Michael Kirby has been a long time campaigner for equal rights for same s-x couples in the area of superannuation, and now one of Queensland’s most senior judges, Margaret McMurdo, has waded into the same political waters and made an unusually public plea of support for Kirby.

Justice McMurdo, who is not personally affected by the issue (she’s married to another Queensland judge), wants to ensure Kirby, and his long time partner Johan van Vloten can take advantage of a proposed new Commonwealth law, which the opposition parties last Thursday sent off to a committee and which will enable same s-x partners to be able to access each other’s superannuation if one of them dies.

Last Friday McMurdo, who is President of Queensland’s Court of Appeal (the highest court in that jurisdiction), wrote a letter to South Australian Judge Bruce Debelle, who is chairman of the Judicial Conference of Australia, and sent a copy to every Bar Association and Law Society in Australia, expressing concern at the Senate’s decision to send off to a committee the Same s-x Relationships (Equal Treatment in Commonwealth Laws) Bill.

McMurdo writes that the Bill has strong bipartisan support, but that if not enacted “by the time of Justice Kirby’s retirement at the beginning of 2009, it will not apply to Justice Kirby and Mr van Vloten.”

“The legislation is far from ground-breaking,” McMurdo writes. Noting that in each state long term same s-x partners now have the same rights as hetero-s-xual partners, McMurdo says that Commonwealth judges like Kirby should deserve the same treatment.

“That this is presently not the position is grossly inequitable and, frankly, scandalous,” she notes.

McMurdo urges the Judicial Conference and the legal profession to make sure the Senate passes this Bill before Justice Kirby’s early 2009 retirement.

The argument McMurdo makes on behalf of Kirby, and by extension other Federal Court, Family Court and High Court judges who are in the position of having same s-x partners, is a sound one. And while no doubt conservative commentators like Janet Albrechtsen will seize on McMurdo’s unusual foray into the realm of politics as being proof positive that judges are pinkos and dangerous activists, judges are entitled to lobby like any other interest group when it comes to their working conditions and matters that impact on their retirement.

But with the “capital O” opportunist South Australian senator Nick Xenophon, Queensland conservative National Barnaby Joyce and his right wing Family First ally Steve Fielding all sitting on the cross benches from July 1, ensuring Michael Kirby and his partner are treated decently might be stymied by politicians who have more regard for prejudice and gamesmanship than they do for fairness.

Greg Barns is a barrister and commentator.

Peter Fray

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