The Great Dissenter

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“I am the result of a loving upbringing in a peaceful country, with wonderful parents and siblings, a very long-term relationship, stability, support – but a feeling that life isn’t always just and that there is injustice for people and we should do something about it.”

That is a quote from the eminent Australian jurist and academic Michael Donald Kirby AC CMG. One of our best and most highly-respected legal minds, Kirby has served as a Judge of the Federal Court of Australia, the President of the New South Wales Court of Appeal and, for 14 years, a Justice of the High Court of Australia. He has undertaken a host of international activities for the United Nations, is a former President of the International Commission of Jurists, and is an Honorary Professor at 12 Australian and overseas universities.

As a Justice of the High Court, Kirby was dubbed The Great Dissenter for his many astute and insightful judgments that nonetheless departed from the majority opinion of the other Justices of the High Court. In 2004, he delivered a dissenting opinion on nearly 40% of the matters on which he adjudicated, almost twice as many as any of his High Court colleagues. In constitutional cases, his rate of dissent was more than 50%. His audacity and willingness to regularly go against the views of his fellow justices, in the most superior court in the nation, was matched only by the incisive power of his legal reasoning and expression. As a young lawyer, his judgments taught me the importance not only of democracy and independence in our judicature, but of interpreting the law honestly, fairly and humanely, each of us to the best of our ability on every occasion. In all of his judgments, dissenting or otherwise, he applied a humanistic, empathetic and common-sense approach to his reasoning, even when grappling with the most complex legal questions this nation has had to consider. He was an outstanding contributor to jurisprudence in this country.

Michael Kirby is also an openly-gay man, who has lived with his male partner since 1969.

Last week I read a news article written by David Kirby, a retired Judge of the Supreme Court of NSW, and the brother of Michael Kirby, published in the Sydney Morning Herald. It told of David’s early perception of Michael as being different from the rest of his family, that he was studious and ambitious, and did little other than study, rarely leaving his room, reading all day and all night. He was so academically brilliant and dedicated, his family firmly believed Michael would one day become Prime Minister. The article went on to say that “at the time we imagined that this solitary life was Michael’s choice and the price of ambition. We were thankful that we were not afflicted by such. As we now know, the aching solitude of his life was the consequence of a dark secret. He was attracted to men. As he said in his memoir, A Private Life, the message he received from his early teens was that his secret should be the source of deep shame.” The article recounts how Michael eventually determined the price of his chosen ambition was too high, a life in which he effectively would be forced to live a lie. And so he abandoned any thought of politics and, David argues, thereby never fully realised his true ambition.

The hot issue for debate by our nation right now is whether our law should allow for same-sex marriage.  By not doing so, David Kirby implies that we would not just cause gay people further injustice by denying them the right to marry their loved ones, but we would continue to promote a false belief in society that it is inherently shameful to be homosexual, and thereby continue to stifle the legitimate aspirations and ambitions of many of our fellow citizens. While public opinion will no doubt differ on that view, I respectfully and wholeheartedly agree with it.

When the postal votes have been counted and the results of the plebiscite are finally in, I hope this time the views of the Honourable former-Justice Michael Kirby are not in dissent.

Jonathan Nyst


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