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Morgan, Wayne --- "Justice Michael Kirby, Through the World's Eye" [2001] MelbULawRw 9; (2001) 25(1) Melbourne University Law Review 306

Book Review

Through the World’s Eye
by Justice Michael Kirby, speeches selected and edited by Charles Sampford, Sophie Blencowe and Suzanne Condlln
(Sydney: The Federation Press, 2000) pages i–xxv, 1–229. Price $43.94 (hardcover). ISBN 1 86287 347 X.

Justice Michael Kirby is already somewhat of a legend, as is evidenced by the praise this new collection of speeches has received from eminent international jurists.[1] From my point of view as a law lecturer, Kirby is also a welcome relief in any law class, both for the eloquence of his judgments and the challenge to established legal doctrine those judgments often present. Although the comparisons may not be completely flattering, his judgments, like those of Lord Denning[2] and Justice Lionel Murphy,[3] provide opportunities for debate and often wry humour. With an impressive array of sources, usually internationally based, Kirby’s judgments argue for positions that combine a rigorous legal method with a compassion for humanity, especially the dispossessed. Once, a student who was taking one of my classes complimented me after she had read one of my publications for the first time. She commented that it was unusual to find a lawyer who wrote with passion. A similar comment could be made about Justice Kirby. Not only is he a keen legal mind, erudite and knowledgeable; he is also passionate. Kirby has strong beliefs and has always been prepared to present those beliefs in a way that is quite extraordinary for a sitting judge of his seniority.

This new collection of Kirby’s thoughts brings together a number of speeches written by him in the last 10 years. It is worth noting at the outset that a speech necessitates a certain form and tone which are different from those of a judgment or an extended academic analysis. A good speech-writer/orator always has a close eye on who their audience is and the need to communicate with it. Such a writer will attempt to provide a perspective on the subject addressed, to put it in context and to draw out themes and implications. Hopefully, all this will be done with wit, eloquence and a liberal usage of anecdotes. A speech should make one think, without being boring in its detail. The chapters presented in Through the World’s Eye fulfil all these criteria admirably.

But speeches also have their limitations. They do not provide an opportunity for the development of detailed analysis. As a collection, a set of speeches may also lack the sort of coherence and logical progression one expects from a collection of essays written specifically as such. Through the World’s Eye thus shows the limits of its origins. We can only hope that Justice Kirby (with all his spare time) will one day offer a coherent collection of essays on the values of law and its institutions.

The speeches in this volume were selected by the editors in consultation with the author. While diverse in their individual subject matter, certain themes emerge which are indicative of Kirby’s published works over the last 20 years. A review of Kirby’s publications quickly reveals a jurist concerned with issues of human rights, equality and empowering the dispossessed. Such a review also reveals an expertise in science, technology and the legal challenges posed by new discoveries. Judicial method and judicial ethics, as well as the ethics of the profession and legal institutions, are other common themes in his publications. In this book, the editors have chosen speeches which reflect all these themes. Divided into two parts, the book in part 1 deals with law reform and human rights, while part 2 contains essays on the law and its institutions (mainly the judiciary).

The human rights section of the book includes eight essays written between 1995 and 1999. With one exception (chapter 5), each was written originally as an address, for functions as diverse as a colloquium celebrating the 60th birthday of His Holiness the Dalai Lama, through to the Australian Catholic Bishops Conference, an AIDS memorial in Sydney and meetings of various legal bodies. The diversity of the audiences addressed by Kirby is reflected in the variety of topics covered, which is indeed one of the strengths of the book. Despite their variety, what these human rights essays have in common is the fact that they deal with ‘cutting edge’ legal issues. For example, the problems of establishing respect for human rights in a war-torn country overrun by peacekeepers; the legal problems posed by scientific endeavours such as the mapping of the human genome or the progress in information technology; or the problems faced by those minorities who are still demonised by our supposedly ‘tolerant’ society — refugees, lesbians and gay men and their families, and people living with HIV/AIDS.

