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10 December, 2008  
Kirby's early departure from the High Court

Michael Kirby, enlightened jurist, sparkling speaker, and man of great humour, will soon be out of (judicial) work. What’s next for this restless soul?

imageMichael Kirby is to retire from the High Court six weeks ahead of the date of his constitutional senility.

The attorney general Rob McClelland announced today (Wed, Nov. 10) that Kirbs had gone off to see the GG Quentin Bryce.

The judge told Quentin that he would resign from the court on “the evening of February 2, 2009”.

His visit to the GG took place just as the government announced that the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 received royal assent on December 4.

Among other things, the legislation amends the Judges’ Pensions Act, 1964. From January 1 death benefits will be available to same sex de facto partners of deceased federal judicial superannuants.

For Kirby this was a matter of principle, even though his partner Johan van Vloten would not be dependent on the judge’s pension.

McClelland said:

“These changes are an important step forward in ensuring the future financial security of same-sex de facto couples and their children.”

Justinian was on the money when we published in July that Kirby was likely to lift off early – see Theodora’s Goings On.

Around this time the Judicial Conference of Australia was urging that the same-sex super legislation be passed.

The President of the Court of Appeal in Brisbane, Margaret McMurdo, wrote to Bruce Debelle, the chairman of the JCA, urging that everything possible be done …

“to ensure that federal judicial officers with long term same sex partners are treated fairly and that the Bill is passed by the legislature as soon as possible and certainly prior to Justice Kirby’s pending retirement.”

Shadow attorney general George (Soapy) Brandis looked uncomfortable as he straddled the barb wire fence on the issue.

He told a gay & lesbian radio program in Melbourne that he supports the legislation but he also supported it being delayed …

“because there are are many people in the community that do have a concern that legislation like this will erode the status of marriage.”

Last year Kirby lay on Justinian’s couch and subjected himself to searching analysis; e.g.:

Describe yourself in three words.
Focussed – energetic – kind.

What is your greatest fear?
Retirement (coming up in March 2009).

Who or what do you fantasise about?
A dinner party with Janet Albrechtsen.

In March 2002 Kirby was attacked in the senate by Bill Heffernan, who made false allegations that the judge used Commonwealth cars to trawl for male prostitutes.

imageA short time later Heffernan apologised to Kirby, although he couldn’t leave the judge alone and was back gnawing at him in senate estimates this year.

The original attack by Heffernan was done with the knowledge and tacit support of the then prime minister. The subsequent unworthy attack was fanned by the legal affairs section of The Oz.

In 2003 Kirby underwent heart surgery.

Kirby’s prolific rate of dissent ultimately wore him down and his distaste for some of the characters on the court didn’t make life any easier.

On top of that he kept up a crushing pace with speeches and public appearances.

He lists “work” as his recreation in Who’s Who.

What’s next? Justinian has suggested before that Michael Kirby takes his incomparable schtick on the club circuit.

There’s a much wider enthusiastic market for this judge than the traditional corroborees of legal worthies.


Reader Comments

Posted by: Anonymous
Date: December 11, 2008, 2:26 am

I wonder if Kirby J's applied to be made a justice of the new United Kingdom Supreme Court? Applications closed on 28 November.... Failing that, let's hope his Honour gets a nice overseas judicial gig. The International Court of Justice is out for now, as they tend only to have one Antipodean at a time (currently Sir Kenneth Keith). The International Criminal Court may be a little too specialised even for his Honour. This leaves the Hong Kong Court of Final Appeal. It would be great if Lirby J could be made a Non-Permanent Judge. Sir Anthony Mason has been extremely busy in this role since the handover, Kirby J could step right into his shoes! Or, to mention a somewhat less impeccable precedent, like Einfeld J, Kirby J could do the Caribbean / Pacific judicial gigs. Not as busy or interesting as the HKCFA, would be my guess. Or, perhaps Kirby J will basically forego judging and seek some sort of UN role, eg Human Rights Commissioner? One way or another, I'm sure there'll be something exciting to which the great man will proceed. I can't imagine his Honour putting his feet up!
Posted by: Anonymous
Date: December 12, 2008, 8:16 pm

I am sad to see him leave the High Court, but I wish him all the best for a fulfilling and joyful retirement. He taught me everything I know about law, during a brief stint (on my part) as acting librarian at the ALRC, nearly 30 years ago. He won't remember me, but he was delightful to work for - courteous, considerate and kind, always told me where I could find the things he needed, never in a patronising way, but like a very good teacher. The ALRC was the nicest place I have ever worked - great parties too! He has always been very supportive of law libraries and law librarianship, and for that he deserves our thanks.
Posted by: Anonymous
Date: December 13, 2008, 4:01 am

Subscribers to the Commonwealth Law Reports can look forward to lower annual fees.
Posted by: Anonymous
Date: December 15, 2008, 6:09 pm

You fool - why are you still subscribing to the CLR's when they are available for free on Austlii (where, incidentally, Justice Kirby recently launched a Law Citator, AND the full database of the English (Nominate) Reports 1220-1863). I'll bet you just keep up the sub because the CLR's make impressive wall paper. Another thing about Kirby is his graciousness - he never displays cynicism or envy or schadenfreude towards other lawyers and judges - which makes him a very rare bird indeed according to my 30-year observation of the legal profession....
Posted by: Anonymous
Date: December 16, 2008, 11:54 pm

I have met Judge Kirby but briefly, but read some of his judgments. I like his style, and he commands my full respect. I do hope he does a stint in HK, as he could enjoy that, or perhaps he will add some lustre to acadaemia, and join a University. It would be a shame if such intellectual brilliance is lost to our profession.