Home » Reviews

Judge’s colourful life laid bare

7 May 2011 1,830 views No Comment

AIDED by a bevy of research assistants, A.J. Brown has produced a comprehensive biography of one of Australia’s most controversial judges and public intellectuals.

The subject’s co-operation in this project was achieved by Brown’s agreement that the book would not be published until after Kirby’s retirement from the High Court of Australia in March 2009. This meant the biographer and his helpers gained access to voluminous materials — personal and professional — that otherwise would have remained inaccessible, as well as to many third-party sources who would not have participated had the book been published before Kirby’s retirement from a position he had held since February 1996.

Born in Sydney’s Crown Street Women’s Hospital on March 18, 1939, Michael Donald Kirby grew up at the family home in Sydney Street, Concord, and attended Summer Hill Public School. He then went to the academically excellent and highly selective Fort Street Boys High, the alumni of which included Australia’s first prime minister, Edmund Barton, and 1950s Labor leader H.V. Evatt

As an adolescent, Kirby was sexually confused. Yet from an early age, Kirby — who was a lifelong Anglican and a monarchist — planned to be a bishop or a judge.

Michael Kirby: Paradoxes, Principles, canvasses Kirby’s relatively muted private and personal life and, in much more detail, his jam-packed public life.

The latter ranges from his activities in the early 1960s as a student politician at the University of Sydney, where Kirby studied law, to his many and varied judicial appointments. These include being foundation chairman of the Law Reform Commission in 1975; president of the NSW Court of Appeal in 1984; and an often-dissenting justice of the High Court of Australia from 1996 to 2009.

This rather dense biography also charts Kirby’s relationship with leading ALP lawyer-politicians, including former NSW premier Neville Wran and former federal Attorney-General (later justice) Lionel Murphy, both of whom became his strong supporters. The book also details Kirby’s law reform and human rights activities in Australia and abroad, including being world president of the International Commission of Jurists, the first Australian to serve as Special Representative of the UN Secretary-General for Human Rights, and in latter years being a public figure who spoke passionately about HIV-AIDS.

To research and write this lengthy biography, Brown was afforded unprecedented access to Kirby’s working materials as a High Court judge, including detailed draft judgments and papers normally shredded within judicial chambers.

The most important chapter, The Six Days that Shook the Court, deals at length with the claims by NSW maverick Liberal Party senator Bill Heffernan that Kirby, as a High Court judge, had improperly used commonwealth government cars to pick up underage boys for sex. These scurrilous allegations came shortly after Kirby had delivered a courageously controversial speech about same-sex relationships at St Ignatius College, Riverview, in Sydney.

As it eventuated, the Comcar documents supposedly implicating Kirby were shown to be fake and Heffernan, who had been supported by then prime minister John Howard, was forced to resign as parliamentary secretary and apologise to Kirby and to the Senate. In what Brown describes as a “sombre debate”, Heffernan was formally censured by the Senate. Significantly, Kirby’s old antagonist from student union days, the fiery justice Mary Gaudron, came very effectively to his aid. After a huge row with chief justice Murray Gleeson, Gaudron “became the first known whistleblower in High Court history”, Brown writes, leaking to other judges, and to key elements in the media, the advice that “bogus documents were involved” in the smear on Kirby.

Coming so soon after the “children overboard deceptions”, the political reputation of the federal Coalition government, Brown contends, was “left permanently damaged” by these unsubstantiated allegations. Sadly, the Comcar driver, Wayne Patterson, who had regularly driven Howard and who had been closely involved with Heffernan’s allegations, committed suicide in December 2007. When Tony Abbott was Howard’s minister for employment services, he insisted Heffernan was given “the clear message” that the federal Coalition government as a whole did not support his crusade against Kirby. Brown writes that Heffernan was “told time and time again . . . that this was doing him, and the government, no good”. When, two years earlier, Kirby had outed himself as gay in Who’s Who in Australia, Abbott wrote to Kirby to say he was “absolutely shocked and scandalised the other day at the revelation . . . that you are 60 years old!”

Ross Fitzgerald is emeritus professor of history and politics at Griffith University and the author of 33 books.

Michael Kirby: Paradoxes, Principles, By A.J. Brown, The Federation Press, 528pp, $55 (HB)
The Weekend Australian, May 07 -8, 2011