Michael Kirby (judge)
Michael Donald Kirby is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009. He has remained active in retirement; in May 2013 he was appointed by the United Nations Human Rights Council to lead an inquiry into human rights abuses in North Korea, which reported in February 2014.
Early life and education
Michael Donald Kirby was born on 18 March 1939 at Crown Street Women's Hospital to Donald and Jean Langmore Kirby. He was the eldest of five siblings, followed by twins Donald William and David Charles, David, and Diana Margaret. In 1943 his grandmother, Norma Gray, remarried and her second husband was Jack Simpson, National Treasurer of the Australian Communist Party. Although Kirby came to admire Simpson, neither he nor his immediate family embraced the ideology. His father supported the Australian Labor Party but never became a member. His mother, it is believed, voted for Robert Menzies.Kirby attended state schools, commencing at North Strathfield Public School, followed by Summer Hill Public School for Opportunity Classes, and then Fort Street High School in Sydney.
After graduating from high school, Kirby later attended the University of Sydney, where he earned a Bachelor of Arts, Bachelor of Laws, Bachelor of Economics, and Master of Laws . At university, Kirby was elected President of the University of Sydney Students' Representative Council and President of the University of Sydney Union.
Career
Kirby commenced his legal career as an articled clerk for Ramon Burke at the small Sydney firm M. A. Simon and Co., assisting with Compensation Commission cases for plaintiffs. The firm had two principals, Maurice Arthur Simon and Ramon Burke, later a judge of the Compensation Court of New South Wales. After graduation, he moved to Hickson, Lakeman and Holcombe as a solicitor, practising in insurance litigation and property disputes. He was a partner of the firm from 1963 to 1967.Kirby was admitted to the New South Wales Bar in 1967.
Judicial appointment
Kirby became the youngest man appointed to federal judicial office in 1975, when he was appointed Deputy President of the Australian Conciliation and Arbitration Commission, a tribunal which adjudicated labour disputes. In 1983, Kirby was appointed a judge in the Federal Court of Australia, before an appointment as President of the New South Wales Court of Appeal, a superior court in that state's legal system, in 1984. During that period, he was also the President of the Court of Appeal of Solomon Islands from 1995 to 1996.From 1984 until 1993, Kirby held the position of Chancellor at Macquarie University.
In February 1996, Kirby was appointed to the High Court of Australia. He has served on many other boards and committees, notably the Australian Law Reform Commission and the CSIRO. He is Patron of the Friends of Libraries Australia and many other bodies.
Dissent rate
Kirby was often at odds with his colleagues in the Gleeson High Court, and sometimes as the sole dissenter. In 2004, he delivered a dissenting opinion on nearly 40% of the matters in which he participated, almost twice as many as any of his High Court colleagues; in constitutional cases, his rate of dissent was more than 50%. His notable dissent rate earned him the nickname the "Great Dissenter". Future High Court Justices who have been considered in contention for the title include Dyson Heydon and Patrick Keane, though neither had dissent rates as high as Kirby's.Legal researchers Andrew Lynch and George Williams observe that "even allowing for 2004 as a year in which Kirby had a particularly high level of explicit disagreement with a majority of his colleagues, it is neither premature nor unfair to say that in the frequency of his dissent, his Honour has long since eclipsed any other Justice in the history of the Court...
Kirby has responded, stating that "on their own, statistics tell little"; to understand Kirby's rate of dissent, it is necessary to examine what his disagreements have been about and consider whom he has dissented from. Kirby explains "there have always been divisions, reflecting the different philosophies and perspectives of the office-holders", and that, throughout the High Court's history, many dissenting opinions have ultimately been adopted as good law. Further, Kirby argues that the rate of dissent, if seen within its context, is relatively small. Cases heard before the full bench of the High Court have proceeded through a series of lower courts and special leave hearings. They are thus likely to test the boundaries of the existing law, and raise opposing, though no less valid, views of the law.
