Justice Michael Kirby, who retired from the High Court of Australia yesterday, does not like to be called “the great dissenter” - the term some of his more trenchant critics apply to him - and with good reason. If you take the trouble to read his judgments and dissenting judgments, you soon find that despite the febrile nature of many comments against him, that appellation in no way truly characterises his performance on the bench.
In Australia, where public and political responses to great issues tend too often to flow from robustly held misconceptions rather than from reasoned argument, a man like Justice Kirby was always going to attract attention. It never mattered to the great tribe of anti-Kirbyists that he was a strong character of impeccable public judgment and immutable private restraint, or that he invariably brought a welcome and very large measure of lateral thinking to his work as a jurist.
To his opponents he was a meddler, a judge-made-law man, a constitutionalist guerrilla. To those who believed him to be a partisan in their cause, and he never was, he judged impartially. He was seen as a great bright light on the Bench, someone anointed by history to guide Australia in a new direction.
Both sides were wrong. His part in the so-called land rights issue is a case in point. The 1992 Mabo decision - in which the High Court decided native title existed in the Torres Strait where the indigenous people are not Aboriginal but Melanesian - opened the flood gates to Aboriginal land claims on the Australian continent. Kirby played a key role in the first test of the new law, the Wik case.
He was frequently demonised by opponents, became the butt of much ill-mannered and untutored opinion from the red-neck fringe, and stood accused (by them) of all manner of bad judicial behaviour. It didn’t help that he is homosexual - apparently a matter of great moment to some but a personal circumstance that actually matters not a jot - or that his judgments, while crystal clear, tended to contain a few long words and some rather complex analysis.
It is to his great credit that he took this with good humour and reflective silence - in public at least; those not privileged to know him personally rightly cannot judge what he might have thought out loud in private - and refused, whatever the provocations, to be drawn into incautious commentary.
It was his lot in life, when appointed to the High Court, to land in the middle of the developing debate over how best to interpret a Constitution designed in the 19th century with the political objective of drawing together six disparate British colonies - the projected seventh, New Zealand, neglected to take up the offer - to fit the needs of late 20th century independent Australia.
That debate continues, properly so. Antediluvians who hold that their Constitution is set in stone, or inscribed upon stone in the mythical manner of the Ten Commandments, are neither defending history (as they like to assert) nor advancing Australia (as they frequently argue). Nothing exists in a state of stasis. National interests develop, circumstances change, ethnography alters, technology advances: none of these imperatives can ever be met by refusing to reinterpret laws.
The High Court was not intended - as some critics of projected change assert - to defend the letter of the Constitution. Its role is interpretive. It must be, or the only thing that will forever remain true in the national anthem is that Australia is girt by sea. Kirby interpreted, but not radically. The sky did not fall in when Wik decided that the original inhabitants of the continent retained some residual land rights. (And even if it had, elementary justice would have demanded Australians cope with it.)
Justice Kirby deserves applause as one of Australia’s leading public intellectuals. It is unfortunately true of democracy - the only reasonable mode of government - that sometimes the legislative branch and the executive needs to be pointed at the light on the hill and reminded that it represents sensible progress.
As the president of the Australian Bar Association, Tom Bathurst, QC, noted of Kirby’s retirement, “What has to be remembered with powerful dissents is that they do provide guidance for the future”. That is the job of a jurist in a modern constitutional monarchy, or even a crowned republic, which more accurately describes Australia’s status: and it is never one that can be safely gainsaid by those with partisan interests to promote.
That is not to say that all his judgments were of such impeccable standing that they themselves are not open to criticism, re-evaluation or eventual modification through the process of later interpretation. He would never make that assertion himself.
And that is the true measure of the man. As a public servant he was unimpeachable in office. As a public intellectual his influence and impact is significant and wholly beneficial. And as a private citizen, he is an adornment to the great egalitarian ethos of our country.