A recent story in Lawyers’ Weekly has left me wondering how much a judge’s public comments should be restrained after retirement.
According to the story, His Honour Michael Kirby, a retired Justice of the High Court of Australia, spoke at an LGBTIQ book launch. His comments noted that –
Justice Kirby said Australia should be wary of the draft Religious Freedom Bill, brought to light by Attorney-General Christian Porter, as it was not “drafted by friends”.
“I think we have to watch the Religious Freedom Bill with the greatest of care because that has not been drafted by friends or allies,” Justice Kirby said. “It has been drafted by people that want to go back to the binary division, fixed by penis and vagina.”
It is hard not to be a little troubled by a man of His Honour’s stature stating that a Bill had ‘not been drafted by friends or allies’, because the implication is that it has been drafted by enemies. It is not clear whom he may have had in mind. Attorney-General Porter, perhaps? Parliamentary counsel? Regardless, it seems to me that a lay person might reasonably wonder how far His Honour’s view of the law might be shared by his successors on the High Court, and what that might mean for any challenge to the law.
A more problematic set of statements appeared at the end of the article, where it was reported that
Justice Kirby said [transsexual people] “… get a very hard time from the Roman Catholic Church”.
“They get that hard time because of the notion of civil law that you have to go back to natural law, and natural law is based on the binary division of human beings with penises and vaginas. And by that standard of nature you are fixed forever and you must fulfil that role,” Justice Kirby said of these attitudes.
“This is the natural law of teaching and that is what the church has said in its latest publication. It is totally opposed to transition surgery and to different bathrooms and other benefits for trans people. The battle at the level of the church is not over.”
The phrasing of a “battle at the level of the [Catholic] church” seems unfortunate when there are reports that Cardinal Pell will seek special leave to appeal to the High Court over his sexual assault convictions.
Retired members of the Bench are potentially a valuable source of wisdom in the public forum, but it seems to me that getting too near the coalface of debate is dangerous. The risk of calling the Court’s impartiality into question is too great.