Transcript of Michael Kirby's talk

28 February 2009

The University of Sydney engaged one of its most prestigious alumni - recently retired High Court judge the Hon. Michael Kirby - to deliver a dinner address at a special evening function on Saturday, February 28. Here is the transcript:

Ruchir Punjabi - USU President:

"Good evening. Before I begin I'd like to acknowledge gather on the land of the Gadigal people of the Eora nation. My name is Ruchir and while I wished it was true that I was a slum dog millionaire, I only had the pleasure and sometimes the misfortune of being the President of the University of Sydney Union for the past eight months.

During my term I've had my fair share of speeches and doing introductions. None of them have made me particularly nervous. You can't really get nervous, once you've had the routinely ensuing election standing up at 8am in front of 800 cranky students who see it as a blood sport to get rid of the student politician.

But tonight is different. Tonight I have been given the honour of introducing an extraordinary individual, a personal hero, a living legend. So in some ways while I may not leave tonight with a million dollars, I will feel like a millionaire. I will sit here enjoying the wonderful spread that billions of people whose basic human rights remain a dream.
Now while many of us share this concern and desire for a change in the situation, few of us actually have the passion, dedication and the determination to be the change agent. Even fewer of that group have the intelligence, the foresight and the capability to achieve such a change in a meaningful manner and still fewer of us are able to do it with such humility, dignity and poise.

Only a handful can do it with a lasting impact on our lives. But tonight should not be a cause for dismay, in fact one of celebration, to celebrate one of these people. Often given rather overused billings such as the great dissenter or judicial activist, these titles fail to characterise a man whose imprint on Australian life is so great. In many ways Michael Kirby is a renascent man, a modern day "Homo Universalis".

While many of us know of Michael Kirby the jurist, little do we know of Michael Kirby the student activist or Michael Kirby the actor. Everyone should know he has appeared, after all twice, in a law review and has an unrivalled distinction of being part of the only attempt to free-style wrap WBE's. Michael Kirby was born in Sydney and educated in public schools including Ford Street Boys High School and he mentioned he made it to the University of Sydney. It was at university that his abilities as a narrator, organiser and leader first emerged. Pre-eminent amongst student politicians of his generation, he established an unrivalled and unique to this day political dynasty holding every major student office including Student Senator for five years, President of the SRC in '62 and '63 and more importantly, after holding ever other executive position in the Union, becoming the President of Sydney University Union in '65.

While running for election for his second term on Senate, he was asked by Honi Soit in 1967 about why he would make a good student Senator. Part of the response was and I quote "There's no place in my view for a rat bag on the Senate. Likewise there's no room for a yes man. What is needed is a combination of patient persistence on matters of principle and ready compromise and cooperation on matters or form. I believe I offer these qualities".

And these qualities were eminent after his life as a student. He will certainly be remembered for his dedication to the development of the law and his contributions to law reform. Since writing his first Will at the age of 9, Kirby has stood as a colossus over the Australian Legal System. He was the first Chairperson of the Australian Law Reform Commission, a Judge of the Supreme Court of New South Wales and most recently a Judge of the High Court of Australia. On the High Court, Justice Kirby sat on a number of the most important rulings in the Australian history and throughout his time displayed an openness and transparency that had to reconnect us to the judiciary and our system of government. He said he wished to explain an open conversation between Australia's Judges and the community they serve. But it was Justice Kirby's willingness to give a voice to the infirm, the persecuted and the discriminated against that truly stood out. As he once described in Anton v The Queen, the bench is made up of a myriad of different personalities and people have different ways of expressing themselves and some are more long winded than others.

Others are given to more direct expression. I think you will agree that the silent Judge is the greatest menace of all. As an aside, we learn a lot about Justice Kirby from his judgments, namely that he follows the activities of one bad decision and in an amusing exchange in the case of Network Ten v Channel Nine he once revealed that why he watched The Panel about so called celebrities, he really preferred Media Watch because this is like the way Lawyers are obsessed with other Lawyers. This is television obsessed with other television people whereas Justice Callinan had fully interjected it's just like the navel gazing media section of The Australian on Thursday.

A passionate advocate for human rights, social justice, gender equality, racial intolerance, Michael Kirby has also received a number of honours and had numerous awards named after him. One such award is the Union and her Alumni Foundations very own plain speaking competition. In introducing this award a few years back Michael Kirby noted as a member of the Unions Alumni that the rich fabric of the Union was an integral component of his University education and it is fitting that we meet tonight after o-week with students and alumni of this wonderful institution. We are at an interesting time in history where the failure of global finance brings with its realisation that unfettered materialistic pursuits by satisfying a short term the earning do not provide the robustness and the fulfillment achieved by life dedicated to the service of others. For the entire duration of his time in public life, when it was popular or when it was not, when it was rewarding and when it seemed hopeless, Michael Kirby has stood as a beacon of service, of fairness and excellence. I truly hope if and when Australia does become a republic Geoffrey Robertson's suggestion that the man should become the first President does come true although I suspect that this may be to Mr. Kirby's chagrin. So without further ado please join me in welcoming back one of Sydney University's first, our very own Michael Kirby."

