CONVERSATION BETWEEN JUSTICE MICHAEL KIRBY & DAVID MARR

St James Institute, The Education and Formation Program of St James’ Church, Sydney, Australia.

CONVERSATION BETWEEN
JUSTICE MICHAEL KIRBY AND DAVID MARR


Held in the Banco Court,

Supreme Court of New South Wales, Sydney, 9th April 2008

David Marr: Michael, let's begin with a hypothetical. An old blind man and on the verge of death (let's call him Isaac) asks his elder son to go out and kill a deer and bring him a dish of savoury venison. Isaac's wife overhears this request and suggests to Esau's younger brother (let's call him Jacob) that he might nip around the back, kill a couple of goats, dish them up as venison and put the goat skins on his arms and neck - because he is “a smooth man” but his brother Esau is “an hairy man” - and go in and deceive his father. The joint deception is entirely successful, both the food substitution and the deception of the father as to the identity of the son.

Esau comes to your court seeking redress for all that he has lost by his brother's ruse, that is his birthright, and his blessing. How would you decide the case?

Justice Kirby: I didn't think that I was coming here for a law examination,

‘Wide-ranging’ was the adjective used to describe our discussions tonight and I would have thought the law a perfect place to start, a neat little story an interesting story. How would you decide?

It sounds like a little bit of fraud to me. You would have to plead it very carefully, because fraud must be very specifically pleaded. Then you would have to prove it very carefully, because fraud must be very thoroughly proved. But if you could plead it and you could prove it, then I would think you've got a good case.

You would, I suppose, disapprove of what Jacob did?

It's such a long time ago. (laughter) – And you don't actually know all the details. I do know that, when I sat up there in this glorious court room, one of the most beautiful court rooms in the nation, with all of our forebears looking down on us, the one thing you learn is that the devil is in the detail. I hesitate to mention the devil so early in this piece. But you have got to get down to the nitty gritty. Now, there might have been some excuse or some explanation. It might be contended that there was a background between the brothers, and….

I'm sorry Michael. I sat up for hours last night, ploughing through Genesis (laughter) looking for the point when the narrator (whom we shall call God) might express some kind of disapproval for this action. I could find none whatever. The ruse is passed over without any criticism ….

I hope you read on to Leviticus (laughter and applause).

There is quite a bit of disapproval there but my aim tonight, perhaps subtle, was to try to avoid sticky subjects. I wanted to go this famous Old Testament story - made famous of course by Beyond the Fringe – and ask the question of one of this country's best lawyers: how on earth can a lawyer take the Old Testament seriously?

Well it depends on the system of law in which you are operating. I mean, they didn't actually have the blessing of English Law – Anglo/Australian Law. So you have got to ask yourself, what did the Talmud say about all this? I mean, it's really rather dangerous to have these historic debates – I know you went to Mrs Smart's Sunday School. You learned all these things. And you have come here tonight to show off your deep religious knowledge and learning and all the study you did last night [yes] for about an hour. But I really don't think that was going to be the thing which we have got to focus on tonight. We have to focus on other things, David. Galatians for example.

If you think we’re going to get from Genesis to Galatians before 8.15 tonight you must be mad. But you see, Michael, you have made a sort of category error, I am the one who is asking the questions, and I am asking this seriously. Because the Bible is a book of moral instruction which is supposed to inform our society still. Here is a gross act of deception on a poor blind old man. It's put forward as a moral lesson of some kind; and it seems to me to be further proof that the Old Testament - and we don't even need to get to the sexy bits - is simply unedifying….

Yes, but I'm not here to defend every passage in the Old Testament. Indeed, I am here to defend the New Covenant – and I am here to defend what is said in Galatians, which I only really learned today. When I was doing my little bit of study of this – Galatians 3 (13) has Paul saying, - and this was surprising to me that Paul should be saying this – that under the New Covenant, - we are released from what he calls ‘the curse of the law’. That is to say that some of the old things in the Old Testament often said to be the Law. They are not to be taken as strictly binding on people of the New Covenant.

Jesus was dead by that time wasn't He? Insofar as we can say that Christ was dead – and that is not what He said in the Sermon on the Mount, was it?

I don't know what passage in the Sermon on the Mount….

I happen to have it here, quite by chance, because my next point was going to be to suggest that you take a rather sentimental view of Christ, as somebody who sort of releases people from the nitty gritty of the Law.

Now to accuse a Protestant Anglican of sentimentality is a very serious accusation (laughter). I have to take it seriously.

I'm not taking it lightly either. But when I look at the speeches you make and when I look at the things you write, you have this fundamental argument, which is a big argument in this Diocese - that you can pick and choose amongst the rules of the Old Testament. Because Christ somehow waved a wand over the Old Testament and got rid of the nasty bits, or at least the bits that you don't agree with. But Christ said on the Mount: “Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass, one jot or one tittle” – the origins of “jot and tittle” – “shall in no wise pass from the law, till all be fulfilled.” And He goes on in that sense, reaffirming the Old Testament laws vigorously.

Now a lot of argument about how we should live sexually, how we should live our lives, couples, love etc etc, seems to rest amongst Christians on some rather sentimental notion that Christ is a forgiving figure who said “look all that really matters is love, and not being hypocritical.” But there He was, up on the mountain, saying: “Except that your righteousness shall exceed the righteousness of the Scribes and Pharisees, ye shall in no case enter into the Kingdom of Heaven.”

Yes, well I think the New Covenant as I understand it, has two fundamental instructions – the first to love God, and the second to love one another. That is the essence of it, as I understand it. I realise that you can take little bits and pieces from here and there. Sitting in this courtroom or down in Canberra you learn very quickly in law, that you can take little pieces and take them out of context. Anyone can build cases, clever people do that at this very spot, every day. But you have really got to look to the essence of it. Unfortunately, some of the churches or church people in recent times have lost their way. They are looking at texts without looking at context, and looking at purpose. You may call it sentimental – I call it really a reaction to the loving message that Jesus brought. That is certainly what Mrs Church taught me in my Sunday School. It would have done you a whole lot better if you had come to my one (laughter). It's not really sentimentality. It's going to the essence of it. And the essence of Jesus' message, as I understand it, is one of loving one another – and that is a light that a lot of people have tried to snuff out or forget or obscure. I won't let that happen.

