Comments on: An infuriated Justice Kirby’s last day in court

By: Cargill

Cargill — Thu, 01 Jan 1970 10:00:00 +0000

I worked in an agency that Robert French headed for over ten years. He is a black letter lawyer, and a Peppermint Grove Tory at heart (how could he be anything else, given his background?). Some of his decisions were extremely conservative, in terms of setting the fundamental ground-rules for solving native title in this country. I am not sure why anyone would expect anything more from him on the NT Intervention.

Kirby, on the other hand, was pretty cool though.

By: D avid Thackrah

D avid Thackrah — Thu, 01 Jan 1970 10:00:00 +0000

I agree with Greg Barns that Mr. Michael Kirby submitted a masterful judgement in the just completed case
Wurridjal v. The Commonwealth. The majority acceptance of the rights of the Federal Government to sub-orn land from any indigenous person is a wrong. The High Court appears to be an organisation that protects the rights of The Parliament. I learned it was the Third Arm of government but its’ now marriage to the Parliament demena its’ work.

By: The Great Dissenter

The Great Dissenter — Thu, 01 Jan 1970 10:00:00 +0000

Oh yes, I'm the great dissenter
Dissenting means I'm doing good
My need is such I dissent so much
'Cause dissenting means I'm doing good

Oh, yes, I'm the great dissenter
Just happy and gay in my gown
It seems to me that dissent sets you free
I'm wearing my heart like a crown
Dissenting while I'm still around

By: dermot

dermot — Thu, 01 Jan 1970 10:00:00 +0000

‘Usually by statute which says nothing for the dissenter’

Julius you are wrong strong dissents are often picked up as commonlaw down the track, and even statute will sometimes pay tribute to the dissenter.

By: dermot

dermot — Thu, 01 Jan 1970 10:00:00 +0000

dissents have a habit of becoming settled law down the track

By: Julius

Julius — Thu, 01 Jan 1970 10:00:00 +0000

I finally stopped taking Kirby seriously as a lawyer when he took the position in the Hindmarsh Island case that the Commonwealth Parliament couldn't repeal its own legislation. Though his weakness on mere facts was well enough illustrated when, with Gaudron and Gummow (who must have had a long bottled up bee in his bonnet) he over-ruled the Queensland CJ and Appeal Court, as well as his two dissenting colleagues to hold that farmer's promise to make a testamentary provision could not be enforced. If you want to see my point just read Gleeson CJ's pithy observation about the poor case the farmer himself would have had if he had tried to get out of the contract. Bridgewater v. Leahy (1998) 194 CLR 457

It is true dissents sometimes become law. Usually by statute which says nothing for the dissenter. But occasionally by court decision as in the case of Sir Owen Dixon's Sec. 92 judgments, except the one where he acknowledged, before the Privy Council adopted his earlier reasoning, that he should follow the previous majority on principle. The difference was that Dixon earned the respect of his peers unlike the monstrous egotist who has just retired.

Now the question is how Greg Barns, who aims to do good in this world by persuasion for some time yet, can maintain credit with those who need to be persuaded. Amateurish applause from the sidelines for Kirby's difference from Gleeson, French, Hayne, Gummow, McHugh, Crennan, Dawson et al. is hardly a way to win respect for one's views amongst those whose opinions would be valuable. Most mature members of a learned and honourable profession would have grave reservations, at their most charitable, about Kirby's approach to the judicial function. Many would damn him for undermining faith in the judiciary, and are thankful only that he was so reliably marginalised.

A bigger worry is how Greg Barns who has lots

By: steve martin

steve martin — Thu, 01 Jan 1970 10:00:00 +0000

The 1967 referendum that gave rights to aboriginals was framed so as to give the Federal Government the power to make laws for aboriginals. I remember being worried at the time that these laws could either benefit or in extreme cases harm aboriginals. But there was no way to go other than to support the referendum. Besides it seemed unlikely that any government in the future would pass laws detrimental to aboriginals. The current intervention while well intentioned reduces aboriginals to the role of second class citizens by abrogating the anti-discrimination laws.It also sets a rather nasty precedent.