Kirby: High Court too conservative? (1 Viewer)

[MaryJane]

High Court shifted to right, says Kirby

March 31, 2007

OVER the past decade the High Court has moved further to the right and away from legal innovation, particularly when it comes to human rights issues, High Court Justice Michael Kirby said last night.

Recent decisions such as the WorkChoices case "illustrated the rise and rise of the constitutional powers of the Commonwealth at the cost of those of the states", he said.

Research suggested that the last decade had not been good for plaintiffs, with more decisions in favour of defendants and their insurers.

And he congratulated pop singer Anthony Callea for having come out as gay, saying: "(He) has done a bold and correct thing. He is an admirable Australian. In terms of influencing popular culture and understanding of the reality of human sexual diversity, I would trade 10 judges for one popular singer."

Speaking at the first of a series of annual lectures in his name at Southern Cross University in Lismore, New South Wales, Justice Kirby painted himself as the odd man out on the High Court bench. He said his rate of dissension from majority decisions was now running at 48 per cent; the next most dissenting justice was only 16 per cent.

To judge whether he was "taking delight in being contrary", Justice Kirby had checked his dissent rate in his previous job as president of the NSW Court of Appeal: there, he was with the majority 85 per cent of the time.

Justice Kirby said the political furore of the Wik case on Aboriginal land rights, which triggered "unrelenting attacks" on the bench, represented "a decline in civic understandings between the branches of government".

Every justice appointed since Wik had been judged against the promise of politician Tim Fischer to appoint capital-C conservatives: "There can be no doubt that the philosophical balance of the High Court has shifted significantly since my appointment was announced at the end of 1995. Almost certainly, those who have supported the shift would not wish to deny it."

Justice Kirby believes the resentment over Wik helped fuel the political attack, under a misuse of parliamentary privilege, in which he was wrongly accused of using privileges of office to engage in improper sexual behaviour: "Having got a taste of blood, the attacks in 1996-97 were to be followed up by a personal attack on me in the Senate. This was a sorry episode in the relationship between the Parliament and the court."

Justice Kirby said his partner of 27 years, Johan van Vloten, was not protected under federal law as a spouse or de facto would be.

But Mr Van Vloten now comes to all High Court functions and attends lunches with the Queen, and dinners with the Governor-General and Prime Minister. "People are getting used to it," Justice Kirby said.

Source: http://www.hcourt.gov.au/publications

Personally, I cannot agree more. While I readily admit I am a Kirby-lover, I think some of the decisions of the HC do leave me speechless, especially in the area of tort (perhaps the most important area of law to remedy a plaintiff).

I am also in a bit of a anti-HC mood, because of the number of essays I have written of late, comparing our judiciary to those of other common law countries. Even the bloody UK have stepped up to the plate and have slowly started to follow the path of more progressive countries (namely Canada, I love La Forest J). Its like we are the black sheep (but not in the slightly-weird-but-still-cool kind of way)...

What are others thoughts?

 

[Rorix]

Is Kirby J saying supporting the rise of Commonwealth power is conservative? :|

 

[MoonlightSonata]

Personally, I don't really see how, following the Constitution, the High Court could have come to any other result than they did in the WorkChoices case. It should not be left to judges to come up with band-aid solutions to inherent problems (if you are of that view) in the Constitution. While constitutional change is obviously difficult, I think major innovations in constitutional jurisprudence are potentially quite harmful.

The Gleeson court has obviously been more conservative. Although, I wouldn't say it is completely black and white. There are nuances in each judge's methodology or approach which don't always work into an easy classification. Justice McHugh was a conservative when it came to the Constitution, but a progressive when it came to the common law. Justice Callinan is fairly conservative, but at the same time a states-rights judge. (He also occasionally seems to produce peculiar liberal outbursts.) Gummow, Hayne and Heydon JJ, on the other hand, clearly fit the conservative category. To a large extent, so does Gleeson CJ.

Justice Crennan remains to be seen, but I suspect she will turn out to be quite conservative, too -- at least to begin with. It is not unheard of for judges to change. Justice Mason became increasingly progressive (owing to the influence of Justice Murphy, it is said). Perhaps if Rudd is elected and (following the retirement of Callinan this year and Gleeson CJ in 2008) some more progressive judges are appointed, there will be a balancing of the judicial mood in the High Court.

 

[banco55]

"Legal innovation" has a way of undermining democracy in practice. If it was up to progressives the High Court would find new "rights" every week.

 

[Not-That-Bright]

While I readily admit I am a Kirby-lover, I think some of the decisions of the HC do leave me speechless, especially in the area of tort (perhaps the most important area of law to remedy a plaintiff).

I find that interesting considering I felt Kirby J seemed to advocate much more restraint when it came to torts cases than other justices.

