Michael Kirby: Health & Human Rights

UNSW Centre for Ideas: Welcome to the UNSW Centre for Ideas podcast – a place to hear ideas from the world's leading thinkers and UNSW Sydney's brightest minds. The talk you are about to hear Michael Kirby: Health & Human Rights, the 2023 David Cooper Lecture features legal scholar Michael Kirby, and journalist Geraldine Doogue, and was recorded live.  

Geraldine Doogue: Well, thank you very much. I often say, when you have introductions that are, quote Nicholas Tomlin, who was one of the better-known members of my profession, “The only qualities necessary for real success in journalism: a rat-like cunning, a plausible manner, and a little literary ability”, so I bring that tonight to – let's see what you want to judge about that particular suite of skills.  

Look, it's just fabulous to be here, really wonderful on this special occasion, to be in conversation with Michael, there is rather a lot to discuss, I must say. And I know that Michael will want to have his say – he's known to have his say so what we will try to do is record about 35 minutes of our chat, and then you can join in with your questions because we do have a lot to cover: health, the law, friendship, change, justice – issues that have very much been maintained over a lifetime. We will discover, strangely enough, even though he's known as Justice Michael Kirby, that a lot of his good work has occurred outside courtrooms and it's that very interesting overlap, as I think he has seen it, between the law and the culture and the community that I must say, as I read about him I have found most fascinating.  

Change the law, and you gradually shift the emotions of the community. I mean, that's very much a truism of sociology and it's known to be that way, and certainly, when the possibility arose, as you'll hear for him to use the law to wind back some egregious discrimination, he grabbed it fast and he grabbed the opportunity. He seized the day, if ever anybody did so we will be looking at whether we have a right to still keep dreaming about more egalitarian health solutions globally, which I know still preoccupy him, at the relationship between health and stigma and discrimination and equity – very much issues thrown up during the AIDS epidemic. 

Now, Michael, I want to start with your character. If I may, please, I want to start personally because several people have indicated to me, and you have yourself in some interviews, that you never took on that propaganda that people of same-sex attraction had to be worried about themselves that they were essentially flawed human beings – that the image was terrible, loads of guilt. You never took that on, which you think very much helped you in your life of action and I was going to quote that lovely line of Eleanor Roosevelt's: "No one can make you feel inferior without your permission." And I wonder if you do reflect on that, that you were able to transcend all of that awful stuff? 

Michael Kirby: Well, it all came about in about 1948 when I was eight, also, and it came about because of the work of Alfred Kinsey. Now, in Australia, in that time, we never talked about sex, never, never, never and Alfred Kinsey, who had started out as an expert in bees. He got bored with bees and he turned from bees to human beings and to their sexual lives and their variations and so on, and it was a sensation at the time, and it came to my notice as a young boy, and it stayed with me. 

And the press was full of it, and I learned about it and I thought when I discovered my sexual orientation, I thought, "Oh, that's interesting, well, Dr. Kinsey says that it's not all that rare, and it exists in all societies. It's just part of the reality so get over it and get on with other things". 

Basically, that's what I did and when people, including church people, went on about the abomination and so on, I just used to look puzzled and think, "What? You're just wrong". So I never had a feeling in my thoughts that I had to be terribly anxious and worried. I wasn't very open in the sense of confronting others with it but in my own inner being, I didn't feel guilty, and I didn't feel an abomination. I felt that, actually, I was rather an attractive person. 

And therefore, people had to get used to it and that's, I think that rescued me, so it goes to show the role media plays and it goes to show the role science plays and it goes to show the importance of education and getting the message over to young people who have been discriminated against, that it's just wrong and don't let it worry you too much. Just get on with life and confront it and do what you can to change it. That basically is what I've been doing. 

Geraldine Doogue: Yes, it is what you've been doing. Well, in fact, you were quite confident of yourself, and I have to ask you to talk about some of your seduction lines, which were quite unique. Could you tell us now – wait till you hear it – tell us the story, please, of your opening gambit with your long-time partner, Johann, who's sitting here tonight listening, back in 1969. 

Michael Kirby: Oh, it's so embarrassing, but I won't let that get in my way. Johann is here, and he has been with me for 55 years and we actually went to what was then one of the few gay venues in Sydney, at least few that we knew of, and I knew of, and he had only been there once before. I think I'd been there twice, to the Rex Hotel. People asked me, you know, "Is he a professor?". And I say “No”. "Where did you meet? Did you meet in a university or something like that?". And I said, "No, we met in a pub." And we met in the Bottoms Up bar at the Rex Hotel and it’s now – and I'm going to give a free plug here – the Cafe Rex in Kings Cross.  