Michael Kirby:

"Your Excellency the Chancellor, Deputy Chancellor, Vice Chancellor David Turner and Ruchir Punjabi, Leader of the Opposition, Attorney General, Sir Anthony and Lady Mason, Sir Lawrence Street, Sir Bruce Williams, Dame Leonie Kramer, Members of the Parliaments, former Judicial Colleagues and Ladies and Gentlemen. What a fantastic sight you all look and how marvellous and beautiful you all are and how wonderful it is to be in this great hall.

I'm absolutely determined to enjoy tonight and as has been advertised, this is going to be a conversation but you don't get your word in until I get mine. Every Sydney graduate, every undergraduate of this University knows this place as a special place. It was here in this very room and at this podium that I was welcomed by Sir Charles Bickerton Blackburn back in the year 1956 and it was here, beginning in 1959 that the series of graduations in the Kirby family began, my parents sat just about there at table 25. My father, my late mother and I came up for my first degree.

Every one of us in this hall who was a graduate of Sydney University knows those special occasions. It was here that as President of the SRC in 1962 I took part with Sir Charles Bickerton Blackburn in welcoming the new undergraduates. Justice was done this week by our present Chancellor and may I say to you Chancellor, what a much loved Australian you are. What a wonderful figure you are. And I'm especially proud that tonight I have with me not only my brothers who both came up to receive their degrees but also my father who celebrated his 93rd birthday last week and my partner, my partner Johan with whom I celebrated 40 years of a wonderful partnership and love two weeks ago.
So we can talk about these things now and we can be open and honest and candid about them and that is definitely progress in my lifetime.

About three weeks or two weeks ago Sir Anthony Mason did me the honour of launching a book which everyone in this room must buy before it is remanded. It is a magnificent book. It's one might say a slightly large book, a collection of analyses by the most learned writers, some of whom are in this hall, of my judicial contributions over the past 34 years and Sir Anthony in doing so in what was, if I can say so an uncharacteristically uncritical speech of unalloyed praise, at least that's how I saw it and heard it, said that he was declaring there and then that this was the end of the Michael Kirby festival. Well alas Sir Anthony there've been four dinners, five lunches, one at Parliament House last week and there are more to come though this must surely be in this great hall the zenith of my farewells. People are now crossing the road to avoid me lest they get invited to a function of this kind and it's therefore a function that we should all seek to enjoy tonight.
Now I owe a great deal to the University of Sydney and I'm absolutely delighted to hear that the new law school is about to be opened, the Dean of Law, Professor Gillian Triggs is here and after we finish here we won't go in the manner of the 1950's on a moonlight swim, but we'll go on a moonlight walk down the avenue to see the new law school by moonlight where the future lawyers of Australia are going to be trained.

And it was in the law school in its old decrepit premises in Phillip Street, Sydney, even before the current law school was built, that I first became acquainted with that rather brutal and nasty world of student politics and it happened, I swear, completely by accident. I was absent from the lecture one day and Murray Gleeson who would never tell a lie, said that he nominated me to be the student rep on the student Law Society in order that they could frighten out of his shyness this quiet little boy who sat in the back of the hall. And so I was elected to the Law Society of Sydney University and I remained very quiet and shy and I gradually ascended in rank to be Secretary and the Treasurer and the Vice President but I could go no further because under the arrangements of that time, under the Constitution, the President of the Law Society was a Judge of the Supreme Court of New South Wales and it was Mr. Justice Manning, later Sir Kenneth Manning and one of the members of the Board of the Student Law Society was a very radical student politician, Bronwyn Setright, now Bronwyn Bishop who, some of you may not believe this but she was a very radical student politician and she and Boden Bolinsky, both of them here tonight urged me on against my better judgment to move vigorously to have an increase in the salaries of Articled Clerks.

Living from hand to mouth, bread and dripping on six pounds a week, the result of which was that the Lawyers of Sydney commandeered Justice Manning and said this had to stop and Justice Manning summoned us up into his Chambers in the Supreme Court to put a little pressure on us. I remember sitting down at his desk with him and he had sandwiches which he dipped in tomato sauce claiming that this was a habit he had learned I think at Sydney Grammar School. Certainly in pubic education you would have been caned for lesser things.

But in the end of it he said to me, "Now Kirby, I have to tell you, if you go on with this campaign" and I said "But it's Bronwyn who's doing it", "If you go on with this campaign, I am going to have to resign as the President of the Society". My ears pricked up and I said "Oh Judge this is a terrible blow to us and we're very sad to accept your resignation". And we immediately repaired and before he could change his mind, the Constitution of the Student's Law Society was changed, the ink was scarcely dry before we had an election, I became the President of the Law Society and Mr. Justice Jacobs later Sir Kenneth Jacobs, my predecessor as President of the Court of Appeal, became the patron of the Society and we went on with our campaign with Bronwyn Bishop at the helm trying to get value and equality for money for Articled Clerks.

