INTRODUCTION TO KIRBY PROJECT
Happy Birthday, Michael. At three score years and ten you have reached the age that Shakespeare allots for one life – yet as the size of this book attests, you have lived so many. It celebrates most of them, as they have impacted upon every aspect of law and its reform in Australia, as they have inspired several generations of law students, academics and practitioners, as they have served the wider community by finding reasoned ways through thickets of prejudice and ignorance and outmoded beliefs. It pays tribute to your kindness to friends and strangers alike and surveys your work for humankind: all the lives you have saved through your prescience over HIV/AIDS, how you have given the Human Genome Project its charter and provided an ethical base for modern reproductive medicine; how you have contributed to the reconstruction of war-torn Cambodia and drafted at Bangalore the international code by which judges of the world conduct their business. Life is better – in Australia, and elsewhere – because you have lived.
This book is what academics call a festschrift – essays in honour of Your Honour. Its contributions have been solicited by Ian Freckelton and Hugh Selby under the rubric “The Kirby Project” and in them you will read (if you have the time) your story so far, with predictions for the fate of all those dissenting judgments with which you have doubled the size of the Commonwealth Law Reports over the past decade. They recount the multifarious ways in which your decisions and law reform proposals and the recommendations in your lectures and books have reshaped thinking in the legal world. They pay tribute to your phenomenal industry, to your powers of historical exposition, to your creative imagination and ability to marshal all that is to be known under the sun on any particular subject and then to distil it into readily understood principles. I shall not repeat the encomiums further – my junior Mr Burnside will in due course summarise them with a practitioner’s admirable brevity.
My only regret – and I am sure you will share it – is that the volume lacks any contribution from your usual critics. It would have been useful to hear from a barrister who finds life too short to read your judgments, or from a judge who disagrees with your appeals to international conventions, or from one of those newspaper commentators who find it convenient and lucrative to fill their columns with bile about you. It is a pity that our privileged wordsmiths are so ignorant of their own best interests (free speech will only be secure in Australia come the Bill of Rights that they so foolishly deride) as well as of the best interests of our citizens. The ironic thing about their criticism, of course, is that you relish it, as proof of the fact that your ideas are having an impact - enough to unsettle those whose vested interests they disturb. A few of your judicial colleagues have had understandable anxieties that your high profile might attract unfair criticism or unwanted attention to the bench, but we live in an age that demands greater transparency and accountability and in any event you have done the judiciary proud: your public image has served to reassure the public that judges are indeed judicious. (I have never known you to be anything other than judicious, except at the Old Guard balloon game, over which I shall draw a veil that not even AJ Brown could pierce).
There is of course a raging debate over judicial activism. I take a novel position, neither for nor against, because I think all judges are activists, especially those of your High Court brethren who so actively deploy strict construction to reach conservative conclusions. But the issue goes back long before your time on that court. It was best articulated in the debate between Lord Denning - a passionate exponent of creative law making, and Lord Devlin, a cool advocate of judicial restraint1. Ironically, Devlin’s own judgments were rather like yours - lengthy and full of history, policy and principles. He had a wide-ranging, enquiring mind, wore his hair long and his floral shirts bright purple, and retired early from the House of Lords because he found his judicial colleagues were too boring. Denning – on whom you have partly modelled your own style (those very short sentences) - disguised his massive erudition in tabloid prose and re-wrote the law of contract and tort to serve the needs of modern society. The man himself, alas, was stuck in pre-war middle-class morality, and his prejudices later came to disfigure judgments which discriminated against women, denied rights to prisoners, foreigners, and trade unionists and yielded all power to the state in matters of national security. He refused to retire (“I have every virtue except resignation”) but then repeated in one of his books some racist scuttlebutt he had picked up at a Temple dinner, about black jurors being untrue to their oaths. They became my clients and I had dutifully to draft the libel pleadings that forced him from office.
It was Denning who made the jejeune distinction – which I am afraid you have picked up - between “bold spirits” and “timid souls.” Courage and cowardice are overused words and neither is relevant to the judicial task. In a democracy, leaving aside the common law, parliament makes rules and judges apply them. The virtue of this approach lies primarily in its predictability – no mean thing, since those of us who urge a belief in the rule of law are made to look silly when it turns out to be the length of the Chancellor’s foot. After all, as Devlin points out, most judges (with your ALRC background, you are a rare exception) are ill-equipped for excursions into law-making because “like any other body of elderly men who have lived on the whole unadventurous lives, they tend to be old fashioned in their ideas,” and anyway, learning in law is no guarantee of reasonableness.
