Talk:Michael Kirby (judge)

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His age[edit]

Ummm, there was a discrepancy between his age at the top and at the bottom of the page. I've fixed it up based on a quick google, but can someone confirm? Psychobabble 04:48, 16 August 2005 (UTC)[reply]

Don't have a Who's Who handy, but the Law Society of Australia page (via Google cache)[1] quotes Kirby referring to "back in 1939 when I was born". I looked for material supporting the 1935 date, but couldn't find anything but derivatives of this page. I wonder if it might have come from a misreading of [2], in which Michael Kirby talks about Michael Hill having been born in 1935? --Calair 23:23, 16 August 2005 (UTC)[reply]


It mus be 1939 because if he had turned 70 in 2005 he would have had to retire. Fat Red 23:29, 31 January 2006 (UTC)[reply]

Question, this article[3] reckon's that his birthday is on Feb 2 and that's why he's retiring, because of his age, but none of the articles make note of this. Actually another one[4] (from the same publisher, Fairfax, so could also draw upon the same flawed source?) seems to imply that as well. Actually here's one[5] from the Australian (owned by News Limited) which also implies that his birthday is Feb 2. Hmm this one[6] from the ABC seems to imply that is birthday is somewhere between 9th March and 16th (5 weeks from 2 Feb). But since 18th is 6 weeks (and 2 days) away, is ABC also wrong? Actually re-reading that Canberra times one, it doesn't actually say when his birthday is, it just says a few weeks from Jan 31. Aaaaaaagggggggggggghhhhhhhh. Someone ask him what his birthday is! Also, his reason for retirement (retirement or resignation, depending on when his birthday is) needs to be updated. I'm keeping it as it is right now because it's too ambiguous. Serrin (talk) 09:33, 2 February 2009 (UTC)[reply]

Pædophilia[edit]

Robert, a good article. Two points. First, I don't think the word paedophilia was used in relation to the allegations against Kirby. The alleged rentboys were teenagers, not children (also I am pained to see the American spelling pedophilia). Second, I don't recall Heffernan being formally censured by the Senate. Do you have a reference for that? Dr Adam Carr

For a reference for the censure, see [7]. As to whether the allegations were of paedophilia, the speech [8] is peppered with references to "child sexual abuse" and the like, the potential for "a conflict of interest" when judging such matters, and accuses Kirby of "trawling for rent boys", though the ages of such are not specified in the speech. The implication that Kirby was accused of paedophilia was widely drawn in the press, IIRC, and Kirby's defenders pointed out that Heffernan seems to be hopelessly confused about the difference between homosexuality and paedophilia. --Robert Merkel 07:44, 1 Oct 2003 (UTC)

The discussion of Heffernan's allegations is good, but I wonder if the meat of it shouldn't be at Bill Heffernan rather than here? Obviously this page needs to make mention of it, but IMHO the fact that Heffernan attempted to destroy Kirby on the strength of forged evidence and unreliable witnesses says more about Heffernan than it does about Kirby.

I'll confess to some bias here: many of Kirby's detractors, Heffernan among them, seem to be working on the principle that "if you throw enough mud, some of it's bound to stick". IMHO, this sort of strategy is best countered by associating the mud with the thrower than with the target, even after it's been debunked. --Calair 23:47, 31 Oct 2004 (UTC)

I agree. It needs some mention here, but the majority of it should be at Bill Heffernan. Ambi 00:48, 6 Nov 2004 (UTC)

Richardcavell 09:05, 19 August 2005 (UTC) - I think it's sad that Kirby J has to put up with this crap from Heffernan, but it's definitely one of the most newsworthy things that has happened to him as far as the mainstream media is concerned. What's more important from a legal perspective is his unusual judgments. I've added a brief amount about that; see what you guys think.[reply]


Depth of research[edit]

I'm a little uncomfortable with wording like "He is also renowned for the depth of research into past cases that goes into his judgments" - it's a bit on the subjective side. Something concrete would be good here, e.g. "In Barnacle and Sawnoff vs. City of Tooraloo, Kirby's judgement drew on thirteen past cases going back seventy-two years" or "Legal historian Bunyip Bluegum described Kirby as 'famed for the depth of his research'".

