Michael Pelly |
February 02, 2009
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The Australian
THE clincher for Michael Kirby's appointment to the High Court was an assurance to prime minister Paul Keating that the pro-monarchy judge would "have to shut up" and it would upset "the Tories".
Today, the "Great Dissenter" will take his final bow as a judge - the first other than a chief justice to have a farewell at the court. His father, Donald, and partner Johan van Vloten will be part of an expected full house celebrating Kirby's five decades as a lawyer, law reformer, judge and intellectual.
AJ Brown, a Griffith University lecturer, throws light on how Kirby got to the nation's top court in Appealing to the Future: Michael Kirby and His Legacy, a collection of 40 essays that will be launched in Sydney on Thursday by former chief justice Anthony Mason.
Kirby's biography will follow later this year.
It was December 1995, and there was a High Court vacancy to be filled as William Deane was off to Yarralumla.
Attorney-general Michael Lavarch and Gareth Evans were in Kirby's corner, but the judge's support for the monarchy was a major stumbling block.
He had, after all, been instrumental in the establishment of Australians for Constitutional Monarchy, and a republic was on the Keating agenda.
Kirby had been in the frame when Mason retired eight months earlier as chief justice. But Keating chose Gerard Brennan to lead the court and Bill Gummow as the new judge.
Lavarch has told Brown: "A factor in the appointments was a desire to rein in the sometimes celebrated judicial activism of the Mason court," and added: "Gummow was regarded as a technician, skilled but harmless."
Yet Kirby was again under consideration to replace Deane, along with four others including South Australia's chief justice John Doyle, a perennial contender for the position.
Evans told Brown he thought Kirby's homosexuality "was if anything a slight positive", but that his organisational role for the monarchists was "not the smartest thing to do".
"According to Lavarch," Brown writes, "Kirby was 'certainly the most creditable ... sanest, rational spokesperson for the monarchist position' - a fact that he and Evans tried to turn to advantage by arguing to the prime minister that Kirby's appointment would (in Evans's words) 'take him out of having this very prominent and creditable role ... he'd have to shut up about it'."
Kirby had also espoused a strong belief in parliamentary sovereignty, against what Lavarch describes as "the backdrop of an implied rights agenda" that was developed by most of the Mason court.
"I just said to Keating," Evans is quoted as saying, 'Look, you're a tribal character, he's a tribal character, (the monarchy) is a tribal issue, it's got nothing to do with rationality.
"It won't have any influence at all ... it's not going to affect his decision-making on anything of significance.
"What does matter is federal-state relations, what does matter is constitutional interpretation, what does matter is civil liberties ... And what matters is having an adventurous spirit up against all those other f..king Tories."
Lavarch, who is now dean of the law school at Queensland University of Technology, said yesterday the account was "essentially accurate".
"It probably by 5 or 10 per cent overstates Keating's reaction," he said. Keating could not be reached for comment.
A month after Kirby took his oath in February 1996, Labor began 11 long years on the opposition benches. The timing of Deane's departure looked even more fortuitous. Lavarch stated the obvious: "I don't think he would have been appointed by the Liberals."
