Kirby as the Great Dissenter

Michael Kirby is one of Australia’s most prolific High Court judges, known for his judgments and dissents, as well as his extra-judicial writings and general icon-status. This article explores what it is about Kirby that delights and divides, and the motivation behind his many, many dissents.

Radical Restraint Justice Michael Kirby 1998, Ralph Heimans, oil on canvas

One of my favourite things about studying law is getting to know the judges. It’s one of the quirks of the degree, much like developing a particular fondness for either Lexis+ or Westlaw and hating using the other database when your preference doesn’t have the case you need. I don’t even know most judges’ first names, and yet by the end of my degree, I will have read more of their writing than all of my favourite authors combined.

For some judges, it’s just recognition of the names (Windeyer, Gibbs, Mason, Kitto, Gaudron, Gleeson, French, Bell). For others, it almost feels like a celebrity sighting to see their name on a judgment.

Reading a judgment characterised by conservative, logical and orthodox legal reasoning, I’m unsurprised to see Hayne’s name attached. (Also, unrelated, but did you know that Hayne, a former High Court judge, and Gordon, a current High Court judge, are married? And that she replaced him on the High Court? What a power couple.)

Or I pull up a case, see Brennan CJ, and I know this man is about to drop some comprehensible, delightfully quotable law. (On a similarly unrelated note, we’ve had Justices Brennan and Crennan, and it almost feels as if anyone with the last name Drennan now has a duty to do the funniest thing possible.)

I think, though, one of my absolute favourite judges has to be the Hon Michael Kirby AC CMG. He’s an excellent writer, and obviously has a brain the size of a planet, but what I find most compelling is his clear passion. His dissents – of which there are many – are well-reasoned, long, and often contain hot-takes that I fear the rest of the Court could simply never deliver.

I’ll freely admit that when I’m short on time, I skip reading the dissents, because as fun as it is to watch judges disagree and call each other out, dissents are more “I want it on the record I disagree with the majority for these reasons” than “real” (i.e. binding) law. Kirby doesn’t appear to have let that phase him. In Al-Kateb v Godwin,¹ he wrote over fifteen pages in dissent to the majority, expressly saying he ‘[disagrees] with what McHugh J [in the majority] has written’.² The case, which considered the indefinite detention of a stateless person, split the bench into a 4:3 majority, as the Court struggled to come to a consensus on whether an ‘unlawful non-citizen’ could be held in detention even if their removal or deportation was not ‘reasonably practicable’ in the foreseeable future.³ The majority held yes. The three dissenting judges (Kirby, Gummow and Gleeson) still made sure their opinions, and their reasons, were recorded for posterity. Kirby particularly draws attention to the need to interpret the Constitution, and the relevant Act, in a way that is ‘consistent with the principles of the international law of human rights and fundamental freedoms’.⁴ This theme, of limiting state authority in respect to maintaining civil liberties, is one that is present in many of Kirby’s dissents.⁵

Dissent is, arguably (ha! The irony!), an important sign of a healthy court, but I have to imagine even when it’s your job, it must be somewhat uncomfortable to put into the public record that you so greatly disagree with your coworker that it requires an essay to explain how wrong you think they are.⁶ Discomfort didn’t stop Kirby, and you have to respect someone who is both so confident in their opinion (as all High Court judges must be) and so passionate about their work that they will do the extra work and stand in the minority, even knowing it may not make a difference now.

In Baker v The Queen,⁷ a case also about indefinite detention, Kirby was alone in the minority, and wrote twenty-six pages on why he was right. Together, all the other judgments were thirty-one pages. In Em v The Queen,⁸ discussing the admissibility of evidence when a confession is recorded without the consent or knowledge of the suspect, Kirby had thirty pages worth of disagreement with the majority. Thirty-eight pages in Forge v Australian Securities and Investments Commission,⁹ on the inconsistency between the transitional provisions in legislation for the appointment of acting judges in Supreme Courts and Chapter III of the Constitution. When the Commonwealth government passed laws governing workplace relations in constitutional corporations and the states objected to the expansion of powers in New South Wales v Commonwealth,¹⁰ sixty-five pages from Kirby, while the majority upheld the laws. The man simply cannot be stopped.

Kirby has a higher dissent rate than “any High Court judge” before or since.¹¹ In 2006, he dissented on 48% of the cases that came through the High Court.¹²The next closest dissent rate, from Heydon, was 15%.¹³ It’s little wonder that Kirby was sometimes referred to as “The Great Dissenter”, and equally as unsurprising that Kirby rejected such monikers.¹⁴ Statistics don’t capture context,¹⁵ he points out in his address on judicial dissent, and context is key in all things. Kirby mentions his dissents in Baker v The Queen¹⁶ and Al-Kateb v Godwin,¹⁷ among others, and gives them their due context by articulating the potential for the expansion of state power through the decisions of these cases. His dissents are on the basis of “important values and notions of our Constitution and of Australian society were at stake”,¹⁸ not simply for the sake of being contrary, as may be suggested by the “The Great Dissenter” title.