And that was what introduced me into student politics and that led on to my being elected to be the Board Representative on the SRC, twice the President of the SRC, as Ruchir has said, President of the Union and Fellow of the Senate electing to represent the undergraduates. If I looked back on those times there are three personalities who stand out in my memory from the 1950's and 60's who everyone of my generation will remember clearly as vivid personalities and two of them are portrayed in portraits in this great hall. One of them was the Chancellor, Sir Charles Bickerton Blackburn. To graduates of this university of my age, he was the only Chancellor you knew. It was as if he was a permanent Chancellor. He had been elected Chancellor in 1941. He'd come onto the Senate of the university in 1919 and he served right up to the time that I was down in the hall, he was here as the Chancellor of the University. He was Mr. Chancellor and everything that we envisaged in a Chancellor.

He was known to be a stickler for the rules and he was known to be fairly hard line on issues of morality and propriety and during my time as President of the SRC I received a great challenge but I received also a great lesson. The challenge occurred in the Wallace Theatre just down in Science Road named after Vice Chancellor Wallace and it arose out of an event that happened during orientation week in I suppose it must have been the year 1962, and it was an event that occurred quite spontaneously out of the heat of February and the passion of the moment when a young medical student whose name was Stan, I remember that, got up in the front of a packed hall at the Wallace Theatre and did what was known as a hambone. None of you present will know what a hambone is but let me just tell you it involves the removal of the lower portion off the garments of the performer and he did this hambone in the front of the whole assembled multitude.

The shame of the event was made doubly sore by the fact that in the audience were a group of Catholic Nuns and the depth of depravity of his act lay in the fact that he had disclosed to them that which they should never see and so he was threatened by the Vice Chancellor, Sir Stephen Roberts, with being sent down.

And so young Master Stan came to see me as President of the SRC and I took him up into the rooms of Sir Charles Bickerton Blackburn, even at that great age, a medical practitioner, and as we were ascending the staircase I said to him, "Now Stan, there's only one thing I have to tell you. When you get into the presence of the Chancellor and he asks you how you could possibly have done this, remember he is an ancient medical practitioner, you are a med student - cry". Cry. And so we walked up the stairs, we were ushered into the rooms, Sir Stephen was blustering and angry and calling for blood and the Chancellor said to him "How Stan could you have possibly done this"? and then was let forth a torrent like Niagara. Never did I see it. It went on for moments, minutes, for it seemed a quarter of an hour and in the end I had to nudge him and "That's enough". And so we were ushered out, we sat trembling outside the rooms of the Chancellor and then in the end out came the Chancellor's secretary and said the Chancellor has agreed that you should be reprimanded and not sent down. As far as I know Dr Stan is still in practice and doing very well as a graduate medical practitioner and his life survived that incident.

Now the lessons I learned from Sir Charles Bickerton Blackburn were two. First of all he was an excellent Chairman of the Senate and an excellent chair of anything he was at and he was a very polite person. He was always exquisitely polite to everybody and secondly he had compassion and he had kindness and he found it in the case of that student and doubtless many other students who came before him. And so from my life's journey, around this hall in the many graduations and ceremonies and many events, I met my first Chancellor and when I was ultimately elected to the Senate, an election which was postponed because I was defeated by the error of the voters in the elections which I first offered myself, by that very fine student politician and later marvellous Public Servant of Australia, Peter Wilenski, I learned the importance of the leadership that Sir Charles Bickerton Blackburn gave and of his kindness in that instance. The second notable character at the time was Sir Stephen Roberts. His portrait is at the end of the hall next to that of Sir Charles Bickerton Blackburn. Both of them are by Dargie and Dargie's great portrait of Sir Samuel Griffith is in the number one court in Canberra. It's a copy of an original in the Supreme Court of Queensland.

And Sir Stephen was an interesting person because though given sometimes to bluster, he was in fact the son of a miner and he was a person who made his progress in life through scholarships and he won many by his sheer brilliance and focused application and he went to England, he got further degrees, he wrote a very notable history book "The House that Hitler Built" and he came back to Australia, became the second Challis Professor of History of this University and then the Vice Chancellor from 1947. Roberts couldn't really stomach students who had too much to say for themselves and he would frequently tell me at the Senate meetings that I spoke too much, something that was quite possibly true, but he was a man who had displayed in the growth of Sydney University after the Second World War, the rapid and unexpected growth with tremendous numbers of students coming here under that marvellous scheme, devised by the Chifley government and implemented with full heart by the Menzies government, the Commonwealth Scholarship Scheme, which brought me and my brothers and many in this room to this University who might otherwise not have come, but the challenge of the time was even greater, Vice Chancellor, than the challenge of your time and it was Roberts who improvised. It was Roberts who went out to business. It was Roberts who found new ways of raising funds both from the private sector and from Government. And I want to pay a tribute tonight to a visitor who's diverted his travel plans just to be here for this occasion, Michael Hinze, who's the chair of the UK Trust of this University, a major contributor to this University and a great benefactor, we should honour the benefactors from the private sector who helped this university to remain strong and in the front of the universities of the world. Let's give a big round of applause for Michael Hinze.

