The Artist, the Judge and the Government

The legal historian’s interest in Ralph Heimans’ Radical Restraint: A Portrait of Justice Michael Kirby (‘Radical Restraint’) extends beyond the conventions of portraiture.[1] Heimans’ portrayal of the High Court judge has various remarkable features, arguably none of which include novel insight into the sitter’s private character. Rather than old-fashioned sycophantic judicial portraiture, however, the work’s replication of Justice Kirby’s conservative self-understanding can be interpreted partially as political rebuttal to post-Wik attacks on his credibility.

Heimans depicts Kirby enrobed, fulfilling the anachronistic traditions of his predecessor Presidents of the New South Wales Supreme Court (‘NSWSC’), yet foregrounded, wigless, open-faced: distinct from the judicial collegiality portrayed. Aided by the painting’s title and wall label, the viewer is directed to the portrait’s instrumental aim of capturing Kirby’s paradoxical character, bounded by the poles of conservative ‘restraint’ – respect for judicial tradition - and progressive ‘radicalism’ –commitment to internationalism and human rights. The piece discerns the tension between ‘progress’ and ‘tradition’ as a dynamic influencing Kirby’s judgments and thus the development of Australia law, an insight of potential significance for legal historical enquiry.

Given that published opinion measures popular opinion, artistic works can shed light on a layman’s view of the law, the judiciary, and individual judges, while also suggesting the broader trends in public opinion it may represent at a particular time.[2] In the broad sweep of Western history, Heimans’ work is a product of modernity’s secular judiciary. Only in the modern era have depictions of justice acquired personal, clear-eyed faces, rather than the divinely symbolic Justicia, blindfolded after antiquity and banished by the Reformation.[3] Radical Restraint pays homage to Reformation-era portraiture, however, which typically left blank spaces around subjects to represent the mystery of divine law. In Heimans’ work this ‘iconography of nothing’ is evoked by the bare walls of a room empty but its subjects.[4]

In contrast, the admission of Kirby’s ‘radicalism’ into frame reflects an acceptance of the legal realist’s view that judges’ personalities are worth uncovering, a twentieth century development in Australia.[5] In the Australian context it is significant that Radical Restraint was painted at all: it speaks of the Judge’s high public profile and tireless extra-curial speech-making firstly that Heimans sought to paint the portrait, secondly that the National Portrait Gallery chose to acquire it.[6] To realists interested in how the judge’s private particularity influences his professional approach, however, Heimans’ work is disappointing. For an artist who conceives his vocation as capturing the ‘essence…character, psychology and spirit’ of the sitter, the depiction of Kirby is, strikingly, exclusively professional.[7] No reference is made to a private man; his ‘enigmatic’ gaze evidences his wisdom, his professional virtue, rather than his personal history, characteristics, or tastes. The work was ‘based’ on Kirby’s speech of resignation from the NSWSC on the eve of his appointment to the High Court.[8] Consequently Radical Restraint merely summarises Kirby’s professional approach, as viewed by Kirby.

An examination of portraitist, sitter and their relationship generates some insight into Heimans’ chosen approach. The 27 year-old up-and-coming Sydney artist heard a speech of Kirby’s at a portraiture prize opening in 1996 which apparently ‘made quite an impression.’[9] Kirby, acquainted with Heimans’ work through an unrelated meeting with the artist’s father months later, wrote an appreciative letter, to which Heimans responded requesting its author sit for a portrait. On his motives for painting, Heimans states that ‘the portrait was thus conceived without a particular aim in mind, but from a certain mutual appreciation, and from the friendship which had developed in our correspondence.’[10] The two successful men identified with the other’s professional approach; Kirby has noted that Heimans also exhibits an occupational ‘radical restraint’.[11] Perhaps unsurprisingly in the context of new friendship, Heimans respects Kirby’s self-description as a ‘workaholic’ whose professed recreational activity is ‘work’ and focuses in Radical Restraint exclusively upon his vocational character.[12]

The seeming ‘limitation’ of Heimans’ work as exclusively public is symptomatic of the genre’s occupational hazards. As Leslie Moran emphasises, judicial portraitists[13] are caught between ‘social’ and ‘aesthetic’ imperatives: to respect the independence and impartiality expected of judges, their shedding of ‘personal and individual histories, perspectives and prejudices’ when they robe;[14] yet to emphasise ‘individual character and personality without obvious reference to a specific context or role,’ as ‘conventions of portraiture’ require.[15] The judicial portraitist’s quandary spills into broader debates concerning judicial portrayal. Two relevant approaches can be compared: first, to make no enquiry into the inner world of individual judges, allowing subjects to maintain the unquestioned ‘mysterious’ authority of a ‘hero’; second, to enquire into judges’ private lives and political persuasions.[16] Radical Restraint, crammed with classic iconography of justice – the ‘crimson and fur’, the ‘mystery’ of the open door[17] – could be characterized as hagiographic portrait, replicating Kirby’s publicised professional ethics as his ‘essence’, constraining enquiry into his private character and maintaining the aloof mystique of his judicial role. Further, discursive analysis may suggest that by focusing on a ‘great man’ in the law to the exclusion of minority ‘outsiders’, while defining terms like ‘outsider’ and ‘radical’ within legalist discourse (as delineated by male, white, middle-aged, Eastern states-born appellate court justices), Radical Restraint operates to perpetuate reverence for unrepresentative and marginalizing legal tradition.

