Kirby at it again

medusala

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http://www.theaustralian.news.com.au/common/story_page/0,5744,11498186^17301,00.html

DENNIS SHANAHAN

Courting an opponent to popular government

November 26, 2004
WHENEVER there is an abject failure by an Opposition - as there was with Mark Latham's Labor at the last election - there is a tendency for others to take up the cudgels against the Government.

When various groups or individuals decide that the Howard Government didn't "deserve" to win, that its mandate was not legitimate, that voters were tricked or just plain got it wrong, a guerilla war is carried out in the name of justice. More often than not, it is really waged in the name of just that they didn't win.

Alarmingly, the first suggestion after this election that the Government faces an alternative opposition-in-exile has come not from the gaggle of usual suspects, but from a member of the High Court. In a lecture in New Zealand last night, Justice Michael Kirby warned that "our constitutional arrangements may be under greater strain than was previously the case". "Judges often travel to the beat of a drum different from that heard by legislators and the executive. Their sights are, or should be, fixed on a different time frame -- one measured in decades or centuries, not responding to populist causes, wedge divisions or tabloid fury," he argued.

These are noble judicial sentiments except they were prefaced by a curious observation that when governments have a large majority and control of both houses of parliament, the judiciary has an even more important role in checking the progress of the legislature. Since when did the role of the High Court change in any way according to the size of the majority of the government of the day or the fact it controlled the Senate?

Are judges meant to adopt the role of the balance-of-power parties in the Senate? Would the role of the High Court in interpreting the Constitution and legislation be less important if Labor had won or if the Coalition did not control the Senate?

Kirby is saying that an elected government in Australia today has to be watched more closely by the High Court if it controls the Senate. After the 2001 election there were a number of people, particularly those seeking access to Australia for asylum-seekers, who adopted the view that Howard had used "wedge politics" and racism to win the election unfairly.

Journalists, civil rights campaigners, lawyers, the churches, unionists, academics and even some Liberal Party members took up the cudgels against Howard and his Government. Labor was also internally riven, but because of Kim Beazley's resignation as leader after his loss, the anger was aimed at Howard. After this election there has been less opportunity to claim that the electorate was tricked, that Labor was wedged or that race was used. The Coalition won on economic issues and Latham's failure to convince voters that he was ready to govern.

Labor, and Latham, are torturing themselves trying to find an excuse for such a devastating loss and are on the cusp of becoming irrelevant. Howard not only won with an increased majority but he also won -- from July 1 next year -- the narrowest control of the Senate. Since the election, Howard has gone out of his way to reassure people he will not abuse the Senate power and has almost avoided laying out an agenda for his fourth term. For a Prime Minister given a clear mandate for his fourth term Howard has walked on eggshells.

While Latham languishes, Kirby has treated us to his notions of how the High Court should behave in such circumstances. As part of a dissertation on deep-lying rights within the Constitution and the question of "sovereignty", the judge said: "Parliament tends to reflect, in a very general way, transient popular majorities." (Sure does.)

Then he said: "The sad experience of history, including recent history, is that parliaments, from time to time, overlook or even override the fundamental rights of minorities. In Australia, this has been done to those of minority religions, communists, refugees and others, including a minority I understand well, homosexual people."

Kirby says, correctly, that parliaments are not sovereign and are subject to the Constitution and the law. But he goes on to say: "Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important."

His point is underlined later by the observation that in Australia and New Zealand serious injustices to minorities are normally repaired before they become intolerable. "But not always."

He also argues that as the "willingness of the High Court of Australia to find rights implied in the language and structure of the Constitution recedes", along with judicial support for "deep-lying rights", calls for a bill of rights will grow.

Warning that "divisions may be more acute today than in the past" Kirby says these "are times when a vigilant and courageous judiciary is required as an occasional counterpoise to elected parliaments and ministries".

Again, these are fine sentiments on judicial independence and the role of the checks and balances in Australia. Yet, read with his observations on control of both houses of parliament, Kirby is going a step further in suggesting that denying the government Senate control is now one of the checks and balances and not just the Senate itself.

When that new check is removed, then the High Court has to act with greater vigilance according to Kirby's logic. He is suggesting that the relative strength of the Government should govern the court's behaviour. And, paradoxically, he's implying the greater the strength of a government mandate after a democratic election, the greater the court's vigilance should be.

This goes beyond judicial activism, pursuit of a bill of rights, the separation of powers and judicial differences over the deep-lying rights of the Constitution. Kirby's argument implies that a government with control of the Senate should face a more rigorous High Court. Who's respecting the sovereignty of the people now?