Well Roberts looks out for the benefactors of his time. He found them. His wife was a wonderful, marvellous person who you might think was created by Actors Equity as the archetypical Vice Chancellor's wife, Lady Thelma, and she was a marvellous friend to students, but to Stephen I can remember meeting many times in his rooms with his cigarette ash provocatively and most apolitically shown in his portrait, dripping down onto his vest as he tried to discourage us from taking some new path towards the rights of students in the university. And the third character, her name appears on the Testamurs of everyone who graduated in those years. Margaret Alison Telfer. Margaret Telfer had been an advisor to women students from the 1940's. She was a slender, elegant, quiet woman and I remember she had limpid eyes that looked as though they were filled with tears. I hope not at my many speeches, it might just have been glaucoma. But, she was a person who was very courteous to students and very, notwithstanding that, very firm. She had very clear ideas of the limits and she was very decisive and had authority. When she stood down, Professor O'Neill said at the time that she had been a traditionalist in office in the University at a time when so much was changing but she taught the importance of authority, of sticking to principle and of firmness, which of course are qualities often necessary in the judicial office.

I was looking today at the policy speech which I prepared. It looks as though, Ruchir and I have been looking at the same notes and in my policy speech it's really astonishing to see how deep values which are part of your learning and experience at a place like this, they affect you very deeply and they affect you in a student capacity but they go on to affect you in your future life. Now I began in, well I'm a bit apologetic to read this because it's a little bit, well it's a little bit political, it says "If a supined puppet is wanted on the Senate, a compromiser, someone expert at cocktail parties and always good to second the motion, then out I go. I make no apology. I seek to protect and advance the liberal and tolerant tradition of this University". And looking through it, you know, it's just a wonderful charter. Indeed it's almost a declaration. It should have been provided to my colleagues in the High Court. It says "What is needed? What I needed?" I declared back there in '67. What is needed is a combination of patient persistence in matters of principle and ready compromise and cooperation on matters of form. That was my mandate back in 1967.

If you want someone who will restore amity and peace at the expense of the liberal tradition then you'd better look elsewhere and I am not your man. If a compromiser is wanted, out I go. If what I have been saying to the senate for the undergraduates is what they know is right, they will allow me two more years to finish the job, and allow me two more years they would. In this wonderful declaration of policies and principles which should be studied by you Ruchir and by the student politicians of today, I put my whole life and being against retirement. I'm against graceful retirements. Well I'm still a bit against graceful retirements and I'm hoping for another function of this kind in years to come.
Now this occasion tonight has been billed as a dinner conversation and it's no good having a dinner conversation when there's only one conversationalist and accordingly I thought that I would use the occasion to expose to you, in the context of three cases in the High Court, an important matter which illustrates something that is different from the world and from this University, comparatively different from the University that I found and found me back in 1956 up to my time as President in the 60's.

What is really different is the advent of globalism, the advent of internationalism, the growth of international business, economy and the growth of international law. This is not something that didn't exist before but exponentially it's increased enormously, increased in importance and influence in business, in science and also as I would suggest in the law. And this is a matter upon which there have been differences of view in the High Court of Australia and standing here before you now, I want to make it clear that I accept that there are genuine differences of view and that there are legitimate differences of point of view in the debates that have been had in the High Court. If you waited for the Australian media to present these issues to you in a thoughtful and accurate way then you'd wait an awful long time I'm afraid, because the media generally speaking in our blessed and free country is interested in infotainment. We travel all of us on the infotainment highway and I'm sure the members of the Parliaments who are here tonight would feel the pain of that fact. But there are genuine issues about the issue of international law in construing laws of Australia and in particular in construing the constitution and I just want, in this conversation, to try to provoke some dialogue from you. And because I have to get used to my life after the High Court, a life when solemnity and black robes are thrown aside, the time has come for me to enter into my new life and this I will now do.

This is probably the last time this is going to be dragged out so feast your eyes on it because you'll never get another chance. Now I want to talk about three cases but only briefly and then to provoke you into questions or comments or criticism, for this is a university, a great university of freedom of expression and we defend it and defend the right of people to say what they think.

The first case illustrates the limits of the use of international law and the principles of human rights expressed in international law and it's a case called "The Minister for Immigration against B", and it was a case concerning some underage migrants who had come to Australia with their parents and they arrived without visas and they didn't have the right to come as refugees. They claimed the right to be refuges, their parents had earlier made that claim and been rejected but they made their separate claim and they claimed to be recognised as refugees and the case came before the Courts below and the Tribunal and it was rejected on its road up to the High Court and their contention was a very simple one essentially and it was this. They said "Australia has signed the international convention on the rights of the child. It's the most signed international treaty in the world and the first, the Australian signature to that convention meant that as a nation we had signed on for a provision in that convention which declared that imprisonment of a child, detention of a child shall be a last resort, a last resort."