But yes, considering that he's a judge, this article could do with a lot more on his judgements :-) Will see if I can add one or two things, but I don't really have enough. --Calair 22:46, 21 August 2005 (UTC)[reply]

Richardcavell 10:46, 22 August 2005 (UTC) - Calair, I don't have any jurimetrics to support my statement. I'm sure there'll be plenty of opinion out there to support the idea that Kirby J is a maverick, or too left-wing/activist.[reply]

I think the statement would be OK with a citation. "Jurimetrics" would have no meaning to a lay reader. By the way, 13 cases going back 72 years isn't that impressive, since many judgments cite 19th century cases.--Jack Upland (talk) 02:40, 2 September 2015 (UTC)[reply]
For jurimetrics on the High Court, see writings of Andrew Lynch (PS: I am not he). Wikiain (talk) 12:46, 3 September 2015 (UTC)[reply]

"No" case support[edit]

Kirby publicly supported the "no" case in a prominent role with Australians for Constitutional Monarchy in the 1999 Republican referendum - see republicanism in Australia for more information - a position perhaps superficially at odds with his "progressive" views on many other issues. Superficially at odds, but...? — MikeX (talk) 09:49, Apr 15, 2005 (UTC)

Presumably it is "superficial" to distinguish support for a Republic/Monarchy as a progressive/conservative or left/right split. Kewpid 17:21, 18 Jun 2005 (UTC)
Support for the monarch is the prototypical left/right split - 124.191.144.183 (talk) 14:24, 12 April 2013 (UTC)[reply]

judge vs justice[edit]

Note that in court, you call them high court justices, but outside of court, they are judges. User:Enochlau 05:19, 12 May 2005 (UTC)[reply]

  • Sorry, yes this is me. I wrote that while at uni, forgetting to sign in. Enochlau 01:00, 15 May 2005 (UTC)[reply]


Cites[edit]

I think the article already documents Kirby's activist stance, and it certainly documents his frequent-dissenter status in the court, so I'm not clear on why those were tagged as needing cites. OTOH, I agree that the other two bits Ashmoo tagged could do with cites - I remember several of Kirby's critics suggesting that in his self-outing he'd effectively admitted to breaking the law, and that this made him unfit to be a judge, but my memory isn't a valid cite. Therefore restored half the tags and left the others. --Calair 02:19, 27 July 2006 (UTC)[reply]

Does 'judicial activism' have an official definition? My perception was that it is a slighty derogatory term used to characterise rulings the speaker disagrees with? I added the tag because I thought it would be good to add a bit on context to the characterisation as 'activist'. Does he self-describe as activist? Commonly described as such in legal journals? etc. Ashmoo 03:50, 31 July 2006 (UTC)[reply]

It's usually derogatory, but it's more specific than just disagreement with the rulings; it's about a departure from legalism/strict constructionism. (Basically, the idea of 'judges making law' rather than enforcing the laws made by governments.) I think just about anybody who believes there is such a thing as 'judicial activism' would take this speech as an expression of it.
That said, that's probably interpretation; I've tweaked the discussion a bit so it still points at judicial activism and explains Kirby's stance but now leaves readers to decide for themselves whether A=B. Also moved material relevant to this into the jurisprudence section where it belongs. --Calair 06:22, 31 July 2006 (UTC)[reply]
I think we are basically in agreement here. It is unclear from the 2 cited speeches whether Kirby disagrees with the attribution 'activist'. Do the people who disagree with 'strict constructionism' have a name for their position? Is so, we should use that, if not, we should mention who characterises him as an 'activist'. Ashmoo 07:10, 31 July 2006 (UTC)[reply]
As it stands, the article doesn't say that Kirby is called an activist (I took that out, largely because I couldn't find any great sources - quite a few blogs and letters to the editor, nothing tremendously notable). But I did find an interesting speech by Kirby, which I'll add to the coverage in the article - it fairly strongly suggests that he's willing to describe the approach he favours as a form of 'judicial activism'. --Calair 09:35, 31 July 2006 (UTC)[reply]