They pulled down the old building – and so we went there, and I saw this handsome-looking man and I thought he looked German and he started to speak and I studied German at school, and I had a really good German accent and I started to speak to him, and I said, "What do you think of von Ribbentrop?". And he looked at me with a puzzle in his eyes because he wasn't German, he was Dutch and that is not a good thing to mistake, and so he said something like, "Well, I think he was a better champagne salesman than he was a foreign minister." And that really surprised me that he knew something about von Ribbentrop and he passed the first test. It's like, you've got three tests, and you got to pass, and so I met this very good-looking, I still think he's good-looking after all these years.  

And he said, "Well”, he ultimately thought, “Who is this ratbag? Why do I always seem to meet rather strange people?”. But it wasn't a good opening gambit, I admit but anyway… here we still are. We’re still here.  

Geraldine Doogue: Well, it clearly did the trick here, and look, I mean, it didn't turn him off and I think it's two or three years ago now that you got married.  

Michael Kirby: We got married on the exact 50th anniversary of our meeting. We met on the 11th of February 1969 and we got married on the 11th of February 2019 so it was exactly 50 years. It wasn't far from the spot. We hadn't been married all those years, of course, but when it ultimately became available, he said an interesting thing because he grew up under the occupation in the Netherlands and the post-war discussion of the occupation really was a very difficult time in the Netherlands because they were, contrary to general impression, quite a lot of collaborators and so that was a very big issue and he grew up there and he said, "I learned one thing. Never cooperate with your oppressors. Never make it easy”. Because in the Netherlands, with their usual efficiency, they had very detailed information on every house where there was a Jewish person. They'd had their census, they made the map of Amsterdam and other places, and they put down where Jewish people were. And he said, "You should never cooperate with people who are oppressing you", so he said, "We should not take part in the plebiscite because this is not done for making law in Australia, or it's only been done for us. We've been singled out, and it shouldn't be done. Parliament should make a decision. If they decide against marriage equality, we know we can accept it, and it'll come back later and it will be passed". So at first, we were not inclined to take part but ultimately, we both agreed we didn't want to give a free kick to anybody who was being so nasty to us and so we did take part and of course, it was adopted by, I think it was about a 63% majority, which was a wonderful thing about Australia. It shows how we have changed and there's still more change to be made and it's not only about LGBT people, it's about all minorities and people who are a bit different and our duty as informed citizens is to try to make life sweeter and kinder and lovelier for all people.  

Geraldine Doogue: But it was a dilemma for you when it was possible for you to marry. It was a dilemma, wasn't it? You weren't sure? 

Michael Kirby: Well, we both, first of all, we don't call each other husband because that's a sort of language from the past, which may conjure up the idea of a patriarchy and a superiority and one is the husband and one is the wife. And that's just not our relationship so we were a little bit dubious about all that but we've settled into married life, and in this late stage, and he puts up with me, which is a great blessing. Anybody who would deprive another human being of a loving partner, who tells you when you are going wrong, and who is kind and supportive, and is there when you wake up, and is there when you go to bed, it's a great blessing. It's very good for your health. 

Geraldine Doogue: Yes, indeed so and it is amusing when I look back because you said you just wanted a quiet little affair. It was on the front page of The Sydney Morning Herald. It certainly didn't end up a quiet little affair, the marriage. 

Michael Kirby: Well, it wasn't on the front page of the Herald until the marriage and then they picked that up and it certainly was a great blessing. And I want here and now publicly to pay tribute to my partner Johann. He's been a wonderful partner. He's been a friend, a supporter. On the High Court of Australia, all the justices loved Johann. They were a little bit ambivalent about me. 

Geraldine Doogue: All right, well, that gives us a little bit of a glimpse into the character. I just thought we must start personally and then we'll get to this sort of lovely interplay between law and medicine and civil society because they all interact very interestingly in your life, fascinating, actually. Now, as David said, our approach, early response to HIV/AIDS was really considered world-leading. Thinking back to those dark days, what did we get right? What were the unique challenges? And I'm a great believer in actually looking for competence as well as incompetence, you know, the media is obsessed with incompetence, but often there's tremendous stories in the competence, too, real first paragraph stories. What do you think we got right? 

Michael Kirby: Well, we got right… first of all, in our Federal Minister for Health, Neal Blewett, who I think might be here tonight, he's a really great Australian, and also the eventual opposition spokesman on HIV, Peter Bone. Now, they're both here and the Prime Minister of the day had Bill Bowtell, who's here in the front area, and these three gentlemen and others really took hard decisions, and they were decisions which the growing knowledge of the World Health Organisation grappled with.  
 
