Former High Court Justice, Michael Kirby, travelled to Hobart on February 3rd to formally open Michael Kirby Chambers.
The event was well attended. The Premier, The Honourable Lara Giddings and the Leader of the Opposition, the Honourable Will Hodgman both attended, a positive feature remarked upon by Michael Kirby in his address.
Michael Kirby spoke with warmth and enthusiasm.
Michael Kirby's Address on the occasion of the opening of Chambers
Honoured Guests, I begin by acknowledging the presence of so many distinguished citizens who have come to this occasion to be with the Hon. Duncan Kerr SC and his colleagues as we launch the Michael Kirby Chambers in Hobart.
We gather on this beautiful Hobart evening, conscious of the dangers faced tonight as North Queensland braces itself for a cyclone. And as fellow citizens in other States continue to confront flood and fire. These realities encourage us to count our blessings and to reflect on our duties to those less fortunate.
It is a particular honour to the Chambers that the Premier, the Hon. Lara Giddings MP, is here, despite her new and heavy responsibilities. Together with the Leader of the Opposition, Mr. Will Hodgman MP, himself son of a distinguished barrister and my friend, the Hon. Michael Hodgman QC.
To have present on this auspicious occasion both the head of government of the State and the alternative head of government, is specially encouraging. In the way politics is practised in Australia, this is comparatively rare. There should be more of it. Without diminishing the necessity and utility of disagreement in a democracy, there are times when our leaders can come together. I am glad that this is one.
The British, from whom we derive many of our parliamentary and legal traditions, do this more frequently. I still have etched in mymind the images of the return of the Queen to England from Kenya in February 1952, following the death of King George VI. There, waiting at the foot of the aircraft steps, was only Winston Churchill, Prime Minister, and Clement Atlee, Leader of the Opposition and past Prime Minister. The symbolism was overpowering. I am grateful that the same symbolism is present with us today. All of our political parties and leaders have a commitment to the core institutional features of our country: the rule of law, independent and uncorrupted judges and the defence, by law, of basic human rights. It is good omen for these Chambers that they start with such a public affirmation that it is so.
I also acknowledge the presence of so many public figures and leaders of the Tasmanian legal profession: past and present. Members of the Federal Parliament and Government; Justices of the Supreme Court Blow and Evans, Porter and Tennant; Justice of the Family Court of Australia Benjamin; members of the Magistracy; heads of tribunals and public authorities; Dean of Law Margaret Otlowski; Solicitor- General Leigh Sealy; President of the Law Society of Tasmania, Bill Griffiths, and so many others. This is the cream of the legal profession in the State. It reflects the respect for the members of the new Chambers and good wishes for their success. It is also a compliment to me which I cherish.
I especially acknowledge the presence of the former Chief Justice and Governor of the State, Bill Cox and former Justice Pierre Slicer. Mr. Cox was the Chief Justice during most of the time of my service on the High Court of Australia. He was in office when I came to Hobart in that capacity. The only complaint I have ever had about him is that, when he led the Court, there was not enough error. Insufficient mistakes. Inadequate injustice.
I was always the most enthusiastic member of the High Court, for visits to Hobart. If it had been left to me, we would have come on each year of the thirteen years I served on the High Court. Although, from time to time, my vigilance detected error at the special leave hearings, my colleagues were all too often unconvinced. On a couple of occasions, I persuaded them to come, and even to bring suspected erroneous decisions from Victoria down to Hobart, on the persuasive ground that it was no more costly for the lawyers to venture here than to Canberra. But after a few successes on that basis, my colleagues soon woke up to my tactic. Insufficiency of error became the excuse for not coming to Tasmania. We came three or four times in the thirteen years.
I hope that the judges of the courts and the tribunals in this State will not repeat this mistake but will afford many appropriate occasions for the visits of the High Court to this most beautiful city. It is good for the High Court and for the legal profession. Henceforth, it will be good for these Chambers. So I make that appeal.
Pierre Slicer sometimes endeavoured to help me in my efforts, by identifying the errors of his colleagues. He was not quite in the grand league of dissenters. But, by Australian standards, he wrote his fair share. And occasionally, he was vindicated, as dissenters often are.