Well I don't know. I just don't think the Bible likes poofters. And all the scholarly weight that you can bring to bear on this issue - all the gorgeous arguments about whether this Greek word is properly translated and what actually happened in Sodom (I will agree with you it’s a very murky story and may just be a lesson about not having sex with Angels) – cant get around the fact that the Bible does not like homosexuals.

Well, certainly, that is part of the church tradition. But you see, we must now, as you would understand, look at text in the light of our new knowledge, and in the light of scientific knowledge. Fortunate are we that grew up in an age when we had the advantage of scientific research into sexual variance. The research, in particular, starting with, I suppose Havelock Ellis, and Freud, and Dr Kinsey and Evelyn Hooker and all the others. Once you understand that it teaches that there is a small proportion of humanity everywhere who have the same sex attraction. Then that is part of the reality against which you have to read the text. Just as when we look at our Constitution or at a statute, you read it in the light of the context and the knowledge you have -–so we have to do with the Bible.

For example, no-one. Well, I withdraw that – not many believe that the world was created in seven days about five thousand seven hundred years ago and that you can add it up and state the exact moment in time of creation. I mean, that isn't now accepted. And why isn't it accepted? Because science tells us that that is not the fact. Similarly, I think with some of the other instructions. A lot of this is metaphors and poetry [oh yes]. You have to really read it in the light of the scientific knowledge which we now have, which our age has been blessed with. That's part of, I hate to say this in a diverse audience, but that is part of what I understood to be the rational side of the Reformation – to be rational. History and tradition are important, but they can't overcome our rational selves and our rational selves applied to our understanding of Scripture.

I don't disagree with a word you say. I'm merely suggesting that a better political tactic in dealing with the very active rump of Christianity that still continues to make life miserable for poofters – as a defining badge of their holiness – is not to be arguing about the meanings of words but to argue fair and square that the Bible does not represent a set of binding rules, that that is not the purpose of the book. We should be having a head-on confrontation about the nature of the Bible rather than the meaning of the words.

See this is the difference between you and me. You are, I think, looking at it as a political issue. I am not. Because I was brought up as a Sydney Diocese Protestant Anglican, that is where I'm coming from. Therefore, I am not prepared to just say 'well ditch the Bible' or 'just treat it as some set of fairy stories' – I don't think that is its purpose. If you take that away, then you have taken the Protestant element away. Because the Protestant element was to put great emphasis on the Bible; but emphasis on it being read by rational Christians. That means being read without the power of Bishops, priests and others to intrude between them and God. Ultimately, it is a matter of conscience between us and God. So I don't want to ditch it all out. I just simply want to read it in the light of scientific knowledge. I have a lot in common with Archbishop Jensen. We have the most civil correspondence all the time. He is a very intelligent and very courteous man. He always replies to my letters. I always reply then to his.

It will be published one day: an endless daisy chain of polite replies. But look, I am not going to sit here and be told that you are ‘lower’ than me. I'm just not. I was brought up in Pymble. (Laughter). I went to Shore. My mother's family is like your mother's family, an Ulster family. My father's family is Presbyterian. God knows how I ended up at an Anglican School – convenience of some kind - but luckily it was barely Anglican at all. So that was fine. I was 14 before anybody told me about communion. They kept it a secret at Shore, for as long as they possibly could. (laughter) They told you about communion just before they told you about sex (laughter). About six months before – the evil secrets. Seriously I was about 10 before anybody actually told me that one day you would go up the front and drink wine. It was a most remarkable revelation. Mine was a perfectly good Protestant upbringing and I won't have you in any way sit there suggesting that there was a taint of Rome about it. People with an Ulster background see Rome everywhere. They really do.

Well there is a bit of truth in that. That was in my childhood I have to say. But, you know, it's a wonderful thing, that at the very end of her life, my mother came to realise how erroneous all that was. In the end, on her deathbed, at Royal Prince Alfred Hospital, it was Father Brendan Quirk, a Roman Catholic priest, who gave her a blessing. And when he did that, he said 'should I do this?' I really had hesitations, because of my mother’s father and her loyalties and so on. But my father said 'yes he should' – (my father's family mostly came from the south of Ireland). And then my mother gripped my hand to show that she wanted a blessing from Father Quirk. So that was a journey she made in her lifetime, and taught. And I have made the same journey – so Rome is not significant to this conversation ultimately, because ultimately for all Christians – denomination is not so significant, as our Prime Minister said. It's not so significant. If you go back to the roots of Christianity. But, just the same, I think Pymble was a little bit higher than Concord! (laughter).

Well maybe…

All those leafy suburbs up there with all your wealth.

And all those narky lawyers waiting to pounce if anybody got out of line at the pulpit at St Swithins. And later they did. No, I tell you, behind those leaves there is a dramatic story. But you don't want to know about it.

Michael, for gay men of your generation and of mine, perhaps the greatest temptation was respectability: the feeling that because we were gay, we had to be respectable. Being a lawyer, and being an Anglican and being a Monarchist, is a very respectable package, and I wonder if it's held you back a bit?

Well I don't think so. Actually, well I think I'm still respectable (laughter and clapping). I think, to be honest, I think it is part of the job of a judge to be respectable. You said – you commented earlier, that you had never seen me in anything but a suit – well a jolly good thing too, I think (laughter). But has it held me back? Well I suppose it's true. It's true that, when I was growing up, the tradition, the culture of our country, of our society, was 'don't ask, don't tell'. That was just what you were expected to do. I went along with that. I wasn't pure though, because I had a partner and have had a partner Johan for 39 years. And I never had a, never had a woman who would just turn up with me [a walker?]. Yes. I never went into that. We went shopping in the suburbs and so on – and so I wasn't completely pure. But I didn't shove it in peoples' faces. That was, I suppose, in a sense, holding back – I was being less than candid. Though, of course, the law is a great hall of gossips. On admission days, every seat in this courtroom, of lawyers, is filled with a gossip. Lawyers love to gossip. That is a feature of small group communities. They are bound together with gossip. And therefore, everybody is gossiped about.

