MICHAEL KIRBY ,PARADOXES – PRINCIPLES by AJ BROWN (THE FEDERATION PRESS 2011) This biography of Michael Kirby is a welcomed addition to anyone with an interest in the judiciary and Australian society.  Dr Brown, a professor of public law at Griffith University has filled an important gap for judicial biographies.  Biographies in Australia about judges are not common.  Every US Supreme Court justice merits at least one biography.  In Australia, one can point to major works about Sir Owen Dixon and Sir Garfield Barwick, however, beyond those two the attention of biographers on those who have sat on the High Court has been low.  However, Justice Michael Kirby is in an entirely different category.  He has been described as Australia’s first “celebrity judge”.  Such a status was brought about by his willingness to write and speak profoundly on a broad range of issues .  This excellent work covers many decades   from the sixties to now.  Relevantly, this book has been reviewed in this journal because Michael Kirby’s first appointment was when he was aged 35 to the Australian Conciliation and Arbitration Commission with the title of Justice.  Although did not serve for very long in that industrial tribunal it was a springboard for him to   establish his reputation as a public intellectual as Chairman of the Australian Law Reform Commission.

1. This biography of Michael Kirby is a welcomed addition to anyone with an interest in the judiciary and Australian society.  Dr Brown, a professor of public law at Griffith University has filled an important gap for judicial biographies.  Biographies in Australia about judges are not common.  Every US Supreme Court justice merits at least one biography.  In Australia, one can point to major works about Sir Owen Dixon and Sir Garfield Barwick, however, beyond those two the attention of biographers on those who have sat on the High Court has been low.  However, Justice Michael Kirby is in an entirely different category.  He has been described as Australia’s first “celebrity judge”.  Such a status was brought about by his willingness to write and speak profoundly on a broad range of issues .  This excellent work covers many decades   from the sixties to now.  Relevantly, this book has been reviewed in this journal because Michael Kirby’s first appointment was when he was aged 35 to the Australian Conciliation and Arbitration Commission with the title of Justice.  Although did not serve for very long in that industrial tribunal it was a springboard for him to   establish his reputation as a public intellectual as Chairman of the Australian Law Reform Commission.
2. Clearly the subject co-operated with the author but this work is not mere hagiography.  It also doesn’t appear to be a work where the subject exercised too much restraint in terms of what could and could not be published.  Professor Brown’s task was much easier when one has a subject, like Michael Kirby, who from university  days  has kept a journal and  constantly snapped photographs of people with whom he happened to be.  Also, his articles and speeches have given the biographer a wealth of material. One can’t imagine any other judge in Australian history, other than those who have been serving politicians, who have left behind such a record.  One would expect that this work is probably the first of many to be written about this brave judge.  The reason I say brave, is that he was prepared to push the limits of what was hitherto considered acceptable for the judicial role.  Therein lay a constant tension between him and a number of his more conservative colleagues. Traditionally, upon being appointed to the bench, judges withdrew from the arena so as to avoid any suggestion of pre-judgment or bias in relation to issues which may come before them.  This tradition Michael Kirby regularly failed to follow, sometimes to his embarrassment or detriment. An example of  this  preparedness to speak out  perhaps too soon  was in the case of  Bailey v DPP .Justice Kirby was on an appeal bench and after judgment had been reserved but yet delivered spoke about the case at an international conference.
3. .  The biography also deals in the personal.  It traces the dilemma of a person who was imbued with the importance of the upholding of the law, but at the same time coming to terms with his homosexuality.  This was particularly at a time in New South Wales when even consenting homosexual acts between adults were illegal.  The biographer doesn’t  ignore this apparent contradiction .Neither does he ignore that  long after  the illegality of such acts were removed from the statutes  Michael and his partner  Johan remained, apart from close and family friends, firmly in the closet.  This in 21^st Century Australia is hard to understand, however, one must acknowledge that the past is a foreign country.  However, since he did come out, he has generously and powerfully   supported many issues for the gay community. Despite the unspeakable Senator Heffernan, Michael Kirby is recognised widely as a great Australian and has become  a role model to many people struggling with their own sexuality and being true to themselves.
4. However merely to refer to him as a gay judge is to undervalue and to miss the broad contribution he has made to society in matters such as international law, constitutional reform and human rights. His enduring commitment for  constitutional monarchy and public education have won him many admirers for his willingness to swim against the tide. The fascinating aspect about his life is that it is difficult to attach a label to him, perhaps ‘progressive traditionalist’?  Justice Kirby is energetic and comparatively a young man, though past the age of compulsory  judicial senility , one can’t imagine him spending too much time  on a deck chair watching  boats sail past in Rose Bay.