Actually, I owe it to David for getting me involved in HIV. We had a dinner party at a harbourside restaurant, and David invited me along as a judge who was the chairman of the Law Reform Commission and who was interested in medico-legal issues and there at the table was a very great international civil servant, Jonathan Mann. Jonathan Mann was the head of the Global Program on AIDS of the World Health Organisation and he later invited me back to Geneva to the Global Commission on AIDS and the Global Commission on AIDS had some very great scientists on it, Montagnier and Gallo and it laid down the AIDS paradox, and it was a simple paradox, but if we want to deal with this matter, well, we don't have a cure, and we don't have a vaccine. Paradoxically, the best way to do so is to reach out to those who are most at risk because then we can inform them about the virus, we can inform them of the way to protect each other, and by protecting each other, to protect society and we can engage them and involve them until we get something that will help to cure them or at least palliate the condition, and so that was the message that I got through Jonathan Mann through David Cooper and it was the message that was then sold in Australia.  

We were the second country in the world to adopt the AIDS paradox as a foundation of our strategy and that's thanks to Neal Blewett, Peter Barton, Bill Bowtell, and others and that is what led to the strategy of reaching out to gay people who were on the front line – telling them about it, removing the last lingering laws that criminalise them, reaching out to sex workers and telling them what they had to do to prevent the spread of the virus to them and to their clients, reaching out to people who were injecting drugs, now, that was a no-no at that time, but thanks to ministers of health in the state and in the federal sphere, including Jillian Skinner, who I see here from the former government. It took courage on the part of politicians, but they were people of courage. They were politicians who were really admirable, and they took marvellous steps. The injecting drug users, we were second to New Zealand and right through the pandemic, from that time on, we had a much lower rate of seroconversion because of the fact that we had embraced the AIDS paradox and we were reaching out to the people who were most at risk. 

Geraldine Doogue: Yes. Somebody pointed out to me, you know, in days gone by, in the early days of TB, people were whisked away and everybody just sort of accepted it, whisked away from their families so that was one of the areas. If you can think back, when you adopted this paradox, which is I hadn't heard it put like that, did you see avenues where you could go and shift the law so that you'd contribute to this? 

Michael Kirby: Well, the change in the laws in Australia on gay people – against them in criminal law had already started by the time HIV came along.  

Geraldine Doogue: But they just, though hadn’t they? 

Michael Kirby: They only just started in South Australia, very strange people, the South Australians. They all have this big German population and they think sometimes differently but they took the step under a coalition government, interestingly, followed up later by Don Dunstan in a Labor Government and this was the good thing about how we approached this.  

With so many divisions in our society on HIV, we tended to have a coalescence of the leadership and that was a very good thing and then it’d save lives and it continued to be important in the global response because when African countries, like Uganda  in the last few weeks, do nasty things, it can be pointed out, ‘you are doing a harm to your people. You are taking them out of the reach of the messages that are necessary’, we still don't have a cure for HIV. We still don't have a vaccine against HIV, which makes the development in COVID, to which the Kirby Institute has contributed notably, all in all amazing.  

Geraldine Doogue: I'm going to come back to that, but it was pointed out to me, the thing about quarantine was that it did the reverse of what the paradox – it took people away, which, you know, might have instantly taken the problem away but it also took them away from all manner of health developments, you know, the sort of sheer need for the science of health to be there right with people to try to actually work with the problems that came forward.  

Michael Kirby: But it was pointed out at the first meeting of the Global Commission on AIDS that we didn't have enough barbed wire – already the number of people who were infected were beyond the capacity to contain it and therefore, we had to adopt a different strategy and without a vaccine and without a cure, and with no prospect of that quickly, we had to step up the endeavour to find drugs that would control it and prevent the spread of it.And by preventing that, reduce the risks of spreading and therefore saving lives but that we just couldn't have adopted the old quarantine approach so countries tried to. 

Geraldine Doogue: Some countries tried to? 

Michael Kirby: Cuba did, strangely Cuba with a sort of communitarian government, sort of ‘We can deal with this, we just lock them all up’. But there were already too many and ultimately, Cuba changed its strategy. 

Geraldine Doogue: But how did you help chart a difference between evidence and stigma, you know, in dealing with this unfolding crisis? 

Michael Kirby: Well, essentially, we just had to convince people, politicians, public health personnel, the medical profession, and others who hadn't thought in this paradoxical way that here was a new problem that required a new approach, here was a time when the law could be a help in dealing with a pandemic.  

In the past, the law was a help by locking people away and calling out and claiming and isolating people in biblical societies but now there was a need to think, paradoxically. Jonathan Mann, he was a most charismatic individual, and he had the capacity to convince the rather conservative bureaucracy of the World Health Organisation and other UN bodies and that really made a difference but it was David Cooper who introduced me to Jonathan, and I don't wish to overstate my own role, but I was actually a person who was at the Global Commission on AIDS with Luc Montagnier, who was the scientist who found the virus and described it, Robert Gallo, who developed the test so that you could find out who was infected, June Osborn, who was a great public servant and Professor of Public Health. All of these people, they were really remarkable, and they had quite a few gay people there. Jonathan, I think, had a sort of radar that he could work out who was gay, and because gay people were on the front line, and most countries including Australia, he thought, "Well, we should hear from them". And that was a very important feature of our approach in Australia. 