It's good gossip. I am a great admirer of gossip, and lawyers have good gossip.

Sure. But I have never really been into gossip –having been the subject of it.

I'm a journalist.

But it would come back to me. Hurtful things would come back. But, anyway, that is all in the past. I think it's a very good thing, for myself, for my family, for my profession, for my community, for Christians that that is over. And it won't go back. That means that we can start from a new beginning – to try and work it out together. I think that is what the Anglican Church world-wide is at least doing. I mean not many of the churches are doing it. Not many religions are doing it. But the Anglican church has been having this conversation. And a jolly good thing. Overdue.

I was actually trying to move things a bit along here, because I mean this perfectly seriously: there are a couple of ways of responding to the discovery that you are gay, and one of them is to become ultra-respectable, to really work at being conservative. There are no greater supporters of the Crown than poofters, there really aren't. They are the Crown's greatest supporters.

But I was never really conservative. I've always been a liberal [indeed]. I believe you can have a very strong argument (and I don't want to tread on politicians' corns here), but I believe you can have a very strong argument for a liberal view of constitutional monarchy. It does, after all, divorce the head of state and the long limousines, and the flag waving, and the first lady and all that, from any real power. By definition the monarch can't have that. But I will admit, I will be the first to admit in this audience, sitting there in St Andrews Concord (Strathfield we called it, when we wanted to be 'very' respectable, (laughter)) and hearing the prayer for the King's Majesty. I just think of the Cramnerian language – the prayer for the King's Majesty – for George our King, Elizabeth our Queen, the Princess Elizabeth and all the Royal Family, 'enrich them with thy heavenly grace, prosper them' (you know the words) and then 'bring them to thine eternal Kingdom' (by way of contrast to their mere temporal Kingdom). If you have that put into your brain, in that mystical and beautiful language, at the age of 9 and thereafter – okay, it was a sort of propaganda I suppose. I will admit it. But it's not a bad propaganda. If you look at the countries in the world which are freest, they do tend to be constitutional monarchies.

But, Michael, when you defend your faith and when you defend your attachment to Monarchy, you always talk about it in terms of your childhood. But you are not a child now. You are not a child.

No, and I'm a rational Republican. I think England is a Republic. I think our system is Republican. At least since the great King William the Third. Wasn't it a great program on the ABC recently which showed what a great King that Dutch William the Third was? Coming over to England; getting rid of the Stuarts; rejecting all their divine righted rubbish; refusing to bless the people on Maundy Thursday – he gave them money instead. He was a Dutchman. Naturally my partner, Johan, also a Dutchman, thought him a very sensible monarch. ‘One of our good gifts to you’. He really was a great king. So England became a crowned republic. We too are a crowned republic. We just happen to have this very dutiful woman, who is a long way away, as our Queen. She only comes when she's invited. Not too often; not too rarely. That is a very funny, but rather workable system. But I can see that there are different views on this. I'm not going to get upset that you don't agree with me.

Michael, when you have a Queen, it's not a Republic. Call me Protestant about this, but it just seems to me impossible to claim we’re “a crowned republic”. It is a parliamentary crown, but that is not a crowned republic. I don't necessarily want to get bogged down into all of this, because what I am really trying to do is accuse you of taking shelter, perhaps sentimentally in your faith and in your attachment to the Crown, when there is another 'you' in there which is a much more radical, tougher, candid lawyer, who seems to be fighting with this other person, the traditional, softly spoken, respectable, Anglican Monarchist. When I read your work and look at your judgments, I find that a lot of the time that I can't work out what that tussle is about.

No. One can't really diagnose oneself. It's interesting to hear you say this. Other people would doubtless try to analyse things. Maybe you are onto something there. We are not always the best person to analyse ourselves. However, I don't see a tension there. In fact, on the contrary, I think a system which has, if you like to put it this way, a banished head of state, somebody who isn't around – is actually a very radical solution to the problem of heads of state. I therefore think that there are rational, almost anarchistic, arguments for our governmental arrangements at that level. So I will have conceded that most lawyers are sort of questers for a sense of respectability and for order. I think that there is a stream in me which is quite conservative in the way that you pointed out. But there is also a stream which is radical. We are all complicated people. We've all got our elements of radicalism on some issues, and conservatism on other issues. I wouldn't be surprised if you were the same. You are probably very radical about football or other irrelevant matters.

I think my nephew is a very fine front row forward, but apart from that I don't have views on football. I do think people are contradictory. I also think another way of abolishing the monarchy, is to appoint a complete bore as Governor-General. I think Howard did that rather well.

Well I don't know whether that is true. The Governor-General and Mrs Jeffrey, seem to have been quite visual.

Well they are very civil and nice people.

Well the problem is you don't want it to be too exciting. That is the essence of the mystery. That you don't want unelected Governors-General to be taking over the running of the show. The fact that ‘the show’ has been going on since 1066 and even before that, is a sort of a restraint on Governors-General who have big ideas [laughter when Justice Kirby pauses to look up at the portrait of Sir John Kerr]. The transcript will reveal nothing about this [laughter].

Michael, I think there is a general agreement that the worst case the United States Supreme Court ever decided was Dred Scott[1] wasn't it - the 1850s case that confirmed the legitimacy of slavery?

Well Bush v Gore[2] might also rank…(laughter, clapping). But I went back to read Dred Scott, because in Al Kateb v Godwin[3], a case concerning a refugee, where there was a big division in the court. I had to try and point out a list of ‘horribles’, which might have been avoided, if only judges, over time, had had regard to International Law. It was very interesting to read the two dissenting opinions in Dred Scott, because in dissent, Justices Curtis and McLean, had referred to the International law affecting slavery, back in 1856. I then made the not too subtle rhetorical point, that, if only International Law in respect of slavery had seeped its way into the United States Supreme Court decision in the Dred Scott case, and upheld the entitlement of Dred Scott, having fled into the Union, to be an entirely free person – that that might have saved the Civil War. But Chief Justice Taney held otherwise. The majority held otherwise. International Law was disregarded. And America was set on the course to the Civil War, with all the suffering and the unresolved issue of race, which is still being played out in that country, even as we speak.