Retirement and post-retirement life
Kirby retired from the High Court on 2 February 2009, shortly before reaching the constitutionally mandatory retirement age of 70, and was succeeded by Virginia Bell.After his retirement, Kirby was appointed to several honorary academic roles at Australian universities. These included appointments to: the Australian National University in Canberra, as distinguished visiting fellow in February 2009; the University of New South Wales Faculty of Law as visiting professorial fellow in March 2009; the University of Tasmania Faculty of Law as adjunct professor in July 2009; and Victoria University as an adjunct professor. He has been appointed honorary visiting professor by 12 universities.
Jurisprudence
In November 2003, at the University of Exeter, Kirby delivered the Hamlyn Lectures on the subject of judicial activism. Rejecting the doctrine of strict constructionism, Kirby declared that:Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced... contrary to myth, judges do more than simply apply law. They have a role in making it and always have.These lectures sparked a debate in the Australian media, echoing an ongoing debate in the United States, as to whether judges have the right to interpret the law in the light of its intent and considerations of natural law or whether judges should simply follow the letter of the law, leaving questions of its intent and underlying principles to elected representatives.
Following increasing public scrutiny into, and characterisations of, High Court judgments as 'activist' in the late 1990s, a number of members of the Court agreed to give interviews in the 1998 documentary The Highest Court. Kirby was one of the few members of the Court who did not take part. An insight into Kirby's jurisprudence and judicial style can be found in his engagement with Gavin Griffith QC in Kruger v Commonwealth, which is featured in the documentary.
He had also addressed this topic in a 1997 speech to the Bar Association of India, in which he spoke approvingly of "a kind of 'judicial activism' that is often in tune with the deeply felt emotions of ordinary citizens". Nonetheless, Kirby is critical of the term "judicial activism" when it is used as "code language", applied chiefly by conservative commentators to views and to people with which they disagree.
UN Report into North Korean Human Rights Abuses
In May 2013, the United Nations Human Rights Council appointed Kirby to lead a commission of inquiry into human rights abuses in North Korea, with Sonja Biserko and Marzuki Darusman. The report is dated 7 February 2014. It identifies "ystematic, widespread and gross human rights violations" by a "totalitarian state", including "unspeakable atrocities" in the political prison camps. It makes many recommendations for internal reform and international action, including prosecution of the North Korean leadership in the International Criminal Court or before an ad hoc international tribunal. North Korea refused all co-operation with the inquiry and, just before the report was launched, issued a statement claiming that it was based upon "faked" material.As the report was being finalised, on 20 January 2014 Kirby wrote to North Korea's Supreme Leader, Kim Jong-un, informing him that he would be advising the United Nations to formally refer the situation in North Korea to the International Criminal Court, where Kim could be tried for his personal culpability as head of state and leader of the military, but proposing that the commission come to Pyongyang to discuss the issues with the North Korean government.
At a press conference to launch the report, on 17 February 2014, Kirby said that there were "many parallels" between the evidence he had heard and crimes committed by the Nazis and their allies in the Second World War. On 22 April 2014 the official news agency of North Korea, KCNA, claimed that the "fabrications" are meant to "undermine the ideology and social system of the DPRK". The KCNA also criticised Kirby for being gay: "it is ridiculous for such gay to sponsor dealing with others' human rights issue".
Kirby remained involved in advocacy on issues of human rights in North Korea and the abduction of Japanese citizens, participating in symposia organised by the Japanese government in Geneva with a UN Human Rights Council Panel and in Tokyo. In May 2017, he was awarded the Order of the Rising Sun, Gold and Silver Star, "in recognition of his contribution to promoting understanding of the situation of Human Rights in North Korea in the international society including the issue of the abductions of Japanese nationals". The honour was presented by Japanese Prime Minister Shinzō Abe and Kirby received the additional honour of an audience with Akihito, the Emperor of Japan, at the Imperial Palace in Tokyo. Kirby described the awarding of the honour to himself and former United Nations special rapporteur Marzuki Darusman as "a clear signal that the Japanese Government has not abandoned its determination to pursue the crime against humanity involved in the abductions in the international community and other crimes revealed in our report."
In January 2015, one of the key witnesses to Kirby's inquiry, Shin Dong Hyuk, admitted that he had given false testimony. Having sworn that he had spent his childhood entirely in the notorious Camp 14, he changed his story to say that he had been transferred at the age of six to the nearby Camp 18. He said that he had changed his story after seeing his father on television. Shin apologised but gave few details.