Pierre Slicer was amongst the small group of Tasmanians whom I came to know first, during my participation in university student affairs in the 1960s. Like him, I attended the annual councils of the National Union of Australian University Students, held in Melbourne and other State capitals. Through the decades, we have maintained the close friendships of those years. The other representatives of the University of Tasmania at the time were Dennis Altman, now a Professor of Politics at La Trobe University; Rudolf Plewe, who went on to be a Professor of Philosophy; and Patti Warn, who served in ministerial offices and federal as well as State tribunals and now lives in Sydney.
The Tasmanian delegation, of such variety and stand-out talent, often packed a punch. Dennis Altman has proved highly influential in espousing the principles of non-discrimination and equal justice for all. Pierre Slicer was also courageous, a quality he clearly continued into judicial life. Patti Warn contributed to the early political responses to the HIV epidemic, as did Bill Bowtell, another Tasmanian.
Over the decades, I have made many friends, and paid many visits to this State. I am very proud now that, through these Chambers, I will have a continuing presence here.
When Duncan Kerr sought my agreement to naming the Chambers after me, I must be frank that I urged upon him thechoice of a Tasmanian name. I even mentioned a few suggestions. Several past and contemporary names sprang readily to mind. Leaving aside those still living and here with us, Andrew Inglis Clark was a truly great constitutional lawyer. His first draft of our national Constitution left an indelible mark on the document as it eventually emerged. His ‘living tree’ theory of constitutional interpretation was the one that I, and many other judges, have embraced. Justice Frank Neasey and I worked together in the Australian Law Reform Commission. And I could name more.
However, Duncan Kerr and his colleagues persisted. Certainly, over 34 years of judicial service, I left a long trail of decisions and reasoning. So there is something there for everyone. My commitments to social justice and human rights grew out of my own life’s experiences, as well as professional engagements and activities. Although much is made by media of my dissenting opinions in recent years, overwhelmingly, my judicial and other writing was in the majority and undertook an exploration of the abiding common principles of our legal system. I will be specially glad if, occasionally, members of these Chambers, and the courts and tribunals they address, find words of mine helpful to them in the cause of justice under the law.
I have a special reason for confidence in the future success of the members of Michael Kirby Chambers. Duncan Kerr appeared before the High Court in a case that was concerned with high constitutional principle, administrative law and natural justice. Not all parliamentarians can make successfully the transition frompolitics to the courtroom. But Duncan Kerr not only succeeded in his advocacy. He greatly impressed us by his command of the authorities, skill in argument and responsiveness to questions.
As it turned out the case, Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, was one of the most important in recent years for its affirmation of the centrality in our constitutional law of the rule of law. In a most powerful passage of reasoning of the Court, in which I participated, the judges said (at pp.513-514):
Section 75 ... introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. There was no precise equivalent to s75(v) in either of the Constitutions of the United States of America or Canada. ... The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring, to all people affected, that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts ... to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. ... Under the Constitution of the Commonwealth the ultimate decision- maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.
In a hundred years, these words will be read and applied in this country. I pay a tribune to Duncan Kerr for his advocacy and persuasiveness. It sets a high standard, to be emulated.
I take the opportunity of this occasion to offer congratulations to a member of the Chambers, Greg A. Melick SC, on his recent appointment as an officer in the Order of Australia in the Australian Day Honours List. His dual service to the Australian Defence Force and the law is also a cause for celebration by us.
A NEW YEAR OPENS
These Chambers are opened as we, in the Australian legal profession, embark upon a new legal year. It is for me, and for us all, a reminder of the continuity of our lives as individuals and as lawyers. Through good fortune, it has seen, or will see, me in four capitals of our nation.