So you may have already begun to answer my next question – what is the worst case, the High Court has ever decided?

Well I think it is probably better for someone other than a Justice to talk about that. I am happy to talk about the best cases we have decided (laughter) – and I will put the Communist Party Case[4] amongst those.

Looking a bit shaky these days, the Communist Party Case, isn't it?

In the recent case of Thomas v Mowbray[5], one of the Justices, Justice Callinan said rather directly that he thought the Communist Party Case in 1951, which set aside the legislation to abolish the Communist Party, to wind it up, had been wrongly decided and that Chief Justice Latham, the sole dissentient there, had been right and that you could lock up people and take away their civil rights, because of their political views.

At the direction of a Minister?

Yes, well and two, I think, of the Justices, maybe three in the majority in Thomas's Case rather showed some sympathy for that point of view. I don't have any sympathy for it at all. I think the Communist Party Case was really a high point in the jurisprudence of this country. It was confirmed, within a few months, by the referendum which was designed to overcome it. At the referendum the electors voted in favour of the view that had been taken by the Justices – lock people up for what they actually do, but not for the crazy ideas that they have. That way lies tyranny.

But as to worst cases? I can think of a few baddies.

Come on. Let's put them into two categories – worst cases before you joined the court? (laughter)

Well I don't know that I want to go there. I am an institutional person. I am a Justice of the Court – it is amazing isn't it, that in the whole history of our country, I think there have been only, I think only 45 Justices or 46, of the High Court of Australia. So there aren't too many of us. And I don't want to be beastly to my colleagues past or present,

For respectability.

It's not respectability.

Getting in the way of the radical critique?

No, it's a matter of remembering my position as a Justice of the Court on which I still serve, and am honoured to serve, for the people of Australia. And not to be doing things to leave any stains on the court – at least whilst I'm there. After I've gone, well I might be a freer soul. In fact, I'm thinking of entering your vocation, and going into….

Newspapers aren't big enough, you have to be very concise in journalism – I mean you have to get it all into 800 words (laughter).

Yes, I know that. But I'm not thinking of newspapers. I'm thinking of television, preferably commercial television – and…

Dancing with the Stars? (laughter)

No, I was actually thinking of Jerry Springer or somebody of that kind, or maybe Larry King live. Well, I'm playing with ideas now.

Well I mean there are all sorts of openings, gardening shows for instance. There’s an endless appetite for handsome young men doing gardening. Right….

That or sport I'm afraid is not where you are going to see me.

What about running The League Judiciary? Every Thursday night you get these boofy blokes coming up in front of you who have just gouged each other's eyes, and you have to decide whether they can play again. Think of the simplicity of it?

Well it would be simple for me, because I would know nothing at all about what they were talking about. I could at least come to their problems first of all with complete impartiality and secondly with that compassion that I bring to everything (laughter).

But back to real courts for a minute, for all of their constitutional independence, and for their intellectual fire power, courts can get frightened can't they?

Courts live in the country that they serve. I mean judges go to the supermarkets, they read the newspapers, they are part of their community. They have the same moods and feelings that the community has. That's not a bad thing on the whole, because it means that they are in touch with the moods of the community and these change over time. I've often said when people say 'oh well you are dissenting all the time, don't you think you might be wrong?' – well of course you think that. But had I been appointed, as could have happened, back in the '90s, when Justice McHugh was appointed or Justice Gaudron, that could have happened – I would have been completely comfortable in the Court at that time. My dissent rate would have been roughly the rate of the rest of them. Therefore, it was my ill fortune that my appointment came a bit later. But that doesn't mean that it is irrelevant that I was there. I think that it's been useful to them and useful to me. I have played my role and they have played their roles. I respect them and their point of view. I hope they respect my point of view, and if not, well the citizens can read the decisions. It's up to the citizens, and it's up to history to read these things, and make their judgments.

You cite, and others cite, Lionel Murphy's example as a dissenter who did a useful job in his time. But there is a problem with Lionel isn't there?

Well there is a problem with everybody.

But there was a particular problem with citing Lionel Murphy as a respectable antecedent as the great dissenter.

Well there is a tendency not to cite Lionel Murphy. I won't be a part of that silence, because Lionel Murphy was a first class honours graduate in science. He was a very brilliant man. He was very experienced. He certainly did a lot as Federal Attorney General. He got a lot of things done that had been left lying fallow. And as a judge, he would often cut away the barnacles and go straight to the issue. A lot of what he said has been borne out and often when I read it, I think 'that's absolutely right'. Not as much as when I read Justice Deane for example. Justice Deane is the one I really feel closest to, in the whole history of the High Court. I am now in his room. I inherited his room, because he went on to become Governor-General. That is the vacancy that I was appointed to. But there is a tendency not to cite Lionel Murphy. I suppose that is because of the fact that he became embroiled in his cases and so on. But he had a very sharp mind, and a lot of what he said was good common sense.

But you would never get on the phone and try and influence the outcome of one of your mate's cases would you?

Well did Lionel do that? I don't know that that was finally proved. And Lionel was a friend of mine. I never quite knew why he liked me, because he was a party person. He was always inviting me to parties, and I never really went. Once or twice I went. He was into champagne, and he was convivial – I am absolutely contrary. I am a party pooper (laughter). You've got to face it, I'm dour, and serious and hard-working. I was up there a few minutes ago and working. It's a very hard life.

Oh yes, groan. There are, of course, endless Michael Kirby stories and now is the chance to check whether one or two of them are actually true. One Christmas Day, a barrister ringing one of his friends, accidentally punched the wrong number on his mobile phone, and rang through to the High Court Library – and you pick up the phone. Is that story true?

Well get the stories right. This was Sir Gerard Brennan who rang me in my chambers, just to see if the story was right. I was there, and he was astonished, because he was normally at prayer the whole day, during Christmas (laughter).

So it wasn't a stray barrister, it was the Chief Justice?

Oh no no, he was a judge at the time.

But Christmas Day Michael?

