The Hon Justice Michael Kirby AC CMG

Michael Donald Kirby was appointed to the Court in February 1996. At the time of his appointment he was President of the New South Wales Court of Appeal, having been appointed to that office in September 1984.

He was admitted to the New South Wales Bar in 1967. He was appointed a Deputy President of the Australian Conciliation and Arbitration Commission in 1975.

He served as first Chairperson of the Australian Law Reform Commission from 1975 to 1984. In 1983 he became a judge of the Federal Court of Australia, serving on that Court until 1984.

He has held numerous national and international positions including on the Board of CSIRO, as President of the Court of Appeal of Solomon Islands, as UN Special Representative in Cambodia and as President of the International Commission of Jurists. In 1991 he was appointed a Companion in the General Division of the Order of Australia.  

An Interview with The Hon Justice Michael Kirby AC CMG

How do you define leadership? Do you see yourself as a leader?

Leadership involves a capacity to encourage and inspire others to contribute beyond the ordinary.  I hope I am a leader, at least in the legal profession, in respect for human rights throughout the world and towards a more rational attitude to issues of gender and sexuality.   

You have once said that, “the legal profession, the law - has really just priced itself out of availability to most ordinary citizens.” (What is it really like to be a Justice of the High Court of Australia? – A conversation of Law students with Justice Kirby, 23 May 1997)  Are profit-driven motives justifiable in the legal profession if the mission of lawyers is to attain justice under the law and not to win justice at all costs?

Within the legal profession it is necessary to make sufficient money to compensate for years of deprivation during education, to pay for staff and overheads and to cover the expensive costs of accommodation and technology.  As well, in our form of society, lawyers, as a highly trained and disciplined profession, who carry a lot of worries and make important decisions, are entitled to an above average income.  However, the introduction of time-charging for much legal work has brought about a new ethos in some parts of the profession.  The culture has changed in my lifetime.  Despite that many lawyers remain dedicated to justice in accordance with law.  Many do more than their fair share of pro bono work.  It is not coincidental that most lawyers in legal aid bodies, anti-discrimination bodies, Aboriginal legal service and law reform commissions are women.  Because women and gays have often been on the receiving end of discrimination and injustice, they feel more keenly the need to support legal redress. 

Given that the government in office influences the appointment of Judges to the High Court, what concerns do you have about the involvement of politics in the selection process and why is it that a more formal and transparent system has not been adopted to elect Judges on the basis of merit?

The appointment of judges generally, and Justices of the High Court of Australia in particular, by the government of the day is not new.  It has been the way judges have been appointed in British countries for centuries.  By and large, it has produced a highly talented, disciplined, independent and able judiciary.  But in recent decades, there has been an increasing demand for new qualities:  such as a variety of backgrounds and life's experiences, activity in fields of law other than advocacy, such as law reform, government, academe, etc and introduction of more women and members of minorities into the Bench.  This is not to get a complete reflection of the variety of society.  But it is to ensure that other voices are heard, not least by fellow judges.  I do not favour judicial commissions to select judges.  Often, in practice, that means other judges selecting judges.  That would be a formula for an even more monochrome judiciary. 

In the context of common law evolving continuously and being created by Judges, how do you view the recent Tampa crisis in Australia in light of the Federal Government intervening to create new laws to reflect a certain agenda?  Is their action and the manner in which this new legislation was introduced, acceptable? If justice is to be preserved according to the law, how do Judges feel about maintaining such ‘state imposed’ justice, if they happen to disagree with the principles they were based on?

 Subject to the Constitution, judges must give effect to the law made by the Parliaments of Australia.  They are not free to give effect to their own whims and wishes.  On the other hand, individualised justice means, necessarily, that judges, in interpreting the law and filling the gaps of the common law, reflect their own value systems.  Mine happens to be rooted deeply in the principles of international human rights law and affected by my upbringing in a loving family with religious beliefs about the rights of all. 

In seeing the law through a human rights perspective, how do you feel about contemporary achievements in Australian law and its direction? Are you satisfied in the way in which educational institutions are nurturing in law students a respect for fundamental human rights?

 One of the most popular subjects in most Law Schools today is international law.  Many young law undergraduates thirst for instruction in international human rights law.  Indeed, this is one of the great achievements of the past half century.  I am optimistic about the influence of these principles upon the legal profession and, in due course, the judiciary.  Fortunately, our legal system, the common law, is brilliantly adaptable to changing values and principles of this kind. 

