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social sciences

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Kirby, Michael (b. 1939)  
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Michael Kirby, former Justice of the High Court of Australia from 1996 to 2009, is respected not only for his legal acumen but also for his devoted commitment to the cause of social justice in his homeland and also around the globe. Since his coming out in 1999, he has been a proud and visible member of the glbtq community.

A native of Sydney, born March 18, 1939, Michael Donald Kirby was educated in the city's public schools. Identified as an exceptional student, he was selected for an "opportunity class" in grade school and then attended Fort Street High School, Australia's oldest public school. For much of his service on the High Court, he was the only Justice to have gone to public schools. A staunch champion of the public education system, he feels that his experience gave him "a slightly different perspective of life" from that of his colleagues, and one that he considers particularly valuable "because 67% of our population is educated in public schools."

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Kirby continued his studies at the University of Sydney, earning degrees as Bachelor of Arts (1959), Bachelor of Laws (1962), Bachelor of Economics (1966), and Master of Laws with First-Class Honors (1967).

Kirby began to practice law as a solicitor in 1962 and became a barrister in 1967, when he was admitted to the bar of his home state of New South Wales.

As an officer of the court, Kirby felt obligated to provide pro bono services. "I do believe in volunteer work," he stated. "As a young solicitor I carried a heavy load representing clients for the New South Wales Council for Civil Liberties."

In 1975 Kirby was appointed as Chairman of the Commonwealth Law Reform Council, a position that he held until 1984, and also as Deputy President of the Australian Conciliation and Arbitration Commission, on which he served until 1983. In that year he received an appointment on the Federal Court of Australia, becoming the youngest person to sit on that bench. The next year he was chosen as a judge and the president of the New South Wales Court of Appeal, where he served until his appointment as one of the seven Justices of the High Court of Australia in 1996.

On the High Court, Kirby was frequently in dissent, particularly in constitutional cases. "This," stated Kirby, "is not a badge of honor; but neither is it a mark of dishonor. The dissent is an appeal to the future" since in the history of jurisprudence, dissents from the status quo have often proved to be harbingers of social change.

Journalist Monica Attard observed that Kirby's "judgments are notoriously long and detailed." She characterized him as "a compassionate man who won't allow precedent to trample the rights of ordinary people. It's a huge responsibility that he's assumed."

Kirby noted that he was often joined in dissent by Justice Mary Gaudron, the only woman to have served on the High Court and who has since retired. He stated that "those who have witnessed discrimination may sometimes be more inclined to perceive legal injustice. This point helps to explain a number of cases in which [we] dissented together."

Kirby lamented the paucity of women in the higher echelons of the Australian judicial system, saying, "A woman's experience of society, in the law, and in the legal profession, is different from that of a man. . . . Their presence on the Court can be a corrective."

So, he eventually concluded, could be the presence and visibility of an openly gay man.

Although most Australians were unaware of Kirby's sexual orientation, his homosexuality had been an open secret in the legal community. He chose to come out publicly in an understated way, including "p. [i.e., partner] Feb. 11, 1969 Johan van Vloten" to name his life partner and recognize the duration of their union in the 1999 edition of Who's Who in Australia (published in November 1998), a bold move under any circumstances but especially in light of the fact that their partnership had begun fifteen years before the repeal of laws against same-sex sexual relationships by the government of New South Wales.

Only belatedly--in April 1999--did the Australian press take note of the disclosure in Kirby's entry, one of the most extensive in Who's Who in Australia because of his numerous accomplishments. The news sparked some negative comment on conservative radio talk shows and in letters to newspaper editors, but the Australian public was generally accepting of the news.

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