And the problem was that the Migration Act in effect and in its terms required that if the children, or if any person came to Australia without a visa they would have to go into immigration detention and so that's what happened to the young boys named "B", they were put into immigration detention. And they came to the Courts and ultimately the High Court and they said you are reading this Act too widely. True it says "any person" has to go in but we have signed this convention, it says it's a last resort, therefore read the word "person" down so that it doesn't apply to a child and that way give force and effect to the international convention but also give force and effect to the general principle of respect, the particular respect and tenderness that the law shows to children. Now that was an argument that would have certain attraction because it would mean that you would read the Act in such a way that it applied to adults who are full mind and knowledge and they've taken the punt, they should go into detention, but different arrangements should be made for children. However, there were two problems with that argument as it seemed to me. The first was the problem that the provisions of the Migration Act contained sections which provided for the searching of children whilst in detention and that made it clear that Parliament had specifically addressed its' attention to the issue of children in detention and therefore it was very difficult or impossible to read the Act down given that Parliament had made those specific provisions. And the second difficulty was that the Parliamentary records showed that officers of the Attorney General's Department had turned up at Parliament during the preparation of the Bill to be an Act and had said if you pass this bill into law, it will probably mean Australia is in breach of the obligations under the international convention on the rights of the child, but Parliament knowing that enacted the law. This was not a matter of different political views, this was a matter which had passed during successive governments and therefore, because of the terms of the Act, it was impossible for me to read the provision down and say "person" means adult person not child and therefore I had to uphold the claim of the Minister that the Act applied to the children and so the children were not given relief and were not treated as refugees. Now I don't know but I was told recently that those children were last seen going back into Afghanistan. The reason that the objection was made to their being treated as refugees was that it was contended that they were Pakistanis not Afghans, but it was reported to me that they were seen going back into Afghanistan. However that may be, the legal question was fairly clear.

The second case was a very famous case which in a hundred years, law students and others will read because of the fact that it dealt with a very hot question for our constitution and for our laws which was the subject of a four-three division in the High Court of Australia. You don't get a sharper division than four-three in the Full Court of the High Court of Australia because the High Court is made up of seven. And in this case, a case of Mr Al-Kateb in this case, the question was whether Mr. Al-Kateb was entitled to be at liberty and it came about this way.

He was born in Kuwait. His father was a Palestinian. His Mother was of Jordanian nationality. Neither Palestine would recognise his nationality but Jordan would not and Kuwait wouldn't recognise either nationality.

And so because of the first Iraq war, the Gulf war, Mr. Al-Kateb's family were thrown into the maelstrom of the anger of the Kuwaiti population and his mother, his father was taken away and he hasn't had contact with him. His mother said to him, "I'm going to try to get back into Jordan but it's very dangerous for you to come with me. You travel alone, and I've heard that Australia is a just country and that you will have a chance if you get to Australia". And so it's a bit like those stories we see in the movies of the times of the dislocation during, before, and during the second world war. Mr. Al-Kateb did try to come to Australia and he arrived in Australia in December 2000 without a passport because Palestine is not a state and issues no passports, and without a visa that would permit him to be in Australia, and so he was thrown into detention, he took his claims through the detention, Refugee Review Tribunal and the claims were rejected by the Tribunal, rejected by the Courts and he then made a separate Application to the Minister to remove him from Australia and return him to his country of nationality.

The difficulty of that request was Kuwait wouldn't have him and Israel would not allow him to pass through its territory to get to Gaza. That is the difficulty. If you leave Gaza, Israel won't let Palestinians return and he had not even been born in Gaza and he was not allowed to go back. And so his contention was a fairly simple one. He said the Migration Act of Australia has been drawn on a basis that a person who is in detention can end the suffering and be removed from the country immediately by asking the Minister to return him or her to the country of nationality and that is what this man has done. And the principle on which the Act is drafted is the principle that you can finish the suffering by doing what Mr. Al-Kateb has done. And so the parties came up to the High Court of Australia. The Solicitor General of Australia, a great Lawyer who is here tonight, Dr David Bennett, a fine Lawyer who has had outstanding success in cases before the High Court and who was doing his duty in presenting the case. They came to the High Court and Mr. Al-Kateb had two arguments. The first was construe the statute down so that it doesn't apply to hold me in detention, potentially indefinitely, because Israel won't take me and Kuwait won't have me and therefore the Act doesn't deal with my case. It wasn't drafted to deal with my case and therefore you can't hold me in detention because there's a strong presumption that you don't construe an Act of Parliament so that it will apply to take away a person's liberty indefinitely. And secondly he said, and if the Act can't be construed down and if it does provide to keep me indefinitely in detention, then that is something that a Minister can't do, that the Executive Government can't do. That is effective punishment and that can only be done by the Courts of the land and the power to Parliament to enact the law providing for detention can, has to be subject to the provisions of the Courts in Chapter 3 and therefore it's invalid and therefore I must be allowed to be released immediately.

And so that issue, those two issues came to the High Court. I wrote what was for me a brilliantly short and pithy decision. I mean it was seven paragraphs. Lawyers present will know that my reasons for judgment though wonderful lucid and useful and helpful are not noted for their brevity but the result of the matter was that the Court divided for three, Chief Justice Gleeson, Justice Gummow and I said read the statute down and Justice Gummow and I said and if you can't read it down, it will be unconstitutional because the Executive can't impose what is effective indefinite punishment. The majority said what is so difficult about construing a statute which says remove as soon as practicable and if it is not practicable to return Mr. Al-Kateb to Palestine, then he has to be kept until it is practicable and in the end, with Justice McHugh saying that this was a very tragic case, the majority by four to three decided that Mr. Al-Kateb could effectively be kept indefinitely.
Fortunately, immediately prior to the last election, the Minister in the outgoing Coalition government decided that Mr. Al-Kateb should be released from detention and fortunately he received assistance then and before then from many Australians, fine Australians, fine Lawyers who had been supporting him and many others during his detention and he secured work, though that was not easy, he secured training to bring his skills from Kuwait up to Australian standards in computer drafting and as was said by David Turner earlier, he, two weeks ago, on the 7th February was made a citizen of Australia.

