News: Kirby on human rights abuses by governments

The Hon Michael Kirby’s High Court career (from 1996 to 2009) has been bookended by inquiries undertaken for the United Nations High Commissioner for Human Rights into human rights initiatives and abuses of foreign states: milestones that underscore his commitment to and involvement in United Nations bodies particularly related to AIDS and human rights. In 1996 he reported for the final time on recommendations for a human rights based governance model for Cambodia, then emerging from years of conflict and human rights abuse. His focus then was to ensure that a new government created a political and legal regime that protected internationally recognised human rights. This week a report authored by former Justice Kirby was released that detailed the current and historic widespread human rights abuses committed by the government of North Korea against its own people. Kirby concluded that the abuses and crimes against humanity were perpetrated by the government, institutions and policies of the state.

As long-term High Court watchers would know, a view about the significance and value of international human rights law figured within Justice Kirby’s jurisprudence, especially when presented with a ‘gap’ in the law or when called to hold Australian governments to account. Before taking his position on the bench of the High Court, then NSW Court of Appeal President Kirby spoke of a sympathy to ‘the incoming tide of international human rights law’ and its role in aiding jurists navigate their role in achieving justice. He also spoke of the need for nations like Australia to learn from the abusive and oppressive conduct (like that of Cambodia and, now, North Korea) revealed by bodies like the United Nations, and to recognise our own imperfections in that regard.

When he left the court in his judicial farewell Justice Kirby returned to the same theme. He warned against judicial interpretation that was oppressive to the ‘little people’. He cited in support his dissenting judgment in Al-Kateb v Godwin [2004] HCA 37.

It is in that judgment that we can see threaded to Australia’s High Court jurisprudence the concerns articulated by Justice Kirby in his reports to the United Nations. We see Justice Kirby’s persistent view of the significance of international human rights. We can see his view of Australian human rights imperfection. In his strongly worded dissent, Justice Kirby sought to ‘illuminate’ Australian law through international human rights law. He thought that confirming the capacity of the Australian government to indefinitely detain a stateless non-citizen would have ‘grave implications’ for liberty; an acquiescence to ‘[e]xecutive assertions of self-defining and self-fulfilling powers’. A better approach he thought was to acknowledge that Australian constitutional laws are not isolated from the rest of the world. Then the High Court would ‘have a duty, so far as possible, to interpret [the] constitutional [text] in a way that is generally harmonious with the basic principles of international law, including as that law states human rights and fundamental freedoms’.

With the possibility that the decision in Al-Kateb might soon be reviewed, we will continue to watch for the current High Court’s views of Kirby’s embrace of international human rights law.

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About Brad Jessup

Brad Jessup joined Melbourne Law School in 2012 from the ANU, where he had been teaching and researching since 2007. From 2001 to 2006 Brad worked in commercial legal practice. Brad’s principal research area is environmental and planning law, particularly the exploration of environmental legal conflict and the regulation of places, landscapes and protected areas.