Saturday, 9 April 2011

The Great Dissenter

Edit: For another perspective, here's an opinion piece written by the man who was responsible for choosing Michael Kirby for the job, former Attorney-General Michael Lavarch, writing in The Australian when Kirby stepped down in 2009. It's not very well-written but it does remark on some of the Great Dissenter's judicial accomplishments.

Former Puisne High Court Justice The Honourable Professor Michael Kirby AC CMG is currently on the media circuit promoting a new biography about himself, Paradoxes and Principles.

Radical Restraint by Ralph Heimans, 1998.

(For the record, people who keep track of such things have calculated that, in fact, Kirby J dissented in only 48% of his High Court cases. That should silence the critics ...)

It's as good an excuse as any to post a few good quotes I've been hanging on to. First, from the man himself, from an address to the Compensation Court of NSW in 2008:

The organised legal profession seems sometimes to have its priorities wrong. Many attach great importance to commercial litigation, much of which is, in truth, nothing but elaborate debt recovery. In the estimate of ordinary citizens, the most important area of the law is, and always will be, criminal law. Citizens are not wrong. They know intuitively that criminal law enshrines the character of the society in which it operates.

Next, his fellow scholar, lawyer, judge and individualist Roddy Meagher QC is quoted as saying that,

[Justice Kirby] loves to make speeches. It does not matter what the subject is. He will speak on any aspect of the law, on modern medicine, on dental decay, on child welfare, on the activities of UNESCO, on the Arab-Jew problem, on music, on economics, on the Stock Exchange, and on the multiple complications of the computer. Recently he spoke to the Loya Jirga at Kabul, on ‘The message of Islam’, and to a gathering of senior monks at Phnom-Penh on ‘The necessity for silence’.

And finally another of my favourites from Meagher, discussing the diverse ways he said judges go about writing their judgments:

One is the way sometimes favoured by our President, Mr Justice Kirby, and others, which is to throw your mind into neutral, close your eyes, open your mouth, and let it all come out.


Brian Furst said...

As I am sure you are aware the true Great Dissenter was Oliver Wendell Holmes. He fought in the American Civil War and went on to retire from the US Supreme Court aged 90.

It is no surprise that Mr Kirby bristles when asked about being forced to leave the bench at 70. No doubt he would still be there if not for the ridiculous rule.

steven said...

I agree with Brian. Why let all that wisdom and experience leave the bench all for the sake of an arbitrary cut off date

Tom said...

Meagher JA was also responsible for this priceless quote from Trevali Pty Ltd (trading as Campbelltown Roller Rink) v Haddad (1989) ATR 80-286:

“Whilst all reasonable people know that any form of physical activity is both unpleasant and dangerous, and probably unhealthy as well; and whilst sport, which is communal physical activity, suffers the added feature of exposing its participants to the perils of tribal barbarism; nonetheless the law has never regarded the playing of sport as contrary to public policy or even unreasonable, and therefore the mere participation in sport cannot of itself constitute contributory negligence.”

We shall not see his like again.

Anonymous said...

reminds me of austlii 2010 15th yr birthday celebrations of the shots taken of prof peter in his red tie & white shirt/ 20th july 2011