Justice Kirby’s recent foray into Federal politics created such a storm that even his colleagues on the High Court bench intervened, intimating this time their brother judge had gone too far.
At a recent University of South Australia graduation ceremony Justice Kirby blamed the “drift” of students towards the private system specifically on Federal Government funding policy, declaring it a regrettable development.
During the ceremony, at which he was awarded an honorary doctorate, Justice Kirby claimed the two-thirds/one third mix of public and private education, which he said had been the hallmark of the Australian system for 100 years, was being deliberately broken down by government policy.
He went on further to declare that the trend of parents seeking private education for their children “has been encouraged by substantially increased government funding for private education”.
Given the intensity of the recent political debate between the Coalition and the Opposition Labor Party over education funding, these were explosive words, particularly in an election year.
It was not surprising that the patently political comments, which basically took the line of the Federal Opposition expressed through its education spokesman Michael Lee, struck a raw nerve with the Government.
The Attorney-General Daryl Williams accused the judge of making “politically motivated” statements, while Education Minister Dr David Kemp claimed Kirby’s analysis was flawed and based on incorrect figures which had been part of the ALP’s propaganda in the debate.
Even Prime Minister John Howard made an unprecedented intervention declaring Justice Kirby’s comments “inappropriate” and “blatantly and obviously a matter of political debate between the two political parties”.
Justice Kirby defended his outspokenness on the issue by saying that he was the only current High Court judge who had spent his entire schooling in the public school system, and remained a passionate defender of its contribution to the nation.
The lawyer went to the selective Fort Street High, Sydney – the oldest public school in Australia.
Four of the seven High Court judges followed up the Liberal politicians’ words of recrimination by warning judges in general about not expressing personal opinions in public, because they might compromise the appearance of impartiality that was vital to public confidence in the administration of justice.
Justices Michael McHugh, William Gummow and Kenneth Hayne joined Chief Justice Murray Gleeson in an obvious caution to Kirby. The carefuly chosen words were made specifically and pointedly in the course of a joint legal decision.
However, this is not the first time Justice Kirby has spoken publicly on controversial issues. He has spoken on everything from the human genome project to homosexual rights, using every imaginable forum including elite Catholic schools. The High Court’s own website publishes all the speeches made by judges since their appointments.
They include 19 speeches made by the Chief Justice in his three years on the bench, and Justice Mary Gaudron’s two speeches. No speeches are listed for Justice Gummow. Since Justice Kirby’s appointment by the former Labor Government in 1986 he has made an extraordinary 89 speeches outside the court. It is a pattern which has characterised Kirby’s legal career, including his previous incarnation as head of the Law Reform Commission.
However, Justice Kirby clearly overstepped the mark in this case, making one speech too many on one issue too many. Kirby’s superficial (and quite possibly incorrect) analysis also overlooked other factors in the debate, including problems unrelated to funding in the public education system such as the philosophies and attitudes being pushed by government schools.
Justice Kirby’s education speech has also broken a vital and long-standing rule of judges being seen to be apolitical and impartial, not to mention the unspoken rules of judges needing to be discreet and reticent public figures.
The frequency and breadth of Kirby’s out-of-court commentaries also raises potential conflict of interest issues in future court cases.
It can be an over-simplificiation to claim that all the judges on the High Court are either conservative or liberal, even when their appointments are made by a Labor or Coalition Government. Justice Kirby himself, though liberal on social issues, is very conservative on constitutional matters.
Nevertheless, High Court judges are clearly important long-term appointments which can have an influence on the life of the nation long after the political appointers themselves have departed the scene. Such was the case with the Wik decision made in the first year of the Howard Government, and which had such a dominant impact on the Government’s first term of office.
At the time of that decision Deputy Prime Minister Tim Fischer came under heavy criticism for accusing the High Court of being “activist” in its judgements, and his hope that Coalition would appoint “Capital C conservatives” to the bench.
Mr Fischer’s words prompted accusations he was “interferring in the separation of powers” – and appeared to be mild compared with Justice Kirby’s intervention in the education debate.
Yet Mr Fischer was only verbalising what everyone knows: that one of the unstated privileges of office in gaining the Treasury benches is the opportunity it brings to appoint judges of a particular calibre to the High Court.
The current make-up of the High Court consists of three Howard Government appointees (Gleeson, Ian Callinan and Hayne) and four Hawke-Keating appointees (Kirby, Gaudron, Michael McHugh and Gummow).
Since 1977 judges have had to retire at the age of 70, yet none of the incumbents are anywhere near reaching that point. Chief Justice Murray Gleeson is only 52, while Justice McHugh is 65, Callinan is 63, Kirby is 62, Gummow is 58, Gaudron is 58, and Hayne is 55.
Thus it may be some time before a party of either complexion gets to make another High Court appointment.