February 3

He “couldn’t see why a judge should be barred from supporting the Constitution”

A test of moral courage is the readiness to support your principles against your friends. In sticking to his own moral compass, Justice Michael Kirby has broken many conventions and accumulated numerous critics, many of whom have found themselves his admirers on other issues. 

An Anglophile who helped to internationalise Australian law; a law reformer who strove to keep the Crown in the Australian Constitution; an open homosexual who revered the Anglican Church; a gay rights advocate who thought HIV should be a notifiable disease; a hyper-conscientious judge who was most widely known for everything but his judgments: a celebrity who has largely avoided shallowness, Kirby has always defied the best efforts of friends and foes alike to corral him into being one of "us" or "them".  

Kirby was never silly enough to think that being attacked from both Left and Right was, of itself, a sign of moral virtue. In Kirby's case, he has mostly been better than his critics, not just different: better informed, more thoughtful and less judgmental.  

Although Labor governments appointed him successively to the Australian Law Reform Commission, the Federal Court, the NSW Court of Appeal and, finally, the High Court, Kirby could never fairly be described as a man of the Left or even as a radical judge. He has been a reformer in wanting improvements but a conservative in believing that Australia's institutions had it in them to be better. Kirby campaigned against injustice, exclusion and xenophobia because, in his view, they were contrary to English-speaking civilisation at its best. Perhaps it was the observation of his communist-inclined father, criticised but not persecuted at the height of the Cold War, that fostered this appreciation of the magnanimity at the heart of our culture.  

As A.J. Brown recounts in his forthcoming biography of Kirby (and as The Australian reported yesterday), he almost missed out on appointment to the High Court because of his support for the monarchy. It wasn't Kirby's constitutional commentary that former prime minister Paul Keating objected to but the fact that he was spruiking for the wrong side. It wasn't arguments about Kirby's (undoubted) judicial competence that eventually won Keating over, but the line that his politics might be wrong on the monarchy but right on nearly everything else. The clinching argument, says the then attorney-general Michael Lavarch, "was having an adventurous spirit up against all those other f–king Tories". On the High Court, as elsewhere, Kirby was his own man, no one else's, but that plainly was not what the Keating government wanted. On Brown's evidence, the approach to selecting a judge was little different to stacking a branch.  

Kirby's forthright defence of the monarchy had shocked many of his erstwhile admirers as much as it had surprised critics who didn't really know him. The attitude of some of his crustier judicial colleagues was: "He speaks out on everything else, why not be a commentator on something that counts." Although he was then president of the NSW Court of Appeal, Kirby's view was that he "couldn't see why a judge should be barred from supporting the Constitution".  

Kirby drafted the original charter of Australians for Constitutional Monarchy (reputedly during a lull in the one of the cases he was presiding over). Showing the acumen friends once thought destined him for politics, it was an inclusive document that stressed how the Crown had evolved and improved in Australia:

 "We are Australians united to defend our constitutional system of government. We hold different political views. We come from different ethnic origins. We speak for different generations. We have had different experiences of life. We defend the place of the Crown in our constitution for it has served our nation well. We reject the notion that those who defend our constitution and the position of the Queen of Australia in our constitution are less Australian or less patriotic or less contemporary than those who promote change. We believe we should not disrupt our nation with a divisive debate founded on ignorance of its history and institutions. Constitutional monarchy is the least imperfect form of government yet devised and it should endure in Australia indefinitely."  

According to (now Family Court Justice) Lloyd Waddy, who was the founding convenor of ACM, the comparatively rancour-free tenor of the 1999 constitutional campaign was largely Kirby's inspiration.  

His constant message was that "when this is over, regardless of the result, we will all still have to live together".

As a student convinced that law reform was for elected parliaments rather than for social engineers, I could hardly have imagined that one day I would come to admire Kirby, let alone to regard him as something of a mentor. Yet how could he be so worth listening to on the monarchy and not on other subjects too?  

Kirby's views are not all compelling but he invariably makes the best possible case for the causes he believes in. The time he takes with people, no less than over ideas, means that he has been a remarkable influence for good; most of all an antidote to the small-mindedness to which, but for him, more of us might more often have succumbed.

 

Tony Abbott was the first executive director of Australians for Constitutional Monarchy.This appeared in The Australian under the headline " Kirby true to himself" on 3 February,2009. Five videos in which Justice Kirby is interviewed by Michael Pell are being posted to The Australian site. The first, posted on 3 February,  is on his childhood.

 


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