The question should be asked whether Michael Kirby is the great dissenter, or does one agree with him and call him 'reactionary'? 1 While on the bench it is true Michael Kirby was known as the great dissenter having disagreements in constitutional cases in 2004 at a rate of 52%, which is the highest in the history of the High Court and an average of 40% of dissenting judgments on cases overall. 2 Kirby has said that on their on statistics tell little and to understand his rate of dissent it is necessary to to examine what his disagreements have been about and to consider who he has dissented from.
He added that 'there have always been divisions … and different philosophies …. (with) many dissenting opinions have ultimately been adopted as good law'. 3 In an interview with Monica Attard4 Kirby stated that he had been hurt being called a 'judicial activist' and that it is 'code language' for being a person who will decide cases in a way that activists don't like. Adding the reason for this is that as a judge he is transparent when making decisions and using principals that are in his case often principles of international human rights law.
In order to understand Kirby's rate of dissent, it is necessary to examine what his disagreements have been about and consider who he has dissented from. Kirby explains 'there have always been – 2 – divisions, reflection the different philosophies and perspectives of the office-holders' and that throughout the High Court's history, many dissenting opinions have ultimately been adopted as good law. Cases heard before the full bench of the High Court are likely to test the boundaries of existing law, and raise opposing, though no less valid, views of the law.
5 The rate of dissent, if seen within its context, it is relatively small. He goes on to say… 'in the highest court of a nation, selecting these cases out from the whole mass and morass of litigation, of their nature these are going to be matters on which men and women of good will and experience in the law, who look at the values of the law, can disagree'. 6 Being a great advocator of human rights Kirby was in the dissenting judgment in the case of Al-Kateb v Godwin7 where the case was about Al-Kateb who was a stateless person, was to be held in a detention centre indefinitely.
The majority agreed that this was lawful and not unconstitutional. Kirby and the two other dissenting judges (Gleeson CJ and Gummow J) stated that the Migration Act8 should not be interpreted as such. Having different constitutional interpretation views from some of his peers, and frequently relating to the principals of human rights. In this case he stated that "'Tragic' outcomes are best repaired before they become a settled rule of the evidenced in Calwell10, representing a backward step by the High Court.
It should be mentioned that such a decision was made by the majority, despite intervention by the Attorney-General and the Human Rights and Equal Opportunity Commission. 11 Kirby J found the majority to have "flawed" reasoning this giving insufficient protection for human rights12 and called for greater protection of rights through the implementation of an Australian Bill of Rights.
13 Kirby has also stated that the interpretation is based on context as the touchstone of modern constitutional and statutory interpretation. 14 His enduring value to constitutional law is to fight for our human rights and as such is trying to stop 'Australia is isolating itself from the rest of the developed world',15 and in doing so he is trying to ensure that Australian citizens will one day receive the protection of internationally recognised rights that are currently being denied.