The fraught political context of the portrait’s creation problematises what may otherwise be disparaged as uncritical, traditionalist celebration of the Judge’s judicial virtue. At the time of painting Kirby was far from a paragon of public ‘acceptability’; his picture in Radical Restraint is fascinating for its contrast with that painted by contemporaneous political attacks on his credibility. The work was begun, in Heimans’ words, ‘in 1997 at about the time when the High Court was handing down its historic judgment on Wik…’ Notwithstanding this context, Heimans’ portrait of the quiet, closed, refined world of NSWSC Presidents banishes the bitter public controversy the judgment provoked.[18] The Howard government accused the Brennan Court of ‘inventing law’, labelling Kirby an ‘activist’ whose judgment was ‘awful’; an unprecedented politicization of the institution engendering public brawl between High Court Justices and the Government.[19] Rather than contemporary conflict, however, the setting of Radical Restraint is Kirby’s resignation from the NSWSC, an end of an era, when – often – tributes flow and controversies are temporarily set aside. The friendship and identification between Heiman and Kirby may explicate the work’s insistence on traditionalism: judges’ commitment to ‘legalism’ was often emphasised when the Brennan Bench defended itself against Government criticism.[20]

Radical Restraint provides no greater insight into Kirby’s character than a Kirby speech: its replication of his professional self-analysis could be viewed as anachronistic portraiture and unthinking judicial reverence. Rather, it has been argued, Government attacks on the judge’s ‘activism’ post-Wik contextualise this work as a significant public rejoinder in the spiky debate which followed. In a time in which – increasingly – respect for ‘legal restraint’ was becoming the new ‘radical’, the portrayal of Kirby as conservative professional can be interpreted as Heimans fulfilling the complex representational role of the judicial portraitist.

Jessica Panegyres is in the final year of her Law/Arts degree at UWA. She would like to thank the anonymous referees of this publication for their valuable contribution to this paper.