Well, see, there were very interesting problems. You know, life is short. Time is short. There are things to be done. Okay, if I was there for part of Christmas Day it's not a big deal. In fact, it's a big bore. Let's brighten this up, I think that is a boring story. Next?

I don't. I think it's a wonderful story. Okay, let's go into that long career of yours. You are now the longest serving judicial officer in the land – this is correct.

Oh yes.

How many decades, since you first went to the bench?

I was sworn in in December 1974, before most of the people or many of the people in this room were born.

Oh, I'm not very sure about that (laughter).

Doesn't hurt to be flattering.

I must say the first time that I ever met or saw Michael Kirby, I think it was 1966. You were doing legal aid work for the Sydney University students.

Yes, yes. Vietnam War protestors.

Yes. A friend of mine had in a moment of high spirits thrown a flour bomb at a policeman, and then rather foolishly stood there laughing at his own good work. He was hence arrested and charged. Anyway, so he's up before one a magistrate and in comes Michael to defend him. Let me tell you it was a spectacular defence in the soft easy voice of Michael Kirby saying “this is a young man just down from the country, bewildered to find himself in the city (laughter) –

Who just happened to have a flour bomb (laughter) –

Overcome by the high spirits of the moment, and lobs a flour bomb at the copper. Got him off, though the person was an extremely bright boy from Geelong Grammar. (Laughter) Well I suppose Geelong Grammar is the country viewed from a certain distance, but it was a job extremely well done.

They wouldn't have accepted that up there (gesturing to the bench).

They'd have seen through you. I get a feeling that this is where you liked it most. This was the fun; the Court of Appeal was the fun. The High Court is the power. But this was the fun.

Well it was fun, but it was also creative. The judges had been appointed by different governments. There was a mixture of conservative judges who were very talented and very experienced, and liberal Judges, who were also very talented and experienced. That led to a synergy. I don't feel that in the present composition of the High Court. That is not a criticism of my colleagues. They are all people of absolute integrity, very intelligent, very professional. We get on in a professional way. But there is something wonderful about being in a small community institution, where there is a diversity of viewpoints. The whole is then enlarged. If you look at the courts when they have been greatest – it's when there is a frisson between the different members. That is not so at the moment in the High Court of Australia – but it will come again. I mean all this is just cycles. It's a matter of time.

The frocks were much better here.

Few of them, the wigs…You've noticed?

Well all around us.

A lot of all this has gone now, now in Canberra. The NSW barristers in civil cases, come without wigs, and in criminal cases, they come with wigs. It's all a little bit confusing now. Some States do, some States don't. It's a period of transition. But the High Court itself got rid of wigs in 1987.

Drab.

Very drab.

Were the jokes better on the Court of Appeal?

Well I used to send little cartoons to my colleagues in the Court of Appeal, because actually (I don't like to be immodest about this), but my draughtsmanship is quite good, quite excellent. Some of them used to love them. Justice Meagher collected them until somehow he lost them all. But when I got to the High Court, I thought 'oh I'll try this here'. I passed it along, and the look of horror… (laughter). So I soon gave that away. That wasn't going to endear me to them.

You've got me worried now, have I held back?

If there is anything you would like to confess at this point?

I think, well looking back, I think it would have been better had I been more open about sexuality earlier. But if I had been, I would not have been appointed to any judicial position at that time. I hope that that would not be so now. I think it might not be so now. But you couldn't be sure.

But to clarify: the fact that you were gay would not have stopped you being appointed to a judicial post - because gay judges are part of the longest and most honourable traditions of the courts of New South Wales - but being openly gay?

Well It's not only New South Wales, it's the world, but….

Judging is a very gay profession (laughter) Like nursing…

I'm not so sure about that – I think it's about the same proportion as everywhere else. But I think that if I had then been more open – but I wasn't dishonest in the sense of pretending. I never ever denied myself. I just didn't [force it on people]. In fact, I've read statements and the heterosexual majority here can confirm this, and the thing that irritates people about gays, is making heterosexual people think about the issue.

And we are doing it again.

I know, I know. But that is, I think, to be expected tonight. In other words, the thing that is upsetting is the challenge to the binary system of human beings, and yet it's a bit like Asian Australians when I was growing up – those ancient civilisations. We were taught to regard them as being inferior and rather dirty. But how did we overcome that in Australia? We overcame it, because we began to meet Asian Australians and to find that some of them were much cleverer and more civilised than we were. And anyway that was part of the diversity of the world and we ultimately came to like the diversity of our country as it's developed. I think it's the same with Aboriginals and with others. It's the same, no doubt, with Islamic people if only we get to meet them. And it's the same about gays as well. It's just a matter of getting to know the diversity of humanity which is all part of God's gift or part of nature. It's just as it is. And to close it off and to pretend it's different, is really not a very constructive or rational thing to do.

But, Michael, there is also a formal difficulty with you coming out earlier on, that you were I think 45 and you had been on the Bench for something like ten years, before the Unnatural Offences were taken out of the NSW Crimes Act. You would have been admitting to be a criminal.

Well not necessarily. There was never anything criminal in being a homosexual. It was only criminal if you did anything about it. And in any case we all knew that nobody got prosecuted for private adult sexual acts. There is a hint in your question that I should feel guilty about the state of the law and my judicial role in my Law Reform days. Well, that is all bunkum. My own view is that it's a bit like saying Nelson Mandela didn't have his pass on the 15th April 1970. That was a very serious criminal offence. So what is he going to do about it? Why doesn't he apologise about it? Well, people should be apologising to me for oppressing me. And that is my answer when people – your good friend Piers Ackerman suggests this. And if you are listening Piers – you should be apologising to me (laughter) and to others who were oppressed by these silly laws. But anyway, they weren't being enforced. So it was a load of bunkum.

Michael, three years ago, in 2005, a Catholic priest, Father Terry Goodall, was prosecuted in this State for touching a man's penis in 1982. The man was 29 years old. Goodall was convicted and imprisoned until the rising of the court. He was ruined in 2005 for touching a man's penis in 1982, two years before those laws were removed from the Crimes Act. You and I could be prosecuted in this State, because they declined to remove these provisions retrospectively. You and I and many people in this room, could be prosecuted at any time?