The issues tackled by Kirby thus provide rich ground for interrogating the moral dimensions of our law and its institutions. His subject matter always ‘tests the boundaries’ of legal thought and this is another strength of the book. What is more, although dealing with controversial topics, he does so in an accessible way, in a style which could not alienate even the most conservative critic of the views he espouses. In these speeches, he often presents ‘the margins’ to ‘the centre’ (for example, by addressing Catholic bishops on homosexuality).[4] He implores those of us who have power and wealth in our society to remember the dispossessed.[5] In this sense, I imagine that the original speeches, as well as the essays as presented here, act partly as a form of ‘cultural translation’: they bring the experiences of the dispossessed to audiences who would otherwise have little contact with those experiences. This ability to build bridges may indeed be one of the greatest legacies of Justice Kirby in his extra-judicial roles.

Fittingly chosen as the first essay in the collection, chapter 1 is organised around the themes of compassion and non-violence (in tribute to the Dalai Lama) and sets out much of Kirby’s general approach to the issue of human rights. He reviews the role of international institutions and the United Nations in particular, and asks what may be expected in the 21st century. What comes through most clearly from this chapter is Kirby’s basic faith in the values and institutions of our domestic and international human rights systems. Kirby is an optimist, and an evangelist for the cause of optimism. For example, he states in chapter 1 that ‘[w]e must not only remain non-violent and compassionate. As human beings, we should remain optimistic. Education and profoundly enlarged sources of information and insight will ensure the ultimate triumph of justice.’[6] This theme of optimism is repeated throughout this chapter and, indeed, the book:

Peering into the next century and striving to foresee some of the changes that will occur presents each prophet with the limitations and perspectives of his or her own experience. Mine make me optimistic ...
As the new millennium beckons, I believe that we can be optimistic. We are on the high path towards human progress and enlightenment. Our journey cannot be reversed. We are guided by the wellsprings of our human nature. It is our human nature which compels us toward peace.[7]

International human rights and human rights institutions are also the topic of chapter 3, which deals with the reconstruction of Cambodia. Kirby writes here from a position of intimate knowledge, having been the Special Representative of the Secretary-General of the UN for Human Rights in Cambodia. This chapter is an amalgamation of a lecture by Kirby[8] and his final report to the UN Commission on Human Rights in 1996.[9] Given that the two original documents had quite different purposes, the changes in tone are noticeable. However, the extracts from the report add much by way of detail. Apart from dealing with the specific problems and successes in Cambodia, this chapter also touches on very topical debates in the field of international human rights, such as the issue of universality. Kirby addresses claims that ‘Asian values’ require a different approach to human rights and again shows his faith in our international system by proclaiming that, ‘[b]y definition, universal human rights are just that: a common heritage of all humanity. Human rights provide one of the three pillars upon which the United Nations has been established ...’[10]

Chapters 4 and 5 deal with the challenges to human rights posed by scientific developments.[11] Chapter 4 deals with the Human Genome Project and chapter 5 with advances in technology that threaten some human rights, such as the right to privacy. Again, Kirby takes issues on the cutting edge and positions them so that their challenges and implications for law and human rights are made clear. Both essays are also a call to action. He calls on lawyers and ethicists (such as religious leaders) to participate in an open-minded way in debates about scientific development. His coverage of issues in both chapters is sweeping, dealing with advances in science affecting both domestic and international law, raising issues in criminal jurisprudence, privacy and confidentiality, intellectual property, eugenics and human rights, gene patenting, the internet and electronic information recording and transmission. At each point, Kirby keenly identifies the ethical issues posed and insists that the regulation of scientific developments must take place within a human rights framework.

Chapters 2, 6 and 7 consider the challenges for society posed by people who are dispossessed (refugees, gay men and lesbians, and people living with HIV/AIDS). In these chapters, Kirby’s compassion comes readily to the fore. He records the great plight of refugees, both in Australia and internationally, and the growing need to find solutions. He states, with disturbing simplicity, ‘[e]verywhere there are refugees’.[12] He is critical of Australia’s recent history in legislating to deny refugees their human rights and is at pains to debunk some of the common myths held by many Australians about refugees. Chapter 6 addresses the legal recognition of same-sex relationships in Australia, outlining recent developments in NSW and at the federal level.[13] Kirby recognises that lesbian and gay families still face much legal discrimination, but again describes his optimism about the potential for reform. He sees such law reform as necessary in a pluralistic society and his conclusion, entitled ‘The Journey of Enlightenment’, expresses confidence that Australia will eradicate unfair discrimination on the basis of sexuality.[14] Chapter 7 also takes up the problem of discrimination, this time against people living with HIV/AIDS. As perhaps would be expected in a speech addressing a memorial rally, Kirby is here at his most passionate and accurately captures the frustration and loss felt by many in the community. Yet he resists a disempowering ‘AIDS’ discourse, opting instead to focus on hope, determination, solidarity and love.