Now Ahmed Ali Al-Kateb is here with us tonight. He is a person who used every legal endeavour, as was his right, and he went through the hierarchy of the Australian Courts, as is rather unusual. I'm told that his ceremony of admission to Australian citizenship was marred a little by the fact that the official who was present at the time was, shall we say, not entirely sober. But I want to tell you Ahmed, I want to tell you that you are now a citizen of a free and fair country that lives by the rule of law, that the Judges who decided against you were doing what they believed the law to require, that the Judges who decided for you were doing what they believed the law to require, that it is part of the price of a rule of law society that you have to have decision makers that they act according to their conscience and to their understanding of the law and that the wonderful thing I can say about the rule of law in Australia after having been a Judge for 34 years is I never once had anyone try to pressure me to decide a case one way or the other. No government official, no big end of town, no powerful corporation. Occasionally Mr. Murdoch or the others would give a bit of help in their newspapers but this is a country of independent Judges and in the end through a combination of decisions of the Courts of decisions of elected politicians and decisions of good Australian citizens to stand with you in what they saw as a human ordeal, you have been accepted into our midst as an honoured citizen and I want, on behalf of everyone present, to say welcome to our citizenship. Congratulations and we honour you as an Australian citizen.

Now the controversy about the use of international law arose in that case because in my reasons I had referred to the use of the international principles to help to come to the conclusion both on the meaning of the statute and on the meaning of the constitution and more recently in a very important case, most of these cases are fought pro bono by Lawyers who are not in it for the mula, who are in it for the principle and this case involved the rights of prisoners to vote in our elections brought by an Aboriginal prisoner who said "I may be in prison, I may have committed my offence but I'm still a citizen and a human being and still entitled to vote". And the High Court in a decision which did refer to international authority as will increasingly become necessary in a world where we're all interconnected with the internet and with the knowledge of what is going on and we don't need to reinvent the wheel, this is something which is natural. Scientists regard it as a non-issue. Business people regard it as non-controversial, Lawyers have got to grow up and see that this is just the world we're living in, that globalism is part of the world and that that involves trying to make our little jurisdiction even in sunny Australia in the south seas fit into and colas with the principles of international law and international fundamental rights.

So that's really what I came to say and I'm very grateful for all of you coming to hear me say it and now is your chance to ask questions, to make comments and to give criticisms and I am going to provoke them, and if you don't ask a question of me, I'm going to ask a question of you. Are there any questions? First of all you can give a big round of applause to the speaker.

Alright, alright. I don't want to get carried away by this. Any questions or comments? Yes?


Thank you Michael for that lucid speech. As someone who has advocated the liberal tradition of tolerance here at the University and through your career, I just wonder what advice you might give both to Lawyers and in the broader citizens here in our own lives going forward and perhaps some of us here who have broader influence, in terms of engaging today in an era of the Taliban and these movements of extremism in various parts of the world that don't seem to accept the fundamental premise of the liberal tolerant tradition which is a right to mutual co-existence.
Michael Kirby:

That is true and of course that is a dilemma that all democracies face but actually it was Winston Churchill who in the 1930's said "It will be a very sad day if democracies in defending democracy join in making our country a place without the rules that are necessary for a democracy". In some ways it's harder for democracies to fight intolerant people and fighting the Taliban in Australia would be different from fighting the Taliban in Afghanistan. I have to say as a footnote to somebody who, as the President said, has driven through the Khyber Pass or at least I have to give credit to my partner Johan drove through the Khyber Pass three times, no one has ever conquered Afghanistan. The British at the zenith of their power fought five Afghan wars and in the last of them, the Afghanis sent one survivor back to tell the tale of the horror of their onslaught and slaughter. They are a very robust and independent-minded and different people and we have to really appreciate that and we have to appreciate that Britain in its power and the Soviets in their power, could not conquer Afghanistan and it's a very beautiful country to drive through, or it was in that window of opportunity in the 1970's, early 70's but I wouldn't want to be there now.

But what can we do? Well I think we can do what everybody is doing tonight. You can be joiners. I am a joiner. I've always been a joiner. I got my ASIO file the other day. It was very interesting. I got it because I sent all my papers to the National Archives and they said somebody has just sought your ASIO file. We're bound to give it, would you like a copy? So I said "sure" and I got a copy of the ASIO, all those student meetings I attended, they were all faithfully recorded. You're probably down in some meeting Ruchir. It's faithfully and carefully recorded.

Certainly many of the groups at these tables are down in the file and one of the file notes was from my Aunty Gloria. She'd actually been born Violet but she rather liked Gloria Swanson in the 1930' so she took the name of Gloria, a very intelligent woman, and Sir Lawrence, a friend of your wonderful mother, Jessie Street. She was a feminist in the early days and she was under surveillance, probably because she had some communist friends and in her unguarded and rather unkind remark that was recorded there for me to read, she said Michael Kirby is very brainy but he is a complete reactionary. It's amazing what you see, home truths coming out in ASIO files. But don't get put off by that. It's a free country joined, involve, be involved and be like those pro bono Lawyers and the Government Lawyers involved in the cases, important matters, and try to assist to make our society a place of diverse opinions and diverse expression of opinion.
Any other questions or comments or criticism? Yes?


