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‘Undoing these silences’: former Australian High Court judge Michael Kirby on the challenge of change

4 Aug 2023

| Author: Reweti Kohere

As a law student at the University of Sydney in the early 1960s, Michael Kirby would raise his hand and query and question. But at no point during his studies did the 84-year-old former judge of the High Court of Australia remember asking why indigenous Australians lacked any legal right to their traditional lands. Or why the law accepted that Australian women were dependent on and inferior to men. Or why migrating to Australia was possible only for white people, and never for the Chinese.

“That was the country I grew up in and I never asked a question about it. I just accepted it,” Kirby said in a talk hosted last week by the Legal Research Foundation. In front of a room of lawyers, judges and former Governor-General Dame Silvia Cartwright, Kirby spoke of the challenges facing the profession in 2023 as it grapples with the “watchword of our time”: change.

“So unquestioning” were Australians in 1962, said Kirby, an honorary fellow of the Legal Research Foundation, that they thought the status quo would last for the rest of their lives. He grew up believing Australians were entitled to decide who was welcomed to their shores. He grew up learning that the very founding of Australia was based on making Aborigines and Torres Strait Islanders “invisible” and turning their homelands – and the entire continent – into an “empty place” capable of discovery. And he was taught that married women couldn’t acquire domicile in their own right; their husbands’ place of abode was theirs.

“Did I ever raise my hand about that? No, I didn’t. Nobody else in the class did. No one was encouraged to raise their hand. This was the rule,” Kirby said, slamming his palm on the lectern. “Your job was to learn the rules. And I was pretty good at learning the rules.”

 

‘I shut up’

He kept quiet, even when the rules concerned his sense of self.

During his studies, Kirby sat in a criminal law lecture taught by a local Queen’s Counsel. When the practitioner reached ss 79 to 81B of the Crimes Act 1900 of New South Wales, Kirby felt himself blush – the crimes made up the part of the Act known as “unnatural offences”

Did he, a gay man, ask why people like him could be prosecuted, found guilty, and sentenced to “penal servitude” for 14 years for the “abominable” crime of having sex with another man? Did he ask why buggery and bestiality, together, made up s 79 of the Act? Did he ask why New South Wales had a punishment so disproportionate to a crime that was only an offence against morality?

“That was the last thing I was doing. I was really feeling ashamed that I should be very quiet here. Do any of them know? Does anybody realise? Does anybody suspect?” he said. “I shut up. I shut up for a long time. And had I not shut up, I would not be here with you today. “That was the rule of silence.”

 

Silence and relics

“Undoing all these silences” that existed in earlier generations is what faces societies today. It’s sometimes uncomfortable and beset with obstacles and problems, Kirby said, and not all reversals are done at the same time. But once society changed, lawyers and judges had to follow suit – or risk becoming a “relic”.

The challenges facing the profession were “continuing change and being part of that change”. Today’s silences? The proliferation of nuclear weapons, refugee rights and migration, climate change and access to justice, he said. “Who now is looking after the poor and disadvantaged? They’re also citizens. They sometimes have legal claims that are not respected. We ought to think about that. What can we do in our profession to make sure the rule of law is not just a rule for the rich, but the rule for everybody?”

His life has coincided with global transformation: world wars, the breakdown of the British Empire, the enfranchisement of Indigenous Australians in 1962, Australia’s first woman prime minister and, in 2017, marriage equality. The headway made on LGBTQIA+ issues on both sides of the Tasman has been extraordinary, said Kirby, who never thought it would happen when he met his husband, Johan van Vloten, in 1969. “I did not think I would live to see any change. And had I not conformed, I would not have gone forward.”

 

Copping it

Kirby’s sexuality, as a gay man, has meant he’s been motivated by the “hatred, dislike, contempt and disgust” that often is directed at people who are different. While he didn’t look as though he was part of a minority, his sexuality gave him an empathy for others, he said. But how he and other students did not question the multitude of injustices that were afflicting Australia in the sixties was a question that left him puzzled.

Referring back to the “unnatural offences” lecture, he said he felt “utterly powerless” to change almost 5,000 years of moral and religious thought, entrenched in the law. The relevant sections of the Crimes Act were worded with “nasty language”, describing a crime that was “so evil that it may not be spoken of”. Kirby believed he never would have had a chance to change it, “so I just had to cop it”.

But that powerlessness hadn’t left him paralysed. Even as a child, he knew conventional beliefs about sexuality – and the discrimination that targeted queer people – were wrong. American sexologist Alfred Kinsey’s seminal books, Sexual Behaviour in the Human Male and Sexual Behaviour in the Human Female, had been written when Kirby was in primary school.

Because he read the newspapers, Kirby knew about Kinsey’s research into the sexuality and sexual preferences of American men and women. Later, as a university student, he consumed every piece of literature he could get his hands on, not to improve his grades but because he was “passionately interested” in acquiring a better understanding.

 

Justice is our banner

“But I didn’t ask questions about women’s rights. And I didn’t ask questions about indigenous rights. I didn’t ask questions about White Australia,” he said. “I didn’t ask questions about refugees and I didn’t ask questions about animal rights.” The original question had been raised in connection with philosopher Martha Nussbaum’s recent book Justice for Animals: Our Collective Responsibility, which has argued for increased legal standing for animals and an ethical framework in which their rights to live and flourish are not subordinated to our own.

Kirby joked that he felt “very vulnerable to the sudden advent of irrelevancy” in the last week of his time on the High Court bench. So he helped launch a book on animal welfare law in Australia and New Zealand. The knowledge he learned about how humans hurt highly sentient creatures was more knowledge than he wanted to have. But it led to fundamental change: he hasn’t eaten meat since. Even his husband eats much less meat, although “it does create a problem in the kitchen”

The way in which drug use and addiction have been handled was another issue that societies would reproach themselves over, Kirby said. “We’ll look back [on these issues] with the same feeling as I have of the many things I’ve already mentioned. So, I don’t think I was ignorant about injustice and about its bite. Its bite was on me – but I felt hopeless.”

It all sounded sombre, Kirby said. But knowing the problems meant identifying the pathways to the solutions. “I believe that we do know the problems. The problems stem from inequality and commonality: the fact that people like others to be the same. It’s an infantile disorder, but certainly it’s something that runs very deep in the Antipodes. Therefore, we have to be alert to this fact,” he said.

“You do better, but you’re not perfect. You know there’s a lot to be done. Lawyers should be part of the movement for change. And justice is the banner of our profession.” ■

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