Opinion- 11 May 2009

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Justice Michael Kirby Makes His Point at Indiana University's Commencement  


 pdf file-available from Australasian Science



Michael Kirby was a puisne justice of the Australian High Court from 1996 to 2009. That his outstanding intellect allowed him to grasp the essence of subjects removed from his immediate field of the law was well demonstrated in 1993. While president of the New South Wales Court of Appeal he was asked to fill in for Barry Jones to give the ANZAAS public lecture: "The Human Genome Project - Promise or Problems?"


The result was a remarkable tour de force.


Considered a thorn in the side of the Coalition government of John Howard, his judgments are generally viewed as liberal in their approach and he had strong opinions on the role of a high court judge. Delivering the Hamlyn Lectures on the subject of judicial activism at the University of Exeter in 2003 he said:


Clearly it would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law. Yet it would also be wrong, and futile, for a judge to pretend that the solutions to all of the complex problems of the law today, unresolved by incontestably clear and applicable texts, can be answered by the application of nothing more than purely verbal reasoning and strict logic to words written by judges in earlier times about the problems they then faced... contrary to myth, judges do more than simply apply law. They have a role in making it and always have.


Justice Kirby has been open about his homosexuality since 1999 and in consequence, in 2002 Liberal federal Senator Bill Heffernan under parliamentary privilege accused him of misusing government resources to solicit under-age male prostitutes. The documents the senator ultimately produced were forgeries forcing him to apologise. Justice Kirby's response: "I accept Senator Heffernan's apology and reach out my hand in a spirit of reconciliation. I hope my ordeal will show the wrongs that hate of homosexuals can lead to."


This past Saturday he gave the 2009 commencement address at Indiana University where he was awarded the honorary degree of Doctor of Laws.


The title: Three Lessons from IU: Whatever It Takes


Justice Kirby proceeded to speak to his audience as fellow graduating classmates:


The first lesson is that, as citizens of the 21st century, we must all think in global terms. We must all be engaged with the world. All of us now have a stake in the international community. No nation, however strong and wealthy, and no individual however brainy, is immune from global forces today. Australians and Americans can sometimes be a bit parochial. Well, now that is over. We are all part of the globe.


There are two other qualities that we have learned in our time at this university. These lessons will sustain us through life and make us good citizens of our own countries and also good citizens of the world.

One is rationality. Universities search for truth and sometimes truth, when discovered, is uncomfortable and puzzling... The world of rationality and scientific enquiry is the world that we, the graduates, embrace. Others may reject truth and free enquiry. But those values are the approach of IU.

Sometimes this approach obliges us to exhibit further qualities: courage, determination, persistence. And to do so in the face of great odds. A university that embraces such qualities is truly deserving to be in the front rank of global universities.


At this point Michael Kirby spoke of the debt he personally owned to the courage of Herman Wells the president of Indiana University from 1938 - 1962 and Alfred Kinsey whose researchers into human sexuality has brought fundamental and continuing change in the understanding of sexual behaviour. Professor Wells was under immense pressure to terminate the work of the Kinsey Institute which only increased with Dr Kinsey's death in 1956. At the time The New York Times wrote: "His work was conscientious and comprehensive. Naturally, it will receive a serious setback with his death. Let us earnestly hope that the scientific spirit that inspired it will not be similarly impaired."


Did Justice Kirby appreciate that the majority of his audience, young graduating seniors (mostly 4th year students) come from the very conservative American mid-west, and rather than seeing the profile in courage that he was portraying saw him as being merely self-indulgent, and divisive?


Mr Justice Kirby is not a fool but I'm afraid he was imploring a majority that is unconvertible -- but then, he would have realised that before he ever left Oz.


[L]et me tell you, the Kinsey Institute on Sex, Gender and Reproduction is not sufficiently loved and cherished and appreciated in Indiana University. Maybe some people still feel ashamed, embarrassed. So I have come back to Bloomington, once again, to tell them to get over it. And to tell you how important the research done in this place has been for me and for millions of people like me and their loved ones in the four corners of the world. For people you and I will never know. For people often threatened with violence and even death. For people who hide their face and who suffer stigma and who are outcasts, in a kind of international sexual apartheid. For people who are frightened, above all, about their own reality. It is Kinsey and Wells of Indiana University who brought those people hope and dignity. I can tell you, it is a most precious gift. It has helped to change the world. Indiana USA and its great University can be proud of the contribution.


And some of the comments written to the student paper:


I hate when people use public speaking as a platform for their own message when they aren't asked to do so. This was not a gay rights speech; it was a commencement address. Wrong place and time. I graduated and was disappointed along with every friend of mine who was there.


I understand some people were upset with the subject matter, but I think the overall message is that our graduates should not be afraid of who they are or keep yourselves from being you. Yes, people felt uncomfortable but I found his speech much more interesting than the cliché "you can do anything you set your mind to."


I was incredibly disappointed with Kirby's commencement speech. It was completely inappropriate and not the right occasion. The man obviously has many accolades but instead he chose to focus on an issue that was incredibly divisive. I personally felt uncomfortable listening to his speech and noticed others around me cringe when he began to talk about his sexuality. A commencement speech should be able to motivate students and give them optimism for the future. Instead, he alienated a large population of the student body and their guests.


Kirby's message was inappropriate for my graduation day. Maybe because he felt that Americans put too much on graduation day (unlike the rest of the world Kirby said), he decided to use it as a political stage. Shame on him for deciding to use one of our greatest accomplishments for his advantage. at [the expense] of the student body and their guests.


President Wells' biographer for Wikipedia writes: "He was pivotal in the development of Indiana University into a world class institution of higher learning. His achievements and leadership permeate the university to this day."


Looks like there's still room for improvement.


Alex Reisner

The Funneled Web