Well, that might be true. But they would have to have the evidence. They would have to prove it beyond reasonable doubt. It would have to go through the courts. It would have to come up through the court system. I remember a case came to this very room, and there was a division on the Court of Criminal Appeal about this. I think Justice Michael Adams, who is here I think tonight, said that there were various legal reasons why the prosecution shouldn't/couldn't go ahead. But, in any case, it really does raise a question of the prosecutorial discretion in that case.

Certainly does.

I am a little surprised that that was done.

Didn't you read my heart-rending articles on the subject? (laughter) Sometimes I think you neglect the Sydney Morning Herald – to your peril (laughter).

I did probably read those articles. So, if I look back (now you have really got me worried) – should I have been more radical? Well one thing that I think the courts should do more than they have done in Australia, is to provide stays against vexatious or grossly delayed prosecutions of such a kind. I think the judicial branch of government should step in there and say in effect: ‘this law has now been swept aside and to bring this particular person to book, unless there is some very good reason– and to prosecute them so many years later, is really an abuse of the process of the law. It shouldn't be permitted’. Maybe we should do this more – and I've often thought this and occasionally said it, that we should be more robust, assertive – in the stays against prosecutions of that kind. Certainly, the prosecutorial discretion should be considered very carefully in those type of cases.

Michael, it strikes me that deeper than your faith in the law, deeper than your Christian faith, is a faith in conversation – a faith in public discussion, in debate, that through debate, through conversation, we will get it right in the end in this society.

I think we normally do in our society. We normally do by rational conversation. In fact, I think our species is genetically programmed to search for rational solutions, and that being so, I think we should conduct rational discussion. I have sufficient faith in people to think that most of them will ultimately stumble along – maybe unwillingly and reluctantly to rational and kind solutions. It really gets back to a sort of Christian view of loving one another. By dialogue with one another reaching out by understanding what it's like to be in somebody else's shoes.

But yet, my reading of your judgments puts you as one of the least disposed to see the press's point of view on the High Court. You have a deep faith in open and public candid discussion, you talk about transparency a great deal of the time, but yet you seem to me to be almost the least sympathetic judge on the court, to the press.

No, no, I would be the second most favourable to the press. The most favourable was Justice McHugh. But I would be the second most favourable to what you call the 'views of the press' – I would be that, because if you look at the McKinnon case on Freedom of Information laws[6], or the restaurant review case[7] – I mean I can't pluck them all out – but I know where I stand on that. My views are consistent. They are for transparency, for dialogue and for openness and for protecting proper accurate and fair reporting.

Have a look at that recent case in South Australia, Channel Seven Adelaide v Manock[8], about the right of fair comment and the need to adapt that defence to the age of texting. This is the problem nowadays, in so many areas of the law. The technology has swept ahead, and the law hasn't necessarily kept up. I would dispute what you say. I think you should go back and do an hour's work on that subject too.

We won't bat cases backwards and forwards. But I was thinking in particular of the case of the Tasmanian prisoner, who tried to get an injunction to stop the ABC putting out a story that was brutally critical of him.

Well, by a trick. They got him by a trick. I didn't like that. They went down there and said 'we believe you are conducting the most wonderful world-famous research on spiders and reptiles, and other insects. We want to have a film on your work' – and they weren't after that at all – trick[9]. They wanted film for a programme suggesting he was a serial murderer of children.

Oh disgraceful, disgraceful……

Well, if you want to have rational dialogue, that is not a good start…..tricking. You have probably tried to trick me tonight into some indiscretion.

I've trapped you three times badly tonight. You got out of the trap twice (laughter). I think we ended on equal terms once. Now a last question before we throw this open to everybody else. You say - and I don't really believe you - that if you lived your life over again, you would be a history professor. You are a man who reads an enormous amount of history. I wonder how a reading of history leaves you confident that the world is heading in a rational direction? And that we are going to get it right in the end? I must say I am much bleaker and gloomier than that about the powerful force of the irrational in our lives.

Well, you are paid to be very gloomy and pessimistic (laughter). That is your vocation. That is the one you have chosen. That is what you are living by. We have just got to all expect that of you. But I'm an optimist. If you look at our lives, look at our lives, look at our world. Even when you began your life, the position of women was much worse in our society. It's got better. And generally it's got better in many countries of the world and will continue to get better, because the way to getting out of the despair of poverty is to enhance the role of women. The way to fight HIV/AIDS is through education and enhancement of the position of women. Gays have a lot in common with Women's Liberation. Similarly, if you look at the issue of race. When I think of the White Australia – when I think of the attitudes I was brought up on – we have done better about that. I feel optimistic. I think that isn't true everywhere. But generally speaking, it is definitely improved. The fact that you can get our go and watch even Fox and Friends, and you can watch television at night, and suddenly be over there in Zimbabwe and see their struggle for a fair society. Then you can next been in Kosovo, and you can empathise and see – I think it's what the media, the methods of getting around, the way we are now increasingly linked, makes it much harder to have horrible wars, although it's not impossible. It makes it much harder to hate one another. I think that extends to gays too. I mean if you think of the progress that has been made on that score, the fact that we are all here tonight, the fact that it would have been anticipated that that would be discussed. People haven't stayed away in droves. I think that is a sign that we have made progress and will continue to. So I'm an optimist.

Now let's have some questions for this optimist.

Q

Judge, my question is this. Do you think that your faith is sufficient to influence the way in which you perform your duties as a Judge, and if so how?

