THREE months after leaving the High Court in 2009, Michael Kirby was presented with the latest in a long line of awards and honours: an honorary doctorate from the University of Melbourne. In accepting the degree he gave a speech at the graduation ceremony for the law faculty.
Kirby began by describing his first association with the university, in his heyday as a student politician at Sydney University, coming to Melbourne to carouse with the likes of Gareth Evans, who was then Gary, the bearded SRC president. He had attended many similar events over the decades, but there was something very different about this occasion. This time his partner Johan van Vloten was there as an official VIP.
The two men had met in 1969 and formed an immediate and lasting bond. Where Kirby was totally focused on work, van Vloten was a thinker, widely read and very practical. Kirby was the supreme diplomat; his partner, a former merchant seaman, was straightforward in manner and action, organised and opinionated.
Until he introduced his family to the man who would share his life, the only discussion of his sexuality with them had been in an exchange of letters with his father. Don Kirby, out of love, had warned his son not to commit ''professional and social Hari Kari'' by continuing with the relationship. But he did continue and four decades later was still with Johan.
Perhaps it was this warning that made Kirby's behaviour, over the years, more circumspect and added poignancy to his words at the graduation ceremony:
''I'm proud to be at this ceremony with my partner, Johan van Vloten, a guest of the university. That's a rare distinction that he has been expressly invited to be with me on this day - this wouldn't have happened in earlier times. He has accompanied me through every day of my public life over the past 40 years. So things happen, the earth moves, wrongs are righted, the world can be made a better place - international and national law can play a part.
''Johan joins me today in honouring all the students, the faculty, and the families. So in your presence I hope you'll forgive me if I honour him, a fellow citizen and a life companion, for his contributions to my life.
''Today is probably the closest to a public affirmation like marriage that we two will ever get, so it's just as well for us to say these things in your presence, out loud, and in a university that has always led, and challenged, the spirit of the times.''
It is unclear if the many parents, family and friends, or the bulk of the law students themselves, understood the full import of Kirby's speech. That he was affirming his love for his male partner in public in a way that he had never done before.
At the drinks afterwards there was as usual a great deal of interest. The graduating students were lined up to get their pictures taken with Michael Kirby. These were the scenes that always accompanied his visits to the universities; he was no longer Justice Kirby but the star quality had not faded.
Kirby made his last important speech as a judge just a few days before his retirement. Delivered on Australia Day in 2009 to the State Supreme Court and Federal Court Judges' Conference in Hobart and entitled ''Fifty years in the Law: A Critical Self-Assessment'', he divided his life's work in to ''successes'' and ''shortfalls''.
Few people in public life would ever consider preparing such an appraisal.
On the positive side of the ledger, Kirby listed his years of independent and impartial service as a judge and the fact that in all the time he had sat on the bench, no one had ever even attempted to unduly influence his deliberations. The elevation of the NSW Court of Appeal to a model emulated throughout Australia was on the list, as was the acceptance of the Australian Law Reform Commission as an important and indispensable legal institution.
His frequent use of academic sources and international law references had led to a much wider recognition of these within Australian courts, thereby improving the quality of judicial decision-making.
Allied to this, he had helped in the move from the ''strict and complete legalism'' that had dominated judicial thinking to an approach more prepared to look at the broader context. He cited his willingness to turn to the media to disseminate ideas and the use of language that was clear and intelligible in the expression of complex legal issues as major successes.
Finally, Kirby referred to his personal life with Johan and his openness, particularly in recent years, about his homosexuality. This had resulted, eventually, in many changes for the better, including equal rights for same-sex couples in relation to federal government entitlements.
He had been enormously moved by the many letters and communications he had received from people, straight and gay, helped by his frank advocacy.
Kirby then listed his ''shortfalls'': the fact that he was not a senior member of the Bar before his appointment as a judge; that his first judicial appointment, as a trial judge, only lasted 40 days; and the difficult transition from being the boss at the NSW Court of Appeal to being just one of the seven on the High Court - that is, he never made it to the position of chief justice.
Rather than shortfalls, it seems more appropriate to describe these as elements peculiar to Kirby's professional life, not really anything he could or should have changed for the better. Many people would have seen it as a positive that he came to the bench with a life experience that was uncommon for a senior judge. The fact that he never became chief justice of the High Court was a political decision entirely outside his control.