Dennis is hardly Janet Albrechtsen or Andrew Bolt so its a bit hard to label him some rabid right winger. Imagine if a high court judge came out and said Australia is far too generous to immigrants, that multiculturalism is a disgrace, that the refugee system was a rort and a joke etc etc. Their resignation would be demanded immediately by the chattering classes. This bloke though, continually speaks when he shouldnt. If he speaks out like this then he is fair game from conservative politicians. Now he has put his head above the parapet surely it wont be long before Abbot gives it a thoroughly good kicking.
 

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MGREG

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#2
He is beholden to Labour for his position so of course the twit is going to say what he has, as stupid as it is.

He has been a loudmouth all along. Hopefully he will go the way of Lionel Murphy (resign).
 

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#3
MGREG said:
He is beholden to Labour for his position so of course the twit is going to say what he has, as stupid as it is.

He has been a loudmouth all along. Hopefully he will go the way of Lionel Murphy (resign).
You poor useful idiots - of course all conservative appointments were made on merit. As I have said before: youngest SDP on the AIRC, youngest President of the New South Wales Court of Appeal; Youngest head of the Law Reform Commission - the guy must be a dud!

Have you ever read one of his judgements? probably not. I would of course prefer Justice "what he said" Callinan he has the right conservative gravitas.

Of course when Gar Barwick gave all those judgements in favour of bankrupts he was not showing any bias - he was only applying the law. You people make me laugh!
 

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#4
As for the criticism of Murphy we would all prefer a world with fault divorce and contrived infidelity and a pre Trade Practices Act world were misleading and deceptive conduct is allowed as well as monopolistic practices and predatory pricing - he did more in his time as Attorney General as all the subsequent AGs put together!


In the end he was found not guilty of the corruption charges so don't besmurch the memory of a great Australian!
 

medusala

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Kirby deserves criticism not for his judgements but because of he has politicised the bench just as Deane defied convention to speak out as GG


Lionel Murphy was such a "great Australian" that his own ALP mates deserted him.
 

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#6
Mark Perica said:
As for the criticism of Murphy we would all prefer a world with fault divorce and contrived infidelity and a pre Trade Practices Act world were misleading and deceptive conduct is allowed as well as monopolistic practices and predatory pricing - he did more in his time as Attorney General as all the subsequent AGs put together!


In the end he was found not guilty of the corruption charges so don't besmurch the memory of a great Australian!
let's get this straight, murphy was a crim pure and simple. the most disgraceful appointment to the high court ever, a third rate labour lawyer hack who didn't have the intellectual capacity or integrity to sit on the bench.......but never mind this is how labour rewards it's faithful time servers.

the liberals have more respect for the institutions of this country and dont appoint undeserving people.

murphy was also implicated in the body in the freezer case here in adelaide where a witness claimed to have seen murphy at the crime scene but this was all swept under the carpet by the labour gov protecting their mate.
 

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#7
agitator said:
let's get this straight, murphy was a crim pure and simple. the most disgraceful appointment to the high court ever, a third rate labour lawyer hack who didn't have the intellectual capacity or integrity to sit on the bench.......but never mind this is how labour rewards it's faithful time servers.

the liberals have more respect for the institutions of this country and dont appoint undeserving people.

murphy was also implicated in the body in the freezer case here in adelaide where a witness claimed to have seen murphy at the crime scene but this was all swept under the carpet by the labour gov protecting their mate.
I suppose when the Liberal Attorney General of NSW, the Bench and the Queen decided to make Lionel Murphy a silk at the age 34 they were all beholden to this mysterious power of Labour mates - nothing to do with his obvious talent! [This is still one of the youngest ever!]

The Family Law Act and the Trade Practices Act are legacies to Murphy's genius. Anyone who remembers what fault divorce was like recognises this -

what legislative legacy has Daryl Williams left?

The ruling class in this Country think they own the Courts and the legal profession that is why the rumours began circulating about Murphy. In the end he was vindicated by a jury.

The liberals have respect for the institutions of this Country! What a joke!!!!

What about Bill Hefernan making patently false statements based on falsified documents about Kirby?

The Attorney General at the time ,Dazza Williams - whose job it is to protect the integrity of the Courts and Senior Counsel to boot says nothing and our instution respecting Prime Minister excuses the behaviour of Heffernan - and he is still there!

Please don't give me the bull******** about the Liberals respecting instutions.

What about what Reith said about Tony North after his decision In Patricks(which was supported by a Full Bench of the Federal Court and by the High Court). They have no respect for the rule of law or for the integrity of the judicial system. As Howard said after the Patricks decision "Court cases come and go!"

- and don't forget Kennett removing the jursidiction of the Supreme Court to review legislation on many occassions - a great respecter of the seperation of powers he was!!!!!!
 

medusala

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What about the parliamentary enquiries into Murphy? Didnt the second enquiry (including an alp senator) find it was probably him on the tape. Wasnt there an ongoing investigation only called off due to his ill health? Didnt Bob Hawke try to have the evidence submitted permanently locked away and even now its not available to 2016? Why would this be???

