I have been asked to reflect on Michael Kirby who is fond of signing letters to me: 'Your Protestant friend'. After 35 years, he is no longer a judge. He is no longer 'Your Honour', 'the Honourable Justice Kirby'. A lover of titles, he has just published his latest chapter in a book reminding readers that in 1983, 'in the last federal list of Imperial Honours, I was appointed to the Order of St Michael and St George'.
He has always loved form, manners, tradition and due deference. Yet he has long thrived on conflict and change. His output is prodigious and will continue to be, and yet his humble self-doubt is no artifice. He is fond of saying, 'Occasionally progress is only attained by candid disclosure of differences, by planting the seeds of new ideas; and waiting patiently to see if these eventually take root.'
In recent years, I have had the privilege of dining with him in Chambers at least annually, surrounded by photos and trophies of his international and national activities, marking a passionate commitment to human rights. At the end of each lunch, the judge's associate would be summoned to take the mandatory photo which would then arrive in the post with some recent speeches as a memento of the event.
Yesterday Justice Kirby published his last dissenting judgment as a justice of the High Court of Australia. While his fellow justices basically upheld the legal validity of the legislative scheme underpinning the Howard Government's Intervention in the Northern Territory, Kirby found that the laws were suspect and that Aborigines should have their day in court. There was nothing surprising in either the majority decision nor in Kirby's dissent.
But by his last day on the Bench, Kirby had exhausted both his power of persuasion and his charm with his fellow judges. Kirby observed:
If any other Australians, selected by reference to their race, suffered the imposition on their pre-existing property interests of non-consensual five-year statutory leases, designed to authorise intensive intrusions into their lives and legal interests, it is difficult to believe that a challenge to such a law would fail as legally unarguable on the ground that no 'property' had been 'acquired'. Or that 'just terms' had been afforded, although those affected were not consulted about the process and although rights cherished