I removed material both on Kirby's being criticised for having had a gay relationship while male-male sex was illegal and on the widespread 'who cares?' response - while I recall both of those things happening at the time, they've been sitting there with citeneeded tags for too long. Without those, I'm not sure whether the article should be pointing out the date issue; while the individual facts are verifiable, the combination comes across as a fairly loaded statement that could be considered OR. (Not entirely solid OR either, since AFAIK the Who's Who entry said 'partner', not 'sexual relationship'.) I've left it in for now, but won't object if somebody feels like removing it. --Calair 07:38, 23 August 2006 (UTC)[reply]

I've trimmed it and replaced it with "long-term partner" - it's verifiable, yes, but including it really gives the impression we're trying to Say Something by pointing it out. I'm really not convinced it's appropriate to include. Shimgray | talk | 12:45, 31 August 2006 (UTC)[reply]
I can't help but think something needs to be said about that whole thing, but that is really just my opinion. - 124.191.144.183 (talk) 14:28, 12 April 2013 (UTC)[reply]

WikiProject class rating[edit]

This article was automatically assessed because at least one WikiProject had rated the article as start, and the rating on other projects was brought up to start class. BetacommandBot 07:22, 10 November 2007 (UTC)[reply]

Fair use rationale for Image:Justice Kirby.gif[edit]

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BetacommandBot (talk) 14:46, 2 January 2008 (UTC)[reply]

Informal poll: Image on the infobox[edit]

Which version of this image looks better on the infobox?

The_Honourable Justice
 Michael Donald Kirby 
AC OMG, BA, LLM (Hons) BEc

Preceded by Sir William Deane
Nationality Australian
Domestic partner Johan van Vloten
The_Honourable Justice
 Michael Donald Kirby 
AC OMG, BA, LLM (Hons) BEc

Preceded by Sir William Deane
Nationality Australian
Domestic partner Johan van Vloten


===Poll===--Rofish (talk) 22:19, 6 February 2011 (UTC) please vote Left or Right (but don't be bound by this false dilemma).[reply]

  • Left: Although I prefer the vertical layout of the image at right, I think all those heads make it look less professional (that's why I did the cropped version to begin with). --Damiens.rf 13:21, 21 May 2008 (UTC)[reply]
  • I'm not falling for any stupid poll but the left one becomes pixelated at that sort of resolution. Let's leave it as it is. JRG (talk) 13:49, 27 June 2008 (UTC)[reply]
    Please, be WP:CIVIL. Avoid reverting the article to your preferred version when you have refused to engage in talk page discussion about the content. Nobody owns the article, and what gets in it depends on the consensus of civil discussion taking place on this talk page. --Damiens.rf 14:30, 27 June 2008 (UTC)[reply]
  • You are hardly being civil when you continue to edit something you have no interest in to annoy myself and other users to make up for ignorance about Australian judges. It looks bad and is pixelated. Let's leave it as is. JRG (talk) 05:39, 28 June 2008 (UTC)[reply]
  • Right: per JRG. Timeshift (talk) 05:47, 28 June 2008 (UTC)[reply]
  • Right: The left image comes up very blurry on my monitor PalawanOz (talk) 14:40, 28 June 2008 (UTC)[reply]
  • Right: per JRG. Also found another photo here [[9]] which looks (subjectively) a bit better? It's on an Australian government website, does that make it public domain? The website it self does not mention whether or not these pictures are in the public domain or not. If it gets removed I've got a copy sitting on my computer. Since he's due to leave today (or tomorrow?)Serrin (talk) 10:00, 2 February 2009 (UTC)[reply]
    • The image appearing on the HCA website were at some point on each of the Justices' pages and then were removed for non-fair use IIRC. That would seem to suggest they are not in the public domain. Shadow007 (talk) 00:38, 5 February 2009 (UTC)[reply]
  • Left: It isn't that bad (i.e. pixellated) and it gives a better idea of what he looks like. Shadow007 (talk) 00:38, 5 February 2009 (UTC)[reply]
  • None. Both pictures show an abominable face: the face of a pervert, a deviate. --AVM (talk) 01:17, 12 April 2010 (UTC)[reply]
  • AVM - Please read the Talk Page Guidelines. --Rofish (talk) 22:19, 6 February 2011 (UTC)[reply]

