: Michael Kirby: 
Paradoxes and Principles

Michael Kirby: 
Paradoxes and Principles

Kim Rubenstein

Michael Kirby, Paradoxes and Principles by AJ BrownAJ Brown; Federation Press, 2011; 484 pp;
$59.95 (hardback with pictures)

Janet Malcolm, in her brilliant rumination on the problem of biography in The Silent Woman: Sylvia Plath and Ted Hughes,1 writes:

… the narratives called biographies pale and shrink in the face of the disorderly actuality that is a life. … The goal is to make a space where a few ideas and images and feelings may be so arranged that a reader will want to linger awhile among them, rather than to flee…2

A desire to linger awhile is certainly my reaction to reading and enjoying this fulsome account of the first 70 years of Michael Kirby’s life (drawing on over 117 metres of personal records held by the National Archives of Australia, extensive speeches and other papers prepared by the subject, not to mention his court judgments). Brown also skilfully makes space for a few central images and feelings to assist one’s progress through this extensive and absorbing book. The opening image shared with the reader is of the Khyber Pass, where Kirby was travelling for the second time with partner Johan van Vloten. It is 17 December 1973 and ‘This time, at least, there were no guns’. Three and a half years earlier, Afridi tribesmen ‘brandishing rifles’ asked if he was British and ‘the young Australian traveller answered yes’ (p 1).

This identification of British nationality is one of the themes developed through the book as a paradox. Kirby’s ties to Britain and the Queen and his belief that Australia should remain a constitutional monarchy sit uneasily with his more progressive approach to other policy issues. A contrasting principle in that opening image, not publicly shared at that time, of his already five-year-old relationship with Johan van Vloten, was cemented during this same trip. Johan’s centrality to Michael Kirby’s life is beautifully crafted in the first 133 pages of the book, in explaining Michael’s own discovery of self within a warm and supportive family environment and his life long commitment to ending discrimination on the basis of sexuality, amongst other grounds.

However, for the rest of the book, which moves on to Michael’s professional life, Johan’s strong presence noticeably drops out of the story. While this mirrors how they lead their public lives until Kirby was 61 — when his public acknowledgment of his long-term relationship with Johan was made by updating his Who’s Who entry — it cannot reflect the inside story of how they lived their lives together.

This biography does not share with the reader how they coped as a couple with Michael’s intense and demanding working life. By the end of 1974, a year after the opening image of the book, Michael would be back in Sydney as Mr Justice Michael Kirby, Deputy President of the Australian Conciliation and Arbitration Commission and a foundation member and then President of the Australian Law Reform Commission, later judge on the NSW Court of Appeal, and 22 years later, judge of the High Court of Australia where he would be for a further 13 years. And during all that time, with his various extra commitments as Chairman and then President of the International Commission of Jurists, working with the Organisation for Economic Cooperation and Development and the United Nations on questions of social, medical and technological regulation, and serving as the UN Secretary-General’s Special Representative for Human Rights in Cambodia, Kirby maintained a high media and public outreach focus. How did he work so intensively and maintain a strong, enduring, loving relationship?

We discover how Michael and Johan protected their relationship from exposure during those years, by ‘a careful regime of appearing to live alone to all but a small circle of friends and family’ (p 115). Some examples are shared of screening incoming calls with an answering machine, and Michael using a code of ringing twice to let Johan know it was safe to pick up the phone. And when Kirby held annual staff Christmas parties as President of the Australian Law Reform Commission there would be no evidence of van Vloten who would head out to his work at the ABC, after first making the house immaculate for the party. But from that discovery in the book, the next reference to Johan is at Kirby’s farewell speech in the NSW Court of Appeal where he ‘paid indirect tribute to Johan, thanking “his family and loved ones”’ for sustaining him and concluding ‘Some debts are too intense, enduring and private for words on public occasions such as this’ (p 272). Perhaps that is the answer to van Vloten’s absence in this part of the book? However, towards the end of the book we get a small glimpse of the way Johan sustained Michael when he needed urgent quadruple heart surgery. ‘To stop Kirby returning to work before the operation, Johan had to trap him in his room at Royal Prince Alfred hospital by taking away his clothes’ (p 384).

Is my desire to know more about the way they lived their lives together prompted by the way the book starts with Johan clearly in the picture, explaining the evolution of their relationship in the beginning of the book, or is it due to another insight that Janet Malcolm offers about biography?

The voyeurism and busybodyism that impel writers and readers of biography alike are obscured by an apparatus of scholarship designed to give the enterprise an appearance of bank like blandness and solidarity.  … The transgressive nature of biography is rarely acknowledged, but it is the only explanation for biography’s status as a popular genre.3

Perhaps Brown protects us (and his living subjects) from that transgressive step? The emphasis changes after the first five chapters, with their  strong mix of personal and professional, to the remaining thirteen chapters that flesh out in intricate, rich detail Kirby’s intense and full professional life, driven by a desire to make a meaningful contribution. That said, a strong theme of the book, made clear by Brown in his sorting through of the voluminous material, is the affirming loving family environment that nurtured Kirby from birth to this day. We discover in this latter part of the book that after Kirby finally made his relationship with van Vloten public, his father Don’s birthday card to him contained one message — ‘Free at last’ (p 318). This love and freedom provided a further bow to Kirby’s strong armour to continue to work towards a better world, free from discrimination.

