it it wasn't an
entirely comfortable theory.
But it was the theory that we
began in Australia to adopt and
it was one which was more
respectful of our independence,
our legal independence.
And so I went along with that
and I still believe that that is
the foundation of our
constitution.
That's why I balk at the
suggestion that opportunities
are missed because of the
people.
Sometimes the people have shown
great wisdom in rejecting
constitutional amendments.
One of the the instances was the
Communist Party Dissolution Act
in 1950 and the referendum in
1951 that rejected.
When that referendum was mooted
after the High Court by 5 to one
rejected the constitutional
validity of the ACT.
When the referendum was
proposed, the votes in the
opinion polls showed that 80% of
Australians favoured a ban on
the Communist Party because we
had soldiers fighting in Korea
at the time.
So it wasn't, it was actually
what Chief Justice Latham, the
soul at the centre, said.
Being comes before well-being.
That was something that Oliver
Cromwell had written.
Being.
In other words, your existence
and your continued existence in
a peaceful society comes before
well-being, your happiness and
pleasure and so on.
But the majority of the judges
in a wonderful decision, one of
the greatest decisions of the
High Court, said that we can
deal with communists for what
they do, but for not, not for
what they believe.
And you can't ban them from
having a political party and for
seeking to get the concurrence
of the citizens with them.
They never did.
They never got a majority.
They never even won a single
seat, but a single seat in the
federal Parliament.
They they won a seat in
Queensland.
But they, they were protected by
the Constitution.
And I, my grandfather, my, my
step grandfather had been a
communist and he never thought
the High Court of Australia, the
running lap dogs of the
capitalist class would ever
protect his rights.
But the High Court in the
Communist Party case did.
And that was that left a very
indelible impression in my mind
because a a kinder and better
man you could not have met.
He was the treasurer of the of
the Communist Party, but he'd
fought in Gallipoli.
He was a New Zealander
originally and he became a
communist and it was sort of
like a religion.
And therefore at the time there
would have been a few people,
including Mr. RG Menzies, the
Prime Minister, who thought that
the people had made a terrible
mistake.
So he went to a referendum and
the referendum was fought and it
was won by the opposition.
And that that teaches that
sometimes what appears to be
wrong at the time can become
accepted as wise in retrospect.
Yeah, I think that's AI suppose
that's a reality for for some
people personally that might
struggle with.
But I think you'll mentions also
previously in in engaging with
civil society and engaging with
other people.
I mean, we are social beings
and, and I think that's
something that's really
important and I thank you for
your comments on that.
Yes, yes, well, it certainly is
important and it's very
important for Australians to
engage with the First Nations
people.
And if I look back on my life
when I was the president of the
Union of the University of
Sydney, I never asked a question
about the First Nations people.
I never asked a lecturer why do
we have the White Australia
policy.
I never asked anybody about the
disadvantage of women suffered
in the law or people with
disabilities or gays.
I never asked any questions
about.
I just accepted that's the law
and my job is to give it
application.
Fair enough.
I think it's quite interesting
the idea of what the people
accept, and often times not only
is it necessary just on a social
perspective to mix with other
people, but I feel as though
that gives you a bit more of a
perspective on what the people
truly want.
Sometimes you can get your hopes
up a lot for a particular
constitutional change, and you
realize the people you've been
talking to about it are not
necessarily representative of
the population.
It may be that the Voice
referendum was defeated because
it didn't really fulfill the
wishes of the First Nations
people, or that those wishes may
be more radical.
They may be for some form of
treaty because treaties were not
unusual in British dominions.
They existed in the United
States, in the American
colonies, in Canada, and
certainly in New Zealand where
they had the Treaty of Waitangi.
So it's it's more complicated
than just foolish people not
willing to accept this proposal
for the dignity of the First
Nations people.
I voted for the referendum, but
I can understand the point of
view that there were reasons why
including some First Nations
people themselves were not
convinced that this was the way
ahead.
And it wasn't really very well
argued before the people.
And you, you've got to prepare
people for a constitutional
change.
And if you live in Australia
where it's a pretty well
governed sort of society, when
the the the law is generally
obeyed and the corruption is is
not very, very obvious, it's,
it's reasonable to be rather
hesitant about changing things.
I think for a lot of current law
students, that is their first
referendum, their first
Australian referendum.
And I think come from a sort of
speaking personally, it was
definitely something that you
put a lot of interest, keen
interest into, especially
looking at the legislative side.
I mean, you have yourself have
lived through a couple of
referendums, including the
referendum of Australia become a
Republic.
Perhaps looking at that, was
that something as well?
You, you, you see that I suppose
the political element of it is
that referendums usually don't
pass in it unless there's, you
know, both parties are
supporting it.
And at at times as well, even
when both parties do support it,
the Australian people still vote
no.
