JUSTICE KIRBY RETIRES

Justice Kirby retires, but has eyes on post with UN

David Marr, smh

January 31, 2009

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Now history will be the judge

MONDAY will see Michael Kirby presiding all alone in the High Court over an immense party he has organised in his honour. After half a lifetime on the bench, he is packing his gavel and departing. He has no choice for in a few weeks he turns 70 and the constitution says he must go.

Traditionally only chief justices are formally farewelled by the court. The rest are expected to disappear without fuss. That isn't Kirby's way. He drew up a list of speakers for the occasion that begins with the federal Attorney-General, Robert McClelland, and a guestlist topped, according to rumour - a rumour fiercely denied - by the Dalai Lama.

Tickets are scarce. The judge's admirers will fill two courts. He is the longest-serving judicial officer in the nation, whose career on the bench began 35 years ago in the Whitlam era when Lionel Murphy appointed him to the Conciliation and Arbitration Commission. Controversies that began then are still running now.

On the High Court he earned the title the Great Dissenter. It's a title he loathes.

Addressing a conference of state and federal judges on Australia Day, Kirby played down his isolation on the bench.

"My disagreement in the disposition of proceedings that have gone to a full hearing stands in toto, as about 35 per cent." That still makes him the court's great loner.

His invitation warns: "Unfortunately the court will not be providing hospitality following the farewell." But he will barely have time to relax anyway. It may be his last, but Monday will be an ordinary working day.

At 2.15pm he will be back on the bench to hand down a last five judgments in which the Rudd Government will learn, among other things, whether Medicare is unconstitutional for imposing civil conscription on doctors.

Then it's out the door. He's hanging up his shingle in Phillip Street. Like many grandees of the bench, Kirby will now be available for private arbitration. Universities are lining up to have him teach. As always there are speeches to deliver on every subject under the sun.

But the job he really wants is with the United Nations. Last November he was recommended for the new UN Appeals Tribunal. But there is a hurdle yet to be overcome. He must be elected to
the position by the General Assembly. Kirby is facing the verdict of the world.