Michael Kirby was Australia’s longest-serving judge. He was acting Chief Justice of Australia twice. In addition to his judicial duties, Kirby has served on three university governing bodies being elected Chancellor of Macquarie University in Sydney, and a number of other national and international bodies. He was awarded the Gruber Justice Prize in 2010 and has been Patron of the Kirby Institute on Blood Borne Diseases in UNSW Sydney, Australia since 2011.
Where did you grow up and what was your childhood like?
I grew up in Concord, a working-class suburb in Sydney, Australia. My childhood was wonderful. I had loving parents, who were young – only 21 when I, their first-born, came along. My grandmother was intelligent and feisty. Two brothers, who also became lawyers, and a sister who went into nursing. We were all educated in the secular system of Australia’s public schools. We had outstanding teachers. Our education was basically free, including at university. We did well at school. We were never out of work.
After the end of the War in 1945, most of my life embraced the experience of peace and a society that was basically democratic, uncorrupted, and became increasingly multi-cultural. However, by the age of 10, well before university, I became aware that I was gay. Back in the 1940s, that was not a good discovery. I learned that many people hated me for a feature of myself that I had not chosen and could not change.
Fortunately, in far-away Bloomington, Indiana, an American zoologist, Alfred Kinsey, began investigating the scientific origins of human sexual differences. Inevitably, his research hit the headlines in Australia. So I came to realise that I was not alone. I also realised that I had to keep my reality a big dark secret. That remained an attribute of my life for decades after. If I had not complied with this rule, I would have destroyed my career and possibly been punished under the then provisions of the criminal law. I pay a tribute to Alfred Kinsey and the President of Indiana University, Dr. Hermann Wells for supporting Kinsey’s research in the face of much opposition.
I read everything I could gain access to about the ever-expanding understanding of human sexuality. I went on to learn its lessons for other sources of hatred and prejudice: against women and minorities. I was determined to do what I could to change this state of affairs. But even in childhood, I realised that I had to be strategic and to outsmart the ignorant people who hated minorities. This meant reaching out to those people and engaging with them with ever-increasing honesty. Doing so irritated the enemies of scientific truth. But I came to understand that this was the best way to contribute to taking charge of society’s organisations.
What is something you wish you would have realised earlier in your life?
In 1969, aged nearly 30, I met my partner Johan van Vloten. I was getting desperate about being left on the shelf and Johan was feeling likewise. We established our relationship. It is still going strong today, 51 years later. At a certain point, Johan insisted that we should “come out” and confront Australian society about our reality. I urged caution because of my judicial office by that time. However, he was from the Netherlands, with a strong dedication to honesty. Encouraged by the catastrophe of the AIDS pandemic, we became increasingly open about being gay. This made some people, even highly educated and important people in leadership positions in Australia, unsettled and hostile. Looking back, I wish it had been more possible to be more open, earlier, about my sexual orientation. But that was the way things were in those days. Had I not adhered to strategic pretense; I would not have been appointed a judge. My life in Australia, in the United Nations and elsewhere, would have been utterly different. Strategic thinking was required to outsmart the people who hated us, often weirdly in the name of their misunderstandings of religion.
What about bad recommendations you hear in your profession or area of expertise?
There were many bad recommendations. They included the suggestion that the law does not need a set of basic human rights principles of the kind collected in Eleanor Roosevelt’s Universal Declaration of Human Rights. When I entered the law I found that virtually every country had constitutional or other legal charters of fundamental rights. Australia does not. This did not mean that my country was devoid of basic rights. However, adopting and learning about such universal rights can help citizens to respect and apply them, intuitively. As well, some lawyers asserted that “the rule of law” meant mechanically applying rules without considering what they meant today, in the context of universal human rights. Skeptics argued for a rigid and unbending application of old rules, irrespective of the often very different context in which those rules were originally made. That context often disrespected indigenous people and their rights, or women and their claims to equality; or people of different races or skin colour; or LGBTIQ people.
So I came to realise that the rule of law means more than the law of rules. To have a moral quality, the rule of law must mean rules legally made which are interpreted in ways protective of fundamental rights, equally protecting all people. Lawyers and judges have a vital role to play in teaching and applying this wisdom. I took this seriously during my time as a judge in Australia.
Tell me about one of the darker periods you have experienced in life. What did you learn?
On 12 March 2002, a government senator and junior minister, without notice, attacked me in the Australian Senate. I was then a judge of Australia’s highest court. He accused me of using an official car to ferry a sex worker to my home in Sydney, inferentially to service my needs, although my partner was living with me in the home at that time. The attack created a political sensation. The Government talked of establishing a commission to investigate me. Nothing like this had ever happened before in Australia. I believed that the attack had a political motivation. Some people wanted to get rid of me – a few of them because I was gay.
