A Private Life with Michael Kirby

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Former High Court Justice Michael Kirby’s new autobiography ‘A Private Life’ sets the record straight, says former colleague Ian Freckelton SC.

For a public figure who has lived his life in the self-induced glare of the media, there is a genuine place for an authentic perspective on Michael Kirby, in his own voice. The ironically titled A Private Life will be far from the last word by or about Kirby. However, it provides the perspective of Kirby on Kirby, along with an opportunity for him to develop a number of themes about his own life.  Not surprisingly, some of the material in the book has previously seen the light of day in various addresses he has given in Australia and internationally. However, in this work there is the ability for him to communicate what he wants to say and have remembered, in particular, about the influences that he believes have impacted upon his attitudes and values. Kirby also “sets the record straight” about a number of matters which he wishes clarified for posterity. A Private Life is a highly accessible and absorbing book by and about one of the best known Australians of our time.

I first met “His Honour”, as I knew him, in 1981 as an impressionable and raw graduand in law playing a suitably modest role at the Australian Law Reform Commission, of which Kirby was the founding chairman. Of course, I had heard of him and was appropriately in awe. It was not an encounter that he would recall but it prompted him to apply the epithet “jesuitical” to a proposition that I advanced, when he was getting himself his morning tea, and by extension to me — after he had heard where I had been to school. I knew almost nothing of his background then and was not sure how career-endangering his assessment of me was likely to prove. Over the succeeding five years I learned more about him at innumerable meetings — where he critiqued my work and that of others; when he saved me from the civil libertarian onslaught of High Court judge, Lionel Murphy, in full flight; and at the annual Christmas gatherings, which he hosted at his harbourside home. Much later, I was to appear in front of him in the High Court. Aside from his obvious acuity and his extraordinary industry and breadth of vision, the memories of the early experiences of Kirby that endure for me are of his good humour, his frighteningly deft skills in chairing meetings and facilitating them toward an outcome that he recommended, as well as of his warmth and inclusiveness. The firm view of his staff was that Kirby had no personal life. He started work by 5.30am and worked long after even the keenest of us had long departed the Commission. It was almost inconceivable that he had the time or inclination for a relationship with anyone, of either gender. How wrong we were! There, all the time, deep in the shadows, was his partner in life.

Little by little, Kirby has allowed that impression to change, starting from 1999 when he came out in Who's Who in Australia by naming Johan van Vloten as his long-term partner. In many ways, A Private Life marks the culmination of the journey from the closet to the openly mainstream Kirby — gay and at ease, even proud, of his personal life and of his sexuality. At a level this is Kirby reflecting on his life and engaging in relatively little by way of self-censorship; with Kirby decorum always involves the drawing of lines at certain points of propriety and privacy. There is a contentedness about his tales that bespeaks a man now at peace with where he has been and where he is. There is even a belated acquisition of insight: “If only I could learn to smell the roses.” (p192) His single-minded dedication to his career and to the law has meant many sacrifices: “If only the inexorable ticking of the clock could be stopped and the beauty of the present could be kept forever.” (p192)

The book is typically charming and engaging.  Kirby is first and foremost an exquisite communicator. His style has always been beguilingly accessible and in the course of telling stories and raising issues for four decades, he has sought to set agendas and influence public opinion, often accepting his ideas are not of their time and looking to the future for their potential influence and perhaps acceptance. A Private Life maintains this tradition.

In amongst his recounting of his school days, Kirby extolls the virtues of the public school system where “I was taught about excellence, with opportunities to maximize my talents and to pursue interests special to myself. I was introduced to secularism and told about respect for the religions and beliefs of others.” (p21) Kirby has consistently expressed discomfort with elitism and forms of privilege that exclude the socially and economically disadvantaged.

He writes affectionately of the English Wolfenden Report on Homosexual Offences and Prostitution in 1957, commenting that those were years for gay people that were dominated by fear, fright and stigma. He lauds the work of Kinsey and praises the courage of the Tasmanians Rodney Croome and Nicholas Toonen in their stand against laws criminalizing homosexual conduct: “Progress in human freedom belongs to the bold” (p35) but he accepts that changing public attitudes is an even greater challenge than reforming the words of statutes.

Kirby’s skills as a raconteur are to the fore in his self-deprecating and delightful account of his absorption with Jimmy Dean (perhaps his first love, albeit from afar), and his odyssey to Indiana in 2000 in search of the ancestral home of the star of East of Eden. From there, he moves gently into the work of Indiana University and cannot resist a call to arms:

“Things will only change if people speak up. They will only change if the game of shame and the spell of silence are broken.” (p62)

Kirby devotes a significant portion of A Private Life to tales of Johan — how they first met, how their relationship flowered, and how it has endured. This aspect of the book is delightful. In different ways they are strong personalities. They have pursued contrasting paths in life. What emerges is a story of complementarity and unflagging support of the each of the other, in spite of Kirby’s legendary obsession with work and his demanding lifestyle. Kirby tells of his previous lover and of the transition to life with Johan, pulling few punches, and relating their first interludes with each other with a fondness and nostalgia. He relates ringing Johan from a public phone box in London and proposing to him and Johan responding, typically of him, by asking Kirby: “Are you drunk? … Don’t waste my time with such stupid questions.”