Chapter 8 ends part 1 with some reflections on civil liberties in Australia, comparing Kirby’s experiences as a civil liberties lawyer in the 1960s with the challenges faced by civil libertarians today. This speech contains fascinating insights into many well-known legal figures, as well as into Kirby’s own development as a lawyer and human rights advocate. This chapter fittingly concludes the first part of the book by summarising Kirby’s approach to human rights and law reform: ‘We can revere our legal institutions, as I do, but still ever strive to improve them. We can love our country, but still seek to make it a better place for all.’[15]

The human rights issues covered in part 1 are controversial. They present many challenges to domestic and international law. Kirby records time and time again the suffering of the dispossessed and the potential for abuse in new areas of human knowledge and power. Yet, as mentioned above, Kirby is an optimist and maintains great faith in the values of human rights and the ‘road to enlightenment’. Apart from this optimism and faith, the other major impression left by part 1 is that of Kirby as a great internationalist. This is reflected in the book’s title, Through the World’s Eye. He states in his introduction: ‘Once we saw issues and problems through the prism of a village or nation-state, especially if we were lawyers. Now we see the challenges of our time through the world’s eye.’[16] For Kirby, seeing our challenges ‘through the world’s eye’ entails being an internationalist in a variety of senses. Not only does he think that Australia should be outward-looking and engaged in our global community, he also believes that much is to be gained by examining both foreign and international jurisprudence and incorporating such examination into important questions of law reform at the domestic level. That Kirby practises what he preaches is evident from the internationalism reflected in a number of his judgments. Another of his judicial legacies will surely be his recognition of the importance of international law in the Australian legal system.[17]

Part 2 of the book contains seven chapters and is headed ‘The Law and Its Institutions’. With the exception of chapters 12 and 15, however, each chapter mainly focuses on different aspects of the judicial role. Indeed, one of the most interesting aspects of part 2 is that the essays give us much insight into the opinions of a sitting judge on the judicial role, not only in Australia, but in other common law jurisdictions as well.

Chapter 9, written in 1997 as an address to the Bar Association of India, deals with judicial activism. Here Kirby compares debates about judicial activism in four common law countries: the United Kingdom, the United States of America, Australia and India. Not surprisingly, perhaps, he concludes that:

Society is slowly and somewhat reluctantly coming to realise the ‘fairytale’ of the declaratory theory of the judicial function. But there is no clear divide that marks off the limits of acceptable judicial creativity and activism. Informed observers have come to understand that some measure of judicial activism is not only permissible but is traditional in our system of law.[18]

Such a view is, of course, well evidenced by Kirby’s own judgments which, when developing the law in a new direction, do so in a rigorous, logical, well-sourced way — consistent with common law tradition.[19]

Despite recognising the reality of some measure of judicial activism, Kirby is also keen to outline what he sees as the influences (positive and negative) on the judicial method. He identifies four: opportunity (judges are constrained by the type of cases which come before them); need (a judge’s perception of the need for reform and their attitude towards parliamentary sovereignty); inclination (a judge’s conservative or activist tendency); and methodology (adversary trial procedures and limits on the admissibility of evidence and on who may put arguments to a court necessarily shape judicial ‘creativity’). All these factors lead Kirby to conclude that ‘[a] measure of creativity is allowed. But it is a limited one. Its parameters are ultimately fixed by the very nature of the judicial function.’[20]

Chapters 10 and 11 respectively take as their subjects two pre-eminent legal figures: former Chief Justice Sir Anthony Mason and Justice Lionel Murphy. What both chapters share is that they analyse the important changes which have taken place in the High Court over the last three decades. Chapter 10 takes as its theme the seemingly radical change which took place in Mason between his appointment and his retirement: a Dixonian adherent of ‘strict and complete legalism’[21] when he joined the Court metamorphosed into a judge willing to imply individual rights in areas of law where such rights were not previously recognised.[22] As Kirby himself notes, he is not interested in examining this change at an individual psychological level, but in terms of influences on the Court. He outlines 10 factors influencing change, including the move of the High Court to its permanent home in Canberra, the end of Privy Council appeals, the change to special leave applications, as well as more prosaic influences, such as powerful figures like Murphy and Sir William Deane, as well as Australia’s growing perception of itself as an independent nation and its growing internationalism.