What the “judicial inactivist” school overlooks, however, is the extent to which discretion and choice are involved in curial decision-making. This is obviously so at first instance, in deciding the length of sentence or finding facts on conflicting testimony or determining whether to reject evidence which has been illegally or immorally obtained. Personal outlooks and prejudices will, sometimes unconsciously, inform these decisions. So too at appellate level, where the alternative interpretations of statute or the plasticine of case law leaves a choice – often between arguments that are good and arguments that are better. In the rarefied classroom of the High Court, there is no such thing as a judicial “error”: you do not make mistakes of logic or science, but deliver an arguable opinion which is often outnumbered by other arguable opinions. Most cases at appellate level are not straightforward – that is why they have gone on appeal – and here the art of judging becomes the art of juggling, of shading and eliding, and ultimately the art of choosing. The English language is rich with ambiguity and Australian jurisprudence is teaming with precedents: whenever legislative words have more than one meaning, or where case law points in different directions or offers different solutions, there comes the necessity for choice.
The best judges are reckoned to be those whose choices pass the Benthamite calculus, producing the greatest happiness for the greatest number. I’ve always thought of you as a floppy Benthamite, refined by Julius Stone’s teaching of Roscoe Pounds’ methodology for weighing the interests involved in a judicial decision, but more importantly by an understanding of Ronald Dworkin’s “crucial idea” that democracy is not the same thing as majority rule2: the greatest number might have to suffer a slight degree of mortification when the courts uphold the fundamental right of a minority they dislike to pursue happiness. Although minorities are unprotected in Australia by any Bill of Rights, since you are a member of one of them I suspect that the choices you have made, influenced also by your lengthy experience as a law reformer, are better than most on offer. When the best choice is radical, however, you do sometimes falter: law reform commissioners tend to caution, even conservatism, because they have to craft their recommendations to suit what politicians will accept.
Critics of your work fail to grasp that a judgment is not a computer printout from fed in facts, but a decision between competing and tenable arguments. Although law is “settled”, many issues are not – which is why they come to court. They may be thrown up by the advance of technology or the sophistication of police and criminals, or the aspiration of groups and individuals who want to live better or more convenient lives. The choice you make will affect those lives, and although your judicial colleagues say they make a “policy” decision, these are really political decisions, in the sense that the policy is influenced by subjective feelings and philosophies. Ultimately, of course, it must measure up to the standard of justice – but which standard? For Devlin (and for Michael McHugh in Al Kateb3), “justice” lies in the merit of the principle upon which the choice is made, whilst for Denning – (and for you in Al Kateb) – it lies in the merit of the result of that choice. Which raises the question whether, in hard cases, should courts opt for just means or just ends?
There is no difficulty in rejecting the austere literalists, wilfully blind to the results of their decisions. A few of your High Court colleagues still seem to live in Diceyworld, but for grown up judges, literalism is dead. As Lord Steyn reminds us:
“the tyrant Temures promised the garrison of Lebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them all alive. This is literalism. If possible it should be resisted in the interpretative process”.4
Activists are more appealing, but not when they echo Denning’s arrogant and simplistic boast that “I must do justice, whatever the law may be,” if only because justice eventually meant for Denning what fiction meant to Miss Prism – “the good end happily, the bad unhappily.” (The ‘bad’ in his anachronistic moral vision including prisoners, feminists, trade unionists, immigrants and gays.) The proper approach to interstitial law reform remains more or less that of Portia in the Merchant of Venice – implement parliament’s purpose, with an interpretation of its statute which serves the values of humanity, compassion and mercy “as far as possible” – ie. so far as language allows this choice. Pick from the available grab-bag of precedents the one which seems most to advance the needs of modern society, or at least fashion the common law according to universally accepted (if not universally applied) principles and values of the kind that are set out in international conventions or bills of rights.
Devlin, interestingly enough, saw no inconsistency whatsoever between his philosophy of judicial restraint and a bill of rights, the introduction of which he supported for the very good reason that it would better guide the policy decisions made by higher courts. He would have been enthusiastic about the Human Rights Act in Britain, which requires statutes to be interpreted “as far as possible” consistently with guarantees of fundamental freedoms, not only where there is ambiguity but where the parliamentary purpose can be better effected.5 As many contributors point out, it has been your (really, our) tragedy not to have had a Bill of Rights for you to interpret. You have made do with reliance on international human rights conventions, and criticism of your work in this respect is misplaced. Interpretation of Australia’s statutes by reference to the assumption that they should, so far as possible, be read consistently with international treaties that Australia has ratified without reservation, is a time-honoured rule of common law construction. Although “parliament’s intention” is a polite fiction (MPs rarely understand what they are doing) - the rule itself is unexceptional. Governments need not ratify human rights treaties (many do not) and if any provision is antipathetic then they can enter a reservation. It follows, as a matter of logic and commonsense, that in divining parliament’s intention in enacting a law passed thereafter, any ambiguity in the statutory language can be resolved by assuming that parliament intended the reading that is most consistent with the treaty obligations that have been accepted on behalf of Australia.