Wendy Bacon, David Marr and Brian Toohey had all received confidential statements from NSW Judge Jim McClelland that he had perjured himself when giving testimony into the parliamentary inquiry of High Court Justice Lionel Murphy in 1985 (Bacon & Nash 1999, pp. 2-5). Officers of a commission of Inquiry informed Bacon that McClelland told another judge the same information and requested a meeting of her. Bacon refused to give evidence since she regarded the information as confidential. Unexpectedly and soon after, it was announced Murphy was dying of cancer. The inquiry was terminated and an Act of Parliament was passed suppressing its records for 30 years (Bacon & Nash 1999, pp. 2-5). McClelland subsequently died in 1999 signalling Bacon, Marr and Toohey to disclose the confidential conversations between them and McClelland. The debate over confidentiality and shield laws resurfaced and ensued.
 

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mark,you seem to have a love affair with all things laour and refuse to accept their incapable of anything bad.......as they say, love is blind so take off those rose coloured glasses and smell the coffee.

hopefully with this gov having the control of both houses of parliament, they will pass legislation allowing all that murphy evidence to be made public so all the besotted labour supporters can see what a bunch of deviant degenerates are attracted to this party.
 
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mark,you seem to have a love affair with all things laour and refuse to accept their incapable of anything bad.......as they say, love is blind so take off those rose coloured glasses and smell the coffee.
Look in the mirror.

hopefully with this gov having the control of both houses of parliament, they will pass legislation allowing all that murphy evidence to be made public so all the besotted labour supporters can see what a bunch of deviant degenerates are attracted to this party.
Does this mean that they will stop spending millions of dollars fighting FOI applications from people trying to find out whether or not the government actively supported an Australian company in breaking Federal laws? You know the one, the Patricks illegal lockout where an Australian company was found guilty by 10 out of 11 judges in breaking Commonwealth law, and was supported at the various court cases by the commonwealth Government. You know the one, the one where Patricks was forced to pay the MUA's $5 million legal costs, and $10 million in damages to people who had lost business due their illegal actions.

We know the one, the one where both Peter Scum bag Reith, and Little Johhny swore they new nothing about assisting Patricks in breaking the law, yet both have got a $250 million personal indemity insurance coverage, if the information ever comes out.

So we will be seeing the documents the federal court, the full bench of the federal court, say the government must handover, yet refuse to abide by the judgments of these courts, so it is now going to the high court, and costing us millions because of their resusal to abide by the court ruling.
 

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#12
what little johnnie and his crew did was wonderful for our nation.......it's about time someone had the balls to stand up to those evil unions. if they had to bend a few rules to smash those retart unionists then so be it.........were better off.

our economy is going gang busters, johnnie brought home the bacon, it's a beautiful set of numbers, the j-curve is going in the right direction, it's the strict discipline we had to have.
 

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#13
agitator said:
let's get this straight, murphy was a crim pure and simple. the most disgraceful appointment to the high court ever, a third rate labour lawyer hack who didn't have the intellectual capacity or integrity to sit on the bench......

the liberals have more respect for the institutions of this country and dont appoint undeserving people.
Agitator.
If that was so why do people like David Flint seem to be appointed by the Libs?.Hang on,i know,he's a monarchist and an old queen like Alan Jones.
 

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#14
agitator said:
mark,you seem to have a love affair with all things laour and refuse to accept their incapable of anything bad.......as they say, love is blind so take off those rose coloured glasses and smell the coffee.

hopefully with this gov having the control of both houses of parliament, they will pass legislation allowing all that murphy evidence to be made public so all the besotted labour supporters can see what a bunch of deviant degenerates are attracted to this party.
Hey lets not look at the matters I raised in support of the contention that Lionel Murphy was a superior legal mind or that the Libs are not the protectors of institutions they appear to be - why not make myopic ad homenim attacks?

The facts are he was found not guilty by a jury!

Lionel Murphy’s last years were full of stress. He was charged with and convicted of an offence under the Crimes Act 1914 (Cth). However, the conviction was set aside by the New South Wales Court of Appeal. Upon the retrial, he was acquitted by the jury. He returned to his duties on the High Court. But he was to face a battle with cancer which he could not win. He returned to the Court to deliver his last judgments (including dissents) on the day before he died. His death occurred on 21 October 1986. His powerful intellect and major impact on Australia’s institutions continue to influence our national life.

You are an annoying person to argue with because you do not address the matters I raise, argument by oblique glance is your rhetorical method.