Chapter 11, ‘The Power of Lionel Murphy’s Ideas’, is equally insightful in its discussion of changes in the High Court. Kirby identifies changes such as a growing judicial independence, the rejection of blind acceptance of English authority, a theory of constitutional interpretation which focuses on the context of modern Australian democracy, and the growing influence of international and human rights law. Kirby points out that many of these (controversial) changes in the High Court can be traced to the influence of Justice Murphy, despite the fact that he was in dissent in 22% of his High Court judgments (the highest percentage of any judge at that time).[23] It is very fitting that Kirby should point out the enormous influence that Murphy has had on the High Court, given that, in many ways, Kirby is Murphy’s ideological successor (despite their obvious differences). Indeed, one gets the sense that Kirby is quite proud to be able to point out that he has far exceeded Murphy’s proportion of dissents (32% of published decisions in the period 1996–99).[24] Although Kirby is Murphy’s ideological successor, they are, of course, vastly different in their judicial method — and hence, perhaps, their acceptability. Murphy was always the legal equivalent of ‘a bull in a china shop’. Such could never be said of Kirby, whose proddings towards legal change are far more subtle, although no less influential.

Chapter 12 is the only chapter in part 2 which does not deal with the legal profession or the judiciary. Entitled ‘Popular Sovereignty and the True Foundation of the Australian Constitution’, it deals with fundamental questions concerning the legitimacy of our constitutional system and the sources from which that system derives its authority. Kirby records the traditional ‘black-letter’ approach to these questions: that the Australian Constitution’s power and legitimacy derive from an Act of the Imperial Parliament.[25] Such a view has had, as Kirby notes, a profound effect on constitutional interpretation. Although recognising the historical and legal accuracy of this proposition (to which Kirby himself has adhered in the past),[26] he also recognises that such a view is no longer adequate in modern Australia. He states: ‘[I]t is impossible to ignore the growing movement in Australian legal debate which suggests that the ultimate sovereignty, reflected in the Australian Constitution, is now to be taken as reposing in the Australian people themselves.’[27] He outlines the legal implications of such a view, particularly with respect to fundamental rights. This chapter thus has much in common with the first part of the book: it takes people as its centre, rather than abstract legal authority, and focuses on human rights.

Chapters 13 and 14 return to the judicial role, looking at attacks on judges and judicial stress respectively. Again, Kirby takes an international and comparative approach by examining recent attacks on judges in the UK, New Zealand and the USA as well as Australia. He notes that such attacks seem to be increasing and are often politically motivated and misleading. He suggests a number of strategies to combat such attacks on judicial independence, including greater defence by the profession and public education so that people better understand what judges do and will be less inclined to listen to politically motivated attacks. The more personal side of the effects of attacks, as well as other demands placed upon judges, are dealt with in chapter 14, ‘Judicial Stress.’ Again, it is rare to hear a sitting judge speak on such a topic — as Kirby notes — and the chapter thus provides a fascinating insight into the pressures of judicial office and also his suggestions on how to address them.

Finally, chapter 15 completes the collection by recording Kirby’s address upon receiving an Honorary Doctorate in Law from the University of Sydney in 1996. As one would expect on such an occasion, there is much reflection in this speech, as well as a characteristic Kirby ‘call to arms’. He takes as his theme contemporary views that the legal profession has ‘lost its soul’ and its ideals, and is facing a crisis of morale.[28] In the face of such attitudes, Kirby sets out his views about what gives the law ‘its claim to nobility’.[29] This is both its quest for justice and the quality of the profession. The law’s nobility is dependent upon ‘all of us retaining our respect for the people whom we serve’.[30]

The final chapter thus returns to where we began: Kirby’s faith in our law and its institutions, despite recognising their shortcomings. It also returns us to Kirby’s compassion and his concern to place people ahead of abstract legal doctrine. Whether one is a convert to Kirby’s optimism or not, one cannot dispute the power of Kirby’s ideas on the potential of our legal system in its quest for justice. The power of his ideas is based on respect for humanity, compassion, rigorous legal method and an open, internationalist approach. To my way of thinking, it is these attributes which make Kirby one of our greatest judges. This collection of essays is a fitting record of his many contributions to achieving both justice and respect for all.