So is it something that relates
to perhaps informing people more
or or what?
What do you think?
Well, informing people more
rather implies that the people
have been foolish, whereas
sometimes, as in the Communist
Party case, the people proved
themselves to be more prescient
about our liberties than did the
Parliament.
So far as the Republic is
concerned.
I wasn't convinced that that was
a step that was timely.
Certainly at that time,
certainly in the reign of Queen
Elizabeth, because a person of
my age had grown up.
The whole whole life had been
with the Queen, whose importance
was not for what she did, but
what she kept other people out
of doing that.
That is the system of
constitutional monarchy.
If you look at the countries
where you could actually live
and which are peaceful, stable
and democratic, the best of them
seem to be constitutional
monarchies.
That may just be an accident,
but it it's a peculiar thing
that you have a symbol, but they
have no power and they keep
other people out of the job of
the president.
Just look at the situation in
the United States at the moment
and you know, whatever happens
there, it's it's a sort of semi
chaotic system and it depends on
having an awful lot of money in
order to be able to to be the
final candidate for one side of
politics.
And, and so looking at from a,
a, if you are, whilst being an
active judicial officer in that
process, is this something that,
what's the sort of things that
that you look at, I suppose when
these sorts of things are being
passed?
Are you what you're, I mean, you
mentioned previously you weren't
watching TV, but are you keeping
up with the news?
Are you following those sorts of
things?
Well, I keep up with the news at
the moment because it's so
fantastical the the situation in
the United States of America,
the parliamentary system which
we have would never have allowed
a person like Mr. Trump to
become the leader of government.
It just wouldn't happen.
And the Americans, poor things
inherited as a result of their
revolution, the constitutional
arrangements of King George the
Third.
And therefore they have a a king
with over mighty power.
And he's the head of state, the
head of government, the head of
the executive, the head of the
Armed Services.
It's too much power concentrated
in one person.
Whereas the British
constitutionalism continued to
evolve into the 19th century.
And there's a statue in this
street in Macquarie St.
Sydney, at the end.
You've probably never even
looked at it.
It's the statue of Prince
Albert, the partner of Queen
Victoria, and it was he who
taught Victoria, you reign, you
do not rule.
And therefore the system of
constitutional monarchy evolved.
And it's a mystery, but the
question is why are the
countries like Spain, the
Netherlands and so on generally
peaceful and keep politicians in
their place?
I think that's a very important
feature.
And before you change it, you've
got to be sure you're not
mucking things up.
I suppose one of the things that
more students learn first is
separation of powers.
I think as a concept, it's
pretty amazing that humans
thought of that, that this sort
of ruling bodies and and people
ruling tend towards things like
absolute some some homes,
corruption, sometimes abuse of
those powers and and sort of
strong use.
And so for humanity to then set
up barriers in order to or or or
sort of.
For the greater good.
Good.
Yes, I know.
It's quite an amazing thought,
especially, Yeah.
And sort of not making that
power concentrated into, you
know, one person or, or several
people.
And so, yeah, it is an amazing
thing.
And I mean, yeah, I think.
It's interesting as well though,
because obviously in the United
States their separation of
powers is quite strict, probably
a lot stricter than in
Australia, that that's the
different executives sit in
different houses and yet.
Not only do they sit, but they
must they, they can only be out
of parliament for I think it's
three months and they've got to
find a seat or they're out of
the ministerial position.
And they've the the good thing
about our parliamentary system,
for all of its weaknesses and
faults, is that they've got to
sit on that front bench and
answer questions.
At the end of the day or the
beginning of the parliamentary
day, they will have to answer
the questions of the opposition.
And that is making an
accountability is really very
important for a politically
benign society that doesn't let
people get too big for their
boots.
Now I have a sort of hope, a
home, a constitutional monarchy.
And my partner is make sure with
me I never get too big for my
boots.
And I think that's that on a
micro level is good for a human
being.
But on a macro level it's good
good for a society.
You've got to control great
power because there are people
who want to use it for crazy
ideas and that's why we've got
to put checks in on it.
You.
But it's still amazing, I
suppose to me, that the people.
Are actually in, yeah.
It's amazing that the people,
the people that established that
were people that had that power
to begin with.
And so it's almost as if you're
limiting yourself from or
limiting futures people in that
position as well, but limiting
yourself in in your own power.
So yeah, it.
Is well, let me just for a
minute give you a little legal
history.
Albert came from Germany and he
married Victoria, but he had a
teacher and his teacher was
Baron Stockmar.
And Baron Stockmar taught him in
Saxe, Coburg and Gauta in
Germany, that if this system is
going to last, it'll only last
if you accept limitations on
your power.
And that's what he he, he taught
Victoria.
She wasn't a very good student
of it, but Albert was.
