Known for his term as a Justice of the High Court of Australia, Michael Kirby has immense experience in practicing international law. Serving in positions such as the UN Special Representative for Human Rights in Cambodia (1993-96) and Chair of the UN Commission of Inquiry on Human Rights Violations in North Korea, his insight into human rights is largely unrivalled in Australia. It was an honour to meet Mr. Kirby in his chambers in Sydney to interview him for Pivot.
AUSTRALIA AND THE TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS (TPNW)
Just under two week ago, Mr. Kirby launched a report with the International Campaign to Abolish Nuclear Weapons (ICAN) urging the Australian Government to sign and ratify the TPNW. With only 70 signatories, 24 states ratifying, and all nuclear powers opposing, Mr. Kirby dismissed the idea that the limited support means the TPNW is weak. Citing countries such as South Africa, New Zealand, Thailand and the Philippines as major signatories, Mr. Kirby noted that 122 countries turned up at the call by the General Assembly, with only the Netherlands voting against.
Instead, blame was cast on the “intense lobbying that has been placed upon countries by nuclear weapons possessing countries… in particular the United States of America.” This included an analysis of past treaties which involved similar patterns, including the Mine Ban Treaty which was not supported by the Keating Labor Government due to pressures from the United States, but was then ratified by the Howard Coalition Government. With reference to the 1996 advisory opinion of the International Court of Justice, Mr. Kirby claimed “it [was] no exaggeration to say [nuclear weapons possessing countries] have done nothing” to meet their international obligations to encourage weapons deterrence.
Mr. Kirby compared the use of these weapons to the situation in Cambodia during his time as the UN Special Representative for Human Rights. This involved the placement of landmines on the paths of the jungle where people would go, with the mass deaths emphasising the “devastation of landmines”. Such prior action through the death of thousands emphasises the need to support the prohibition of nuclear weapons which pose a major threat to mankind.
Calling it the “wrong direction”, the former High Court justice warned that Australia is heading into dangerous territory by following the lead of the Trump Administration. Castigating the current position of the Australian Government, Mr. Kirby said “we should do the same as New Zealand” as continuing down the current path with the placement of more weapons and military personnel “could possibly render Australia… a target for hostile nuclear attacks”. Such fear highlights that our own country could be further implicated if regional or even global war involving nuclear war sparked.
THE VATICAN AND DECRIMINALISATION OF HOMOSEXUALITY
As co-chair of the International Bar Association, Mr. Kirby visited the Vatican in April on the invitation of Pope Francis to discuss their policy regarding the criminalisation of homosexual acts. The visiting delegation met Cardinal Pietro Parolin, Secretary of State of the Holy See, to open dialogue to progress this matte
Not “feel[ing] difficulty in the slightest”, Mr. Kirby did not “approach the matter from any point of loyalty or antipathy to the Roman Catholic Church”. Instead, he felt great optimism regarding the changing direction of the Church due to the liberal beliefs of Pope Francis. This is markedly different from 1993 when Pope John Paul II said homosexuality was “morally wrong”. He specifically reflected on the Pope’s flight from Buenos Aires to Rome during which he said “who am I to judge” the LGBTQI+ community. This was followed by a journey to Chile during which he told a young man:
“You must love yourself, God made you as you are, the Church loves you, and the Pope loves you”.
Mr. Kirby indicated that central doctrine of the Catholic Church was human dignity, similar to the precedence it is given in Article 1 of the Universal Declaration of Human Rights: “all persons are born free and equal in dignity and rights”. However, he admonished the Church for their current treatment of the LGBTQI+ community:
“Dignity is important in the Catholic Church and there is nothing more diminishing of human dignity then to punish people for something they do not change and they do not choose and cannot change.”
While “hopeful progress will be made”, Mr. Kirby remarked on continuing issues in the Church, namely the written document entitled ‘Male and Female: He Created Them’, published by the Catholic Congregation on Education in June 2019. Instead of basing logic in theologians and moral philosophers, we must look to scientific research and developments. In response to this, Mr. Kirby said:
“Those learned gentlemen resolved the issues with sexuality with human body parts. Does a person have a penis? If so, that person is a male and must adhere to the conduct of a male. Unfortunately, that approach to the binary division of human kind is out of kilter with 70 years of scientific research and people aren’t just going to be a product of a human body part. It is much more complex as are members of other specifies.”
While a major problem in the Catholic Church, Mr. Kirby also did respond to questions that there were other regions that needed to progress their laws in order to meet the tenets of human dignity. This included surprising beliefs from key individuals, including the Dalai Lama who told Mr. Kirby “the scriptures in Buddhism contain passages that are difficult for adopting a more modern approach”.
Generally, it seems that we will just have to wait for change to occur as “religions come around [as] they did with the creation story”. Yet, current treatment does remain problematic, with change slow to come.
