Michael Kirby cannot be categorised – he is unique, or as lawyers say, sui generis.
High Court judges do not exactly fall into clear-cut categories, Kirby more so. A stylish man with a strong respect for tradition he must have loathed the ugly robes adopted in the 80s by the activist Mason court. Adrian Deamer said they make the judges look like American funeral directors.
Kirby’s often dissenting opinions, thorough, well-documented and never obtuse, demonstrate independence, not radicalism.
Take WorkChoices. A centralist would have delighted in giving the widest interpretation to the corporations power, for which Kirby had long been a notable proponent. But, alone with Ian Callinan, he declared WorkChoices invalid. With elegance and some would protest, with Jesuitical ingenuity, he did so without disowning his long declared amour for the corporations power.
Probably the best example of the futility of trying to categorise Kirby is his strong attachment to the constitutional monarchy. Kirby would rightly say that there is nothing inconsistent with being a progressive and a monarchist – after all, so were the greatest leaders of the Australian Labor Party.
His loyalty to the throne is unusual in the elite circles in which he moves. Kinder souls treat this as an eccentric foible. On his appointment to the Federal Court, Tony Fitzgerald declared it long overdue, explaining that all minority groups should be represented there, “even monarchists..”
While progressive, Kirby is a great respecter of tradition. He was one of the founders of Australians for Constitutional Monarchy which grew out of a Liberal Party group convened by Peter King and made broader by the inclusion of men like him and Doug Sutherland.
Michael Kirby and Lloyd Waddy worked closely together on building ACM into the formidable force it was to be against the Keating-Turnbull juggernaut. Kirby’s great contribution, the ACM charter, remains today a rallying call for all Australian monarchists. Professor Brown describes Kirby’s public stance against the republican campaign as “a dangerous double game“.
This became clear when a vacancy arose in High Court in 1995. Kirby was an obvious choice – but for his public stance against the republican campaign.
Michael Lavarch and Gareth Evans argued that appointing Kirby would have the advantage of taking the most credible and rational monarchist out of the debate, a point which that passionate republican Paul Keating accepted.
While it did not stop the referendum landslide against the republic, the appointment enriched the High Court.
[This is an extract from a book review “From A life In Law” by David Flint of “Michael Kirby: Paradoxes and Principles” by AJ Brown, Federation Press, $59.95, pp 528, ISBN 9781862876507, Spectator Australia 2011]