What are your perceptions about prisons being a suitable environment to rehabilitate criminals serving their sentence? 

Let there be no doubt that some convicted criminals have to be sent to prison.  I have no difficulty in joining in such orders.  In the courts, we see a parade of cruelty, fraud and wickedness harming the vulnerable.  Such people cannot simply be rebuked.  On the other hand, Australia's prisons are often relics of the Victorian age.  They are frequently over-crowded and ill-equipped.  They are places for the loss of liberty but scarcely well adapted for the rehabilitation of prisoners serving their sentence.  New procedures for imposing sanctions without increasing the prison population are being introduced.  They include electronic anklets to impose a prison sentence, to be served effectively at home.  Whether these new procedures have been introduced out of compassion and concern for the condition of prisons or simply to reduce the cost to the State, is a matter of debate. 

With reference to your speech, Women in the Law – What Next? presented in Melbourne on 20 August 01 at the Victorian Women Lawyers’ Association, what strategies do you advocate that need to be in place to reduce the unconscious and conscious bias towards women in the legal profession, and at which levels of the spectrum do you think these strategies need to be implemented? 

 To make the legal profession a more welcoming and fair place for women, requires multiple strategies.  But the first of them is a realisation of the injustice that has been done in the past and the present.  At the beginning of the twentieth century, on both sides of Australia, women were excluded from practising law because male judges unanimously concluded that a woman was not a "person" within the meaning of the Legal Practitioners Act and could not therefore be admitted to practice.  More recently, there have been other sources of discrimination and unfairness.  However, things are changing.  Symbols are not unimportant.  We therefore need more women judges and magistrates to change the face of the law.  But symbols are not enough.  Advancement to senior positions in legal firms, in academic promotion and in briefing at the Bar require, to some extent, cultural changes.  People should advance on merit. 

Gender is irrelevant to one's skills as a lawyer, just as race, ethnicity, skin colour and sexuality are irrelevant.  To some extent the interruption of a career to bear and nurture children, can delay the professional advancement of female lawyers.  But adjustments can be made in the home and in the profession, for those who want it, to ensure that the disadvantage is not exaggerated, or based on stereotypes.     

Do you believe that Australia needs a Bill of Rights to advance protection of human rights in Australia? Why?

Australia is now one of the few countries in the world without a Bill of Rights.  That does not necessarily mean that we are wrong.  But our society is less monochrome than at the beginning of the twentieth century when the idea of a constitutional Bill of Rights was rejected.  Sometimes a Bill of Rights can stimulate Parliaments into addressing injustice to minorities, especially unpopular minorities.  Democracy is not simply about majoritarian rule.  I believe that, in due course, Australia will follow the lead of Britain, Canada and New Zealand - countries with whose legal systems we have most in common.  We will start with statutory Bills of Rights and eventually these will grow into constitutional charters of rights.

With respect to the military response by the United States of America and its allies to the terrorist attacks of 11 September 01, do you believe that there is global acceptance of the principle of "universal jurisdiction" for crimes against humanity?  How does their military response reflect on the success of the International Criminal Court and the United Nations with the US government hoping to put to trial the perpetrators of the September 11 attacks in a US court where the death penalty can be guaranteed for such crimes? 

 The principle of universal jurisdiction is a lively subject of debate in academic and legal circles.  In January 2001, I attended a meeting at Princeton University in the United States which adopted the Princeton Principles of Universal Jurisdiction.  The terrible events of September 11, 2001 illustrate the need for legal and judicial responses.  The way of the future is law not war.  It is in that sense that lawyers represent the alternative model to terror and brute power.  The development of the principles of universal jurisdiction will go hand in hand with the development of international tribunals, such as the proposed International Criminal Court. 

With increasing attacks, both political and personal, on members of the judiciary, how has this affected you personally?

Attacks on the judiciary, as an institution, have the tendency to undermine public confidence in the decisions of judges.  I sometimes wonder if the media, which has such uncontrolled power - including over politicians - looks on the judiciary with envy.  After all, it is now just about the only institution that stands up to the power of the media and protects citizens against that power, when it is abused.  I am not concerned with personal attacks.  People in a free society are entitled to have, and express, opinions contrary to my own.  There is nothing sacrosanct about my views or even my decisions as a judge of the High Court.  Yet the worrying development is the presentation of criticism in terms of personality and entertainment.  And also the frequent lack of careful research and analysis to ensure that criticisms are based on fact not fiction.  But I do not lose any sleep over it.