Many of our contributors think you would have been more at home on the Mason Court, and undoubtedly your legal archaeology would have assisted their excavation of “implied rights” from the barren field of our Federal constitution. This seems to have become that court’s controversial legacy, although we forget just how good were its developments of the common law. Had there been an Olympic team medal for judging (and since there are now such medals for taekwando and beach volleyball, why not?) the Mason court would have won gold every time. Comparisons are invidious, although not even the most passionate conservatives could fail to throw their hands up in horror at the mess your lot made of the law of negligence. Bring back Victor Windeyer.
I do not get the impression that your last ten years have been entirely happy, which is not surprising given your record of dissent. At least you have been spared the fate of that great British judge Lord Atkin, whose colleagues petutlantly refused to dine with him after his famous dissent in Liversidge v Anderson,6 which everyone now accepts as courageous and correct. Have any of your brethren dined with Johan, by the way? Of course the High Court has never been a particularly congenial place – the spats between Evatt and Dixon are legendary, and was it Starke who said to Rich, at the cemetery as they buried Isaacs, “you look so ill – why bother to go home?”
My only appearance there was the result of the worst piece of advice I have ever given a client. Dow Jones was looking for a court to decide the question of where an internet libel was committed – in every country where it could be downloaded (ie. all 192 of them) or only in the place it was uploaded. “Try Australia” I said. “It has a progressive High Court which might protect the internet from golddiggers.” Fat chance. After a parish pump-priming judge in Victoria, who thought “free speech” meant speech made expensive by libel damages, we came to Canberra. There you all were, trooping in suddenly like seven black cockatoos (whatever happened to the usher shouting “oyez”?) and then taking up your pecking order. And I do mean pecking. To the Chief’s right were the troika – Hayne, Gaudron and Gummow – who clearly regarded themselves as smarter than anyone else in the room, or in the world. After they had condescended to ask a few questions (giggling at the answers) they chattered amongst themselves, especially when you or Ian “the Tub” Callinan asked questions. The Tub, on the Chief’s far left, could not understand the difference between newspapers and the internet: I gather from his judgment that I failed to enlighten him. You asked most of the questions and wrote a long concurrence, showing an encyclopaedic knowledge of the world-wide web but failing to find a way of freeing it from the constraints of nineteenth century Victorian defamation theory. Murray Gleeson, I have to say, impressed me with his Chairmanship as he struggled to keep his judges in some sort of order. Your seven – nil decision against Dow Jones has, I am pleased to say, already became outdated and is increasingly disdained by courts in Canada, the United States and Britain, but you were prepared to debate it later with Dow Jones lawyers at a good natured session at the Commonwealth Law Conference, a form of accountability to which you are one of the few judges to submit.
I should perhaps make this point – because no-one else does, except Arbour and Heenan, and then only in a footnote. Your international work has been astonishing and outstanding – your Chairmanship of the International Commission of Jurists in Geneva, projects at OECD and UNESCO, lectures in London and your United Nations positions in New York and Cambodia and Bangalore, not to mention your famous lecture in Zimbabwe on breast feeding. For an Australian holding down a full-time job, to make this contribution to international civil society must come at severe personal cost. Notwithstanding the internet, the tyranny of distance exacts a heavy personal toll in jetlag and sleep deprivation. Tireless in your toil to build a better world, you have taken no payment for all this work. What is more, doing it often for cash-strapped organisations, you have insisted on flying economy class. When you arrive at Heathrow, you always take trains or buses, never a more expensive taxi. This kind of integrity is rivalled by no one I know in the field, other than Julian Disney. It is a rare self-sacrificing quality, and probably contributed to your recent heart problem.