By the way you are making a series of incorrect assumptions about my politics: http://lionelmurphy.anu.edu.au/lionel_murphy.htm
 

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#16
medusala said:
Kirby deserves criticism not for his judgements but because of he has politicised the bench
Not defending Murphy or Kirby but The Bench has always been politicised. Sir Garfield Barwick basically as a 'right winger' openned the door to tax evasion on a massive scale for those well to do members of our sociiety
 

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Bombers 2003 said:
Agitator.
If that was so why do people like David Flint seem to be appointed by the Libs?.Hang on,i know,he's a monarchist and an old queen like Alan Jones.
what's wrong with our man flint??

he was fabulous and he wasn't a degenerate or a crim, he was a fine upstanding pillar of society that people could trust and respect.
 

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#18
Mark Perica said:
The facts are he was found not guilty by a jury!
everyone knows that you cant place any trust in juries or judges sitting on the court of appeal. for all we know the labour lowlifes got their underworld criminal mates to fix the jury........sure you remember all those sydney criminal celebrties that used to hang around the labour party.

following your arguement al grasby was totally innocent and had nothing to do whatsoever with the murder of donald mackay and he had no links with the griffiths mafia!!! ........must be true because the jury said so.
 

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#19
Qsaint said:
Not defending Murphy or Kirby but The Bench has always been politicised.
Governments appoint the High Court judges, so they will always look to people who reflect their own political values.

One aspect of the issue here seems to be whether Kirkby should be allowed to express his views or not. As a key figure in our legal system, I don't have a problem with it. Still, by my reading of Kirkby's comments, he's just having a little bit of a dummy spit because the election result didn't fall in the way that he would have wished.

A final point is whether you believe that the High Court should be an activist court - in effect, making law rather than simply interpreting law. Personally, I'm not that comfortable with the former as it's the role of parliament to make the laws.

Qsaint said:
Sir Garfield Barwick basically as a 'right winger' openned the door to tax evasion on a massive scale for those well to do members of our sociiety
Remembering back to my days of (fairly basic) taxation law studies, Barwick held the view that individuals had the right to avoid paying taxes. But you can't put the blame simply on him. High Court decisions are group decisions and he held only one vote.
 

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#20
agitator said:
everyone knows that you cant place any trust in juries or judges sitting on the court of appeal. for all we know the labour lowlifes got their underworld criminal mates to fix the jury........sure you remember all those sydney criminal celebrties that used to hang around the labour party.

following your arguement al grasby was totally innocent and had nothing to do whatsoever with the murder of donald mackay and he had no links with the griffiths mafia!!! ........must be true because the jury said so.
Hang on your taking the ******** right?
 

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#21
agitator said:
what's wrong with our man flint??

he was fabulous and he wasn't a degenerate or a crim, he was a fine upstanding pillar of society that people could trust and respect.
'Respect and trust'?.Why would anybody want to respect HIM?.He spoke like he was sucking on AJ's thing in public.Wasnt a 'Degenerate?',well i s'pose it's how you look at his type,i think.
But that's beside the point,back to Lionel Murphy,
IF he was a criminal,IF that is,why was he respected in legal circles here and overseas?.The only mistake he made,was the raid on ASIO headquaters.
 

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#22
Mark Perica said:
You poor useful idiots - of course all conservative appointments were made on merit. As I have said before: youngest SDP on the AIRC, youngest President of the New South Wales Court of Appeal; Youngest head of the Law Reform Commission - the guy must be a dud!

Have you ever read one of his judgements? probably not. I would of course prefer Justice "what he said" Callinan he has the right conservative gravitas.

Of course when Gar Barwick gave all those judgements in favour of bankrupts he was not showing any bias - he was only applying the law. You people make me laugh!
Yes I have read his judgments, as I have of Barkwick and other HC Judges past and present, Brennan, Mason, Gaudron et al.

This guy is a twit.

Res Ipsa Loquitor.
 

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#23
Mark Perica said:
As for the criticism of Murphy we would all prefer a world with fault divorce and contrived infidelity and a pre Trade Practices Act world were misleading and deceptive conduct is allowed as well as monopolistic practices and predatory pricing - he did more in his time as Attorney General as all the subsequent AGs put together!


In the end he was found not guilty of the corruption charges so don't besmurch the memory of a great Australian!
That is only because he died. And what about his little mate Farquhar?

Murphy was as corrupt as they come. ASIO raid was typical left wing crap.
 

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#24
medusala said:
Dennis is hardly Janet Albrechtsen or Andrew Bolt so its a bit hard to label him some rabid right winger.
Oh please. Shanahan is as big a Liberal Party cheerleader as they come.
 

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#25
MGREG said:
That is only because he died. And what about his little mate Farquhar?

Murphy was as corrupt as they come. ASIO raid was typical left wing crap.
You have no idea what you are talking about - it was because ASIO was not investigating right wing terrorist groups training in Australia to carry out insurgency against Eastern Block governments with whom we had diplomatic relations. The director of ASIO has said to him "there is no such thing as right wing terrorism" even though he had the intelligence reports.
 
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