A

Now that is a voice that rings through this court (laughter). A very good example to us all to speak up. Yes, I mean I couldn’t' say that my values, which have certainly included my Christian upbringing, have not influenced my decisions. If I'm being honest, I can't say that decisions of the kind that I have to make, are not influenced by my values, and my values include my upbringing. I think, for example, in reaching decisions that involve punishment, and reaching decisions in cases of professional discipline, I have been much more a believer in the entitlement of people to redeem themselves. The belief that they will, given the chance, redeem themselves. I've referred to this in decisions in cases, and I notice recently that one of them has been followed in New Zealand. It is a matter of believing that people can improve, which is a very Christian belief. Maybe it is a religious belief, that people will improve. I don't sit there and think 'now what is the Christian' or 'what is the Anglican' or 'what is the Sydney Diocese position on this'? – I mean that would be a wrong thing to do. But anyone in this room who thinks that judges sit up there, and that they are on automatic pilot, and all they've got to do is look at the words, and out comes the decision, that is not how it works. Words are ambiguous and the Common Law is uncertain. People like me have to give meaning and develop the law and express it. But I couldn't deny that it has an effect, and where it does, I do try to be transparent about it. I try to acknowledge it and to express the extent to which some value has affected my decision. If that value is founded on religious or spiritual feelings, then I try to explain it. It's not maybe specifically denominational religion. But it is the values of a Christian society, which has undoubtedly influenced the Common Law of England, which undoubtedly is part of the Common Law of Australia and therefore influences our system.

Q

Michael, my question is, I'm certainly a gay man, and I have been on the receiving end of judgments and criticism for trying to interweave my faith with my sexuality, and out comes the old judgments. I'm sure you know what I mean, what do you say to those type of people that want to heap these judgments on you?

A

Well I think the judgments you are referring to are judgments within a church, and not a court. If they are judgments in a court, I can't really comment them, because I don't know what the details are – and also in the church, I don't know the details of the case. But I think the answer I give is the answer Archbishop Jensen gave to me when I wrote to him, sending him an anonymised version of a letter I received from an Anglican priest in Sydney, virtually telling me to repent and to throw my partner of 40 years out, and become a true Anglican, and to stop calling myself an Anglican, when I wasn't obeying Leviticus. The Archbishop's injunction to me (which was quite sensible I thought) was 'well give this person the benefit of the doubt, he probably thinks he's doing you a favour, and you should just see whether there is any truth in what he says and think about it'. That is what the Archbishop says he does when he gets nasty letters, or nasty decisions.

Well, I told my partner Johan that, and he didn't quite see it that way. In fact, he's not here tonight (although he's coming to a dinner amongst us later, because he will always be in on that). He doesn't go along with any religious aspect. He thinks I'm a bit crazy to stick with religion. But the Archbishop always says to me, and this is an important thing I think – it is a side of Archbishop Jensen that people maybe don't really know. He always says 'thank you for staying in dialogue, despite our differences' which is a very nice thing I think. So I do stay in dialogue despite our differences. There is a wonderful new book out by James Alison. It is called Undergoing God[10]. Fr. Alison is a Roman Catholic priest, a Jesuit I think, in England. It is a very good book. In effect, he says 'the most important thing for Christians to do on this issue, at the moment do, is to leave a space for everybody. To leave a space for exchanging views, so that we can all understand each other's view. I think that is what the Archbishop was saying. I think it is good wisdom. I hope that is what he does if he goes to Jerusalem for the alternative Lambeth Conference.

Marr: Quite by chance I happen to have a copy of the letter that Michael was sent, by that clergyman in Sydney. He is rector of a very rich parish in this town. Michael doesn't want me to mention his name, if he were to come up in our conversations tonight. This was written not in 1612 or 1314 but in December 2007: “Justice Michael Kirby, as one appointed to be a messenger, watchman and steward of the Lord in the Anglican Church of Australia, I solemnly warn you that you now stand under judgment and face the wrath of God should you remain unrepentant. God alone determines what is right and wrong. The Lord is the judge of both truth and love. God has revealed to us his will and we are called to respond in faith and obedience. In situations where we struggle with sin and the law we are to cast ourselves upon the lord for mercy and salvation. I appeal to you to cast yourself on the mercy of Jesus etc…..”[11]

Sounds like some of the judgments of the High Court of Australia (laughter) (clapping). It sounds to me like old judgments; very old though.

Michael, I know that as a kind and respectable person you would dissent from what I'm about to say, but that sounds to me like raving.

No. I don't agree with that. I think that it is not ravings. It is what you see often also in the law. People who only look at text. They don't look at context or purpose. One of the greatest developments that has happened in the law generally around the common law world, in the last twenty years, is to move beyond literal textualism. To contextualism and purposive construction. So we do see that sort of approach in the law. It's not unknown to me. There are quite a lot of similarities between theology and law, especially constitutional law, which is at a sort of level of legal theology. But I don't find that raving at all. This is just textualism. People have got to be told, 'look, in the study of animal dialogue and the study of human dialogue we have come a long way. We now understand you don't understand meaning that people are communicating in this stream of sound which we cut up into words. You don't understand that just by taking a word out of context. You have got to look at the whole thing. And the whole thing is the love of Jesus, which is brought into the world for all of us, and which I accept and which is a message, individually for each one of us. That is the very essence of our religion. [The letter] is not, as I think respectfully, Christian religion. That is the thing you started with. It is the Old Testament. We've got to remember there is now a new Covenant…..

Q

On the suggested overlap between theological interpretation and interpretation of the law, do you not have an obligation to stand firm and give effect to the law as written? The opinion you gave argues for modernising of the law. Is that road not really interpretation of the law but a judgement of what the law should be?

A

Well, of course, it is interpretation of the law. But as I was just saying it is very naïve to think that you can just look at a word, take out a magnifying glass, look at a dictionary or two and that solves the whole question. We had a case in the High Court recently. It concerned the word 'interview'[12]. A prisoner had been asked to give an 'interview' to police. He said 'I don't want to do that until I've seen a lawyer'. He then gave an interview with a formal 'yes' 'no' 'I wish to reserve my defence until I've seen a lawyer'. Then the police said 'the interview is terminated'. He then went out into the police yard and he didn't know that it had CCTV around it. The police then started to talk to him. He was a bit of a smart alec. He then spilled the beans about his offence. Now the question was, given the legislation that had been enacted in order to prevent ‘verbals’ by police – did the word 'interview' cover what happened in the police yard? Or did the actual ‘interview’ finish at the time he had the formal yes/no questioning in the police interview room? We had a division on the High Court about it – as to whether the second conversation was an ‘interview’.