Bryan A. Garner is Editor-in-Chief of the current edition of Black’s Law Dictionary and the author of many books and articles on legal writing.

The author has written and lectured extensively on legal writing and has compiled many of his papers, articles and speeches on this topic within this book.  Because of the nature of the compilation and its length, the book is mildly repetitive although such a minor criticism does not detract from its value.

This is a book written for lawyers who are engaged in transactional legal work and those engaged in litigation. It is a book that judges should, for the sake of lawyers and their clients, be urged to read.

In making his point for simplicity, clarity and an entertaining style, he speaks to every lawyer who needs to place their thoughts or arguments in writing.  In doing so, he draws not only upon American sources but also extensively upon English legal  and literary figures.

I wish that, as a law student and as a young barrister, I had had a better understanding of the need to write  simply in order to be persuasive. One could and did fall easily into the  habit of speaking and writing with stock phrases.  One good point made is that if you want to achieve good writing merely reading  judgments may not be the best place to start.  Long ago I recall a book by Lord Denning instructing young counsel to read widely in order to write well and  eventually to speak well.  Garner quotes Lord Denning on the question of a need to cultivate a winning legal style. He quotes Lord Denning  to have said this:

“You must cultivate a style that commands attention.  No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers – or your readers – will turn aside.  They will not stop to listen.  They will flick over the pages.  But if it is presented in a lively and attractive setting, they will sit up and take notice.  They will listen as if spellbound.  They will read you with engrossment.”

From the US Supreme Court, he quotes the Honourable Antonin Scalia:

“Too many lawyers believe that it is essential to legal English that one write as pompously as possible, using words and phrases that have long since disappeared from normal English discourse.”

This is a book which ought be kept on one’s bookshelf  for occasional reference  and as a reminder  to write simply and persuasively. To judges who are beset with massive time restraints, more time spent simplifying  their judgments  may assist to have those judgments read more widely and understood. How many times as a student and a practising lawyer has one spent being confused and bored by judgments? Garner’s view is that great judgments are remembered and re-read because they are well written. It is in the public interest that judges be given more time to write their judgments.

In Justice Dyson Heydon’s famous speech to the Friends of Quadrant prior to his appointment to the High Court, he said that judgments rather than revealing judicial or associate generated erudition, show nothing more than an attempt to quote every possible case on or near the subject to the relevant issue. Such case-quoting-clutter obscures the reasoning in  judgments  and  renders them opaque and impenetrable. Perhaps, judges too should be taught how to produce better written work.

Garner also recommends that law schools should have a specific subject dealing with plain legal writing. He states that such is assumed amongst students but is commonly absent when most graduates appear in practice. Some guidance has been given locally on the need for a clear simple approach to writing in Michele Asprey’s Plain Language for Lawyers now in its fourth edition. However where that work reads like a text book Garner’s book reads more like the kind of accessible material found in  books by one-time political speech writer Don Watson . Watson’s Bendable Learnings , which deals a death blow to management speak and his Death Sentence- the decay of public language have become Australian best sellers. Until Watson or someone like him turns their sharp attention on legal speak in Australia this book by Garner will serve the intervening period well.

Garner on Language and Writing
(Selected Essays and Speeches of Bryan A. Garner)
American Bar Association, Chicago 2009
ISBN – 13:978-1-60442-445-4; 839 pp Hard Cover

This is a Book review I did of Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. The book is by Linda Greenhouse and is available through Amazon. To read my book review click here.