Volume 9, Issue 6
It’s the first semester of 2016, and with it brings a new bunch of fresh-faced first years, heads filled with idealistic ideas of the law, but probably very little idea of what studying the law entails beyond possessing a detached competitiveness like Harvey Spectre or spunky self-confidence like Elle Woods. If you are anything like me, you might have entered the course this year without even knowing the names of notable High Court Justices. You start to learn pretty quickly though, especially once you’ve read four or five of their judgments, and even more so if you disagree with them. McHugh, Gleeson, Mason, Gummow, Dixon, Heydon, Brennan; as law students, we get to know their writing and reasoning styles so well that the figures themselves become like the friends you thought you would stay in contact with upon starting Law School.
One man, however, immediately stands out from among the crowd: Kirby. Justice Kirby has acquired a level of reverence for his judgments that amounts to nothing short of celebrity in Melbourne Law School. One only needs to look to the LSS first year rep posters and count the amount of times he appears (Kirby – 2, other High Court Justices – 0). I call this the Kirby Effect.
You can witness the Kirby Effect in the exhilaration that you get when you heard that he’s giving a guest lecture on Tuesday 12th April (I hope you marked your calendars, ladies and gentlemen), in the excitement of a Kirby sighting that is posted on Facebook, in the fans waiting for him to sign their copy of the Constitution or legal dictionary, or the talk of Kirby t-shirts being made. He is, quite simply, a rockstar of the legal profession.
What caused this level of fame, you ask? Perhaps it is his excellent use of metaphor (“The common law is not a formal garden”, “…the judicial gardeners are busy…”), his amusing witticisms (like when he questioned whether having a congenial neighbour with “peculiar ideas about horticulture” is adequate consideration), or maybe his long history in support of social justice.
Perhaps it is his unyielding stance in every case, no matter where the majority stand. Because when I said he stands out from among the crowd, I mean, he stands out from among the crowd. Kirby had a 40% dissent rate when it came to the High Court cases he presided over, more than any other Justice of his time. But why am I telling you? Chances are, you already knew that. Or perhaps it is just that no matter what your own opinions are on the case that he is delivering judgment on, what he says just makes sense.
You don’t have to agree with the idea of a pub being liable for negligence when it comes to the injury of an intoxicated woman later in the night, but he made a pretty convincing argument for it. You don’t have to agree that evidence amounting to a confession, volunteered by a man being manipulated by police, shouldn’t be admissible, but Kirby J certainly made me think pretty hard about that.
What I have learnt from the Kirby Effect is that dissent is important, if for no other reason than to give voice to an alternate reasoning and contrast two legitimate interpretations of the law. Ultimately, we don’t want change or development in the common law to go unopposed, without at least hearing a dissenting view. And that, I think, is the benefit we gain from the Kirby Effect.
Liam O’Callaghan is a first-year JD student
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