The Great Dissenter hangs up his wig

Justice Michael Kirby is sure something will turn up after he ends his 13-year stint on the High Court later this year.

No-one can possibly doubt that.

In his extraordinary career since he was admitted to the NSW Bar in 1967, he served on the Federal Court of Australia and the NSW Court of Appeal until his appointment to the High Court in 1996.

In that time, he has become reknowned for his strong advocacy of human rights and for his progressive opinions on the High Court.

Openly gay since 1999 when he revealed his relationship with long-term partner Johan van Vloten, Justice Kirby has often spoken publicly in support of gay rights. And who could forget his rousing speech at the 2002 Sydney Gay Games VI, where he was the keynote speaker at the opening ceremonies?

But Justice Kirby declined to evaluate his contributions during his time on the bench.

“It’s up to others to decide that,” he said. ”I have tried to uphold the rule of just law to ensure human rights were protected, to stand against discrimination in all ways and to be respectful to all those who came before me in the court.”

Known as the Great Dissenter, he has delivered more dissenting opinions than any of his High Court colleagues, especially in constitutional cases.

”In the decisions of the court, statistics show I have filed more dissenting decisions but that depends on who else was on the court,” he said.

“Had I served when Justice Mason was on the court, I would not have been dissenting at all. It all depends on what the issues are and what you’re dissenting from. I don’t like the term because it doesn’t reflect the high level of agreement on the court. In the main the court tends to agree more than disagree. You never hear of the many cases that are not granted leave to be heard, and the cases that are granted special leave tend to be borderline in law.”

In fact, he said it was surprising there were not more judges who disagree.

“A tradition of disagreeing has been part of the court since the beginning. It’s part of transparency. It’s a good thing we don’t have to suppress our opinions and can leave it to the public to judge.”

Justice Kirby described recent changes to laws affecting gay couples as an improvement but says Australia is still behind other countries in some ways, for example in civil unions for long-term partners.

“I’ve been with my partner for 40 years and I don’t believe it threatens anyone. It’s in society’s interests to encourage stable relationships and anyone who would want to deprive me of that needs to take a Bex and have a lie down,” he said, adding that gay people also need to realise the majority of the population doesn’t sit around thinking about them.
And he would like to see Australia move towards a Bill of Rights like England’s, a system that allows Parliament to have the last say.

“The Human Rights Act adopted in Britain has been copied in the ACT and Victoria. That is the model Australia can contemplate being adopted in the next decade or so,” Justice Kirby said.

“Yes, in my experience we do need a Bill of Rights. In its busy activities, Parliament sometimes overlooks the rights of minorities, especially unpopular minorities. The law is not always just and it can be useful to the democratic process for the courts to draw attention to such inequalities so action can be taken by the Parliament, or at least considered.
“I’ve always favoured anything that makes the process more transparent and open.”

Justice Kirby said he was not sure what he would do after retiring from the High Court: “Something will turn up – it always does. I’m a pretty experienced lawyer.”

He described the past decade as “hard work, satisfaction and high expectations – great expectations for Australia and for myself”.