 

[melsc]

Over the past year and a bit I have noticed that the HC appears to be a bit conservative, I'd like to see some more judges like Kirby

Yay for Justice Kirby's mention of Anthony Callea, don't judge me on being an Anthony Callea fan . <3 Kirby

 

[MaryJane]

I find that interesting considering I felt Kirby J seemed to advocate much more restraint when it came to torts cases than other justices.

In comparison to when he was President of the NSW Court of Appeal, yes he has become a bit more... conservative! I still see him as the plaintiff's hero, though. And his judgements, to me, remain balanced. He takes a different approach, in that he seems to take current societal opinions into account.

I guess everyone will have their own opinion, though.

 

[Rorix]

I don't really see why people love Kirby J?! I mean, with respect to Kirby J, I don't find him to be better legally than the rest of the court, his judgments are generally long winded and he lacks the character of a Denning LJ. So why are the majority of law students in love?!

 

[Not-That-Bright]

So why are the majority of law students in love?!

Left wing university faculties love him, he's the rebel of the court etc etc.

I actually find myself often in agreement with McHugh J, if any of them... or to be more accurate Mchugh/Kirby for Constitutional, Mchugh for torts .... none really for contracts :/

 

[banco55]

I don't really see why people love Kirby J?! I mean, with respect to Kirby J, I don't find him to be better legally than the rest of the court, his judgments are generally long winded and he lacks the character of a Denning LJ. So why are the majority of law students in love?!

You see him at university/law student functions more than any other High Court Judge so I think that could be a factor. Plus left wingers (who of course outnumber conservatives on campus roughly 10:1) salivate over the fact that he's our first gay High Court Judge.

 

[jb_nc]

Kirby described John Marsden's paedophilia as "faults and foibles" so I really dislike the man.

 

[MoonlightSonata]

Justice Kirby is a remarkable man. He is exceptionally intelligent, very well read and overall a very decent human being. He does love the limelight and he speaks out a lot - perhaps sometimes when most would not - but it doesn't detract too much from his achievements over a great range of areas.

Students tend to like him because (a) his decisions usually follow justice relative to the law comparably more than other judges; (b) he is a great public speaker and often speaks at student events; (c) he is a genuinely approachable person and interacts with the public and students a lot more than other judges; and (d) his values (and even who he is) reflect tolerance and the advancement of the protection of vulnerable people.

As for his reasoning, Kirby J is not a strict legalist. He is very mindful of the justice of the case and does not lose sight that there are real people before the court. Policy therefore plays a much more important role for him. Obviously more conservative judges, such as Heydon J, would object very strongly to this view as inimical to the rule of law. But Justice Kirby's argument is that, rather than pretending that judicial choice does not exist, judges should be honest about the role the judiciary plays in, to an extent, actually making the law (as opposed to simply interpreting it). He basically believes that, in the context of judicial reasoning, if policy considerations will influence one's interpretation of the law, these should be acknowledged for all to see, rather than 'covering them up' (consciously or, as is obviously more likely, subconsciously) under the guise of a supposedly mechanical process.

There is a trend for some people to portray Kirby J as an ignorant, left-wing, rabid dissenter, with no foundation to his decisions other than his own personal predilections. This sort of characterisation is quite misguided. The man has a profound mind which is hardly employed in what some see as judicial flights of fancy. The influences and approaches to legal interpretation underlying much of his decisions are the real factors in his reasoning. His knowledge of the law is extensive, but he is simply more willing to consider factors beyond the law in construing existing doctrine or legislation than other judges.

In particular, one of the factors influencing many of his decisions is the existence of international human rights norms, which, he believes, will have a much more prominent role to play in the future. As international law becomes more important, and the world becomes smaller and smaller, he is of the view that when international human rights jurisprudence has a greater impact on our domestic legal institutions, his decisions will be looked to.

That said, for my part, I often do not agree with his reasoning. I think Kirby J tends to overstep the mark in places where an ordinary legal reasoning process will lead to a fairly straightforward outcome, yet he chooses a (necessarily) creative path to arrive at a particular result. I have concerns about predictability in this regard, because as any commercial practitioner will tell you, that sort of uncertainty plays havoc with business. I think when it comes to immigration law, there his decisions are much more useful and appropriate. Similarly in some novel areas of law, such as wrongful birth or wrongful life claims, his decisions are more useful. He would not like to hear it, but I think generally his common law decisions are much more helpful than his constitutional law decisions.

Interestingly, I think Kirby J would make a good judge on the International Court of Justice.

 

[Not-That-Bright]

That said, for my part, I often do not agree with his reasoning.

I find alot of students tend to look for the judgement which gives them the conclusion they most desire, then work backward from there (in classroom debates and such), particularly in cases where there is an initial moral reaction that to do otherwise would be wrong. I'm not necessarily sure if that many truly agree with Kirby J's style of reasoning.