1. Radical Restraint hangs in pride of place in the permanent collection of the National Portrait Gallery, which acquired it in 2001 following its 1998 finalist placing in the prestigious Doug Moran National Portraiture Prize. To see the portrait’s prominence in the gallery see National Portrait Gallery, ‘About the National Portrait Gallery’ on the National Portrait Gallery website at https://www.portrait.gov.au/static/info_about.php
2. For an institution which valorizes the peoples’ perception that justice be seen to be done, the popular view of law and its practitioners at any given time is significant for the legal historian.
3. During the Reformation, the laws of the world, like those of God, were deemed too ‘mysterious’ for iconic representation. See Costas Douzinas, ‘The Legality of the Image’ The Modern Law Review Vol. 63:6, November 2000, pp. 813-830; Martin Jay, “Must Justice Be Blind? The Challenge of Images to the Law” in Douzinas and Nead (eds.), Law and the Image: The Authority of Art and the Aesthetics of Law, Chicago, University of Chicago Press, 1999, pp. 19-35.
4. Peter Goodrich, “The Iconography of Nothing: Blank Spaces and the Representation of Law in Edward VI and the Pope” in Douzinas and Nead (eds.), Law and the Image: The Authority of Art and the Aesthetics of Law, Chicago, University of Chicago Press, 1999, pp. 89-116.
5. Holmes’ realist insight that the ‘life of the law has not been logic it has been experience’ was not popularised in Australian legal thought until the works of Julius Stone – see Philip Girard “Judging Lives: Judicial Biography from Hale to Holmes” Australian Journal of Legal History Vol. 9, 2003, p. 18
6. The mission of the Gallery is to, ‘increase the understanding of the Australian people, their identity, history, creativity and culture,’ and portraits are selected on the basis of their subject-matter: ‘the subject must be either important in his or her field of endeavour or a known and named person whose life sets them apart as an individual of long-term public interest’. National Portrait Gallery, ‘The National Portrait Gallery Vision Statement’ accessible online from NPG website https://www.portrait.gov.au/static/info_vision.php Kirby J is one of only two High Court Justices whose portraits appear in the Gallery. The other is Doc Evatt, - also famous for his internationalism and human rights emphasis, as well as political engagement and public visibility. Leslie Moran, ‘Judicial Portraits’ Portrait (Magazine of the National Portrait Gallery of Australia Circle of Friends) Issue 24, Winter 2007 pp. 24-25 available online from the National Portrait Gallery of Australia’s website: https://www.portrait.gov.au/UserFiles/File/Portrait24.pdf p. 25 Perhaps the popularity of these two Judges with the Art world speaks more of left-cultural-intellectual-elite preoccupations than broader public opinion in their favour.
7. Ralph Heimans, ‘Ralph Heimans: About the Artist’ on the Artist’s official website: https://www.ralphheimans.com/about.html
8. Ralph Heimans, ‘Extended Wall Label’ for Radical Restraint. Accessible via the National Portrait Gallery ‘Collection’ online at https://www.portrait.gov.au/static/collection_display.php?num=93029 The speech of Kirby’s is The Hon. Justice M.D. Kirby AC CMG, President of the Court of Appeal, “Farewell Speech” Friday 2 February 1996, available via Austlii at https://www.austlii.edu.au/au/other/speeches/kirby_farewell.html
9. Ralph Heimans: Personal correspondence to author, 11 August, 2007
10. ibid
11. Reported in Helen Musa, ‘Kirby’s Knowledge Close to Picture Perfect’ Canberra Times, 25 May 2001: 5. Heimans artistic style apparently, ‘recall(s)… the methods and conventions of sixteenth and seventeenth century European portraiture while …playfully undermining those traditions’, evoking Oscar Wilde’s observation that, ‘every portrait painted with feeling is a portrait of the artist, not of the sitter.’ ‘Ralph Heimans: About the Artist’ on the Artist’s official website: https://www.ralphheimans.com/about.html
12. Heimans’ explanation of how his attitude to the portrait of Kirby J changed upon hearing these comments of Kirby’s is recorded in Leslie Moran, op. cit 4. p. 25. It is of course worth pondering whether a man so removed from non-professional life is ideal judicial material.
13. As are judicial biographers, often ‘unabashed admirers’ of Judges: Philip Girard “Judging Lives: Judicial Biography from Hale to Holmes” Australian Journal of Legal History Vol. 9, 2003, p. 18
14. Leslie Moran, op. cit 4 p. 24
15. ibid p. 25
16. Helen Irving, ‘The High Court and its History’ Speech for the UNSW Gilbert & Tobin Centre of Public Law Constitutional Law Conference, 21 February 2003. Available via Gilbert & Tobin Centre website: https://www.gtcentre.unsw.edu.au/publications/papers/docs/2003/84_HelenIrving.pdf . Irving disapproves of both approaches, preferring a third, focusing on the inner workings of the High Court as an institution rather than a collection of individuals. For the ‘heroic’ tradition of judicial portraiture see Philip Girard “Judging Lives: Judicial Biography from Hale to Holmes” Australian Journal of Legal History Vol. 9, 2003, p. 4
17. The National Portrait Gallery’s emphasis on the door’s ‘mystery’ could of course be explicable on the basis that the portrait is based on Kirby’s resignation – ‘heading towards the door’, so to speak.
18. Heimans’ description is found in the Ralph Heimans, ‘Ralph Heimans: Artist’s Comments’ submitted to the Doug Moran National Portraiture Prize: https://www.moran.com.au/art/1998/rh.htm
19. Amidst the wave of anti-‘Maboist’, anti-internationalist sentiment unsettled by the election of Howard and Hanson in 1996, the High Court’s decision in Wik met government hostility and character-assassination. Alongside the comments quoted above, Deputy Prime Minister Tim Fischer stated his intention to stack the High Court with ‘Capital C conservatives”. Chief Justice Sir Gerard Brennan publicly criticized Fischer for his comments, and former Chief Justice Sir Anthony Mason appealed to Federal Attorney-General Daryl Williams to defend the High Court’s independence, a ‘duty’ Williams refused to perform. Kirby himself later appealed to politicians to restrain from personal attacks on the judges and the court. Reported in Michael Evans, ‘Law Groups Back Brennan’ Sydney Morning Herald 20 September 1997: 10; ‘Kirby Blasts the Critics’ Sydney Morning Herald, 20 August 1997: 18.
20. Michael Evans, op. cit. 15 As the Canberra Times noted at the time, the court was indeed far from ‘adventurous’ and was indeed handing down ‘conservative’ decisions – for example, against one-vote-one-value in Western Australia. ‘Courting Conservative Rule in Modern Times’ Canberra Times, 21 December 1996, p. 5