The senator relied on a transport docket given to him by an official driver. It was reproduced by facsimile on the front page of a Sunday newspaper. Fortunately, it was quickly demonstrated to be completely fraudulent. Other alleged ‘bookings’ on the docket were shown to be false by comparison with the diaries of the parliamentarians involved. The allegations were hastily withdrawn. I reached out to forgive the senator. However, I insisted that this was what came from the hatred of gay people.
The senator was demoted. The Senate passed a resolution of apology. The driver who had supplied the docket hanged himself on Christmas Day. The proposed inquiry was dropped as unnecessary. I just kept on sitting in court, exercising my office as a judge. I hoped that some good would come out of this event. Following a change of Government, the Australian Parliament enacted equality for LGBTIQ rights. This was eventually extended in 2018 to include marriage equality. So on the 50th anniversary of the very day, we had met, Johan and I married. Things do get better. The arc of law bends in the direction of justice. But it sometimes undergoes curious trajectories.
What is one thing that you do that you feel has made the biggest contribution to your success so far?
It is really for others to answer this question. Success is relative. It is also transient as the Brothers Grimm taught me in their story of the Fisherman’s Wife. The Common Book of Prayer also taught me to be comfortable with an accepting, tolerant version of my religion and to forgive my enemies and critics. Sometimes they may have a legitimate point of view. Not only is this a correct moral stance. It makes the critics crazy with anger. Lenin was wrong about so many things. However, he was right about being methodical; finishing what one starts; and overcoming indecision. The world is full of mighty challenges. They include nuclear weapons; climate change; global poverty; recurring pandemics; disregard for universal human rights; lawlessness; and a failure to question and challenge injustice. We have to move speedily to tackle multiple problems at once. The fact that we cannot solve them all is not an excuse for doing nothing about them.
What is your morning routine?
I wake at 5:30 am. So I always try to follow the childhood dictum of “Early to bed, early to rise, makes one healthy, wealthy and wise”. I drink two large glasses of Sydney tap water, which is soft and pure. I walk about 2km of my journey to my office. This takes me downhill and uphill and about 8,000 steps in all. Basically, this is the only non-mental exercise I get. At my office, I eat a bowl of cereal mixed with a thousand challenges by my partner. I have given up eating meat these past 10 years. So there is no bacon and eggs for me. I am then straight into my work.
Observing Lenin’s advice, I organise my time efficiently. I face up to identified tasks, even those that I would prefer to delay, perhaps forever. My work environment, home, and family life are quiet and calm. Unless a crowd assembles outside my office to join a demonstration outside the nearby State Parliament House for some worthy cause or other, everything is quiet and calm. Until 2020, the COVID-19 year, I always worked 7 days a week, necessary, I felt, to get through my many tasks. Now, I have begun taking off Thursdays. I am beginning to get over the shock to the system occasioned by this change. Who knows? With slothful ways may set in.
What habit or behaviour that you have pursued for a few years has most improved your life?
My partner Johan purchased a wristwatch that records my daily footsteps; sleeping pattern, heartbeat, and blood pressure. All of these are pretty good. Checking and monitoring them every day is wise at my age. If ever I miss out on my routine, my body is unforgiving. It quickly demands that orderly ways be restored. Fortunately, I have good concentration, modest habits, and abstemious ways. I thank Johan for keeping my mode of life orderly and simple. It sounds a bit boring, and basically, it is. That is the way a Netherlands household (even in Australia) operates. After 50 years one does not feel the urge to change it. Most people need a partner who guides them on their journey through life.
What are your strategies for being productive and using your time most efficiently?
Observing the above routine, optimistically and gratefully. Accepting self-discipline. Leaving aside time for thinking, including whilst walking. Not carrying a cell phone which tends to become a tyrant in the lives of people like me. Avoiding social media, like the plague. Distaining Twitter and other words counted superficialities. Keeping time for music (J.S. Bach; Mahler; Elgar and John Lennon). Avoiding sport, card games, and excessively healthy habits. Setting targets that can be fulfilled. Such as responding to ten questions about my habits, asked in a busy week of webinars. Remembering V.I. Lenin’s advice to challenge the blank page and tasks unfulfilled. Striving to make the most of every living day with the blessing of consciousness. Seeking through reason and respectful persuasion, action and sometimes prudent restraint, to make the world a better place.