Geraldine Doogue: Was it frightening at the time? 

Michael Kirby: Oh, terrible, terrible and I had many friends who we would see, and they would say, "I've been diagnosed, but I'm going to get over this thing. I'm going to fight it, I'm going to get over...". Well, they didn't and we went to so many funerals and when you went to them, on one side of the chapel was the blood family, and on the other side of the chapel was the gay family and never the twain met. I mean, they didn't have anything to do with each other and Johann was an Ankali – that was a group who were buddies as they would say in America.  

Geraldine Doogue: They accompanied people.  

Michael Kirby: And mainly the problem was finding somebody who wasn’t repelled by your infection and who would talk to you so that was not a matter of risk. This was a case of learning in a public health crisis the importance of scientific truth, of empirical data, and of getting that out from the medical profession and the scientists to the general community. 

Geraldine Doogue: Look, you also cite the powerful impact on you of your work with the International Commission of Jurists, to which you brought a very definite public health agenda. Why did that matter so much to you? I saw you say it recently on YouTube, and I could see it had been quite important. 

Michael Kirby: Well, don't forget that I had been trained as a lawyer, and I, at the time, was a judge in different courts, and not at that stage, the beginning of the AIDS epidemic on the High Court. But I had been chairman of the Law Reform Commission, the Australian Law Reform Commission so it was important for me to take part in the International Commission of Jurists because it was the most notable international body, and we had a meeting, and I think it was about '89, and they said, "What should be the future? Let us look into the future as to what the future human rights issues are going to be". And so I said, "Well, one of them is going to be the human rights of people living with HIV and another is going to be the human rights of sexual minorities". 

And that caused a tremendous uproar in a very distinguished and rather elderly group of lawyers on the International Commission at that time, and there was one of them – a very nice man, most people who can sometimes be nasty in these circumstances are quite nice if you get them on their own, but he said, “Well, I'll accept the human rights of people living with AIDS but please, please, we're not going to deal with homosexuality because I come from Ghana, and there are no homosexuals in Ghana". And I said, "Well, look, I've got a little bit of information for you". 

But these are sincere people that are very affected by missionaries, Christian and Islamic missionaries, who tell them that it's an abomination. I mean, here we have in Russia, for all its faults, the Soviet Union had become a strong secular state and really kept religion out of politics. But Mr Putin, along with one or two other little defects, has re-embraced the church. The Archbishop of Moscow, the patriarch, has come on board, and they have reintroduced all these criminal laws which had been abolished in Russia.  
 
Geraldine Doogue: They have, indeed. Your work in India, I think, as part of that was something that you considered one of the most important things you did in your life. 

Michael Kirby: I do. Well, there was a very good South African judge who not only was gay, but he was HIV positive, and his name is Edwin Cameron. I mentioned it because he's very open about it and was from the beginning in South Africa, very open about both aspects and he responded positively to an invitation by a civil society in India and it's important to pay respects to civil society organisations, organisations of gay people, and of non-gay people concerned with this pandemic and he said, "We should help the Indians and respond positively to the request that we become involved". And so he and I went to India in what we call the caravan and we were taken around to different cities in India to speak to the judges about HIV and its consequences for the law.  

And that was rather interesting to do that because there was very little talk about homosexuality and very little about HIV but we introduced it, and when Edwin mentioned that I was gay, well, that was a bit surprising to them because they were not used to talking about private matters that you shouldn't have to discuss, but then Edwin revealed his HIV status. He's still one of the only people on the African continent who is open about his HIV status and he's a very intelligent, tall, impressive, and patiently honest person and I remember an incident where the Chief Justice of India, Chief Justice Verma, at a conference like this, talking to the judges, just got up and embraced him.  

Geraldine Doogue: Wow. 

Michael Kirby: In front of the others. This was such a wonderful thing but he was greatly affected, not so much by me, but by Edwin, who was open about these things and said, "Had I not been a wealthy white man in South Africa with a judicial salary, I would not have been able to get the drugs that got me over the barrier to make me alive to come and speak to you about this and about the legal issues and why the judges should be involved and why the paradox matters". And of course, that was relevant in India because they had the British-imposed criminal law in the Indian penal code and so he was talking about this, and all these judges who were conservative but intelligent people were listening to a person giving it directly from his experience and they just went away, and we lost contact with most of them. But subsequently, a case came before one of them who had been at a couple of these seminars with the caravan, and his name was Justice Ajit Prakash Shah.  