It was not his fault that he had not been appointed chief justice of the High Court, but it was unfortunate that he behaved, at times, as though there had been some mistake, that he should have been in that role.
Kirby's mother had observed in her 22-year-old son an over-sensitivity and inability to accept criticism. It was these traits that seemed to have come to the fore as negatives during his time on the High Court. He believed he should rightly have been the chief justice, and this conviction coloured so much of his behaviour throughout that time.
Then there were his high rates of dissent, his referencing of international human rights law and his failure to influence the majority of the High Court to turn away from an overly legalistic approach in its decision-making.
In each of these areas Kirby had been unsuccessful in convincing his colleagues on the court to adopt his own views and approaches. He had suffered as a result of his failures in this regard.
He had sometimes behaved as if he were the leader of the court, out in front, showing the way, whereas in fact it had increasingly been the opposite. He would have rejoiced if the court had seen the error in their ways and turned to him for guidance, but they were never going to do that. He respected their independent judgements on these issues but he longed for it to have been otherwise.
Kirby could have pointed to some direct and pungent criticisms. Many academic commentators, for example, assessed his time on the High Court as a low point in his career overall.
Somehow, Michael Kirby had ended up concreted into a position of isolation on the bench. No successful Appeal Court judge allows that situation to develop. It meant that he had become an irrelevancy. Counsel and the other judges would take heed of his views at their peril.
Rather than adopting a stance that allowed for others to find room to come even part of the way across to him, Kirby had built a massive wall around himself, impenetrable and repellent. He could imagine that at some future time his dissents might become the majority view, but that was a fantasy. In the Realpolitik of the High Court, all that counted was the outcome on the day.
His shortfalls included mistakes made in decisions. His first example related to Andrew Mallard, who was wrongly convicted of murder in Western Australia, and was finally released and compensated as a result of the High Court's intervention, with Kirby in the majority. But the fact that he had remained in prison for eight years after Kirby had been part of the special leave panel that rejected his initial application was a bitter taste that would remain with Kirby forever.
He also had mixed feelings about his years of commentary in the media, his high profile as a ''celebrity judge''. He acknowledged that over a long career and many thousands of media releases and commentaries, he had made a few mistakes. He had spoken up about political or social issues when as a judge he should have maintained a distance. ''I have made occasional errors. But not many.''
He acknowledged that if he had not been as open about his sexuality and his relationship with Johan, including making a series of speeches in 2000, then Senator Bill Heffernan might not have mounted the attack on him in Parliament, after having spent government resources compiling a ''dirt dossier'' in an attempt to bring down the High Court judge.
This episode, Kirby said, had harmed the relationship between the institutions of the Federal Parliament and the High Court. Plus: ''It hurt my family. It damaged my name.'' He did not do himself any favours by choosing a list of achievements and shortfalls that could easily have been dismissed as self-serving.
Criminal trial judges, for example, have to deal with wrongful convictions or unjust outcomes more regularly, and they do not make a big deal about it. Kirby's frequent hand-on-his-heart references to the Mallard case wouldn't win him any friends in that area.
Why claim achievements in raising issues of international law and a rejection of strict legal formalism and then list those very areas in the shortfall category as well? And the same could be said for his openness about his long-term relationship with Johan - a positive and yet also a negative. Surely he didn't really think that he should never have come out because as a result ''creatures'' like Heffernan might attack or damage the institution of the High Court? And yet he appeared to be leaving the door open for that conclusion.
In October 2010 he flew to the George Washington School of Law in Washington DC to accept the greatest international honour presented for law, the Gruber Prize for Justice. Johan stayed in Sydney.
The prize carried with it a cheque for $US500,000. Kirby shared the justice prize with two other winners: Professor John Dugard, who had been instrumental in the drafting of South Africa's recent human rights laws, and the Indian Law Resource Center, a US body established to promote indigenous rights in the Americas. Kirby issued a press release:
''I am conscious of the many people with whom I have worked over the years on human rights and justice who are equally deserving of recognition … There is also probably a need for a special Gruber Prize for the spouses and partners of Gruber Prize winners. My partner of 41 years, Johan van Vloten, definitely deserves a prize for putting up with me. Probably the Victoria Cross.''
■ This is an edited extract from Michael Kirby, Law, Love and Life by Daryl Dellora, published by Penguin ($45, 384pp).