I am the contributor best qualified to say that your Australian citizenship has been a source of great pride to expatriates. I am dubious about what it means to be called a “great Australian” – Rupert Murdoch, for example is a great Australian, in the sense that Attila is a great Hun. I always thought of Owen Dixon as a great Australian – he was the greatest common lawyer of his time and such success as I had at the English bar was a result of my grounding in his judgments. So I was shocked to read (in the Joe Lash biography of Eleanor Roosevelt) about how, when Australian Ambassador in Washington, Dixon used his friendship with Felix Frankfurter to get messages to the United States President in support of the “save Europe first” policy. His old foe Evatt, our Foreign Minister, flew to Washington to beg for a reversal of this policy and for more United States troops to protect Australia, but for Dixon and no doubt his Melbourne club cronies, the cathedrals of Europe were more worth saving than Australian lives in Queensland and the Pacific. Perhaps because my father was at the time an Australian fighter pilot in the Pacific, I regard Dixon‘s behaviour as almost treasonable. Later, reading those disgusting letters he wrote to the Lord Chancellor over the proposal to include on the Privy Council judges from the new Commonwealth – Dixon confessed a pathological inability to sit next to a black man – I realised just how racist he was7. Still, he was a monumental judge, who could stand up to government (the Communist party case and his decision to stop the Tait hanging8) and at times could be as reform- minded as you (his dissent in Sodeman9). It just goes to show that you can be a great judge, without being a great man or a Great Australian. Many contributors to this book think that, at 70, you have achieved this trifecta.
The editors seem to think that I may have snapshots, so to speak, from the student political album at Sydney University, or from occasional encounters since. You have told others that I influenced you at various times, but when offering you advice I always have the advocate’s sense when talking to a judge, that his mind is probably made up already. AJ Brown gives an account of your personal history so let me try to put some more flesh on the skeleton he has assembled.
You were born in 1939 – the generation ahead of me, although we were both what my wife (a denizen of Cronulla beach) derisively terms “Westies”. We both attended “opportunity class,” a curious invention of Darwinians at the New South Wales Department of Education, who thought that precocious boys from the city’s lower-middle classes could compete with the progeny of private schools by being made to feel, at the age of 12, separate and superior. Then came a selective state school – Fort Street, in your case. (I chose a new and unselective boy’s school at Epping – more greenery, and I could spend an extra hour in bed.) Would you have been quite so pompous in your early career had you attended a non-selective school? Perhaps your sights might have been set lower – you might have followed the career in history you have always secretly craved – and you could by now have written more books (with more television tie-ins) than Simon Scharma. We should not bother about the paths we did not take into the hypothetical rose garden, except for this: had you gone to Sydney Grammar, been articled at a prestigious commercial law firm like Allan’s or Freehills, then married and had three children and a home on Sydney’s north shore, would anyone have found your judgments in the least bit controversial?
As a Cromwellian, I can only paint a picture of you “warts and all”, so allow me to recall that we both had bad acne – yours left traces – a deterrent to social life but an incentive to scholarship in formative years. We spent too much time with our books and avoided the beach (happily for our skin, it now transpires). You may not have missed socialising with girls, or maybe you did: the times were painful enough for heterosexuals, and I cannot imagine how hard it was to cope with your own “spring awakenings”. Later generations just do not realise how tormenting it was, to be hormonal in the fifties. Outside marriage, sex was illegal (remember how they prosecuted teenagers for the crime of “carnal knowledge”) and homosexuality was never mentioned other than in derisory terms like “poofter” or “shirt lifter.” It was something that visiting English actors and opera singers occasionally did in park toilets. The only sex education at state schools was provided at “father and son” evenings once a year, when embarrassed fathers and even more embarrassed sons would sit through some lantern slides of swimming tadpoles. This was organised through the Father and Son Movement Ltd (later incorporating Mother and Daughter Inc), a well meaning Christian group which issued pamphlets about the dangers of masturbation, with a picture of a teenager on a rocking horse beneath the slogan “puberty means leaving childish things behind”. Since you were a fervent Anglican, I don’t know how you coped with being told you would burn in hell for an abominable crime, but cope you did. Perhaps by immersing yourself in work and cultivating an image of a double-breasted, hymn singing, pillar of society with. by the time I met you, three degrees (BA, LLB, BEc) a lucrative practice in worker’s comp and a distinguished career in student politics.