Kirby comments:

“The vision of metaphorically kneeling and proposing marriage was banished with disdain. Above all, Johan is practical. He has a healthy scepticism and a lifelong contempt for futile gestures and hopeless pipedreams.” (p90).

Perhaps the real Kirby, the romantic and the dreamer, finds expression shortly thereafter, musing about one of his favourite themes:

“Beyond the dance parties and the Mardi Gras, homosexual people are human souls searching for love and companionship. Searching for the true friend. Hoping against hope for someone who will welcome their return home and offer words and actions that immediately translate love into reality.” (p92)

It was this hope that brought Kirby, the inhibited young lawyer, and Johan, the ex-mariner, into contact on a night in The Rex, a gay pub in Sydney, on 11 February 1969:

“It outshone the shame, the silence, the fear. It called the wanderer out of loneliness to the never ending quest for love.” (p93)

Kirby pursues a broader theme that is dear to him, the campaign against AIDS, in a chapter that relates a visit that he made to Zambia in 2007. His speech to the judges was far from his most straightforward and his calls for law reform fell on less than welcoming ground. As he was to find out, religious beliefs have constituted a significant part of the problem in effectively tackling the challenge of HIV/AIDS in Zambia, as in some other parts of Africa. It was the bravery of the late Winstone Zulu (1964-2011), who came out in relation to his HIV status and then in relation to having tuberculosis, who ultimately achieved the breakthrough in procuring anteretrovirals free of charge for the Zambian people.

Kirby concluded his time in Lusaka with time spent in prayer in the Church of England Cathedral and an attempt to rally members of the Law Association of Zambia to take on the challenges presented by HIV and AIDS, bringing them to the courts and challenging unjust laws. Reflecting on the potential for active response on what is a fraught issue in too any parts of the world, he comments:

“The foundation of all modern movements for the protection of fundamental human rights is the same as that of all religions. It is love. Love for the vulnerable, the poor and those sick of body and heart.” (p146)

Kirby tells many stores in A Private Life — including of his notorious visit to Sydney’s Riverview College and also of a complex interaction with the Salvation Army. However, one of the most memorable parts of his book is his haunting account of his interaction with Prince Manvendra Singh Gohil of Gujarat in western India. He tells of the prince’s public revelation of his homosexuality in 2006 and then of Kirby’s brief meeting with him a year later. At a Portuguese fort they sat and talked of their loves and loves and their mutual commitment to battling the scourge of AIDS. Kirby comments that history is likely to judge the prince kindly:

“I would not be surprised if, in future years, he comes to play an honoured part in the life of his country and of a wider world. AIDS can only be contained by ruthless honesty. Hiding reality is, or should be, over. In India, where most of the politicians and leaders are still silent, it took a prince to see the truth and to tell it as it is.”(p183)

A Private Life is autobiographical but it is not an autobiography. Readers hoping to learn more of Kirby’s real feelings about the accusations so perniciously peddled by Howard’s man, Senator Heffernan (a name deservedly receding into obscurity), will be disappointed. So too will lawyers aspiring to further exegesis of principles developed by Kirby during his tenure as Australia’s longest serving judge.

A Private Life is a deeply personal set of accounts by Kirby of issues and people who have mattered to him and that have impacted upon his world view. While much ink, including some drops of my own, has been expended on Kirby’s jurisprudence, the truth is that Kirby is best in his own words. In some respects, Kirby has always been what he writes and what he campaigns for. It is in that context that his warmth, his compassion and his unique inter-disciplinary contribution to international life and the law come alive. A Private Life puts the real Kirby on display with little affectation and much, as ever, that is thought-provoking. It is easily read. At times it is almost poetic. It gives considerable insight into Kirby the human being. In its pages much that transcends Kirby’s legal contributions is evident. In the end, as Kirby is starting to appreciate, his greatest legacy may be less in the vast number of his judgments and speeches, and more in the sum of the person he has become. It is Kirby the human being whom he places on public view, as he has not before, in A Private Life, to the reader’s significant edification.

Michael Kirby, A Private Life: Fragments, Memories, Friends (Allen & Unwin, Sydney, 2011), hb 200pp, incl index, $35.00.

Ian Freckelton SC is the co-editor of what Michael Kirby has described as the “large doorstopper”, Appealing to the Future: Michael Kirby and his Legacy, (Thomson, 2010).

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