Former high court judge Michael Kirby is a keynote speaker at HRIZON, the World HR Congress, in September. AHRI National President Peter Wilson interviewed Justice Kirby.
Peter Wilson: Your early career vision was to be a bishop or a judge. Why did you forsake the church for chambers and the courtroom?
Michael Kirby: I thought I would have more influence in the law in Australia as it was developing at the time. I’m very proud to belong to the Anglican church but it’s disappointing because when I was young 40 per cent of Australians were practicing Anglicans and this has dwindled away. The church has lost the leadership it could have given as a largely tolerant religion. Instead, we are seeing the great growth of intolerant churches and political interference by these churches, which is quite antithetical to the secular tradition of democracy.
I don’t like these developments and wouldn’t have been comfortable with them, but I also don’t think the Anglican leaders are sobbing that I didn’t go on to become a bishop. They are probably glad that I wasn’t around because I would have been a troublemaker (which may have done them some good). But I found another area of activity where I could do useful work and I don’t regret my choice at all.
PW: Who have been the principal mentors in your life who have shaped your thinking and helped you decide where to put your efforts in your career?
MK: My parents were wonderful. They were young, ambitious without being pushy and they encouraged all of us to flourish. My siblings have always tried to keep my feet on the ground, not always with success — I am a very typical eldest child and eldest brother. We are a very close family and I’ve always been surrounded by love and that always gives you great strength.
I had terrific mentors among my teachers in New South Wales public schools. I get very upset when I see people attacking public education, particularly the dual attack on public schools by the pressure on people to send their children to private schools and calls for the introduction of chaplains to public education, which has always been secular.
I had wonderful teachers at university. Julius Stone is someone I would single out as an important mentor in my intellectual life. He was a teacher of the realist school of jurisprudence, which was quite different from what we were taught as the orthodox view at the time. At the bar I received great support from marvellous barristers such as Neville Wran, and Lionel Murphy who was a very different personality from me. He was a great partygoer and I was a party pooper. But for some reason he used me in cases that he had in front of the High Court and that was a great experience.
I was blessed with many fine mentors and now in the international arena I know many leaders of great ability, warmth and insight, such as Mary Robinson, a past high commissioner for human rights at the United Nations, Louise Arbour, one of her successors and Navanethem Pillay, the current high commissioner. Jonathan Mann who headed the first United Nations global program on HIV is another inspiration.
PW: You have commented that judges are now being clearer about the values behind the pronouncements and decisions they make. It’s no longer about interpreting black letter law. Is this increasingly the case?
MK: The role of a judge in the common law system has always been to solve the problem before the court and that involves doing so in reference to the legal rules and principles, and understanding them as they are stated in the Constitution or named in Parliament or in a past legal decision.
Julius Stone, my jurisprudence teacher at law school, taught that judges must have leeways of choice. This means judges are not on automatic pilot, there is choice involved and that must be acknowledged in order to be as transparent as possible. But people should also be aware that sometimes judges don’t have the opportunity or the time to analyse the underlying currents. However, appellate courts judges need to be as candid as possible about why they choose one solution or another. This allows people to criticise their opinions, and where they think the opinions are wrong, to change the law (except in Constitutional cases) by act of Parliament. So it’s a matter of being as candid as time and circumstances permit.
PW: Your life and career has been characterised by a continuous search for defining appropriate standards for what is fair in a well-functioning society. What do you see as the main challenges for fairness within modern workplaces in Australia today? What suggestions or advice would you have for our practising HR members, with respect to these challenges?
MK: Obviously fairness and finding a way to allow for the dignity of every employee is a very important aspect of every workplace. We need to ensure fairness to all, including minority groups that are not always loved and understood. All of these impose obligations on people in HR that didn’t exist when I entered the workforce — when everything was very Anglo-Celtic and stereotypical. I believe we’ve made progress in our workplaces and in society as whole.
One thing that workplaces can’t control and that worries me is that many young people cannot find work at all. In Europe, for example, there are many young well-educated people who are out of work. We have to ask ourselves, how do we increase the utilisation of the talent that exists and give people fulfilling lives, given that work is an important aspect in the lives of most human beings?
I have obviously taken the love of work to too great an extreme. I didn’t learn, and still haven’t learnt, the importance of having a balanced life. Work is important but so are family and friends. But that imbalance is not as serious a one as depriving young people of the enjoyment of work both as financial security and social interaction, and instead commits them to living on handouts from the state; this will confine them to a very unadventurous and limited existence.
PW: Your autobiography A Private Life, and the earlier biography Paradoxes & Principles by AJ Brown, are dominated by the relationships between your sexuality, your career and your public life. Society is more accepting of homosexuality now, compared with the beginning of your career. Gay people today do not have to labour the way you did. Is this an example of a more compassionate and accepting society and do you think we have made progress on this front?
MK: Yes I do believe we’ve made progress. There was a recent Economist article about companies that make efforts to ensure their GLBT (Gay, Lesbian, Bisexual and Transgender) employees are treated equally. These companies tend to do better in the economic stakes and they also secure the loyalty of their gay employees. It also makes the point that increasing numbers of heterosexual employees feel uncomfortable if there is an absence of complete equality in the work environment.
It’s important to everybody’s journey to be comfortable with themselves and not to feel second rate because of who they are. Leaving aside Australia, where we will eventually get this right, there is still much progress to be made in so many other countries.
Last year I served on the eminent person’s group on the future of the Commonwealth of Nations and we delivered our unanimous report to the CHOGM meeting in Perth, which recommended that for the successful struggle against the spread of HIV it was necessary to remove those laws that are an impediment to good communication about matters of sexual intimacy. It was shocking for me to see how leaders of countries, which one would think of as champions of human rights and equality, were often opposed to these recommendations.
We have to keep our eye on the fact that there is a very dangerous epidemic about, which is still with us and not over. Every year about 2.6 million people still become infected with HIV and the countries that have been most successful in limiting the spread of HIV are those countries that have taken steps to remove the impediments to good communication. If you stigmatise people and tell them that they are evil you are not going to get into their minds and you are not going to affect their conduct in respect of their sexual lives.
PW: Do you have some hope that change will happen in these countries?
MK: I always have hope because I believe progress is made through our inherent capacity for rational thought, for the search for the logical, scientific truthful answers to problems. In the matter of sexuality those features are on the side of rationally accepting that there is this small variation in human existence. This is not going away any time soon and we’ve just got to adjust and get on with life. My own hope is that my journey has been of help to young people, particularly young Australians in minority communities and in the regional and rural areas, where progress can sometimes be slow and ignorance and opposition is sometimes more powerful.
“I have obviously taken the love of work to too great an extreme. I didn’t learn, and still haven’t learnt, the importance of having a balanced life”.
Kirby will speak at HRIZON, the 14th World HR Congress, opening ceremony on Tuesday 25 September.
AHRI National President Peter Wilson AM spoke to The Hon. Michael Kirby AC CMG for the April edition of HRmonthly, where this article was first published.