When I came up to Sydney University you were still around – the student solicitor, the student senator, the saviour of students in any sort of trouble. You told me you would wake at 4.30am, do the papers in three worker’s comp cases before a day in court, and spend afternoons and evenings in voluntary legal work. This was the period of growing dissent over Vietnam, street demonstrations (“Run the Bastards Over” said Premier Askin, to L.B.J when students blocked their motorcade) and your work with the Council for Civil Liberties was invaluable. As a solicitor who always made himself available for the underdog, you were our local Atticus Finch - a friend indeed to anti-Vietnam and anti-apartheid protestors, to Aborigines and immigrants who came before Sydney’s irascible magistrates, several of whom were corrupt and one at least certifiably insane. There is a marvellous Bob Ellis short story, “My life in the lower courts” in which you make an appearance defending the young author in the celebrated case in which he was caught up his girlfriend’s drainpipe and was accused of burglary at the insistence of her father, the irascible David MacNicoll. Ellis changed the names in the story, as he put it, “to protect the guilty” - so he left only yours10. Your own life in the lower courts, in Sydney’s corrupt society where “the best burglars burgle naked,” must have brought you close to despair. Even your beloved Anglican church was knee deep in hypocrisy: I was confirmed in it by Archbishop Gough, who shortly after laying his hands on me denounced the younger generation as “wallowing in a mire of immorality”. He certainly was – after being caught in flagrante with a Sydney socialite, the poor old primate was shipped back to occupy the smallest parish in England. Not a word in the newspapers, of course: what went on in Sydney was well known but never made public. The city was full of police and political corruption, of severe intolerance of dissent, of public double standards. Many talented people of your generation simply left the country: I’m still not sure why you stayed.
When I became SRC President for 1966/67, I needed your advice on a regular basis. Jim Spigelman had returned from America full of Martin Luther King and the freedom rides – with Charlie Perkins and others, they planned a bus trip to the deep north of New South Wales. Could the SRC financially support it? With the help of your opinion, we could and did. Then there was the help you gave me over “the Humphries affair,” that fraught conflict with the university’s Vice-Chancellor (Stephen Roberts) and the Professorial Board who had expelled a student without bothering to give him a hearing. They were paranoid about “student power,” but instead of marching upon the administration we gave them a taste of real student power: we took them to court for breach of natural justice, represented by Gordon Samuels, and we won. The student was re-instated and they were forced to have student representatives on disciplinary boards in future.
In the 60s, SRCs provided teeth-cutting forums for future participants in public life. I remember my first National Union of Students Conference in 1965 with other teenage tyros – John Bannon, Robert Holmes–a-Court, Richard Carleton and others. We sat around a table in the upstairs room of the Old Windsor Pub in Melbourne, as two veterans from the older generation – you and Gareth Evans – vied to impress us. Gareth was heavily into pipe smoking, affecting a Ben Chifey persona, and I remember taking a bet with Richard Carleton that in twenty-five years time he would make it to Foreign Minister – in your cabinet.
You had, of course, made all the right moves for a political career. You sounded like Robert Menzies, wore double-breasted suits, sang hymns (low church, of course – Onward Christian Soldiers) admired Doc Evatt and had cultivated close Labor connections. I had no idea that you were gay, and nor did anyone else. Did you? The realisation may have altered your career plans. I did not find out until late in the 70s, when it was reported that you had borrowed a kombi van from a lawyer for a trip to Europe with a male friend and returned it in a state that permitted a deduction to be made from the sleeping arrangements. We had figured that you simply had no time in your workaholic schedule for romance.
On January 6th 1975, I dropped in to your new chambers – a room without a view in an anonymous Commonwealth building - to congratulate you on your appointment (at the age of 35) to the Arbitration Commission. I was back on a Christmas visit from London, where I had commenced practice with John Mortimer, and I was frankly a bit dubious about your decision to assume the bench – it gave you a title (“Mr Justice”) which perhaps your insecurity craved, but this particular bench would provide no obvious outlet for your talents. When you told me that Lionel Murphy was thinking of appointing you to head the Australian Law Reform Commission, I was very excited for you. You appeared to be in two minds, so I waxed lyrical about Gerald Gardiner, the great reforming Labour Lord Chancellor, who had plucked Lesley Scarman from similar obscurity in the Family Division to become a household name for his efforts at reforming a common law desperately in need of updating. Australian law in 1975 was basically still English law (incredibly, it was to be another 12 years before Gareth would abolish the Privy Council’s role as Australia’s highest court) and the case for law reform was irrefutable, no matter which party was in power. I suggested a “public hearings” model being trialled by the Canadian Law Commission – you could hold seminars and public meetings, give lectures and appear on television. This I truly believed to be the best model (I had written on the subject for The New Statesman) but I also had in mind its value to what I assumed would be your political career. (I still had to collect on that bet with Carleton) It would, I pointed out, be the best possible way to get yourself known, travelling the country promoting changes that were obviously necessary.
Suddenly your telephone rang. You took the call and put your hand over the mouthpiece: “It’s the Attorney. He wants to offer me the Law Reform Commission. Now… He says for you to come up as well”. So to the Attorney General’s spacious chambers at the top of this building we took the elevator, and I guess you took your decision. Lionel Murphy knew what was good for Australia (if not always for himself). He greeted us with his lopsided cheshire cat grin and laughed at your by now half-hearted objections (that you were only 35 and perhaps should be a judge for more than a month before essaying the reform of the law). He beamed when I volunteered a few reasons why you were the best possible appointment. “Well, it’s settled then” he said, ambling over to his large fridge, from which he extracted a bottle of French champagne. He poured us a glass (probably the only alcohol you have ever taken at 10.30am in the morning) and raised a toast “To Justice Kirby – your first step to the High Court bench!”
