Fortunately, there is only one Kirby on the High Court. Accordingly, his refusal last week to uphold the Howard Government's control orders is just another meaningless whistle in the wind from our most senior court's great dissenter.
But Kirby's 94-page judicial yawn at the need for anti-terrorism laws provides a timely lesson on why filling the next High Court vacancy with a sensible judge is such a critical issue.
As with most things, it's all a question of numbers. A few more Kirby-style judges on the High Court and we risk turning our Constitution into what US justice Robert Jackson once described as a suicide pact.
In this case, it would be a pact brimming with civil liberties but offering little security from those who rely on those liberties to plot mass murder and dream of an Islamist regime that would extinguish all liberties and deal with gay judges rather differently. No grand invitations to speak out on gay rights. Just the occasional public execution to keep the masses entertained.
And so, those looking for the perfect case study about judges ensconced in ivory towers need only read and contrast the judgments of Kirby and his fellow judge, Ian Callinan, in the case brought by terror suspect Jack Thomas.
Thomas, who allegedly trained with al-Qa'ida in Afghanistan, was placed under a control order after the verdict in his first trial was overturned and pending a retrial. Last week the High Court upheld the constitutional validity of control orders.
On the side of reason sits Callinan, delivering one of his final judgments before he retires next month. That judgment is a template for the next generation of judges who will undoubtedly be called on to decide the validity of anti-terrorism laws.
Callinan said control orders were valid under the defence power of the Constitution because, let's face it, we're at war with a group of homicidal and ideological jihadists. He trawls through the evidence just in case anyone missed September 11. He cites intelligence reports that confirm Australia was treated as a target by al-Qa'ida prior to 9/11 and "continues to be viewed as a legitimate target".
He recalls that in February 1998, Osama bin Laden and Ayman al-Zawahiri declared war on the West and implored all good Muslims to "kill the American and their allies - civilians and military".
He lists the terrorist attacks in Bali, Madrid, Nairobi, Dar es Salaam, Aden, Mumbai and London and the plots to blow up Western targets, including the Australian High Commission in Singapore and the Australian Embassy in Bangkok.
Callinan also remarks on the vulnerability of people to modern terrorism where "modern weapons, and not just such horrific ones as nuclear bombs, germs and chemicals, are more efficient and destructive than ever before". He adds that it is "blindingly obvious" that Islamists exploit international travel and use modern communications to recruit and train terrorists. Callinan spends page after page listing what those in the legal world call "notorious facts", meaning facts judges can rely on to determine that control orders are constitutional.
And contrary to the claims of Kirby and his civil libertarian cheer squad, Callinan has not trashed the decision in the Communist Party case. The cases are different. Notorious facts about the dangers of communism were not established in that 1951 case.
In 2007, the facts about the dangers of terrorism are undisputed. Which is why most of us would agree that the majority of the High Court was right to decide that a control order to monitor a man suspected of weapons training with al-Qa'ida was not an unreasonable response by a national government charged with protecting its people.
Not Kirby. This High Court judge, who recently said he wants to be remembered as a "loving man", seems to be sending all his love in an unrequited direction: towards those suspected of supporting the slaughter of Western infidels. It's hard to know where to start with Kirby's long judgment. But hypocrisy is as good a place as any. For Kirby, an interim control order involves a "serious and wholly exceptional departure from basic constitutional doctrine unchallenged during the entire history of the commonwealth".
To hear Kirby talk about settled constitutional doctrine is rather amusing given that he is the first to trounce settled doctrine and dabble in a bit of judicial activism when it suits. And in any case, the majority opinions are not exceptional. They are grounded in legal precedents that say the Government's defence power waxes and wanes. When Australia is threatened, the power broadens. In peace, the power shrinks.
Which brings us to Kirby's Wizard of Oz view of the world. Like Dorothy, Kirby seems to think he need only click his shiny loafers and return safely home to Aunt Em and Uncle Henry. He could have spared his overworked associate and shortened his judgment to, "It's all a bad dream. It's not real. We don't need these nasty laws."
Cementing his place as poster boy for the civil libertarians, Kirby says terrorism is too hard to define. For him, the danger of Islamist terrorism "is not a matter upon which I would be prepared to speculate ... (given) the sometimes coloured, emotional and disputable public media coverage of such issues."
This is Kirby at his most hilarious. The man who on other occasions thinks he inhales community values (at least the ones he favours) as easily as he breathes in the crisp Canberra air on his morning walk to chambers refuses to open his eyes to the growing threat of terrorism.
And given his disdain for the media on "such issues", he may have ignored the British Prime Minister a few weeks ago saying in The Guardian there had been 15 attempted attacks in Britain since the 2001 attacks in Washington and New York. Gordon Brown warned we would be fighting al-Qa'ida-inspired terrorism for a generation.
For the same duration we will also be fighting the lawyer class that refuses to take terrorism seriously. A lawyer class that invents nebulous and self-serving views about civil liberties, dressing them up as eternal human rights so lawyers can elevate them above laws made by elected parliaments. A lawyer class that knows it will attract juicy headlines in the media by describing the real terrorists as those in the ranks of a government entrusted to protect us. A lawyer class adored by terrorists for making their job of jihad that much easier.