And Albert taught his children.
And that really made a big
difference in British
constitutional history.
And that's why, you know, when
all most of the other empires,
the German, the French and
others have collapsed and the
the British Empire in the
Commonwealth of Nations
continues and people want to
continue to have connection with
them.
And I'll be going to Samoa in
October for the latest Chaga
meeting.
And it's still a viable
institution.
People share their experiences.
And that's that's a good thing
for humanity.
We're approaching towards the
end of the, the podcast.
I'd just like to ask you now
some standardized questions that
we ask all of our guests a
little bit more personal and,
and I give a bit more insight
into you.
So starting off for the first
one, what was your favorite
subject in law school and and
why?
It was legal history, plus
constitutional law, plus
international law.
Don't forget in my day
everything was compulsory.
You had virtually no choices.
You had to do not the priestly
11, but the 195940 subjects.
And that that had its
weaknesses, but it meant
everybody got a fairly good
grounding.
And I just, I love the
theoretical issues.
And when I go to sing to legal
functions and they say, oh, we
got to make lawyers more
practical and they've got to be
practical.
I say yes, but they've got to
get the theory.
They've got to understand the
sorts of things that we've been
talking.
It didn't take us long to get
round to the rule of law and to
the separation of powers and to
the division and why we have
that.
And as you say, it's amazing
that we have accepted it, but we
have that.
So there was a wonderful
professor at the University of
Sydney.
He later became a professor at
the University of NSW.
So he he's shared by both the
law schools at that time in
Sydney, Professor Julius Stone.
And he was a great theoretician
of the law and he was a world
famous teacher and he taught
jurisprudence and he took a
shine to me.
And I think that was partly
because I was big time in the
SRC.
And he thought, well, this man's
going somewhere.
But he, he, he, he kept notes on
outstanding students.
And apparently I was in those
notes.
And so I loved and admired him
and he gave me opportunities.
He got me writing a chapter in
his, a second volume, a second
edition of a book he'd written
on jurisprudence.
So all of that made me very
interested in legal theory.
And you've got to be interested
in legal theory if you're going
to be a successful and useful
member of a Court of Appeal or
the High Court of Australia.
Because you're you're dealing
not just with the little case,
you're dealing with.
What happens if you decide that
in a particular way and the
facts are a little bit
different?
You've got to.
You've got to see down the
years, you've got to be able to
see into the future.
I have a suspicion that might be
a common denominator amongst
members of of of of the court
and other judges.
I I spoke to Chief Justice
Andrew Bell and one of his his
favorite subject was Roman law.
So again, a very similar his,
his, his, his, like a historical
element in relation to law.
So moving on to the second
question, do you have a book
that's significant to you and
one you'd recommend to students?
Well, you could do worse than to
pick up Julia Stone's book
Province and Function of Law,
which was the the book on
jurisprudence that from which we
were taught in NSW, the subject
of legal theory.
But there are other other books
on international law and on
legal history.
It's a shocking thing that legal
history is not compulsory in my
humble view, because how can you
be a lawyer in a system of like
a common law system where it's
all written in the cases going
back to 1100 and 1066?
How can you be a lawyer if you
don't know, at least generally,
how it emerged and and why it
emerged?
To answer your question, it's
amazing that this these things
happen, but it's all bits and
pieces of a long drama which
begins in England for our system
and which was a history of
struggle of struggle of people
for their dignity and rights,
which was ultimately declared in
the Universal Declaration of
Human Rights.
So these are the books.
But nowadays I, I don't read
only legal books.
I, I read the London Review of
books.
The London Review of Books has
all these books I will never
have time to read.
But then you get a potted
version of it.
And at the moment I'm actually
reading a very interesting book
called France on Trial and it's
about the Vichy France during
the German occupation and
Paitan, who'd been a great
general in the First World War
and became effectively the
dictator of German sympathetic
France during the Second World
War.
And it's a a very interesting
story about the struggle of the
remnants of law to try to
control the Vichy regime and
what happened after the war.
And so this history generally is
very good.
I came top of the state of NSW
in history.
If I had my time over again, I
would probably become a
professor of history, but I just
had to settle for the law, which
is all history.
Were you more inclined to modern
or ancient history?
Oh, modern, modern.
Yes, yes, ancient.
The ancients are very important,
but where do you start and why?
Why do you exclude China's
ancient history, which is even
longer than that of Mesopotamia
and the Western European
tradition?
I think I agree.
I definitely I did more than an
ancient in year 12.
I was definitely more inclined
towards modern history.
We actually studied Chinese
history as a part of that as
well, which I think was really
interesting.
And as you say, a lot of the
time you don't get as much
exposure to different
perspectives, but that was
something that I really like
studying as well.