Legal appointments in Australia are to some extent a matter of luck – you are in the right place at the right time and have a connection with the right political party (ie. the party in power). This is not as it should be: in my view appointments federally and in all states should be made on merit, by an expert and apolitical selection committee, preferably after a competitive examination. Still, after your admirable work for ten years on the ALRC, both Neville Wran (your sometime leader in court) and Nick Greiner (another admirer from our SRC days) would have been happy to have you as President of the New South Wales Court of Appeal. You took that office in September 1984. The New South Wales law against the abominable crime of buggery was repealed in August 1984. A coincidence? I suspect not.
Your years as President were probably your happiest on the bench. As Denning said, when he insisted on taking the unprecedented step down from the House of Lords (Britain’s highest court) to the Presidency of the English Court of Appeal as Master of the Rolls, “the chances of doing justice in the Court of Appeal are only 2-1 against; in the House of Lords, the prospects are 4-1”. You were fortunate in having such outstanding colleagues as Bill Priestley and Gordon Samuels and slowly your judicial decisions began to filter through the fax machines to be cited in Commonwealth courts around the world. It was a real, if private, pleasure for me to introduce English courts to your decision in Osmond about the duty to give reasons (far preferable to the High Court decision that overruled you) and in media law I was able to cite your decision in Rajak, which summed up the reasons for and the basis of the principle of open justice. Nobody in this volume has noticed that your style of judgment writing is actually of particular assistance to overseas common law courts and to the counsel addressing them. That is because it saves a lot of expository time to have a Kirby judgment setting out the history and the principles of the question at issue, whilst your application of those principles and the interpretation of local laws which affect the result can be set aside. Your decision is not binding, or even persuasive, elsewhere, but your exposition is invariably helpful. However much Australian counsel may tear out their horse hair at Kirby J’s delay in coming to the crunch, the clarity and accuracy of your stage-setting soon made you internationally respected.
That mean trick you played on me over the trial of Charles I shows both how widely you are respected by the judiciary in the United Kingdom and how difficult it is to beat you in an argument. It was the 350th anniversary of the King’s trial and you asked me to comment on a paper about its unfairness that you had been invited to deliver at Grey’s Inn. I soon realised that you were quite wrong about the trial – it was in fact a model of fairness for its time, certainly compared with the rigged trial of the regicides come the Restoration, so my republican sympathies were engaged. But I assumed that this event would be the usual Grey’s Inn revel, and I would be speaking to lots of drunken law students, so I prepared a short speech larded with the kind of jokes about Australian actresses that would appeal to that sort of audience. You can imagine my horror as I stepped on stage to find myself staring at every Law Lord in the land, perched in the front row, and just behind them many Lord Justices and High Court judges. Men who have never shown the slightest interest in rejecting the knighthoods and peerages showered upon them by the monarch, the beheading of whose ancestor I was not only about to defend, but to celebrate! You smiled at my predicament and launched forth at interminable length into your unoriginal and mistaken thesis condemning the regicides. Eventually it was my turn: I took off like a kamikazi pilot and struggled through my jokes, to stony faces from the front rows. Not content with that humiliation, you then challenged me to repeat the debate at a dinner in the New South Wales Parliament chaired by Jim Spigelman. I should by this stage have smelled a rat, but the prospects of equal time and an Australian audience and at least one judge with a sense of humour were too much. I agreed, without asking about the make-up of the audience that you had cunningly invited. Were they from the League of Empire Loyalists? Australians For Monarchy Forever? Perhaps they were Fred Niles’ congregation – they looked and sounded like it. In revenge I took myself off for the best part of the following year to the British library to write a book expanding on my views and demolishing yours. But even then you had to have the last word – by reviewing it in “The Age”.
We have had less combative encounters. Do you remember the time, when, with Enoch Powell, we addressed three thousand final year school students in that cavernous hall in Westminster? To my surprise and slight embarrassment you pulled a small camera from your pocket and started taking pictures of everyone. I thought this a bit naff and accused you of behaving like a Japanese tourist – I hadn’t realised how this had become your harmless fetish. Nobody seemed to mind, and you must by now have many thousands of such mementos. Annie Liebowitz you’re not, but as a judicial hobby I guess it beats stamp collecting. Incidentally, that rather intense woman who organised the event fell utterly in love with you: she kept writing you amorous letters and poems (she was in fact a published poet) and then sent them to me, complaining about the formality of your responses. I thought it best, in all the circumstances, not to reply.