I looked at Dr Johnson's dictionary, the first dictionary of the English language. He says 'an interview is a formal exchange of words'. The 'formal' element is in every dictionary, or almost every dictionary since. So that led me to think that the banter with police, with swear words and talk about star signs, and all the other things, in the police yard, when he obviously didn't know he was being recorded, was not an interview of the kind that the statute provided for. But other Justices took a different view. That proves that you can't just look at the word. The word will not yield a definite answer in many many cases. Certainly that is so by the time they get [to the Court of Appeal], and almost always by the time they get [to the High Court]. That being the case, it's not quite as simple as your question seems to assume. Therefore, you have got to trust certain people to be conscientious and to try to find text, context, purpose. That is what it is my job to do. The fact that we have differences is not surprising. That is the nature of language generally, and especially the English language, which is the marriage of the French and Anglo-Saxon language in the one tongue.

Do you sometimes think that it might be much easier to be a judge in German? Well any language that doesn't have the ambiguities of English?

If I were a Judge in Germany, except in the Verfassungsgerichthof [the German Constitutional Court] (laughter), then I couldn't dissent. You know, in most of Europe, most legal systems, that is forbidden. It's only the English with their transparency that permitted judges to express their honest views. It is one of the good things about the judiciary in our country. The best thing, I can tell you, is that in thirty three years of being a judge, no-one has ever tried to influence me, to decide a case. That is a wonderful thing to say. You can't say that in most countries. And secondly, the other good thing is that you may not agree with what these judges, or the judges in Canberra say. We don't always agree ourselves. But at least you know, because you get the true and honest opinion and the dissents if necessary, you are getting their real opinions, and you can criticise them, and these are two really big strengths of our system.

Q

Hearing the letter from the Anglican priest to the judge, reminded me of an obituary of the late Paddy McGuinness which he wrote before he died. It said 'Paddy McGuinness died on such and such, still unrepentant' – Judge, I'm thinking about you espousing Christianity tonight. It reminded me of some of that case where the judge said to the runaway slave in England, 'the air is too pure to hold you as a slave. Let the black go free’. When you trace that and you look at Wilberforce and some of the men who designed this colony, as it was then, we owe more to reform people. And then some of the correspondence to the government at the time, you see I think a line of temperate Anglicanism coming through. Which I think I see in you – and I wonder if you would agree with that?

A

Well I know from your background, Professor, that you are also a great lover of the Book of Common Prayer. It is probably because we were brought up on it, and its very beautiful language. Cranmer, the martyr, wrote very beautiful language. I can understand how Catholics felt very conflicted when they lost the Latin Mass. If you are brought up in something and it's part of your childhood and it's part of your being, it's very precious to you. So that is precious to me. But I don't want to be divisive. When I was young, because I came from an Ulster family background, although my mother was born in Australia, I really was quite denominational. But I've grown beyond that. Therefore I don't want to say [that these values are] definitely Protestant or Anglican. I think that the values of loving one another and loving God are core messages. I don't think they are bad messages to live by. I am very uncertain about a lot of other things. Johan says to me 'Look don't try and puzzle them out. No-one has been there and back. No-one has solved it – therefore, don't bother. You are a clever man, but don't strain yourself'. (laughter) However, it is in the nature of human beings to really be very puzzled about the ultimate mystery of 'why are we here?' 'Why do we have consciousness?' 'Why do we recognise the enormity of the universe?' "Why can we send these little missions out to Jupiter and Saturn?' – I mean isn't it wonderful that we have lived through an age where we can see all this, and how insignificant we are, and how insignificant our planet is in an insignificant galaxy, and an insignificant part of the universe? It's all a big mystery. But it's suitable to think about it, and to seek out spiritual guidance. That is what religion can help you to do.

Marr: But once we have a proper sense of our own insignificance, isn't it somehow trivial to try to bolster that by imagining that there is a God out there who looks down on you in particular, and is some kind of lifeline to universal meaning?

Well I understand that point of view. But the other point of view is that many scientists, a lot of scientists, are religious people, not necessarily of a denomination. (I do think it's ridiculous to think that you alone have the entire truth and that other religions have got nothing all to offer. I think that is very denominational). On the other hand, I think spiritualism is part of our genetic nature: to seek out an explanation for all this. At least one thought is that, in this enormity, there is some guiding force, because otherwise why did it all happen in the way it happened? And whether this is some great mind, or something that we can't quite understand or comprehend, isn't a reason for denying an inquisitiveness about it, and thought about it. Certainly, if you actually look at the messages of Jesus, as I understand them, they are very good and kind and loving messages to live by: To forgive your enemies – that is a really important message I think. And it's no good going along there and saying 'forgive us our trespasses as we forgive those who trespass against us', (or sins as we must now say) – and not doing it. You have got to do it. And I don't find that all that hard. It is a very good thing to have been taught, as a little boy and to remember. Because I've had a few nasties. You've had one or two yourself.

Yes. But I just don't understand how an Ulsterman can ignore the powerful creative force of a grudge. (laughter).

Well – that is an aspect of Irishness, that I don't really have. No I don't have that. Throw it away. That is a reason I think why I'm so healthy and optimistic. Throw it away. Don't bear grudges. Reach out. Try to understand. As the Archbishop says, they may have a point of view. Maybe, occasionally, they have got a bit of truth. Listen to it. Listen to your critics. It's a good thing to do. I do it all the time. And then I generally go back and do what I intended to do anyway (laughter).

I think we should stop on exactly that note. Michael thank you.



[1] (1857) 19 How. (60 US) 393.

[2] 531 U.S. 98 (2000).

[3] (2004) 219 CLR 562.

[4] (1951) 83 CLR 1.

[5] (2007) 81 ALJR 1414 at 1536 [589].

[6] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423.

[7] John Fairfax Publications v Gacic (2007) 81 ALJR 1218.

[8] (2007) 82 ALJR 303.

[9] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

[10] Darton, Longman and Todd, 2006, especially chapters 10-12.

[11] A full copy of the text of the letters is attached to this transcript.

[12] Carr v Western Australia (2007) 82 ALJR 1.

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