Michael Kirby (judge)

Michael Donald Kirby (born 18 March 1939) is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009.

Michael Donald Kirby was born on 18 March 1939 at Crown Street Women's Hospital to Donald and Jean Langmore (née Knowles) Kirby.

He was the eldest of five siblings, followed by twins Donald William and David Charles (the latter died at 18 months from pneumonia), David, and Diana Margaret.

In 1943 his grandmother, Norma Gray, remarried and her second husband was Jack Simpson, National Treasurer of the Australian Communist Party.

Although Kirby came to admire Simpson, neither he nor his immediate family embraced the ideology.

His father supported the Australian Labor Party but never became a member.

His mother, it is believed, voted for Robert Menzies (Liberal Party).

Kirby attended state schools, commencing at North Strathfield Public School, followed by Summer Hill Public School for Opportunity Classes, and then Fort Street High School (then Fort Street Boys High School) in Sydney.

After graduating from high school, Kirby later attended the University of Sydney, where he earned a Bachelor of Arts (1959), Bachelor of Laws (1962), Bachelor of Economics (1965), and Master of Laws (First-Class Honours) (1967).

At university, Kirby was elected President of the University of Sydney Students' Representative Council (1962–1963) and President of the University of Sydney Union (1965).

Kirby commenced his legal career as an articled clerk for Ramon Burke at the small Sydney firm M. A. Simon and Co., assisting with Compensation Commission cases for plaintiffs.

The firm had two principals, Maurice Arthur Simon and Ramon Burke, later a judge of the Compensation Court of New South Wales.

After graduation, he moved to Hickson, Lakeman and Holcombe (now Hicksons Lawyers) as a solicitor, practising in insurance litigation and property disputes.

He was a partner of the firm from 1963 to 1967.

Kirby was admitted to the New South Wales Bar in 1967.

Kirby became the youngest man appointed to federal judicial office in 1975, when he was appointed Deputy President of the Australian Conciliation and Arbitration Commission, a tribunal which adjudicated labour disputes.

In 1983, Kirby was appointed a judge in the Federal Court of Australia, before an appointment as President of the New South Wales Court of Appeal, a superior court in that state's legal system, in 1984.

Later in 1984, the Hon Peter Gray took Kirby's mantle as the youngest man appointed to federal judicial office at 38 years old.

From 1984 until 1993, Kirby held the position of Chancellor at Macquarie University.

During that period, he was also the President of the Court of Appeal of Solomon Islands from 1995 to 1996.

In February 1996, Kirby was appointed to the High Court of Australia.

He has served on many other boards and committees, notably the Australian Law Reform Commission (ALRC) and the CSIRO.

He is Patron of the Friends of Libraries Australia (FOLA) and many other bodies.

Kirby was often at odds with his colleagues in the Gleeson High Court, and sometimes as the sole dissenter.

In November 2003, at the University of Exeter, Kirby delivered the Hamlyn Lectures on the subject of judicial activism.

Rejecting the doctrine of strict constructionism, Kirby declared that:"Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced... contrary to myth, judges do more than simply apply law. They have a role in making it and always have."These lectures sparked a debate in the Australian media, echoing an ongoing debate in the United States, as to whether judges have the right to interpret the law in the light of its intent and considerations of natural law or whether judges should (or can) simply follow the letter of the law, leaving questions of its intent and underlying principles to elected representatives.

In 2004, he delivered a dissenting opinion on nearly 40% of the matters in which he participated, almost twice as many as any of his High Court colleagues; in constitutional cases, his rate of dissent was more than 50%.

His notable dissent rate has earned him the nickname the "Great Dissenter".

Future High Court Justices who have been considered in contention for the title include Dyson Heydon and Patrick Keane, though neither have dissent rates as high as Kirby's.

Legal researchers Andrew Lynch and George Williams observed that "even allowing for 2004 as a year in which Kirby had a particularly high level of explicit disagreement with a majority of his colleagues, it is neither premature nor unfair to say that in the frequency of his dissent, his Honour has long since eclipsed any other Justice in the history of the Court... [Kirby] has broken away to claim a position of outsider on the Court which seems unlikely to pass with future years".

Kirby has responded, stating that "on their own, statistics tell little"; to understand Kirby's rate of dissent, it is necessary to examine what his disagreements have been about and consider whom he has dissented from.

Kirby explains "there have always been divisions, reflecting the different philosophies and perspectives of the office-holders", and that throughout the High Court's history, many dissenting opinions have ultimately been adopted as good law.

Further, Kirby argues that the rate of dissent, if seen within its context, is relatively small.

Cases heard before the full bench of the High Court have proceeded through a series of lower courts and special leave hearings.

They are thus likely to test the boundaries of the existing law, and raise opposing, though no less valid, views of the law.

Kirby retired from the High Court on 2 February 2009, shortly before reaching the constitutionally mandatory retirement age of 70, and was succeeded by Virginia Bell.

After his retirement, Kirby was appointed to several honorary academic roles at Australian universities.

These included appointments to: the Australian National University (ANU) in Canberra, as distinguished visiting fellow in February 2009; the University of New South Wales Faculty of Law as visiting professorial fellow in March 2009; the University of Tasmania Faculty of Law as adjunct professor in July 2009; and Victoria University as an adjunct professor.

He has been appointed honorary visiting professor by 12 universities.

He has remained active in retirement; in May 2013 he was appointed by the United Nations Human Rights Council to lead an inquiry into human rights abuses in North Korea, which reported in February 2014.