When Robert French was appointed Australia’s Chief Justice last year by the Rudd government, some commentators wished that this represented a shift away from the conservative legal approach that the Court had adopted under French’s predecessor Murray Gleeson. If yesterday’s decision by French and his colleagues to uphold the constitutionality of the Howard government’s Northern Territory Intervention law which seized 10,500 square km of Aboriginal land by way a five year lease without payment of compensation is any guide, such a shift has not yet occurred.

The decision infuriated Justice Michael Kirby, serving his last day on the Court. He and French exchanged sharp words in their respective judgments over whether or not race played a part in the majority decision. This is not the first time that Kirby has lashed his colleagues for their conservatism — he did it in the 2007 decision of Thomas v Mowbray where the Court upheld the right of the Commonwealth to legislate under its anti-terror laws to make control orders for people even if they have not even been charged with an offence.

Given Australia does not yet have a bill or charter of rights, in the late 1980s and early 1990s under Chief Justices Anthony Mason and Gerard Brennan, the High Court came to play a unique role in protecting those whose rights are trampled on by the executive. Brennan and Mason, along with former Governor-General Bill Deane, swept away 200 years of injustice towards Aboriginal Australians with their decision in the Mabo case in 1992. They set down the right of people to be legally represented where their liberty is at stake and broadened the realm of freedom of speech.

But since those days, it has been rare for the High Court to clip the wings of the all-powerful executive. Not only did some judges of the Court provide a powerful endorsement of the Howard/Rudd anti-terror laws in 2007, but in 2004 it gave a legal tick to the system of mandatory and indefinite detention of asylum seekers, including children.

Is it any wonder then that Michael Kirby, who has always unambiguously stood for the proposition that justice is about more than technical interpretation and slavish following of precedent — and is in fact about ensuring humanity is enhanced — should excoriate the conservatism of his colleagues as he did yesterday in the NT Intervention case.

Kirby’s judgment in the NT Intervention case is masterful. His is a judgment that embraces a broad and practical view of the law. A view of the law that says when it comes to the dispossessed and those who are vulnerable in our society, the law must do its very best to accord them justice. Aboriginal Australians clearly fit into that category.

Yesterday provided an opportunity for Robert French, who has well documented compassion for the plight of Aboriginal Australians, to set his Court on a course that again enables Australians to know that its highest court will be particularly vigilant in protecting the rights of minority groups, who face all too often the chill winds of the tyranny of the majority. That didn’t happen.

What a great tragedy that Kirby was so often a voice in the wilderness over the past decade. Australian justice is the poorer for it.

Peter Fray

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