It seems that not only was Justice Michael Kirby’s support for the Australian Crown seen as a “problem” by the then Attorney General in considering whether to appoint him to the High Court. It now seems that neutralising him as a spokesman for our crowned republic was the “clincher” which finally persuaded Paul Keating to agree to the appointment.
This hitherto unknown aspect of his appointment is revealed by Michael Pelly in The Australian on 2 February (“Kirby given court post 'to shut him up”).
On all proper criteria the judge was an outstanding candidate. His support for the existing constitution should not have been seen as a problem.
That it was initially raised as a barrier was wrong. It was as inappropriate a criterion as the selection in “Yes Prime Minister” of an atheistic clergymen for consecration as a Church of England bishop merely because of his wife’s social standing. (Sir Humphrey has other reasons. An extract from the programme is posted at the foot of this column.)
This story appears in a collection of essays edited by Professor AJ Brown of Griffith University. This is to be launched in Sydney on Thursday by the former chief justice Sir Anthony Mason.
The context was that in December 1995, the government was proceeding to fill the High Court vacancy following the appointment of Sir William Deane as Governor-General.
“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,“ writes Michael Pell.
Michael Lavarch told Professor Brown that Michael Kirby had been considered for an earlier vacancy, but Justice Gummow had been appointed instead. He said “A factor in the appointments was a desire to rein in the sometimes celebrated judicial activism of the Mason court," and added: "( Justice) Gummow was regarded as a technician, skilled but harmless."
…persuading Paul Keating that it would be smart to appoint a monarchist….
Gareth Evans told Professor Brown that Michael Kirby’s organisational role for the monarchists was "not the smartest thing to do".
"According to Lavarch," Mr. 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'."
Once he was appointed to the Court, the judge would have been unable to advance the cause of the crowned republic, as he puts it. If he did, and a case came before the Court on say the legality of aspects of a referendum, his participation could have been challenged.
His strong belief in parliamentary sovereignty was also seen as an advantage for Michael Kirby. This was in the context of what Michael Lavarch describes as "the backdrop of an implied rights agenda" that had been developed by most of the Mason court.
"I just said to Keating," Professor Lavarch said '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****** Tories."
Professor Lavarch, who is now Dean of Law at The Queensland University of Technology, told The Australian the account by Professor Brown was "essentially accurate".
"It probably by 5 or 10 per cent overstates Keating's reaction," he said. Mr Keating could not be reached by The Australian.
This means that Paul Keating was finally persuaded to agree to the appointment to neutralise Michael Kirby as an advocate for our present constitutional system, our Federal Commonwealth under the Crown.
A month after Justice Kirby took his oath in February 1996, Labor was defeated in the general election. Michael Pell writes that the timing of Sir William Deane's departure looked even more fortuitous. “Professor Lavarch stated the obvious: ‘I don't think he would have been appointed by the Liberals.’ "
The Australian will post an interview with Michael Kirby at www.theaustralian.com.au from noon 2 February.
Here is the extract from Yes Prime Minister where one of the candidates for a vacant bishopric is an atheist. Advance the video to about 3.10 minutes.