He became the Chief Justice of the Madras High Court in Chennai and the Chief Justice of Delhi High Court. In the decision in the Delhi High Court, he led that court to embrace the paradox and to say that the provision in the British Criminal Code, which was itself a miracle that they got this code for the whole of India, but the provision criminalising gay people is not only bad in principle, but it's very dangerous in the circumstances of our pandemic. And so he struck it down, and that was challenged in the Supreme Court of India, and ultimately, the Supreme Court of India, in a great case called Navtej Singh Johar v Union of India, unanimously said “These provisions, which do not treat people as equals and which are singling out this minority, are contrary to the basic principles of our Bill of Rights. Therefore, they cannot be part of India, and this provision is unconstitutional and struck down”. So that was a really great decision, the Indian penal code, on the day that happened, there were celebrations throughout India amongst gay and straight people. 

And it meant that if you take a certain percentage of people who are gay in every population, it meant hundreds of thousands of people, millions of people in the most populous country of the world were suddenly liberated from this criminal law and they removed an impediment to getting the message out to the people of India, gay and straight, injecting drug users, sex workers, and others and that was, I think, a very important outcome of the civil society effort to get the paradox over to the population.  

Geraldine Doogue: See, the Commonwealth does seem to have a problem with gender identity issues and much more than the places that have come from other empires, which I found very interesting. Can you flesh that out for us, please?  

Michael Kirby: Yes well, the French during the French Revolution, the Estates-General in 1793 had before them the Royal Criminal Code of Royal France and they said, "This is the one that penalised gays just the same as the British and the Russians and all the others”, and they said, “This is rubbish, we're not going to have this”. And so, the Estates-General abolished it in France, and the French penal code which Napoleon soon after the French Revolution adopted in France was then copied in the French African colonies and the French colonies in Asia and the islands and so on, and so that was a big point of distinction, and the German and Netherlands criminal code was copied on the French so this was a very special feature of British rule.  

Wherever the Union Jack had flown, they introduced the criminalisation of sodomy as it was called and that is still lingering on. Half of the 56 members of the Commonwealth of Nations still have those criminal laws and trying to get them to change them because it's an overreach of the criminal law, it's not working, and even trying to get them to change them by reference to the AIDS paradox and reaching out to the populations at risk is not happening.  

Geraldine Doogue: Well, I think you say that HIV/AIDS is twice as prevalent in Commonwealth countries as elsewhere. 

Michael Kirby: Yes, when we would try, and I was on a body called, and I rather like this title, the Eminent Persons group to advise on the development of a charter for the Commonwealth of Nations to replace allegiance which had been the glue that bound together the British Empire to have a charter, and the problem was that it had a lot of resistance in countries, like the countries in Africa and a clue to this is what’s happened in the recent weeks, it’s got a lot of publicity of Uganda reintroducing the death penalty for some gay offenses so the battle isn't over, and you could never be still and quiet, and reticent when such resistance exists, and when you have a duty to share the truth and the knowledge, the truth will make us free.  

Geraldine Doogue: I don't know whether you are a podcaster yet, I'll bet you're not. Do you listen to podcasts?  

Michael Kirby: No, I take part in them. People come and they talk to me and I chatter away. It's all out there in podcast land.  

Geraldine Doogue: Now I am a complete devotee of one called, The Rest is History and it’s with two terribly bright British polymaths, Tom Holland and Dominic Sandbrook and they did a two-parter recently on the trials of Oscar Wilde and it was absolutely brilliant. And their thesis was that that had been such an amazing event in the life of the British, and possibly by extension, the Commonwealth. I'm just thinking of what you're saying that there was so much that flowed from that, so many sort of existing prejudices that it played into, but it was so vivid. Oscar was such an extraordinary character, the interplay of the establishment and Oscar and the law that it had an incredible legacy for many, many years. Now, I just wonder whether it did subtly influence Commonwealth attitudes.  

Michael Kirby: You must give me the address of that. 

Geraldine Doogue: I will, I will, it's really good. You'll adore it. 

Michael Kirby: I haven't heard that suggested. The British were the first country in the English-speaking world to adopt the reform of the criminal laws against gays and they had the Wolfenden Commission by Sir John Wolfenden, and it turns out later that Sir John Wolfenden’s son was gay but that might have been something that contributed to his view.  

But they proposed, I think it was about 1956, the abolition of the law in England, and that was achieved in, I think, 1967 and so they changed it. But I think that grew more out of the Kinsey report, because the Kinsey report had a lot of foundation in good science. Kinsey was the world's greatest expert on gall wasps and then he turned his attention. You know, scientists are very strange people. They have this passion about samples and he had billions and certainly millions of samples of gall wasps, and then he suddenly thought, "I'm sick of this”. He woke up one morning and said, “I’m going to do something completely different”, and his wife probably said, “Well, what is that, dear?”. And he said, "It's going to be human sexuality". And that's what he did.  

