Checking The Tyranny Of The Majority


The retirement of Justice Michael Kirby from the High Court today marks the end of an era in Australian law and politics which stretches back to the Whitlam era. Kirby was appointed Deputy President of what is now the Australian Industrial Relations Commission way back in December 1974. For historical reasons, although the Commission was not a court, he then became entitled to the status and salary of a federal judge — including use of the title "Justice".

According to Kirby, at around that time he met then federal attorney general Lionel Murphy by chance in a lift in Canberra. Somewhere between the ground and seventh floors of the building, Murphy persuaded him to become inaugural chair of the Australian Law Reform Commission, a position he took up in 1975.

In that position Kirby’s energy, intelligence and flair for publicity made a huge impact. He threw himself into the job and during his nine years as chair, the Law Reform Commission produced influential, reports on subjects as varied as complaints against the police; alcohol, drugs and driving; insolvency; human tissue transplants; criminal investigation; defamation and privacy; land acquisition and compensation; child welfare and the sentencing of federal offenders.

When the Hawke government was elected in 1983, Kirby was made a Federal Court judge and in the following year, the Wran Labor government in NSW appointed him president of that state’s Court of Appeal, the second highest judicial position in the state.

Over the next 12 years at the Court of Appeal, Kirby cemented his reputation as capable and hard-working, as courteous and scholarly, as a judge who tried hard to avoid unjust consequences. The Court of Appeal generally sits as a court of three judges, but there Kirby rarely found himself in a minority. His reputation as the great dissenter was won later in his career when he sat on the bench of the High Court.

Kirby’s industry is justly fabled. When he retired from the Court of Appeal to go to the High Court, it was noted at his retirement ceremony that he had written more than 250 court opinions in the previous year. Jaws dropped: he was writing an average of one every working day. The packed courtroom — which included plenty of workaholic lawyers — was amazed.

Surely there wouldn’t be time left for extra-judicial interests? Think again. Kirby has had a second public life of extraordinary depth and variety. He was the United Nations Special Representative on Human Rights in Cambodia for several years; a member of an International Labour Organisation Commission examining labour laws in South Africa in the early 1990s; he has chaired or participated in numerous UNESCO, OECD and World Health Organisation committees and expert groups; he was Chancellor of Macquarie University for nine years; a director of the CSIRO; president of the International Commission of Jurists in Geneva for three years — and on top of all that he has also been a frequent public speaker. Last year he delivered more than 20 speeches on legal topics alone.

In 1996, when Kirby was appointed to the High Court in the dying days of the Keating government, he joined a number of Labor-appointed justices including John Toohey, Mary Gaudron and Michael McHugh. They were not radicals and they all, to varying degrees, took a similar approach to the job. If there was a gap in the law that needed to be filled or some ambiguity — and this is not uncommon — they tried to avoid interpretations that ignored long-recognised fundamental rights.

In December of the same year, the Wik decision was handed down by the Court. The Wik people were claiming native title rights over 28,000 square kilometres of Cape York Peninsula. The State of Queensland opposed the claim, arguing that pastoral leases had been granted over the land and such leases extinguished all native title rights.

A majority of the seven justices, including Kirby, disagreed. It depended on the terms of the particular leases, they said. As there had been about 70 different types of leases granted by the Queensland government over more than a century, the decision seemed a reasonable one.

Prime Minister Howard, his deputy Tim Fischer and the conservative Premiers went berserk. How dare the High Court do this? This was "judicial activism" of the worst kind! The court was berated for weeks and Fischer famously predicted that when the Howard government had the chance, it would appoint "a conservative with a capital C" to the court.

But the court had in no way exceeded its powers. The Liberals — and particularly the Nationals — were under pressure from their rural supporters who hated native title. Fischer was blame-shifting to the court. He got his way though. Within two years, three conservatives — Ken Hayne, Murray Gleeson and Ian Callinan — were elevated to the High Court and its character changed.

From being independent and mildly liberal, the court’s new majority became cautious and conservative, seemingly unwilling to upset the federal government, perhaps chilled by its criticisms of the Wik decision.

Michael Kirby knew that our Constitutional founders had not intended the court to be a rubber stamp for either the executive or the Parliament. The Constitution set up the court to be a third arm of government, one aim of which was to restrict any tendency in democrats to veer towards minority oppression via the "tyranny of the majority". The founders knew this was possible and their remedy was to ensure that political power was checked by an independent High Court, essentially, a power-sharing mechanism.

Kirby thought that our Constitution needed to be interpreted accordingly and as the court’s new cautious majority emerged, he found he was writing more and more dissenting decisions to give effect to that view. Overall he has dissented in about a third of his cases.

A particular concern to him in dissent has been the legislative removal of the right to personal liberty.

In Al-Kateb v Godwin, Kirby said that a law allowing a non-citizen asylum seeker to be imprisoned indefinitely should be declared unconstitutional. He commented: "Indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements."

In Fardon v Attorney General (Qld), he said a law allowing an allegedly dangerous sex offender to be kept in jail after his sentence had been completed should also be overruled. Only if Fardon was proved to be dangerous could he be detained and: "…at a minimum, any such detention would have to be conducted in a medical or like institution, with full facilities for rehabilitation and therapy, divorced from the punishment for which prisons and custodial services are designed."

In Thomas v Mowbray, Kirby said that Howard’s control orders, which allow a non-suspect to be held under house arrest for up to a year, should also be ruled unconstitutional:

"To [allow]this is to deny persons their basic legal rights. Not for what they have been proved to have done (as established in a criminal trial) but for what an official suggests that they might do or that someone else might do. To allow judges to be involved in making such orders, and particularly in the one-sided procedure contemplated by [these laws], involves a serious and wholly exceptional departure from basic Constitutional doctrine unchallenged during the entire history of the Commonwealth."

Today, Justice Kirby becomes Michael Kirby again for the first time in more than 34 years — and perhaps the final echo of the Whitlam government has resounded.

One doubts, however, that we have heard the last of this great Australian. There is still work to do, including a battle to fight with the conservatives over his legacy. On that he should rest easy — his long record speaks for itself — and many of us think he is already well ahead.

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