This year, Tharunka continues with its interview series “Spotlight on UNSW,” where we speak to outstanding and inspiring members of the UNSW community.
In our first spotlight, Cameron McPhedran spoke with the Honorable Michael Kirby. A High Court Justice for thirteen years and winner of the Gruber Justice Prize in 2010, Justice Kirby is a Distinguished Visiting Professor at UNSW where he writes, teachers and mentors students.
During your period on the High Court, what were some of the most important decisions you feel the bench handed down?
Well virtually every case was important. You don’t get to the High Court of Australia unless the case is significant legally and in terms of justice; these are the criteria for the grant of special leave of appeal. So all of the cases were important to the people involved and most of them were important to the legal system and to the Australian community.
What is astonishing is the lack of proper reportage of the matters that come before the High Court to the citizens: media will spend endless hours on irrelevancies and trivialities and not cover the work of the highest court of the land, and that was a source of constant amazement and distress to me during my service.
Over the past decade there has been a shifting relationship between the branches of government power in Australia, where in particular the executive has accrued more power. How do you perceive the current balance of power between the legislature, executive and judiciary?
The enhancement of the power of the executive is not something new, it’s been going on for a century. The enhancement of the power of the executive over the parliament is a worldwide trend. Increasingly we can see the enhancement of the power of the head of government over the executive, and hence the gradual drift of power away from a multi member parliament and multi member executive into the hands of a Presidential type system. I regard that as a bad development.
In a sense, the recent events concerning Mr. Rudd are a reassertion of a claim to power over the executive of members of parliament because in the end they decided whom they wanted to have as their leader. So these are worldwide developments and they are reasons for vigilance and great scrutiny of the courts for the legislation enacted by the Federal Parliament at the behest of the executive government and in turn often at the behest of the security agencies and sometimes international pressure.
What do you perceive as the main social debates confronting in Australia in 2012?
The position of Aboriginals still needs a lot of attention. My last decision in the High Court in the case of Wurridjal v The Commonwealth  concerned the challenge to the Constitutional validity of the Intervention in the Northern Territory.
That Intervention, far from being abolished, has been extended by ten years by the Rudd and Gillard governments as recently as this week and that involves the imposition of restrictions on Aboriginal people by reference to their race. If that were done to any other racial group in Australia it would be an outrage.
Similarly I think there is lots to be done in respect to the rights of women in Australia- true gender equality; there is much to be done in relation to refugees and people of different races, we still have a great deal of inherent racism in Australia: we have abolished the White Australia Policy but the way we react to refugee applicants and the excessive fear of the trickle of boat people who come into our country is a shocking indictment of Australia. As for gays, there is still a lot to be achieved there too.
So there is plenty to be done and I’ve just given a few examples. Young people have an obligation to be engaged with these issues. In particular law students should be idealistic and optimistic and should be endeavouring to make the legal system and the community more just for everyone. We should all be working towards a system of human rights protection, because we’re now one of the very few countries in the world that doesn’t have a judicially accessible human rights protection.
Given it is over a decade since marriage equality was first internationally achieved in the Netherlands, what do you believe are the main factors holding it back in Australia?
The main factors are one: opposition by noisy religious groups who wish to inflict on the whole body of the community their private religious views. Religious organisations should not be forced, I repeat not be forced, to conduct marriages, but some religious organisations would be willing to conduct marriages and in any case two thirds of [heterosexual] Australians now do not get married in church, they get married before civil celebrants.
Secondly, some of the opposition is found, astonishingly enough, in trade unions. One of the leading forces against change in Australia is the shop assistants’ union. This is a constant source of astonishment and dismay to me: the shoppies, what did gays ever do the shoppies that they hate the gays and wish to deny them their equal legal rights? Mr. Joe de Bruyn and his supporters have a disproportionate influence within sections of the Labor Party and they should be put in their place: the members of the shop assistant’s union should say we do not go along with this antipathy and homophobic attitude.
Thirdly, I think that there’s a lack of leadership in this matter. This week the British Government has released its discussion paper concerning marriage equality in the United Kingdom. Mr. Cameron, the Prime Minister of the United Kingdom, says that he supports marriage equality not despite the fact that he’s a conservative but because he’s a conservative: because it’s in the interests of society and a conserving society to provide for stable relationships, dignity, self respect and faithful and loving relationships for those who want them.
Throughout your career, you have enriched many communities. On the other hand, how have communities enriched your life?
My life has been greatly enriched because from my university days I was a joiner: I always joined things. I was involved in student politics, I was the star of student politics in my day. I used to go to UNSW Student Union meetings when John Niland, later the Vice Chancellor of UNSW, was the President of the Student’s Union. I went to Nigeria in 1963 with him on an international delegation of the National Union of Students and I was a joiner there. After that I was a joiner in the Council of Civil Liberties.
My life has been greatly enriched by being involved with people who are idealistic, who are optimistic, who don’t want to be in a legal system which doesn’t have an ethical compass and is not concerned with the rights of Aboriginals, of women, of people of colour, of refugee applicants, of gays, and other disadvantaged people, and also of animal rights and animal welfare: this is a coming issue. There’s plenty to be done, and I hope that the next generation will be as engaged and will be joiners as I was because it enriches your own life and makes a contribution however small to a better world.