WARMING OF U.S. RELATIONS TO NORTH KOREA
As the former chair of the Commission of Inquiry (COI) into Human Rights Violations in North Korea, Mr. Kirby welcomed the meetings between President Trump and Chairman Kim, claiming it was “infantile” to think otherwise due to the “devastation, mass killing and great risks” involved.
“Myself, I welcomed the meetings of President Trump and Supreme Leader Kim Jong-un. It is somewhat infantile not to have meetings when what is at stake is devastation and mass killing and great risks… Personally, I was not surprised that the meeting was not productive of an immediate outcome beneficial to security.”
This comes as President Trump went from calling the North Korean leader “rocket-man” to meeting with him at two summits. This recently reached a new high with the unorthodox Leader of the Free World crossing the border into North Korea, the first sitting American President to do so, after his attendance at the G20 Summit in Osaka and bilateral talks with President Moon Jae-in of South Korea.
“After the Second World War and following the discoveries of the shocking crimes of the Nazis and also in the Far-East, the international community undertook that when crimes against humanity were disclosed, or genocide, or certain war crimes, the international community would not turn its back as it did in the 1930s and 1940s but would respond and would ensure such crimes were rendered accountable.”
However, Mr. Kirby reemphasised the importance of addressing human rights violations. During his tenure as Chair of the COI on North Korea, he stated that these crimes were “strikingly similar” to the crimes of Nazi Germany for which officials were tried at Nuremberg following the Second World War. If left to continue, Mr. Kirby said “there will be no peace, no lasting and stable and safe peace” with the hermit kingdom remaining “an unstable, dangerous and potentially angry and human rights disrespecting society for its own people and its neighbours.”
LOOKING TO AUSTRALIA – DESIRED & UNDESIRED CHANGE TO OUR CONSTITUTION
The former High Court Justice, known for his high dissent-rate in the Gleeson High Court, gave support to the recognition of Indigenous Australians as the first people in the Commonwealth Constitution. Claiming this issue was being “basically ignored”, Mr. Kirby noted they were “greatly disrespected since settlement”, citing their lower education, health and housing standards. Yet, criticism was directed at the misinterpretation of the Uluru Statement and the Voice into Parliament that has recently been advocated. Blame was cast on former Prime Minister Turnbull and various politicians for not understanding the poetic style of the Aboriginal population.
“They were not calling for compulsory designation of ministers that were Aboriginal. They were not calling for allocated seats for Aboriginal Australians as happens in some countries such as New Zealand. They were calling for a voice and myself I thought the Uluru Statement was extremely modest in its demands.”
Instead, Mr. Kirby, who sat on the High Court during cases such as Kartinyeri v The Commonwealth (1996) and determined the races power should not be used to work detriment upon Indigenous Australians, claimed that recognition and increased representation is not “an unreasonable wish”.
When it came to other changes, it seems none of them take precedence over the recognition of Indigenous Australians as the first people. Mr. Kirby re-emphasised his support for the constitutional monarchy. As a founding member of Australians for Constitutional Monarchy, his is not support for a “Women’s Weekly constitutional monarchy” but for the structural merits. Mr. Kirby cited his own experience of being denied invitations from the Lodge and various politicians after going public with his relationship to his partner of 50 years Johan van Vloten, while still receiving invites to Yarralumla, home of the Governor-General.
“If you look at the countries of the world where they have a stable system of government that seeks to respect all people in the nation, they tend to be constitutional monarchies.”
Mr. Kirby also discussed the importance of Australia eventually adopting a constitutional bill of rights. With only five express rights in the Commonwealth Constitution and limited human rights under federal law, it was asserted this would take time to occur due to Australia’s lack of understanding of the issue.
Instead, the Canadian model was cited as a way to achieving a higher standard of human rights. This included the passing of a federal statute and then the adoption of a charter. In order to do so, Mr. Kirby stated:
“We have to educate people in Australia about how backward they are in this respect and how just creating, for example, rights for religious people but not balancing them with rights for people with no religion or have a different religion or have different concepts of religion or who have rights that compete with religious freedoms.”
Yet, it seems this is more moral than anything, with Australia needing to prove their place in the world. As Mr. Kirby put it:
“We are willing to impose universal human rights on other countries and to judge their compliance but are not willing to submit ourselves to a similar scrutiny in our own domestic arrangements including courts. I do not think that is a very honourable position to adopt.”
LOOKING TO THE FUTURE
In this current era of populism and rapid developments in both domestic and international politics, it seems as if moral panic has overtaken the calm discussion on which many crucial decisions should be made. Michael Kirby demonstrated to me that we should not fear some of the unorthodox occurrences in the world as they may lead to substantial change. His own career in law and his work in human rights highlights how we should not automatically dismiss the unexpected in the current geopolitical climate.
