Michael Kirby

Lawyer and judge

• Born: March 18, 1939
• Birthplace: Sydney, Australia

Significance: Michael Kirby is an Australian lawyer and former member of the High Court of Australia. He was known as the “Great Dissenter,” maintaining the highest dissenting opinion rate in the history of the High Court. Kirby was also known for being the first openly gay member of the High Court.

Background

Michael Donald Kirby was born on March 18, 1939, in Sydney, Australia, to parents Donald and Jean Langmore Kirby. He was the eldest of five children. As a child, Kirby attended North Strathfield Public School, then attended other state schools. After graduating from high school, Kirby attended the University of Sydney. He earned several degrees from the institution, including a Bachelor of Arts in 1959, a Bachelor of Laws in 1962, and a Master of Laws in 1967. During his time at the University of Sydney, Kirby was elected President of the Students’ Representative Council and President of the Sydney University Union.

Kirby began pursuing a career in law while still attending college. During his twenties, he worked for the law firm Hickson, Lakeman, and Holcomb as a solicitor, then was promoted to barrister. In December 1975, Kirby was appointed Deputy President of the Australian Conciliation and Arbitration Commission. This made Kirby the youngest person appointed to a federal judicial office.

Life’s Work

Kirby continued his work with the Australian legal system, building a reputation for fairly managing labor and holding various governmental offices. In 1983, Kirby was appointed a judge in the Federal Court of Australia. The following year, he was appointed President of the New South Wales Court of Appeal, a higher court. In 1995, Kirby briefly became the President of the Court of Appeal of Solomon Islands.

Kirby was appointed to the High Court of Australia, Australia’s highest legal body, in 1996. Kirby quickly developed a reputation for defending people that were historically oppressed by mainstream society, such as Australia’s Aboriginal peoples. He expressed that, despite Australia’s positive aspirations, the legal system was sometimes discriminatory, particularly toward women, ethnic minorities, and LGBTQ people. As a gay man, Kirby has noted in interviews that he had experienced that side of the Australia legal system as a youth, at a time when LGBTQ behavior was criminalized.

While serving on the High Court of Australia, Kirby often publicly disagreed with the opinions of his colleagues. Kirby found value in providing a differing opinion from the majority of the court. He believed that even when the majority decision would rule, the dissenting opinion would offer value to future legal counsels, potentially winning the argument at a later date.

At the time, most judges on the High Court of Australia acted in unison. His colleagues, including William Gummow, Ken Haynes, Andrew Lynch, and George Williams, most commonly agreed with one another. They offered a united front when the court was faced with legal challenges. In contrast with their continued unity, Kirby formally dissented regularly, sometimes averaging a dissent every other case. In 2005, Kirby’s dissent rate was higher than any High Court of Australia justice in history. In both the legal system and the media, Kirby was nicknamed “The Great Dissenter.”

Though Kirby acknowledged that such a high dissent rate was unusual, he argued that he was not intentionally being contrarian. Instead, he stated that the composition of the court had shifted over time, and to agree with many of their decisions would be to compromise his views. Kirby noted that had he belonged to the High Court during the 1990s, he would have agreed with most of the decisions made by the court.

Kirby also opined that the cases heard during his time on the court were increasingly complicated and difficult. He stated that over time, the cases he and his colleagues were faced with were more likely to push the boundaries of the existing legal code, forcing him to dissent more often than simpler cases.

Kirby retired from the High Court of Australia on February 2, 2009, at sixty-nine years old. High Court justices are legally and constitutionally mandated to retire at the age of seventy. He then taught law at a variety of universities, including the Australian National University, the University of New South Wales, and Victoria University.

In 2013, Kirby was appointed by the United Nations Human Rights Council to lead an investigation into human rights abuses in North Korea. The investigation found that North Korea systematically committed “unspeakable atrocities” against its own people and recommended that North Korean leaders be tried before the International Criminal Court.

Impact

During his legal career, Kirby developed a strong reputation for legislating through his role as a judge. He noted that, while it would be wrong for a judge to clearly pursue personal policy agendas while carrying out their obligations, it would also be wrong for judges to pretend that their decisions do not have wider societal impact. He stated that judges have always had a role in making the law, a controversial opinion among lawyers, judges, and legislators.

Kirby was also known for being an openly gay man during an era when homosexuality was heavily criminalized. Throughout his career, Kirby has stated that he has tried to counter stereotypes but was unwilling to spend his life pretending to be someone else. In 1996, Kirby became the first openly gay member of the High Court of Australia.

Bibliography

Dick, Tim. “Kirby Swims Against Tide As Other Judgers Go With Flow.” The Sydney Morning Herald, 2007, www.smh.com.au/national/kirby-swims-against-tide-as-other-judges-go-with-flow-20070216-gdphhr.html. Accessed 30 June 2023.

“Living History with Michael Kirby.” Beyond Parallel, 2016, beyondparallel.csis.org/living-history-michael-kirby/. Accessed 30 June 2023.

McIllroy, Tom. “Justice Michael Kirby on Success and Battling Gay Stereotypes. The Canberra Times, 24 Apr. 2018, www.canberratimes.com.au/story/6030115/justice-michael-kirby-on-success-and-battling-gay-stereotypes/. Accessed 30 June 2023.

“The Case That Changed Me Michael Kirby.” Law Society, www.lawsociety.com.au/resources/resources/career-hub/michael-Kirby. Accessed 30 June, 2023.

“The Honourable Justice Michael Kirby AC CMG.” High Court of Australia, 2006, www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyjbio.html. Accessed 30 June 2023.