In retirement, the great dissenter has become the passionate advocate, using his profile to speak out on a range of issues. He tells Justin Whealing why the fire still burns within and what it was like to be the subject of an ABC documentary.

Michael Kirby is not the sort of person who spends retirement reading a book on the beach or working around the house. After his more than 50-year legal career formally came to a close in February 2009, the former High Court Judge has been criss-crossing the globe as a social policy advocate, board member and recently, international award winner.

In June, Kirby was announced as the co-winner of the Gruber Justice Award in New York, being recognised for his contribution to human rights law and justice issues. He was the first Australian to win the award.

"I used to have contempt for people who were recently retired who'd tell me they had never been busier and were perfectly content, thinking to myself 'you silly old duffer, you have relevancy deprivation syndrome'," Kirby says with a laugh. "However, I am still busy and have domestic and international activities."

When not overseas, Kirby, who holds honorary degrees from 12 Australian and foreign universities, is regularly invited to launch new publications or journals, and is an in-demand key-note speaker at graduation ceremonies. He took time-out from his hectic schedule to chat with Lawyers Weekly in the week a documentary recounting his legal career and personal struggles appeared on the Compass program on the ABC.

The documentary includes interviews with his partner of more than 40 years, Johan Van Vloten, and recounts Kirby's legal career going back to his days as a student at Sydney University in the 1950's. In discussing the documentary and many other matters with Lawyers Weekly, Kirby opened up about his sexuality and religious beliefs.

While he says the days of "don't ask don't tell" with regards to homosexuality don't apply to himself anymore, gay lawyers and judges still face barriers when it comes to being open with their sexuality.

"I played by the rule of 'don't ask don't tell' early in my legal career," Kirby says. "While I have been open about my sexuality for a long time now, there is no doubt that gay people still face significant levels of discrimination in Australia."

Kirby's sexuality was firmly placed in the spotlight when Senator Bill Heffernan used parliamentary privilege to accuse the then High Court Judge that he misused government resources to procure under-age male prostitutes.

The allegations, made against a High Court Judge known for progressive views within a conservative government, were dynamite, but baseless, with Senator Heffernan later apologising. Kirby accepted the apology and doesn't hold a grudge.

"I didn't feel very happy about it," Kirby says with impressive understatement on the Compass program. His brother David, who also featured heavily in the program, said that Kirby's deep-seated Christianity meant that he was hurt by the allegations, but that his Christian values also meant that he accepted the Senator's apology.

The law and religion

While it took Kirby a long-time to feel comfortable talking about his sexuality, he is now a vocal voice in speaking out against discrimination on the basis of sexuality.

In May 2009, Kirby spoke at Indiana University, whose alumni includes Alfred Kinsey (Kirby is on the board of the Kinsey Institute) and praised his groundbreaking research on sex and sexuality.

In March this year, Kirby stepped up his campaign confronting religion and the law by calling for the state and religions to apologise to homosexuals, "for the oppression that was forced on them and the inequalities that were maintained in the law... and the Churches non-acceptance of homosexuality".

Despite some of the attitudes held in the hierarchy of Christian churches of all denominations, Kirby has always retained a deep Christian faith and is a member of the Sydney diocese of the Anglican Church.

He says that being a Christian helped him as a judge to have an "open, tolerant and compassionate view", but admits there have been conflicts between his Christian and humanist beliefs and being a judge interpreting the law.

In particular, he cites the time when he was a High Court Judge and the Howard Government was seeking to change the Migration Act to permit children being detained in detention centres. Kirby comments on the Compass program that this was against the UN Convention on the Rights of the Child as "the UN convention only permits the detention of children as a last resort, while the Government wanted to impose it as a first resort".

Not surprisingly, Kirby is also a passionate believer in the separation of church and state, and firmly believes that politicians, and indeed any public figure, should keep their religious beliefs in the background.

"I am very uncomfortable with politicians giving interviews in front of a church," Kirby says. "It is inconceivable that Menzies, Whitlam or Fraser would have done such a thing ... Religion should be a private thing."

The future of the law

On the whole, Kirby is proud of his contribution to the Australian legal landscape and believes the Australian legal system compares very well to other jurisdictions.

However, he does not hold back when talking about where the law has failed.

"The fact is that the law doesn't get it right all the time," he says. "It didn't get it right for aboriginal Australians, women, refugees and homosexuals ... The rule of law alone is not enough to ensure a tolerant and civilised society."

But despite not being afraid to take the long handle to the law where it has failed, including areas where it has marginalised him personally, Kirby is optimistic for the future of the Australian legal system and the nature of social change in Australia in general.

"I always tell people to stay optimistic and idealistic because I always have," he says.

Unlike many of the cases Kirby has been asked to preside over, the fair and reasoned judgment of that statement is that that the facts are not in dispute.