Your integrity at the time of Heffernan’s false allegations is the subject of comment in many of these essays. Politics will always attract scoundrels – the sort of MP that the more stupid of our newspaper columnists think should be entrusted with the rights of our citizens, to the total exclusion of “unelected” judges armed with a bill of rights. The real revelation was the mean-minded behaviour of the Prime Minister. Incidentally, everyone describes Heffernan as “abusing” parliamentary privilege – it was Enoch Powell, the great parliamentarian, who always pointed out that a privilege cannot by definition be “abused” - it can only be used. In the long run, it was probably better to have the allegations conclusively destroyed rather than have them still out there, whispered sotto voce. Like poor John Marsden, you’ve been a victim of vile people with vile prejudices – at least your ordeal was soon over, unlike his, and your conduct throughout it showed your true character.
Some contributors raise metaphorical eyebrows about your beliefs in God and the monarchy, since neither institution is readily susceptible to your rigid rational powers of exposition. I have always put them down to the Ulsterman in you – you have the views of Edward Carson, circa 1922, but without the tragic consequences. Your religion is your own business, although I wonder how you get on with it in the diocese of Sydney, which still thinks you will burn in hell (a place incidentally, in serious breach of the Convention Against Torture). I listened to you recently giving a masterful talk in London about the total failure of the black Commonwealth to abolish the sodomy laws that Canada, the United Kingdom, Australia and New Zealand repealed decades ago. I couldn’t help wondering how much this is due to primitive Anglican bishops who threaten to secede from the church at the slightest whiff of incense from a gay ordinand. As for the monarchy, those Ulster protestant roots must explain your veneration for it, because nothing you have ever said on the subject stands up to rational scrutiny. I can understand if you were put off by some of the shrill, pom-bashing voices before the referendum, and perhaps by the inability of the Republican lobby to agree on a method for electing their President. Your concern for decency and decorum in public life has a surface attraction, but we must learn to supply that ourselves – thanks to the monarchy, the British really are a race of courtiers. You harp on about the insecurity of many Australians who genuinely want to keep ties with the old country: I want to keep them too, but by building museums to house them and not by keeping in perpetuity a white Anglo-German protestant as Head of State of Australia.
Living as I do between these two countries, as a citizen of both, I can appreciate the strength of the bonds and the reality of the fact that British history is Australian history too, at least until 1901, and we should be proud of it. We should teach our children about the victory of parliament in the English civil war, the ending of torture, the abolition of Star Chamber, the struggle for the independence of the judiciary, and so on, but appreciation of our constitutional debt and our blood ties to Britain should not depend on allowing the Windsor family to reign over us. Indeed, if all you ultra-loyal Australian judges had ever really understood that legacy, you could have turned Magna Carta into a Bill of Rights (as Edward Coke did back in 1628) – no need for anachronistic “constitutional implications”. You could have exploited the Bill of Rights of 1689, the judgments of Lord Camden in Entick v Carrington – all the principles of liberty that our founding father Arthur Phillip took with him and bestowed on this territory when he raised the Union Jack at Port Jackson. Sitting in a small room in the British Admiralty in 1787, insisting in his humanitarian way on proper food for the first fleet prisoners before he set sail, he decreed what he described as the first law of this new country: “that there can be no slavery in a free land, and consequently no slaves.” That was his grundnorm for Australia – 20 years before slavery was abolished in Britain. When have you, let alone any other Australian judge, ever cited that basic law – in any of your cases involving human rights? I fear that monarchists ignore the real achievements of British history in their increasingly frantic desire to cling to its trappings.
Our contributors give the impression that you are a workaholic (they say, euphemistically, that your “industry is phenomenal”) and that your work has been self-sacrificing and obsessive and really hard. They present you, in a word, as Duty’s Slave. What they don’t know – or at least don’t get across - is that you have enjoyed every minute of it. Your mouth creases in a tight smile, your voice quavers with suppressed laughter, you are amused by the follies of your critics and the foibles of your fellows. You pull legs, you tease – and you take teasing – in short, you are a good sport. Even in those pre-dawn hours when you craft your judgments and your lectures, you must obtain satisfaction from principles precisely stated, from critics reasonably refuted and from principles neatly extrapolated from the grab-bag of precedent. Students love your self-deprecating humour. Colleagues respect you, because of your sincerity and your kindness. Unlike most men, your enjoyment of life increases with your age.