And that made people realise that the attempt to make you pretend, because that was the art, pretend that you're straight. 

Geraldine Doogue: “The love that dare not speak its name”,that was the great piece from Oscar in 1896. 

Michael Kirby: Well, it was done in order to not confront people, especially religious people, with the awful reality that there is, boringly enough, in every society, just this small number of people who are not straight, not heterosexual, and I think this led to the English reform and then in the manner of those days, copied in Canada, then in New Zealand, and then in South Australia, crept through Australia, in two states, Queensland and Western Australia, where they have a criminal code, which is a bit different. They changed the law, but they had a preamble. Joe insisted on a preamble in the Queensland code, which said, "We don't really approve of this change that’s being proposed, but we've been told we have to do it in order to prevent the spread of HIV, and therefore, we're not going to penalise gays from now on."  

Strange times, but we made progress because of leadership. It was the leadership of politicians, top bureaucrats. It was really a magical time in Australia and New Zealand got there a little bit earlier, and their example, particularly needle exchange, getting the needles or the clean syringes out to people who are drug-using, drug injecting, and you reduce the spread of infection, particularly in the straight community. Because the needle exchanges are reflecting the general population so that was a very important step, and it meant that a few years down the track, we had very low infection rates in the people who were injecting drug users. There had been opposed. Police commissioners who opposed it. They said “It's against the war on drugs. We mustn't do this. It will be the end of civilisation”. But it was done, and remember, it saved lives.  

Geraldine Doogue: It was a very interesting debate. Well, look, let's just move to the present, because COVID global research collaborations were spoken of as being unprecedented in their scale and speed and scope. But I think you believe that a lot of the groundwork for this was actually laid in the AIDS epidemic.  

Michael Kirby: Well, I think the HIV pandemic taught a very important thing. That is that the politicians and the public servants have to communicate. They have to communicate with civil society, groups representing minorities – have to communicate on television with the general community and I reckon that even though there were various problems in our journey with COVID, every night when we went home on the telly was the minister and his top public servant and they were wonderful, and they just answered questions from the media and I think that's something that was learned from the AIDS epidemic, you can't keep these things to yourself.  

And in the audience is Michael Kidd, who was one of those bureaucrats or officials with great expertise in medicine and medical communication, and he would answer the question, help the minister, and that was making transparency and accountability. And I think that helped us during a time when we had to do various things that at other times would not be tolerated.  

Geraldine Brooks: Well, in fact, it's interesting because the Victorians have just done an assessment of whether there were certain groups that did not benefit from all of this discussion. I mean, and they have actually looked at whether there were certain groups in parts of Melbourne that were associated with the Muslim community that actually were not included and the talk actually became counterproductive to them. And I mean, there is an argument, I know that some people make it, that some of the people who were non-Anglo-Saxon in this community in Sydney, which handled it differently, also, I think they were prosecuted more often for breaches for instance. So I mean, it's interesting, isn't it? The cultures and communities have really… their essential character is on show at times like this, isn't it?  

Michael Kirby: Yes, but I can't but think that the religious communities and the minority racial communities work as it were swept along by the change. I was told only yesterday by a Vice-Chancellor that a university in Australia is applying to join the Vice-Chancellors' committee, and this is Avondale, which is a Seventh Day Adventist.  

And Seventh Day Adventists, as I know from other various involvements, including during the Lindy Chamberlain matter, are very nice people, you know, they're not very different to Sydney Anglicans, they are very Protestant but they were under questioned because of the COVID and their response to COVID and they said, “These are blood cells that are derived from human beings”, and at first, I didn't agree with it, but they changed their mind during the public debate and it may be that the churches and the religious hierarchy have taken one step but I would think you would find that the general population are watching the telly and it's not mediated by religious or other prejudice and they come along with the rest of the community. I think that is what is happening in Australia. 

Geraldine Doogue: Now there is a question around rights and freedoms, which is tricky in all of this, anti-maskers, anti-vaxxers. Is it ever okay, in your judgment to enforce rules, even if they do cut across people's inherent choices? 

Michael Kirby: Well, the way we normally solve this is by providing exceptions on conditions which can ultimately be appealed to a judge and the judge weighs up the public interest of enforcing vaccination and respecting the individual rights, normally by favouring the general public in times of a pandemic and I do think you have to respect people with minority views. Our society is not one where we just go around forcing things on people.  

Geraldine Doogue: Even during a pandemic? 

Michael Kirby: Even during pandemics, there is a special need to protect the whole community and so it's a matter of balance, it's a matter of getting the proportionality of the response.  