Brown’s artful integration of vast amounts of factual information is illustrated in a passage at the point where Kirby left the Law Reform Commission to begin at the NSW Court of Appeal in 1984. We discover he used his role on the CSIRO Executive to talk about science; as President of the Arts Law Centre, he spoke on funding support to artists; as chairperson of the Pearl Watson foundation, he continued to speak about policy issues in family law; and after The Age tapes took such a devastating toll on his friend Lionel Murphy, he made many speeches urging federal government action on the ALRC’s privacy report (pp 202–3).

Kirby’s relationship with Murphy and other judges, including Mary Gaudron, is also carefully developed through the biography. The perspective we get of those relationships from Kirby’s life reminds us that context is essential to our understanding of the world. Indeed, it is fascinating to compare Brown’s accounts of these relationships, with Pamela Burton’s account in her biography of Mary Gaudron.4 (See review in this section.) Reading both biographies (including Kirby’s foreword to Gaudron’s book), gives the reader different flavours, illustrating how layered and multiple perspectives assist in getting to the ‘truth’ of any scenario.

Brown writes that Kirby was widely rumoured as the natural heir to Murphy’s place on the High Court, although this was not to be, with Mary Gaudron taking that seat. Having served as NSW Solicitor-General for several years, both the substance and symbolism of Gaudron’s appointment, as the first woman on the High Court, were clear (p 195).

Burton’s account of that same period enlarges our understanding of the emotional and charged time the Murphy affair proved to be5 and proceeds to amplify Brown’s acknowledgment of the substance and symbolism of Gaudron’s appointment. Like Kirby, Gaudron had been canvassed as a High Court appointee well before Murphy’s demise — indeed she was touted as a possible successor to Harry Gibbs as Chief Justice. She had the formal support of the NSW Attorney-General Terry Sheahan, and former Premier Neville Wran. Burton also shares a story that adds to the picture. Murphy and his wife Ingrid were at a dinner at the Lodge in Canberra with Prime Minister Bob Hawke just before Murphy died. ‘In the course of the conversation Murphy made his wish known that he would like to see a woman appointed to the High Court. As others heard the story later, Hawke, emotionally, if rhetorically asked ‘Mate, mate … what can we do? Murphy replied ‘Appoint a woman to the High Court’. As Burton reminds the reader, as ACTU President, Hawke had observed Gaudron’s capacities as Deputy President of the Conciliation and Arbitration Commission.6 Burton’s reference to others having to wait for appointment to the High Court was to McHugh rather than Kirby;7  as Brown writes, Gaudron’s appointment reminded Kirby of his feelings back in 1974 in the prologue ‘that history could pass him by’ (p 195).

Yet, through other circumstances including being in the right place at the right time, Kirby’s opportunity came, thanks to the lobbying of Gareth Evans and Kirby’s own tactical decision to pull out of appearing in a documentary being developed by Kerry Jones and Australians for Constitutional Monarchy. Kirby’s resistance to republicanism was a problem, according to Brown, however his federal stance won him the spot.

From this point on, Brown concentrates on Kirby’s judicial method and High Court decisions. As the cover advertises, Brown had access to draft judgments, giving the reader an insight into the judgment writing process. This attention is natural in a biography of a judge, but it also gives us insight into Brown’s own interests and motivations. Beyond the judgments, however, I was also engrossed by the chapter ‘Six days that shook the Court’ following the intensely charged allegations by Senator Heffernan, with material available for the first time under Freedom of Information. Once again, though, its impact on Kirby and Johan’s life is left out.

Brown explains in his acknowledgments on the second last page of the book that the origins of the book lie with him being the recipient of a prize in his first year of law school, which was accompanied by morning tea with Michael Kirby when he was on the NSW Supreme Court. This strong emphasis and attention to the law in a biography by a lawyer of a judge and lawyer whose life has been entirely committed to law is as one would expect. However, if Kirby continues to act as frenetically as he has since his retirement, where Brown’s book ends, we may live to see yet another biography to provide another perspective on his truly full and interesting life.

KIM RUBENSTEIN is Professor and Director of the Centre for International and Public Law in the ANU College of Law and Convenor of the ANU Gender Institute. She is currently writing a biography of Joan Montgomery OBE, AM, who was Principal at Presbyterian Ladies’ College, Melbourne, from 1969–85.


1. Janet Malcolm, The Silent Woman: Sylvia Plath and Ted Hughes (Picador, 1994).
2. Ibid 204–5.
3. Malcolm, above n 1, 9.
4. Pamela Burton, From Moree to Mabo: The Mary Gaudron Story (Federation Press, 2010).
5. Ibid 241–9.
6. Ibid 251.
7. Ibid 254.

(2011) 36(3) AltLJ 215
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Paradoxes and Principles

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