Wednesday, March 16, 2005

The Adventures of Justice Kirby

Could it be? I'm agreeing - or, at least, not vehemently disagreeing - with Tell Us About It Janet? Her argument - that removing the immunity for barristers against liability for occupational negligence should be done by the legislature rather than judiciary - would appear to have merit. I know, I can't believe it either.

Of course, she can't resist the urge to stick it to that pesky pinko commo Michael Kirby - the High Court's "resident legal artist" - but if what she's saying is true, that his dissenting ruling goes in the face of much "undisputed common law", then maybe it is best to leave it to the MPs to get the ball rolling on this one. And as we know from the Marriage Amendment Act 2004, this government is not shy of nipping those wicked judicial activists in the bud.

Kirby is naturally an inspirational figure for me as both a gay man and a guy with more than a passing interest in the law. He (Kirby, not me) oozes class and dignity and I despair for the High Court when the old boy finally call it quits on the bench and decides to end his upbill battle as the HC's resident dissenter. If you see where he has dissented, you realise how Australia is worse off for having his minority opinion dismissed rather than enforced. Dissents have been over:

· The power to hold indefinitely in detention a stateless person who could not be deported to his own country.
· The power of state parliaments to superimpose indefinite detention of prisoners who had completed serving their prison sentence.
· The expansion of the powers of military tribunals in civilian matters.

(You can probably guess the positions he's taken in each of these.)

Then there was the appalling case of R v Green back in 1997, where he (along with one other judge whose name I forget for the moment) was in the minority in his ruling that one man touching another man gently on the knee should not constitute enough provocation so as to reduce the charge (and therefore sentence) from murder to manslaughter for the man who reacted to this gentle touch by bashing the other guy to death - the infamous "homosexual advance defence".

As Kirby says in his defence: "In these and other decisions, important values and notions of our constitution and Australian society were at stake."

Amen, sir.


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