Geraldine Doogue: I wonder if there is a paradox there, you see. 

Michael Kirby: Yes, well, there are many. Life is full of paradoxes. It's why I don't read novels because when I was on the High Court of Australia, every week I had a new set of novels. The problems in the court were the amazing things that human beings do to each other and if you've read the reality of appeal books, you'd never want to read a novel again because they’re tame by comparison to what ordinary folks do.  

Geraldine Doogue: Before we do go to questions, there is something that some of my lawyer friends who knew I was talking to you said, "Look, will you put something to him?” that they found troubling. That when you began in the law, and when I started in journalism, lawyers had a standing. There was sort of a real sense that was, you know, doctors and their ethics and lawyers and their contention. My friend said, that's gone. Lawyers are now seen as much more for hire, you know, for advice that they might be giving to all manner of business enterprises, and they don't quite have that prestige that they once did. Now, do you agree with that? 

Michael Kirby: Well, I agree that things have changed, certainly, since I was at law school. Things have changed remarkably but on the other hand, back in those days, women were very minor in the law. When I was a young article clerk, I was working in a small legal firm, and a secretary who was very, very able and talented came in one day in slacks, and she was sacked on the spot and likewise with other minorities in the law, and people never talked about the stress and pressure of the law and when I started to do this after a conference I attended in Canada, people said, “Oh, get over it. You've got to pull up your socks and just get on with the job. Your job is inherently stressful”. 

Geraldine Doogue: They said to you? 
 
Michael Kirby: Oh yes, yes and I was attacked. This was soon after I was appointed at the High Court. They had to sit there and listen, but I was attacked and but now you don't go to a legal conference without people laying it all on the table so maybe we've lost a bit of the prestige and the glory but maybe we’ve come to terms with the reality that law is a position that should be helping society and it should never be rude to people or unequal in the treatment of people in court. I had terrible judges bullying me when I was a young and you never give your best when you’re being bullied. If you were bullying me now, I wouldn’t be chatting away like this but so I think, yes we’ve lost a little bit of that prestige and the medic goes too but… 

Geraldine Doogue: Less show and the medic goes, that’s an interesting thing but that’s a very interesting response so I shall take it back to them.  

Michael Kirby: Oh yes, you tell them.  

Geraldine Doogue: I’ll hand it back to them.  

Michael Kirby: If they’ve got a problem, get them to send me an email. Yet, another email.  

Geraldine Doogue: This is the final question. I mean, when the Kirby Institute was launched under your name in 2011, David Cooper said this, he said the institute particularly researchers, infections that quotes “Occur in social groups that might be considered marginalised, disadvantaged or voiceless. This is where our interests and those of Mr Kirby intersect”. Now, what would you say about the importance of organisations like this, you know, 10 years on from that in terms of this effort to have much fairer Global Health Solutions, which I know sort of, you know, completely preoccupies you.  

Michael Kirby: Well, the Kirby Institute is foremost in pursuing a global approach. We reach out to the region in particular, but wider than the region. A lot of the brilliant professors, many of them Scientia Professors of this university, leaders in the world in things such as hepatitis, and issues of COVID have been really at the forefront of the Kirby Institute. 

Professor Raina McIntyre, who is here tonight was frequently on the television communicating things. Gregory Dore, who's a world expert in hepatitis and therefore in the injustice in many countries of making the necessary drugs that can remove and help people with hepatitis. Professor Grulich who works on anal cancer and which is strongly supported by the Glendonbrook Foundation, you know, that's not an attractive sort of thing to give money to. The Glendonbrook Foundation does, and the Kirby Institute does it and this is a wonderful leadership role in Global Health and the director of the Kirby Institute, Professor Anthony Kelleher, is here as part of the global outreach of the Kirby, and I'm very proud of this because it is, in fact, a sort of continuation of things I've learned through David Cooper from Jonathan Mann.  

You know, the story that one of the poets said, or was it a scientist that said “You only make progress by standing on the shoulders of the giants”. And I think this is true for science and medical science and health science today. We learn from each experience, and it has become more inclusive in the legal profession. Okay, hang the prestige. If you don't have the prestige, and you can't bully people, and you can't tell them just accept it and please go away and don't trouble us, then I don't think that's the right way. In a time when people are better educated and more questioning and I think that's a very good thing and transparency in government is a very good thing.  

Geraldine Doogue: Well, look, thank you very much indeed, Michael. We've got some fabulous questions, actually, that have come in so I think we've got 15 minutes or so for that and I'm just going to look precisely at that. Do you feel that politicians in today's era have less courage when making hard decisions on difficult topics?  