And we've got to study the
history of our relationships
with the First Nations people
because nobody asks the
questions to, well, certainly in
my time, nobody asked the
question what, what right did we
have to barge into this huge
country and just take it over
and deny the indigenous, the
indigenous original inhabitants
any respect for their dignity
and their culture and tradition?
But I think we've we've got that
message, but there are plenty of
other things we we need to study
and to improve our minds and
improve our practice.
And I never put my hand up at
law school and asked about the
denial of the dignity of the
indigenous people.
Never.
And you young lawyers have got
to ask yourself, what are the
subjects now that in my old age,
I'm going to be looking back and
saying I never asked anything
about that.
And I'm ashamed of the fact that
I never asked anything about it.
Because those subjects will
exist.
They will include the way we
treat refugees, the way we treat
migrant immigrant people, the
way we treat people who have
drug addiction and dependants
and people who have who are
disabled in some way.
Our parliament only last week
enacted a a provision in a
statute to deny the provision of
sexual therapy to people with
disabilities who cannot have a
sexual life without assistance
and therapy.
You know, if anybody stops and
thinks about their own life and
their own sexual life, that is a
very wrong thing for our
Parliament to have done and I
hope that the Federal Court or a
court in Australia can find a
way to correct that.
I suppose I'm now moving on to
our next question.
You mentioned it a little bit
previously, but did you always
envision yourself practising as
a judge and if not, what did you
think you would do?
I don't regard being a judge as
practicing.
You practice as a an advocate,
you practice as a solicitor, you
practice as a barrister, but you
sit as a judge and you are
removed to some extent from the
Hurley burly of of the battle.
But did I ever envisage doing
anything else?
Well, I've told you at the North
Strathfield Public School, at
the age of eight I already
wanted to be a judge.
Now why was that?
Because I'd seen a film called
The Paradigm Case.
I don't think it was before I
was at the North Strathfield
Public School.
And I think it was probably when
I was at 4th Street High School.
And I it, it was a case about a
murder and a judge.
And there was a great actor in
it called Charles Laughton, who
was the judge.
And I thought he is, he's a bit
pompous, but he's so in command,
he's so in control.
And I thought that doesn't look
like a like a bad job.
And and so it, it was a job that
I aspired to and I'm never
regretted and I recommended it.
But it's a job for total
concentration, long hours of
study and long hours of reading
the briefs and the papers,
listening attentively to the
arguments, changing your mind
and keeping in the back of your
mind the theory of the
Constitution and the theory of
our form of democracy.
And trying to ensure that in the
little tasks we all contribute
to the big task of keeping a
peaceful, sane, democratic and
balanced society.
At what point did you like to do
aspiration to become a?
Bishop fall away.
Well, I wasn't holy enough to be
a Bishop and my later experience
and encounters with the church
made me very, very disinclined
to that that line.
But I went the other night to
the 200th anniversary of the
first meeting of the of the
Parliament of NSW and it was a
magnificent service.
If you've been brought up in a
religious tradition and your
parents have introduced you to
that, it, it becomes and is
lifelong and a very important
peace producing feeling within
you.
And so, so I am not a regular
attender at Anglican services.
I still love the Canticles and I
love the liturgy and, and I
really appreciated the wonderful
service that was held at Saint
James Church the other day on
the 200th anniversary.
It's a pretty good thing, a
peaceful country with 200 years
of a form of parliamentary
democracy.
It's amazing.
Not many countries in the world
can boast of 200 years, and it's
our duty as lawyers to preserve
that and to strengthen it and to
defend it.
We're now at the end of the
podcast and I just have one
final question for you.
Is there any, is there a final
piece of advice that you've
received that stands out from
the rest, and one that you'd
like to share to more students?
Well, the advice I've given and
said and referred to in this
discussion is the advice to work
hard at university to try to get
good grades because that marks
you in a way for the rest of
your life and your aspirations.
To focus, to go to student
activities, to chair lots of
meetings, but not necessarily as
obsessively as I did, and to be
proud of your profession.
To be sympathetic to and
respectful of your clients.
To remember that it's not a fun
day for them.
It's a day of great stress, even
greater than you're feeling.
And so if you do all these
things and keep all this advice,
it's a, a, a wonderful
profession because it's a
profession that is involved in
the solving of puzzles.
Every day is a puzzle.
And especially if you have the
good fortune to serve on an
appellate court, but also in a
trial court, a barrister or a
solicitor, solving puzzles is a
wonderful way to remind yourself
that you have sentience, you
have rationality, and that is
the precious gift of life.
And it doesn't last forever.
And you've got to make the most
of it.
And law is a way to have a
useful life that serves society
and also you make a bit of money
on the way.
Thank you so much.
For joining with me today and I
wish you all the best for the
rest of the year.
Thank you so much.