Thank you Michael. Mary Kostakidis Human Rights Consultation Committee. The main criticism Michael that we're hearing of the Bill of Rights is that it is going to transfer power from the Parliament to unelected Judges and that this would be a very bad thing for democracy. A penny for your thoughts.
Michael Kirby:

Thank you very much Mary and thank you for the work that you and your committee are doing on this consultation. I think that there are dangers in some Bills of Rights in having a power in Courts to strike down measures and to declare them to be unconstitutional but the only model that is on the table as far as I have seen in Australia is a model which was derived from New Zealand via the United Kingdom and now in two jurisdictions of Australia, the ACT and the State of Victoria, and it's a model which essentially has two principles.

First, the Courts should strive as far as possible to interpret laws so that they do not, they do not breach the principles of the charter of rights. Well now that's not very different from what I've just been telling you we already do and what the common law has always done and what the great early Justices of the High Court of Australia Justice O'Connor in the Jumbanna case said at the very beginning of our federation that we should do. Make sure that Parliament doesn't accidentally take away fundamental rights. Read statutes with that proposition. So that's not really controversial on you and secondly it empowers the Court in the event that Parliament has been so clear that it can't read the provision down, as the majority felt in Mr. Al-Kateb's case, to draw that disparity specifically to the notice of Parliament by an Order of a Declaration or some other means in order that then Parliament has to particularly and specifically address it's attention. Parliament might then say we won't change the law. Parliament might say well that is exactly what we intended. The children should go in to a detention notwithstanding the provision of the Rights of the Child Convention but at least then it would be upfront and it seems to me, as a person who in my career as a Judge has always respected Parliament and always ensured as far as I could that laws conform to the powers of Parliament, that this is not a means of diminishing the power of Parliament, it's a means of operating it and enhancing it and ensuring as far as we can that Parliament addresses issues. I can tell you from 10 years in the Law Reform Commission and many years as a Judge that the problem is often not that Parliament decides not to do something but just that in the press of events and of the press of particularly of political events and the events to which media draw the politician's attention, that the little cases and the little people sometimes get overlooked and that isn't something which make Parliament work because at least I can see Parliament should work.

Any other questions? Yes.

QUESTION: Thank you very much. Very, very interesting indeed. One thing that I've found is that Australia's always punched above its weight on a global stage. I'd like to know how you think we can keep doing that.
Michael Kirby:

Well one thing which is a very good benefit which we've had under successive governments in Australia is we didn't give way to pressure of deregulation to such an extent as most other economies have and I believe one of the reasons why we in Australia are probably going to do better in the current terrible economic crisis is that our banks were still fairly strictly regulated and that was a very good thing. In fact, it's part of the quandary of capitalism isn't it? On the one hand you want the genius of inventiveness that comes with the freedom of the market and the freedom to invest and the freedom to invent and the freedom to take risks, but on the other hand you want to have a line behind which people can't go in diminishing the integrity of our institutions and I think one of the features that's given us that very firm economic base has been the fact that we've had these fairly strict regulatory regime and I believe that's something successive governments have been determined to keep. Another point is universities are absolutely essential to our punching about our weight and especially universities which are willing to support research even though it doesn't have any immediate outcome and even though it doesn't, a practical or beneficial financial outcome, or even though it might be unpopular. The Vice Chancellor is applauding that phrase. Everybody should join in the Vice Chancellor's applause. Okay.
Every September I go to Indiana University. It's quite a big university. It's in the middle of the United States. It's in a sleepy hollow named Bloomington but it's the 11th biggest raiser of funds for investment in university research and the President is Michael McRobbie, an Australian and the wonderful thing about Indiana University is that it's there that the Kinsey Institute is based and it was Dr Kinsey whose research back in the 1940's and 50's into sexuality of the human male and human female when I as a young boy, gave me hope that there was not this evil that was put about, about gay sexuality.

That this was just a part of nature and in Indiana University there was a marvellous Vice Chancellor President named Herman Wells and Herman Well was under tremendous pressure. You can imagine it back in the times of Joan McCarthy, stop this research, this is filthy, it's disgusting, many of the churches were opposed to it and they threatened to cut off the funds in the State Legislature and in the Federal Legislature. There sure were FBI files on all of those people but Herman Wells to his eternal credit said if this is a proper matter of research, if this man Alfred Kinsey who was one of the world's greatest experts on the taxonomy of bees, that was his background. He was a Zoologist as we used to call them. If he believes that this is a proper matter for research, it will be done at Indiana University and what a wonderful message that is. During the early days of the AIDS epidemic, I met another great University President, David Baltimore. Now Baltimore just got interested when he was a young scientist in a very unusual virus in Chimpanzees and it was in fact SIV, Simian Immunodeficiency Virus and 10 years before HIV was identified David Baltimore had been doing the research for which he got the Nobel Prize on Simian Immunodeficiency Virus. It had no practical utility whatsoever, none at all when he was doing it but he did it and he was supported by his University and he's now the President of Caltech.