I’m writing this as you are making your farewell tour of the law schools, which I suspect will be as final as Dame Nellie Melba’s endless “positively last” appearances I am told that your student audiences sometimes ask you to identify the most important quality in a judge, no doubt expecting you to speak of independence, or fairness or patience. Instead, you answer “love”.
That answer is shocking, as no doubt you intend. Love is an emotion that no-one else has associated with the law. Except W.H.Auden:
Law is neither wrong nor right,
Law is only crimes,
Punished by places and by times,
Law is the clothes men wear,
Any time, anywhere,
Law is Good Morning and Good Night...
Like love we don’t know where or why
Like love we can’t compel or fly
Like love we often weep
Like love we seldom keep.
My final regret about this book is that it is not accompanied by a CD of you performing live. These are the occasions when the wisdom in your words is audible, almost tangible, in the controlled passion of your utterance, leavened with topical (but invariably polite and not over- funny) jokes and snatches of poetry. The packed audience in St Martin in the Fields church, London, on World AIDS Day 1995, will never forget your delivery from the pulpit, not of a sermon but of a charter for compassionate law reform. That was your Doughty Street lecture, which brought your concerns about HIV/AIDS to the attention of the world. Incidentally, the very fact that in Britain today there are no raised eyebrows about the several openly gay High Court judges – one has just been appointed a Lord Justice of Appeal – can be attributed to your example, and to that of South Africa’s Edwin Cameron.
We have not heard the chimes at midnight – you are always sound asleep, in preparation for your 4am work schedule. But now you are 70, and unleashed from the High Court, what next? When Denning belatedly retired, Devlin said to me “He’ll be more of a menace off the bench than on it” and there is always the pleasing prospect that you might get up to some mischief. But 70 is the new 50, and I’m sure that Australia and the world will benefit from your new lease of life. Not for you, I suspect, the lucrative post-retirement career of arbitration, which attracts many Australian ex-judges (and their dependants). Nor do we need an instant autobiography (it’s hardly necessary, after publication of this book). I foresee UN judgeships – we need your talents – and the American university lecture circuit will beckon. I hope the government will make use of you: when Australia eventually takes its place on the Security Council, you would make an outstanding ambassador (although Gareth may call in some debts on that one). I had half hoped that Mr Rudd would make you Governor-General, and give Australia a Queen’s man who has come out of the closet, but you were passed over for a woman. Understandably I think, not only because Quentin is terrific but because other progressive countries have had women governors and we must walk before we can run - in developing our political institutions as much as developing our law.
“What is to be my destiny now?” I hear you ask anxiously of a friend you have credited with advising on your career thus far. I have given this some thought, and have come up with the perfect solution for that admixture of talents which are to be described hereafter at interminable length. There is a momentous job that will be on offer in a few years time, when Her Majesty the Queen of Australia graciously retires or else when Australians have the confidence in themselves to vote for a Republic. It is a job that must be yours, because no-one else could do it so well, or serve better to heal the divisions - all that wounded amour propre of mourning monarchists. Once again, you must be Mr President – not of the New South Wales Court of Appeal but of the Australian nation, no longer in thrall to a white Anglo-German protestant and primogenitoured family, to another self-opinionated King Charles or to the sprogs of the Goddess Diana. No, it must be President Kirby, and if homophobes snigger that you have become “The Queen of Australia”, just make the monarchists curtsey to you. In fact, you will make a great figure-head – the girl on the prow, so to speak, of the Australian ship of state. I hope that our fellow Australians will have the vision and good sense to make this come to pass.
1 See Denning, Due Process of Law (Butterworth,1980); Devlin, The Judge (Oxford, 1980); Geoffrey Robertson, Trial and Error (New Statesman 23 March 1980).
2 See Ronald Dworkin, A Bill of Rights for Britain (Chatto, 1990) p.13.
3 Al-Kateb v Godwin  HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 (6 August 2004)
4 The example is from William Paley. See Sirius International Insurance Co v FAI General Insurance (2004)1WLR 3251
5 E.g. the case, much misunderstood by Australian media critics of a Bill of Rights, where the law lords effectuated parliament’s purpose in protecting long-term relationships by extending the protection to long term homosexual parties: Ghaidan v Godin-Mendoza, 2004, UKHL30.
6 Liversidege v Anderson (1942) A.C. 206 at p.244
7 Mentioned in passing in Ayers. FIND REFERENCE
8 See Creighton Burns. The Tait Case REFERENCE
9 Sodeman v The King (1936) 44 CLR 192.
10 See Blackacre ’68, Sydney Law School, p.48.
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