Is Michael Kirby our Chief Defender?

Originally Published: FEBRUARY 21,2013

Michael Kirby has unfinished business.

Namely, Australia’s lack of a bill of rights. A bill of rights that you could, in Kirby’s words, teach all school students.

An interview with Michael Kirby was never going to be dull. Australia’s longest serving judge has strong opinions on many issues – which considering his stellar legal career came as no surprise.

What did surprise me, however, was Michael Kirby’s sense of humour, and willingness to speak openly about his personal life and the impact that has had on his professional life.  It is not hard to become an admirer of Michael Kirby. He is an iconic Australian who has been responsible for some of the biggest decisions in our legal history. While he no longer serves as a judge, he has by no means stopped campaigning for social justice. In fact retirement from the bench has enabled Kirby to speak out on issues he is passionate about; something he didn’t do as a Judge.

Kirby is not saying that our rights are not protected now. Australia has ratified seven of the eight major international human rights treaties. So at the international level, we have a suite of human rights guarantees and the Australian government has obligations under those guarantees. However, the problem with the international system is it lacks a “policing system” that can enforce those obligations.

Australia has some statutes that reflect and incorporate these international obligations. But we don’t have anything that comprehensively brings the human rights from the international system into a domestic enforceable document. And this is what Michael Kirby is so concerned about.

The bill of rights issue has been in and out of favour with both sides of government, with the Labor government choosing not to move forward with a bill of rights – and the Coalition supporting this move before the last election.

A constitutional bill of rights allows judges to invalidate laws that are incompatible with human rights. These are of course, laws that our parliaments have democratically enacted. And this is where the resistance lies. A bill of rights aims to protect minorities and vulnerable people. Supporters of the bill of rights believe that it is the judiciary that is the best arm of government to protect them.

Parliament however, believes that it is best placed to protect human rights, which is why a constitutional bill of rights is not on the table.

While there are firm arguments for either side of the fence, including proposals that do not allow judges to invalidate laws, there has been no significant progress on this front with the current government.

Michael Kirby is hoping that it will be back on the government agenda in the future. He is certainly not giving up on an issue he believes is critical for Australia’s’ future. His passion for justice and love of Australia is obvious to all who meet him, which is why he is one of our favourite Australian icons.

With over four decades as a High Court Judge, no-one knows the current legal system, it’s advantages and disadvantages, like Michael Kirby. When someone of his stature and experience calls for change, we should listen.