On Monday, I attended the church service at St. James in Sydney where the red robed judges welcomed in the new Term. On Tuesday, I celebrated (if that is the word) the second anniversary of the conclusion of my years on the High Court of Australia. On Wednesday, I travelled to Brisbane to witness one of my associates in the Court of Appeal, Colin Forest SC, being sworn in as a judge of the Family Court of Australia. This was a significant day for him; but also for me. To play even a small part in preparing future judges for service in our courts is a particular privilege. Today, in Hobart, there is the opening of these Chambers in the presence of the leading members of the Tasmanian profession. And tomorrow, in Adelaide, I will take part in an advocacy conference being addressed by Justice Antonin Scalia of the Supreme Court of the United States of America.
Preparing for this occasion, and for the Adelaide conference, has focussed my mind, once again, on the special challenges and great importance of independent advocates. Our legal system depends on them as much as it does on the judges. That is why the opening of new chambers is always such an important event for lawyers of our tradition.
My paper in Adelaide will address differential advocacy: how the persuader must muster the skill of hanging on to the support of one judge in a multi-member court, whilst not losing the others. Or how he or she must embrace one judge’s theory of the case, whilst not discarding or offending another’s, even where it is completely inconsistent, it if leads to the same happy outcome for the client.
Reflecting on my paper for Adelaide, I realised, once again, the great debt that the judges owe to the skill and analysis of talented lawyers. They are the ‘ministers of justice’, stimulating, encouraging and sometimes inspiring the courts to provide equal justice under law.
Reflecting on these essential talents, I was reminded again of the compact that must come with the debt that judges owe to the Bar. That compact obliges Bench and Bar to avoid any feelings of personal antagonism and always to observe professionalism and courtesy. Remembering that, behind every advocate, sits a client for whom the case is important and not an occasion either for personal feelings or undue levity. I open these Chambers with confidence that, here in Tasmania, these high qualities of our profession will ever be maintained. The work of courts and tribunals is difficult and stressful enough as it is, without heaping it up with unnecessary pressures and tensions.
DUTY AND SERVICE
And so I open the Michael Kirby Chambers in Hobart with great confidence and high hopes. In the front conference room of this splendid building, so close to the law courts, is a copy of the portrait of me: the original of which hangs in the National Portrait Gallery in Canberra.
The original portrait was executed by Ralph Heimans, a young Australian painter of Jewish Netherlands background. Very early in his career, his father asked me to agree to be his subject. I did so and glad I am. He has now gone on to great success. Two of his portraits hang in the NPG in Canberra, which is now established near the forecourt of the High Court building. Others are found in several law courts in Europe. One is of a famous Tasmanian, Her Royal Highness, Crown Princess Mary of Denmark. It hangs in the Royal National Portrait Gallery in Copenhagen.
When I agreed to be the subject of Ralph Heimans’s painting, it was just after the announcement of my appointment to the High Court in December 1995. They were busy days. I could only see the artist on a weekend when he came to my Chambers in Sydney to make his sketches, take photographs, and complete other drawings in preparation for the work. Because I had to continue with my labours, I told him that, when he wanted me to lift my head and look at him, all he has to say was “look up”. So he did. And I so did. In due course, the portrait was completed.
My brothers, who are both lawyers and know me all too well, state that the look on my face is very familiar to them. When, as boys, we were all studying, they would come into my room and ask for help, I would then look up. There is captured in the portrait the same slight hint of impatience. But it is almost suppressed. If you look closely, you will see the long-suffering response of a judge, accustomed to doing his duty. There is no spin or glitz in the portrait. It is an active scene, as I am about to join my colleagues and to say farewell to the Court of Appeal, on the brink of moving to the court by the lake in Canberra.
Ralph Heimans titled the work Radical Restraint. It captures the restraints and traditions of our profession. Yet something of the radical, or I would say liberal, approach that I brought to my work is also there. In a rule of law society, advocates and judges operate under restraints. But it is the genius of our system that it also permits values and convictions to impinge on our outcomes, conformably with law.
To the barristers of Michael Kirby Chambers in Hobart, I extend every good wish for success. To all who have attended on this beautiful evening in Hobart, I express grateful thanks.
Portrait is Ralph Heiman's portrait referred to in Michael Kirby's opening address. Thanks to Ralph for allowing reproduction of this portrait. www.ralphheimans.com
© Ralph Heimans