And so these things teach us, and we as graduates of the University and graduates of universities have an obligation to draw to attention of our politicians and our public that you can't just require pure science that's going to deliver the mula straight away. You have to be prepared to do the research because it's interesting, it's there and one day it may be useful. Baltimore's research put us 10 years ahead when HIV came along and helped very quickly for Luc Montagnier who got the Lunar Nobel Prize earlier this year to identify and isolate the virus and otherwise we would have been in an even worse situation than we are.

Now I'm going to come under the marvellous portraits of Sir Stephen Roberts and Sir Charles Bickerton Blackburn. Sir Charles is over there in the dark shadows but he should actually be in a very bright place Chancellor because he was the Chancellor during the time of great growth of this university and it would be a great blessing if that cigarette could be possibly removed from the, it's disturbing to see that cigarette there. Now any questions here?

QUESTION: Thank you Michael for yet another very entertaining address. I've been a great admirer of yours for many many years and it's a great honour indeed to be here to celebrate your achievements over a very distinguished career.
Here's one for you. You along with everybody else in this hall is aware of the so-called intervention in the Northern Territory and other parts of Northern Australia. Let us assume that there's a community, an isolated community, I'd say of women. Women are the movers and shakers in society I'm sure you would agree and now that you're off the bench, they come to seek your advice as to how they might challenge the Commonwealth Government about its, in relation to its suspension of the Racial Discrimination Act to enforce what I would describe as an iniquitous regime. What advice would you give them Michael?
Michael Kirby:

Well the first thing I would do would be to say go away and read my dissenting opinion in the recent case of Wurridjal v The Commonwealth of Australia which was a case that did challenge the constitution or the liberty of the intervention in the Northern Territory.

Everyone in this room could be excused for being ignorant and unaware of that decision. It received absolutely no or virtually no coverage in the Australian Media. We are poorly served in this country in reportage of the decisions of the High Court and other Courts and that case specifically raised questions in a technical sitting of a claim on a demurrer which challenged the intervention and I would simply suggest that people go away and read what the majority said and what I said and I couldn't actually, because of my involvement in that case, take any part in giving advice myself now.

A lot of water has got to flow under the bridge before I am immunised from my period as a Judge. But one very important point has come out of a series of cases in the last two or three years in the High Court and it is this. In a number of cases in Canada where like New Zealand they have dealt rather better in the law with their Indigenous people than we have in Australia. There is a principle in Canada which is now not controversial in that country that says if you are going to take away the rights of Indigenous people, it has to be done with absolute clarity and specificity.

Now it may be that that rule would be satisfied in the Northern Territory intervention case because there was, as you say, a provision which relieved the operation of the Racial Discrimination Act. But I think if we had a principle in our laws such as they have in Canada that if you're going to take away the rights of Aboriginal people, parliaments have to do it with complete clarity and specificity given the history, given the past, given what we have all been through, given the national apology which was a bipartisan measure, then it would be timely to have a similar principle in Australia and I hope one day that somebody will pick up those cases in which I have said that and make sure that they are given effect as part of the law of Australia.

It's actually interesting when you go to New Zealand isn't it? They always have a proper acknowledgment of the Indigenous people and as you'll hear did tonight, but it's wholehearted and it is fully involved and I think we have still a distance to come in this country and it will com because of leadership from people such as are in this room.
Any other questions? I see the President is coming to the microphone. Nearly up but we've got a few more.

QUESTION: Under the present, for want of a better word, constitution of the United Nations, do you see that international law will work well under those present circumstances or will remain very political?
Michael Kirby:

Well my experienced in the United Nations has not been in the political departments. I've had virtually nothing to do with the General Assembly or the Security Counsel. That's for the politicians but I have been involved in the international Labor organisation and the World Health Organisation and the UN Aids Organisation in the UNDP, the development program, in UNODC, the Office of Drugs and Crime, in lots of these committees and they are made up of truly noble people who do wonderful work.
Of course there are defects in that institution as there are in the others but if the United Nations did not exist we would have to invent it. We would have to have an international forum in which people could exchange knowledge, views, expertise and principle and I think therefore I am a supporter of the United Nations and I think educated people should be because the alternative is a world in which it's simply the rule of power and unalloyed power can sometimes not be rational. I may be wrong but I think the two special features of the human species which are interconnected, which lie at the heart of human rights, are first of all, we have a genetic propensity to rationality. We don't always give effect to it but we have this propensity to think about ourselves and to think about where the world is going and our community, our families, our loved ones and others. And secondly, we have a propensity to love one another. This might be a semi-spiritual and controversial suggestion but I've always thought that the foundation of human rights is that we can express and respect human rights for other people because we can see in them enough of ourselves and our families that we feel we share this space and this existence with them and that is love. And if you're religious you know that the greatest of these is love, and if you're secular you at least know that we have to build our world upon human rights because the alternative is the eradication of our species. There are just so many dangerous weapons and so many dangerous people that we need to unite around core principles and the greatest of these is love.