WAYNE MORGAN[*]


[1] Justice Michael Kirby, Through the World’s Eye (2000) iii (comments by Sir Zelman Cowen, Mary Robinson, Justice Edwin Cameron, Lord Cooke of Thorndon, Professor David Weisbrot and Geoffrey Robertson QC).

[2] See, eg, Miller v Jackson [1977] EWCA Civ 6; [1977] QB 966, 976–82.

[3] See, eg, A-G (Cth) ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, 63–79; Church of the New Faith v Commissioner for Payroll Tax for Victoria [1983] HCA 40; (1983) 154 CLR 120, 149–63.

[4] Kirby, Through the World’s Eye, above n 1, 49–50.

[5] Ibid 22–3.

[6] Ibid 6.

[7] Ibid 12–13. Further examples of Kirby’s optimism and faith in humanity can be found at 22, 78, 81, 86, 90 and ch 15.

[8] Justice Michael Kirby, ‘Human Rights and Cambodia’ (Heindorff Memorial Lecture delivered to the Queensland Branch of the Australian Institute of International Affairs, Brisbane, 12 September 1995).

[9] Justice Michael Kirby, ‘Cambodia — A Departing Assessment’ (Report delivered to the United Nations Commission on Human Rights, Geneva, 1 April 1996) <http://www3.lawfoundation.net.

au/resources/kirby/papers/19960401_camapr96.html> at 19 March 2001 (copy on file with author).

[10] Kirby, Through the World’s Eye, above n 1, 26.

[11] Note that ch 5 (‘Privacy in Cyberspace’) was written as a contribution to a publication by the United Nations Education, Scientific and Cultural Organization (‘UNESCO’), rather than a speech: see Teresa Fuentes-Camacho (ed), International Dimensions of Cyberspace Law (2000). It is thus more detailed and heavily footnoted than some of the other chapters in pt 1.

[12] Kirby, Through the World’s Eye, above n 1, 15.

[13] This chapter was originally written as a conference paper: Justice Michael Kirby, ‘Same-Sex Relationships — Some Australian Legal Developments’ (Paper presented at the Legal Recognition of Same-Sex Partnerships: A Conference on National, European and International Law, London, 3 July 1999). Note that this conference has led to Robert Wintemute and Mads Andenas (eds), Legal Recognition of Same-Sex Partnerships (forthcoming).

[14] Kirby, Through the World’s Eye, above n 1, 78.

[15] Ibid 90.

[16] Ibid xxv.

[17] See, eg, the judgments of Kirby J in Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 and Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337.

[18] Kirby, Through the World’s Eye, above n 1, 109.

[19] See, eg, the judgments listed in above n 17.

[20] Kirby, Through the World’s Eye, above n 1, 97.

[21] This phrase was used by Sir Owen Dixon in his speech on being sworn in as Chief Justice of the High Court: (1952) 85 CLR xi, xiv.

[22] See, eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[23] Kirby, Through the World’s Eye, above n 1, 128, fn 4.

[24] Ibid.

[25] Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

[26] See Lord Cooke of Thorndon, ‘Foreword’ in Kirby, Through the World’s Eye, above n 1, xi, xv–xvi; Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 395–8ff (Kirby P).

[27] Kirby, Through the World’s Eye, above n 1, 148.

[28] Kirby is reacting to these views as expressed by Anthony Kronman, the Dean of the Law School of Yale University, in Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993).

[29] Kirby, Through the World’s Eye, above n 1, 201.

[30] Ibid.

[*] BA, LLB (Hons) (Melb), LLM (Columbia); Lecturer, School of Law, Flinders University of South Australia.


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