Kirby also suggests his dissent rate is, in part, due to the composition of the court, and the types of legislation under scrutiny.¹⁹ He himself believes that had he been “sitting in the High Court when Chief Justice Mason presided in the 1990s”, he would have far more often been in the majority.²⁰ I suspect that, with the judicial activism of the Mason era, and their judgements on constitutional cases like Mabo v Queensland (No 2)²¹ and Australian Capital Television Pty Ltd v Commonwealth²², which defended, and in some cases implied, civil rights, Kirby would have fit right in. Though the convention of calling a court and its decisions by its Chief Justice is somewhat misleading, Mason’s retirement in 1995 did herald a new era, a return to judicial restraint. Kirby was appointed in 1996. It’s all in the timing.

To Kirby, dissenting is a way of asserting a judge’s perception of the truth, and offers a chance to clear their conscience from the burden of agreeing with the majority against their own judgment.²³ It’s also a signal for when a particular category of case, or the area of law, may arise again: a “dissent, expressing disagreement over the outcome of a case, is an appeal to the future”.²⁴ He notes, of course, that the judge may not be “vindicated by history”, but it is a signpost for later judges to consider the path along which the law is developing, and why it may not be uncontroversial.²⁵

One such example of this call for appeal being heeded is in H.V. Evatt’s dissent in in Chester v Waverley Council,²⁶ on parents being able to claim mental damages when their children are in accidents due to negligence, being considered as good law in Jaensch v Coffey,²⁷ over forty years later. For Kirby, vindication was sooner. Al-Kateb v Godwin²⁸ was overturned in 2023.²⁹ Sometimes, the future listens.

One of the things I find most impressive about Kirby is his commitment to upholding the law; upholding its spirit in his dissents, respect for its practices and reasoning in all his judgements. Though it’s a necessity for a Justice of the High Court to respect the law, there will always be some level of conflict between a judge as an administrator of the law and their own personal conception of what is right. I imagine Kirby struggled with this in particular. Kirby was the first openly gay judge to be appointed to Australia’s highest court, just two years after homosexuality was decriminalised at a federal level.³⁰ Same-sex marriage would remain illegal for twenty years.³¹ Kirby continued to defend a system that did not protect him, and in this light, his reasoning for dissenting on the basis of human rights takes on another dimension. He knew, perhaps at closer hand than some others on the bench, that the fact of it being the law did not make something just. Kirby is not alone in recognising this, but he is unique for being able to do something about it, and for actually trying to do so. Every dissent is an acknowledgement that the law isn’t always clear-cut or fair, but it could be. One day, it might be.

I like Kirby because his name is fun and reminds me of Mario Kart, and he has a masterful grasp of language and law, and is unafraid to share his opinion, even if it is unpopular, proudly and at length. It’s his passion, though, for the law and its reform, that makes Kirby a bit of a legend among law students; every dissent is a reminder to us that the law is a living thing that can be changed, that we can change. As a former High Court judge, he has openly called the law in Australia in some cases to be “discriminatory”, something often implicitly reflected in his judgements.³² Explicitly, he has urged lawyers to “stand up for the right cases”.³³ I suppose that means us, or at least us in a few years, which is a terrifying thought. It’s us, then, that must make our cases well, and we must trust that judges will be willing to overturn precedent when it is manifestly unjust.

With judges like Kirby on the bench, I think we may be just fine.

Footnotes

[1] (2004) 219 CLR 562.

[2] Ibid 630 [192] (Kirby J).

[3] Ibid 580 [31] (McHugh J).

[4] Ibid 630 [193] (Kirby J).

[5] Michael Kirby, ‘Judicial Dissent’ [2005] (1) James Cook University Law Review 4, 7 (‘Judicial Dissent’).

[6] Ibid 8.

[7] (2004) 223 CLR 513.

[8] (2007) 232 CLR 67.

[9] (2006) 228 CLR 45.

[10] (2006) 229 CLR 1.

[11] Kirby, ‘Judicial Dissent’ (n 5) 4, 8.

[12] ‘Consensus and Dissent in the High Court’, University of New South Wales (Web Page, 5 April 2007)

<https://www.unsw.edu.au/newsroom/news/2007/04/consensus-and-dissent-in-the-high-court->.

[13] Ibid.

[14] Kirby, ‘Judicial Dissent’ (n 5) 4, 7.

[15] Ibid 9.

[16] (2004) 223 CLR 513.

[17] (2004) 219 CLR 562.

[18] Kirby, ‘Judicial Dissent’ (n 5) 4, 7.

[19] Ibid 8–9.

[20] Ibid 8.

[21] (1992) 175 CLR 1.

[22] (1992) 177 CLR 106.

[23] Kirby, ‘Judicial Dissent’ (n 5) 4, 10.

[24] Ibid 6.

[25] Ibid 10.

[26] (1939) 62 CLR 1.

[27] (1984) 54 ALR 417.

[28] (2004) 219 CLR 562.

[29] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137.

[30] Human Rights (Sexual Conduct) Act 1994 (Cth) s 4(1).

[31] Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) s 3.

[32] Interview with Michael Kirby (Kate Allman) ‘The Case That Changed Me’ [2018] (October) Law Society Journal 66.

[33] Ibid.