His title[edit]

Now that he's retired from the judiciary, is it correct to continue to refer to him as "Judge" or "Justice" Kirby? He keeps The Hon, but otherwise I thought he'd be plain Mr Michael Kirby now. No? -- Jack of Oz [your turn] 08:18, 7 February 2011 (UTC)[reply]

He is now plain "Mr" and is announced as "Mr" when he speaks. That is the Australian convention, different from the USA. --Wikiain (talk) 17:30, 7 February 2011 (UTC)[reply]
Thank you. I've tweaked the article accordingly. -- Jack of Oz [your turn] 20:46, 7 February 2011 (UTC)[reply]

Shutting Kirby up?[edit]

I'd like to restore the passage about Kirby's appointment to the High Court being in hope that it would "shut him up" about the monarchy. It is a significant point, by a good researcher from a good source, Michael Lavarch. Lavarch, Gareth Evans and Paul Keating are around to contradict the report if it is wrong. --Wikiain (talk) 22:45, 21 October 2012 (UTC)[reply]

I found the sentence a bit odd, because it seems very unlikely that someone woud be appointed to the High Court because of a need to silence them on an issue. They would normally be appointed because they were qualified and it was belived that they would be good in the role, so to state that the appointment was made in order to silence them is a strong claim, and one that I'd like very strong sources for. So I checked the source, which is here (for those that can see it). In reading it, the impression was that it was, at best, a factor. Kirby was assigned to the High Court because he had been in consideration in the past, and had the support of Evans and Lavarch, who seemed (from the article) to believe he would be good at the role. That it would prevent him from speaking on the monarchy may have been a factor for Keating, based again on the article, but I'm not comfortable with saying that he was appointed to shut him up. Similarly, the argument in the article is that the case was made to Keating that this was a point in favour of the appointment, but it isn't clear that this was why Keating chose to do it. - Bilby (talk) 00:00, 22 October 2012 (UTC)[reply]
I think we're in agreement - that it has not actually been suggested, or would be sensible to suggest, that this was the main reason, or even one of the main reasons, for Kirby's appointment. Although the header of the article might be read as suggesting that, the article itself does not. I'll go one better and look at what AJ Brown wrote, then come up with a proposal. --Wikiain (talk) 00:57, 22 October 2012 (UTC)[reply]
I've now looked and the story gets weaker as one goes on, so maybe isn't actually worth mentioning. We have been discussing the article "Kirby given court post 'to shut him up'" (Michael Pelly, The Australian, 2 February 2009). This header (probably, as usual with headers, not written by the journalist himself) overstates the subject matter, which had been found in A J Brown, "The 'Inevitable' Judge? A Biographer's Note" in in Ian Freckleton and Hugh Selby (eds), Appealing to the Future: Michael Kirby and his Legacy (Sydney, Lawbook Co., 2009), 49-80 at 68-69. Brown says that Prime Minister Paul Keating, while aware of Kirby's outstanding abilities, was unwilling to appoint a prominent monarchist. Lavarch told Brown that the republic issue was "the only real hurdle" to Keating approving Kirby's appointment. Then:
According to Lavarch, Kirby was 'certainly the most creditable ... sanest, rational spokesperson for the monarchist position' - a fact that he and Evans tried to turn to advantage by arguing to the Prime Minister that Kirby's appointment would 'take him out of having this very prominent and creditable role ... he'd have to shut up about it'.
But Brown goes on: "Eventually, Lavarch and Evans persuaded the Prime Minister that Kirby's views on the republic could be divorced from the actual role he would fulfil on the court. It was a success Lavarch never regretted ...". For, as Brown says Lavarch knew, Kirby was also strongly committed to the sovereignty of parliament.
Brown's chapter was a draft for elements of a biography then in preparation: Michael Kirby: Paradoxes & Principles (Leichhardt, Federation P., 2011). There Brown records (266):
The only hurdle became Kirby's stance against the republic. Lavarch also remembered it as a real problem in the discussions, and that it took several detailed conversations with the Prime Minister to talk him round. According to Lavarch, he and Evans probably pointed out that appointing Kirby would 'take him out of having this very prominent and creditable role [as a monarchist] ... he'd have to shut up about it'. Keating was finally persuaded when Evans explained that Kirby's stance on the republic would have no connection with the key issues on the High Court.
Brown adds (266) that, according to Lavarch, "the key issue" was Kirby's likely stance on federal-state relations with regard to state-imposed "licence fees". "Of the two front-runners, Kirby would be less likely to uphold the validity of these taxes, while Doyle was more likely to be sympathetic to the idea of 'State's rights'. It was a prescient calculation." Brown ironically understates: Kirby was to be in the majority in Ngo Ngo Ha v New South Wales (1997) 189 CLR 465, which held those fees to be unconstitutional. This decision created a multi-billion dollar revenue deficit for the States, which in 2000 the federal government - by then a Coalition government under John Howard - filled with a federal Goods and Services Tax, revenues from which are to be returned to the States but control of which ultimately lies with the Commonwealth. --Wikiain (talk) 03:38, 24 October 2012 (UTC)[reply]
Wasn't Kirby a serving judge at the time of his appointment to the High Court? Shouldn't he therefore have been 'shut up' already? — Preceding unsigned comment added by 124.191.144.183 (talk) 14:32, 12 April 2013 (UTC)[reply]
A member of the High Court might be expected to take extra care in speaking about the monarchy, because it is the court in which major constitutional issues are decided. --Wikiain (talk) 23:40, 25 April 2013 (UTC)[reply]

