The Inaugural Derek Fielding Memorial Lecture

WRITTEN BY: JOCELYN BOSSE

On Tuesday 14th July, I had the pleasure of attending the Hon Michael Kirby's speech at the Inaugural Derek Fielding Memorial Lecture, along with JATL executive member Christine Chang. The lecture was on the subject of "Magna Carta, Bastille Day, North Korea and the Protection of Human Freedoms."

President Michael Cope of the Queensland Council for Civil Liberties introduced Kirby, at one point noting his twenty-three honorary degrees, which Kirby amusingly remarked was "Not enough!"

Kirby highlighted the importance of the fifteenth year of a century. Important dates in legal and political history have included such events as:

  • Battle of Waterloo in 1815, which marked the end of the French Revolution
  • Signing of the Magna Carta in 1215 by King John of England
  • Landing of Australian troops at Gallipoli in 1915, a tragic but pivotal point in Australian history

Kirby recounted his involvement in some significant cases relating to civil liberties, including Parker v DPP (1992) 28 NSWLR 282, in which Kirby took the opportunity to cement the common practice that where the judge is contemplating an increased sentence, the judge should indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal.

The Parker decision came years after Kirby had an experience where a judge failed to give the usual warning that they were considering a harsher sentence, and a client received gaol time where they had previously been sentenced to none.

Kirby also remarked upon the decision of Green v The Queen (1996), which established the controversial 'gay panic' defence for killing someone after an apparently unwanted, non-violent sexual approach. He reiterated the point made in his dissenting judgment in the case:

If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance, in a comparable situation to that described in the evidence in this case could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended.
— Justice Kirby, Green v The Queen (1996) 191 CLR 334

The Green decision is particularly important given that Queensland still retains the defence.

Kirby reflected frequently and positively on his time in the Council for Civil Liberties, but lamented that there were many times where the CCL was slow to act, or did not act at all. Such issues as the White Australia policy, gay rights, the treatment of Aboriginal and Torres Strait Islander Australians and women's issues were all neglected.

Kirby mused that in 30 years time, we may look back in shame at any number of issues which are currently being neglected by civil libertarians, and suggested that these might include:

  • Disproportionate incarceration of Aboriginal Australians
  • Terror laws which have been recently enacted (Justice Kirby highlighted the worrying similarities to the legal changes in Uruguay which eventually caused their democracy to crumble).
  • Bill of rights, or the lack thereof, in Australia.
  • The fact that Members of the Refugee Review Tribunal (RRT) have not been reappointed, which represents a worrying trend given the complex and critical nature of the work being done.
 Justice Kirby with Ban Ki-moon, Secretary-General of the United Nations

Justice Kirby with Ban Ki-moon, Secretary-General of the United Nations

In a brief conclusion, which was condensed due to his impending flight back to Sydney, Kirby noted that the issue of the Democratic People's Republic of Korea (or, North Korea) was of considerable importance. He assured the audience that, although he could not speak much on the topic that night, a wealth of information on the topic is available on his website.

Kirby has been working with the UN Human Rights Council to address the alleged human rights violations in the Democratic People's Republic of Korea.