Sitting in a dentist’s chair today for an extraction, I thought: how can I divert my mind from the loss of a lower molar tooth that has been my companion these past 80 years? How can I divert my mind momentarily, from the worries of the world and the injustices suffered by so many human beings? So I switched my concentration to thinking of lovely things. My father reading me the wisdom of the Brothers Grimm. My mother, loving and ambitious for her eldest child. My grandmother with her library of erotica and politics. My siblings and my friends. Above all my precious partner of 50 years, Johan. The skilled surgeon rocked and pulled and drilled. And lo and behold the tooth was out. Another of life’s long experiences was over – hopefully with happier things to come.
What books have influenced your life the most? Why?
My life has been lived with books. Thousands of them. Maybe millions. My father read me and my siblings the selected stories of the Brothers Grimm. Not for us the Australian Magic Pudding or American “Rudolf the Red-Nosed Reindeer”. Every night we got another highly didactic story, derived from traditional German sources by Wilhelm and Jacob Grimm. One of the stories was of the Fisherman’s Wife who kept asking God to elevate her station in life. She rose to be Empress and Pope. But when she asked for one step too far, she was sent back to the Fisherman’s hovel. “What does she want now?” God asked on every new petition. In the end, she overreached. The story might have been intended to make us content with our worldly station. I interpreted it to mean that we should pursue our ambitions. But not go too far; forgetting to enjoy life as it is. This became an important lesson for me later when I discovered I was gay.
Other influential books were The Book of Common Prayer, with the liturgy of the Church of England, as we called our denomination then. It was written in marvelous language. The Collected Works of William Shakespeare which my father supplemented with recordings of Shakespeare as oral drama through the lips of Olivier, Gielgud, Ralph Richardson, and even Marlon Brando. When I got to law school I was greatly influenced by Julius Stone’s book, Province and Function of Law (1946, Sydney). This asked fundamental questions about law and justice at a time when most judges and lawyers thought all we needed to do was to learn the rules by heart. And not question too much. All too soon afterward, I was immersed in legal books and statute books, which rarely got the heart beating strongly; but they did put marmalade on the table.
Do you have any quotes to live by or think of often?
In some respects, I am a bit like Rumpole of the Bailey. He was a mythical lawyer created by Sir John Mortimer QC in London, based on memories of his father. He was a barrister who filled the boring moments of legal life with reciting reams of Shakespearean verse or famous poetry: Wordsworth, Tennyson, W.B. Yeats, or Auden. Because at Christmas-time my father gave us, his children, vinyl records of oral Shakespeare, I could always fill the lonely moments with this immortal poetry. Shakespeare is meant to be said and heard, not just read. In the law courts, in a lecture hall, or in darkest Afghanistan, I could always switch my mind to Shakespeare and other poets. It was hard getting the texts into the mind to be said by heart. And it became harder still to learn the passages after school days were done. But once the verses were imprinted on the mind, they remain to occasion delight, decades afterward.
My grandmother remarried when I was very young. Her new husband was the national treasurer of the Australian Communist Party. That was not necessarily a good career move for her to make at the time. But in their lounge room in Sydney was Boccaccio’s Decameron. And oddly alongside were the Collected Works of V.I. Lenin. Boccaccio excited me with his stories of sexual pleasure. But Lenin’s works left indelible memories of a brilliant political organiser. Two of his sayings I have never forgotten and often quote:
“The person who writes the minutes rules the organisation”; and
“The enemy to action is the blank page”.
Most of the rest of Lenin’s advice I have forgotten. But these two aphorisms are reminders of the importance of self-organisation and of getting things done, not just dreaming about things.
Professor Julius Stone was Jewish. He was a legal realist, like Roscoe Pound in the United States. Basically, he had contempt for the illusions of “strict and complete legalism” of conservative lawyers. Yet like the Brothers Grimm and V.I. Lenin, Stone taught his students a message of focussed action, to make the world a better place. From the Wisdom of the Fathers, a book of Jewish Talmudic writings, Stone would often quote: “It is not given to us to cure all of the wrongs of this world. But neither are we released from the obligation to try.”
And in my primary school in 1949, my teacher, Keith Gorringe, who had fought in the Pacific War, gave all the students in our public school a copy of the Universal Declaration of Human Rights. It had been adopted by the UN General Assembly in December 1948. Our teacher told us to study its words closely. Unless our generation could avoid war, we would continue to destroy one another, especially with the new nuclear weapons. Later I was to learn from Philippe Sands’ book East West Street. On the Origins of Crimes Against Humanity (Weidenfeld & Nicolson, 2016) that individual human beings could make a difference. They could devise and enforce the universal principles of human rights. These would offer comprehensive ethical rules in the place of Grimm’s fairy stories. They could do better as formulas for political action than V.I. Lenin’s brutal formulae for revolution. I was a serious student. Books were my companions.