“One of the good things about the High Court as we've known it is that being a conservative in terms of judicial method didn't normally indicate which party the judge voted for,” writes Christopher Pearson in “High Court as a test of maturity” in The Australian, 4 August 2012. (This is a piece about the filling of two High Court vacancies which will occur during the next few months. )
“Then again,” adds Christopher Pearson,” who can forget (Sir) Anthony Mason's strange admission to having been a lifelong republican? In the case of Michael Kirby, neither political activism nor judicial radicalism precluded him from being the co-convener of Australians for Constitutional Monarchy, even if the latter post cost him the expected appointment as governor-general, as is widely rumoured.”
It seems that Justice Kirby’s role in ACM almost stopped him from being appointed to the High Court.
In “Kirby given court post 'to shut him up',” Michael Pelly reported in The Australian on 2 February, 2009 in December 1995, the Keating government moved to fill the High Court vacancy to be filled as William Deane was off to Yarralumla. The following is an extract from the report. Attorney-general Michael Lavarch and Gareth Evans were in Kirby's corner, but the judge's support for the monarchy was a major stumbling block.
He had, after all, been instrumental in the establishment of Australians for Constitutional Monarchy, and a republic was on the Keating agenda.
Kirby had been in the frame when Mason retired eight months earlier as chief justice. But Keating chose Gerard Brennan to lead the court and Bill Gummow as the new judge.
Lavarch has told Brown: "A factor in the appointments was a desire to rein in the sometimes celebrated judicial activism of the Mason court," and added: "Gummow was regarded as a technician, skilled but harmless."
Yet Kirby was again under consideration to replace Deane, along with four others including South Australia's chief justice John Doyle, a perennial contender for the position.Evans told Brown that Kirby’s organisational role for the monarchists was "not the smartest thing to do".
"According to Lavarch,’ Brown writes, ‘Kirby was 'certainly the most creditable … sanest, rational spokesperson for the monarchist position' – a fact that he and Evans tried to turn to advantage by arguing to the prime minister that Kirby's appointment would (in Evans's words) 'take him out of having this very prominent and creditable role … he'd have to shut up about it'.
Kirby had also espoused a strong belief in parliamentary sovereignty, against what Lavarch describes as "the backdrop of an implied rights agenda" that was developed by most of the Mason court.
"I just said to Keating," Evans is quoted as saying, 'Look, you're a tribal character, he's a tribal character, (the monarchy) is a tribal issue, it's got nothing to do with rationality.
"It won't have any influence at all … it's not going to affect his decision-making on anything of significance.
"What does matter is federal-state relations, what does matter is constitutional interpretation, what does matter is civil liberties … And what matters is having an adventurous spirit up against all those other f..king Tories."