Michael Kirby: Well some politicians do, some politicians don't. I think it's a very individualistic thing. I mean, there are people in this audience who were politicians who were sublimely courageous, and there are other politicians who were... you could all mention who are not so courageous. But in terms of the fundamentals, I think in tackling COVID, and in tackling HIV, we were much more courageous than we were in earlier pandemics, in the flu outbreak in 1919 and in earlier pandemics, we were not so courageous because we were in the prestige generations. 

And if there's a trade… 

Geraldine Doogue: Polio, for instance, it's interesting to think about. Yeah, that was panic, of course and it was tragic because it was about children's limbs.  

Michael Kirby: And President Roosevelt, who in a sense, we would say today, who was undoubtedly a very great man, had the capacity from his polio, which he had during all the time of his presidency, to speak about and communicate and explain. 

I had a case in the High Court where there was an objection to the fact that Aboriginal people in a hall had turned their back on Mr Howard as Prime Minister. And I said, in Australia, that is a protest and in Australia, we allow protest, and sometimes we agree with them, and sometimes we disagree with them. But that's something which is a part of our democracy, free expression.  

Geraldine Doogue: Well, another question: with the inevitability of future pandemics, is there room for a legal national pandemic framework that pre-emptively delineates specific powers and needs?  

Michael Kirby: Well, that was something which was sold to President Obama, and he, in fact, set up and instituted and established such a national body and it was all there at the time Mr Trump came into office, but one of Mr Trump's first actions was to abolish it and therefore, they didn't have that in place when COVID came along and that's when Mr Trump said, “Oh, you just got to take a dose of hydroxychloroquine –or something – and you'll be right”.  

Geraldine Doogue: Yes I do remember. Now, this is a tricky one, about trans rights: in light of your recollection of the Australian Government's swift HIV/AIDS action, what should the Government be doing to protect and promote trans rights?  

Michael Kirby: Well, this is something which requires a lot of thought and experts and listening to trans people. I mean, you can't now impose things without communicating to those who are most at risk and as somebody who grew up being told, “Just shut up and pretend”, I have a lot of sympathy for trans people.  

Sympathy is not the right word, understanding and respect but there is an issue in respect of trans, and it's an issue of what age is a person able to make the very important decision about hormonal injections and the even more important decision of surgical intervention and in the past, the answer that society gave in the recent past was, “Well, let's pass that over to the judges, and they can decide that ultimately”. 

But nowadays, I think there's a recognition of the growing role of the individual, the family, and the child themselves to make the decision themselves, but I'm not underestimating the difficulty in some cases. I went to a conference in Hong Kong where they invited a doctor from Belgium who was an expert in trans, and his job was to conduct operations to try to repair and sometimes reverse operations where trans people changed their mind, or the operation was completely botched by the local doctor who didn't know how to do it. It's one of the most heroic surgical procedures that you can have and so, that taught me really that this is a complex question, but the bottom line that should guide us is respect for people who find that they feel locked in a body that is not in keeping with how they feel and how they find the world and how they want to make their way in the world. 

There are steps on that journey that require some extra help and extra principles and I think we're probably still developing those principles but excluding trans people and passing laws that forbid the mention of trans and forbid their participation in sports and forbid their participation in schools is not the way to go.  

Geraldine Doogue: Another question, would you like to comment on the health and human rights in respect of your wonderful investigation for the UN into human rights in North Korea?  

Michael Kirby: Well, human rights of citizens up there got down to real basics – one of which was the human right to food, I mean in North Korea, they spend an awful lot of money on their nuclear arsenal, but they don't feed the population, and this is the sort of issue and it's similar with healthcare. 

To some extent, because of their nuclear development North Korea has been cut off from the funding and the sources that would provide them with essential healthcare and in our report, we insisted that humanitarian aid had to be isolated and they had to receive humanitarian aid but often the problem was that North Korea would not give access to the necessary information to humanitarian organisations, often American, that tried to help the local population so it's a very complicated issue, but North Korea is not a very friendly place.  

And of course, they never allowed the commission of inquiry for the United Nations to go in, but the report is still there, and it is there as an indictment of North Korea. Many people got in touch with us after it and said, “Well, we haven't had anybody convicted. We haven't had any substantive change within North Korea but at least you invited us, and you invited us if we were willing to do so, to give testimony in public and you put that on the internet and we had the opportunity to speak truth to power, and that is still there, and it is still troubling humankind and eventually, we will have the freedoms and liberties that other people do.” 

Geraldine Doogue: I think that's a perfect epilogue for a wonderful life. Justice Michael Kirby, thank you very much indeed for speaking to us tonight. 

UNSW Centre for Ideas: Thanks for listening. This event was presented by the UNSW Centre for Ideas, the Kirby Institute, and UNSW Medicine. For more information, visit centreforideas.com, and don't forget to subscribe wherever you get your podcasts.