On Geoffrey Robertson and Michael Kirby

‘Although an expatriate, I am not an ex-patriot’, writes the human rights barrister Geoffrey Robertson in his introduction to Dreaming Too Loud, a collection of essays spanning thirty years and touching on subjects as diverse as drones, Lady Chatterley’s Lover and Julian Assange. It’s a point on which he insists more than once, perhaps because, as well as living in the UK, he sounds as if he was born and raised in one of its posher stately homes. (The satirical magazine Private Eye once described him as ‘an Australian who has had a vowel transplant’.) Nevertheless, his patriotism is sincere, and all the more interesting for being based, not on jingoism, but on a love for Australia’s best traditions of fairness and social democracy.

Of course, we have other traditions, too, and Robertson does not seek to deny or downplay them. The legacies of racism are a key concern, as is Australia’s shonky record on censorship and freedom of speech. But while Dreaming Too Loud is shot through with an awareness of what its author calls ‘the downunderdogs’, this awareness is itself an expression of Robertson’s commitment to equality and social justice, and of his belief that equality and social justice are central to the Australian experience. ‘We never seem to boast about how we pioneered universal suffrage and votes for women and maternity allowances,’ he writes in a piece for the Bicentennial, ‘how we invented the secret ballot and the basic wage, how the miners at Broken Hill achieved the thirty-five-hour week for workers in dangerous jobs fifty years before that idea caught on overseas.’ For Robertson, Australians should pride themselves on those times when they have been most mindful of others.

Above all, Robertson urges his readers to rethink the category of ‘Great Australian’. Rejecting the moronic cult of Ned Kelly in favour of his contemporary, the teacher Tom Curnow, who put his life on the line in order to stop Kelly committing a particularly violent robbery, Robertson sends his intelligence out in search of those ‘distinctive moral visions’ that define, or should define, Australia. As a lawyer, he is especially interested in what legal scholars call ‘Grotian moments’. Named for the great Dutch jurist, Hugo Grotius, a Grotian moment is where a value or principle is proclaimed, as it were, ahead of its time, but acts as a sort of intellectual beacon by which future generations are able to navigate. One such is Captain Arthur Phillip’s ‘First Law’, which asserted, in 1787, many years before the abolition of the slave trade in Britain, ‘there will be no slavery in a free land and hence no slaves’. Another is Governor Macquarie’s refusal to discriminate against emancipists. For Robertson, such moments are more than symbolic; they underpin the very rights it has been his life’s work to propagate and protect.

It is Robertson’s explication of that work that makes this collection of essays invaluable. Bringing his enormous experience to bear on the cases of Dr Mohamed Haneef, David Hicks and Julian Assange, he charts the moral and legal slippage that has occurred since September 2001 and the way in which the language of war has encroached upon the language of law. Such slippage, he argues, is catastrophic not only for those who are denied their rights but also for those who presume to deny them. Referring to the way in which the fight against terrorism has been ‘squeezed into a war-law paradigm’, he suggests that the US and its military allies should be very careful in their arguments, lest they are hoist by their own Hellfire missile. ‘If it is lawful to kill bin Laden, Al-Zawahiri, and Hamas commanders,’ writes Robertson in ‘Send in the Drones’, ‘then it must equally be lawful for them to kill their opposite numbers.’ Casuistry, here, is self-defeating; as Robertson puts it in his essay on Hicks, ‘The advent of new forms of terror and new forces to inflict it on the innocent challenges democratic societies to respond with legal processes that do not abandon our cherished values.’

That those values are now enshrined in international law and the Universal Declaration of Human Rights is, Robertson reminds us, thanks partly to an Australian: the jurist and parliamentarian ‘Doc’ Evatt, who from 1948 to 1949 was President of the United Nations General Assembly. (Eleanor Roosevelt once suggested that Australia had done more than any other country to develop and define the principles set out in the Universal Declaration.) It is thus a source of some frustration to Robertson and many of his liberal colleagues that Australia itself still stubbornly refuses to adopt its own bill of rights, or charter. In his 2009 essay, ‘The Great Charter Debate’, Robertson makes the case for such a bill and even includes his own ‘Statute of Liberty’. I doubt very much that the Australian government will be adopting this statute any time soon, but it is to be sorely hoped that, in framing it, Robertson has engineered his own ‘Grotian moment’.

One of the pieces in Dreaming Too Loud is on Robertson’s fellow legal giant, the Australian jurist Michael Kirby. By all accounts (including Robertson’s) Kirby is rather irritated by his reputation for ‘judicial activism’, which he regards as code for leftwing bias. No doubt it is, but that Kirby attempted not only to apply the law but also to effect a change in how, and in whose interests, it was interpreted is surely not to be gainsaid. Now the former High Court Judge has written What Would Gandhi Do?, the subject of which, it may be relevant to note, was not only one of the twentieth century’s greatest activists but also a Middle Temple lawyer.

For Kirby, Gandhi is less a guru than a guide – a man whose approach to the important things in life may have lessons for the way we live and think now. Thus, he identifies four key issues – women’s rights, climate change, animal rights and sexuality – to which Gandhi’s teachings are, in his view, relevant. (Interestingly, he leaves to one side the question of non-violent civil disobedience – the principle/tactic on which Gandhi’s reputation as a political leader is substantially based.) He then proceeds to demonstrate, briefly, in what ways those teachings are relevant.

It is here that the book runs into trouble. In my view, George Orwell was right to characterise ‘the Mahatma’ as a brave and gifted man but one whose views are almost wholly irrelevant to anyone who favours modernity over backwardness or reason over superstition. Kirby puts the kindest spin he can on Gandhi’s frankly batty views on technology, marriage, sex and food, but frankly batty those views remain. Do Gandhi’s calls to dismantle the railways really amount to a ‘cautionary message’ about the ‘urgent need for ecological restraint’? Or were they the musings of a religious crank?

In his essay on Gandhi, Orwell wrote that saints should be judged guilty until proven innocent. In Kirby, Gandhi finds a sympathetic judge, and one with a peerless reputation. But Gandhi was a great political leader, not a great philosopher. In any case, and on this occasion, I beg leave to record a dissenting opinion.

Geoffrey Robertson, Dreaming Too Loud: Reflections on a Race Apart
Vintage; $34.95; 453pp

Michael Kirby, What Would Gandhi Do?
Penguin; $9.99; 70pp

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First published in The Australian.