Kirby concludes: I'll be vindicated

"YOU'LL wait a long time before you get another High Court justice like me''.

Justice Michael Kirby is speaking towards the end of an interview on his life and legacy. It is a throwaway line offered as the videotape is being changed, but he is right.

Kirby was Australia's first - and perhaps only - celebrity judge. He is a hero to those who want to concentrate on what the law could be rather than what it is. He is a law reformer of international reknown, a public intellectual who defies labels and a gay icon.

But please don't call the man who disagreed with his colleagues more than any judge in the court's 106-year history "The Great Dissenter''.

"I think it can be used to de-legitimise the opinions that are expressed...

"The title I would like is the title given to Ronald Reagan. The great communicator. I think one of the successes has been trying to explain the law a little bit better to ordinary folks, which is where I came from. ''

Over more than an hour, Kirby is keen to have a say on how he will be remembered.

"I am a very good chairman.''

"I am good on my feet,''

"I have a saintly disposition of Christian kindness.''

"I think the successes include courtesy to lawyers.''

"I feel I am quite close to ordinary folks.''

And his favourite: "I will be vindicated.''

Some are offered with a smile, other in a reflective tone that invites you to accept what he saying as truth.

While the former chief justice Murray Gleeson offered that "life has nothing more incongruous to offer than a judge marking his own report card'', Kirby has no such qualms.

Indeed, he has written a paper titled "A Critical Self-assessment.''

Born in 1939, he was one of four children to a Liberal-voting father and a mother who couldn't bear to watch elections because "she knew Mr Menzies was going to win''.

He lived in far from salubrious Concord, in Sydney's west, and won scholarships to Summer Hill Opportunity School, Fort Street High and then Sydney University.

He found it lacked "a democratic ethos''.

"Children in law schools today are still overwhelmingly from private education ...

"You get people on the whole who have had privileged education ... it is well entrenched and repeated from generation to generation.

"It does a judge good to have gone along to a school here children came along without shoes. I don't say it would happen so much now if it all. But it happened in my life time and left indelible memories in my brain as to the disadvantage of schoolmates who sat in class with me.''

He graduated in arts and moved on to law, where his then classmate Gleeson got up to some mischief.

"I was absent from a lecture and he thought it would be a merry thing to suggest such a quiet and retiring person as myself as the member of the law students society. So he nominated me and he alleges that let loose a juggernaut of student politics.''

Kirby became president of the Students Representative Council and many of his contemporaries expected him to choose politics.

"On one occasion I went to a branch meeting of the Australian Labor Party. I found that in comparison to the Students' Representative Council it was so boring.

"The idea of prawn and barbecue nights and putting up with people debating tedious matters didn't grab me at all ... I never went back.''

He says he was also very busy as a young lawyer. "Then there was the issue of my sexuality. You had to really consider whether or not you would go through life, living a double life, having a walker, having people coming along or to get married which would have been a very dishonest thing to do and I didn't intend to do that. So it really didn't come together.''

What did come together was his career and personal life. His early work as a solicitor and barrister was divided twice by "overland trips'' with his partner Johan van Vloten, whom he met in Sydney in 1969.

"There was a window in history, when you could get through Iran drive through Afghanistan, see eastern Europe under the communists. We did that twice in 1970 and for a year from 1973-1974.

"I can tell you that any couple who can live together in a Kombi van for one year, and certainly for two years, they're hitched for life.

"He thinks it was the best years of our lives. It was long way back of course. I tell him the best years are still to come. You've got to dangle hope. As President Obama says, dangle hope''.

He was lured back from London to join the Federal Arbitration Commission in 1975. "Next to the high court, (the commission) was probably the most important national tribunal in the country.''
Then came a chance meeting in a lift with Lionel Murphy who was establishing Australia's first law reform commission. ``You. You're the one,'' Murphy is said to have told a bemused Kirby.

He said he "as very disinclined to take up the law reform post until his successor at the SRC, Geoffrey Robertson, talked him into it.

"It will give you a different perspective on the law and it will give you national standing,'' Kirby recalls him saying.

"I was virtually forced into it and then taken up to Lionel Murphy's chambers where he raised a glass of champagne - which I most reluctantly took because the sun wasn't over the yard arm and he said 'Here's to Justice Kirby, the first step to the High Court'.