"Puisne"[edit]

On 5 April user 58.160.137.46 changed the portrait caption from "Justice" to "Puisne Justice", giving the reason as "consistency". The reason was good, in that WP identifies all justices of the High Court of Australia as either "Chief Justice" or "Puisne Justice". Siegfried Nugent reverted this with the comment "no thanks". I agree in principle with Siegfried: in Australian legal discourse the qualifier "puisne" is almost never used. In the Commonwealth Constitution, the Judiciary Act 1903 and the High Court of Australia Act 1979, the distinction is only between "Chief Justice" and other "Justices", and "Chief Justice" and "Justice" are the titles that they go by. My preference is for achieving consistency by removing "puisne" from all articles on members of the High Court. Tabled for discussion. --Wikiain (talk) 01:35, 6 April 2013 (UTC)[reply]

I have tabled this for discussion in Talk:High Court of Australia - kindly place your thoughts on that page instead of here.--Wikiain (talk) 23:13, 6 April 2013 (UTC)[reply]
"Puisne" has now been removed from all articles on members of the High Court of Australia. --Wikiain (talk) 23:35, 25 April 2013 (UTC)[reply]

Judicial Career[edit]

As the HCA bio indicates, his appointment to the industrial court was a judicial appointment.--Jack Upland (talk) 08:12, 30 August 2015 (UTC)[reply]

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Ankali?[edit]

Kirby's partner became an Ankali in NSW and …

  • What does that mean? I'd never heard of Ankali and we have no article for it (apart from a village in southern India), so I googled it to discover it's an LBGT emotional support group created in the 1980s, which has since been absorbed into the AIDS Council of NSW.[10] But the Albion Centre claims it's part of that organization. [11]. Ankali does not seem to have its own website. So, exactly what its status is, is somewhat vague.
  • But in any case, what does it mean to say that someone "became an Ankali"? One does not "become a Lifeline", or "become a beyondblue", but maybe Ankali used/uses unusual terminology for its people. -- Jack of Oz [pleasantries] 21:23, 13 November 2017 (UTC)[reply]
A mystery to me too. I've removed it. It can go back if someone can explain it and also that it says something about Kirby. Wikiain (talk) 01:41, 14 November 2017 (UTC)[reply]

External links modified (January 2018)[edit]

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