"I thought: yes, well I won't take that too seriously.''

Law reform was very much on the outer. "The senior judiciary was very antagonistic,'' says Kirby.

"Many judges were completely hostile to it.''

Of all the reports from a decade at the ALRC, he mentions his work on human tissue implants, which ended up being adopted worldwide. Privacy issues exposed him to the computer age.

He learned other lessons: "That law is not just a wilderness of cases but about concept, doctrine and how the whole thing fits together... how it operates its effect on ordinary folks.''

In 1984, NSW Premier Neville Wran tapped him to be President of the NSW Court of Appeal. Kirby would win over colleagues, counsel and their clients with his work and unfailing courtesy.
Kirby has a vivid memory of phone call on December 12, 1995 that he had suspected would never come.

"I knew I had been under consideration one way or another from earlier times and I frankly thought my time had passed ...

"If you are always a bridesmaid and never a bride it's a very hurtful experience.''

Gareth Evans and attorney-general Michael Lavarch were in his corner and managed to persuade Paul Keating the republican to accept the staunch monarchist.

Evans is said to have clinched the deal with an assurance to Keating that it would annoy "the f...ing Tories.''

After Mr Lavarch contacted him in the early evening, Kirby called Johan and his parents - and thought back to what Murphy said in 1975.

"I did. But I also thought back to the shoeless children who came to school and committed myself to myself to try and do my best to ensure the law was there for everybody and not just the big end of town, the powerful commercial interests.''

His following 13 years on the nation's top court have not been without their controversies. He would lament not being part of the adventurous Mason court and feel stifled as John Howard stacked the court with "capital-C conservatives''.

He also found himself on the outer when it came to deciding cases. He would dissent in about one in three cases, but in latter years that figure would reach 40 and 50 percent. His individual style and leanings to international law meant he was rarely joined in his judgements - even with those who agreed with the result.

"Justice Kirby would have been the last person who would have been prepared to compromise his view to a grand, universal judgement, says former High Court colleague Ian Callinan.

In excerpts from the interview now on the Australian's website, Kirby discusses three of the seminal cases from his time on the court. The Wik case, where he was part of a 4-3 majority, Combet (the political advertising case) and Al-Kateb, where he was in the minority as the court endorsed the government policy of indefinite detention for stateless asylum seekers. He notes that Mr Al-Kateb will be made an Australian citizen on February 7.

The power to persuade through advocacy is a given for Kirby. He mentions David Jackson and Ian Barker QC as two of the best but also dips his hat to Christine Wheeler, now a judge of the West Australian Supreme Court.

"She was a great advocate. I remember she would not only be every very intelligent - I don't like to say this - but she would occasionally use feminine wiles on the court.

"And, you know, they worked. Even on me.''

In 1999, Kirby "came out'' by recognising his partner of 30 years. "It was the advice Johan, who said: 'We owe it to the younger generation'. He was correct as usual,'' says Kirby .

He was notoriously targeted in 2002 by Senator Bill Heffernan, who alleged Kirby misused Commonwealth cars and "trawled'' for young male prostitutes. Kirby says Heffernan now apologises every time they see each other.

"It's water under the bridge ... I didn't worry about it too much because I knew it would come unstuck.''

He mentions wrongful murder conviction of Perth man Andrew Mallard in 1995 as source of regret.

Mallard was released from prison in 2006 after his conviction was quashed by the High Court - but only after Kirby had been part of a panal that had refused him special leave to appeal.

"Every judge has a nightmare, a nightmare that you may become an instrument of injustice in a particular case. I am afraid that is such a case.''

Kirby is likely to be elected to a new court to handle corruption at the United Nations and says he is looking forward "to find out what on earth is going to happen to Michael Kirby''.

He notes that Andrew Denton has recently retired his Enough Rope program. He suggests - not for the first time - that he could be "Australia's Jerry Springer''. Then he opens his coat lapels, pulls at imaginary braces and leans forward with a mock growl: "Maybe, I could be Larry King.''

After discussing the importance of international law, he offers what he describes as a "very bold prediction''.

"I will be vindicated on the subject, I am sure, and on many other things as well.

"You can come back in 10 years time. I will only be very young man of 80 and I will be very happy to look back and reflect on the very many cases where my minority view has come to pass.''