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Waiting for Kirby

October 6, 2011

Debating a charter of rights was a bit odd, given the Australian government determined under Kevin Rudd we were not having one; given for the first time in many years a commitment to a bill of rights is not in the ALP platform; given few judges support it; given it has no champion in the Australian parliament. But Young Labor invited me to debate former High Court Justice Michael Kirby on the issue and I turned up at UTS where there were about 300 gathered.

But the good judge wasn’t there. We were able to establish that he was in the Bahamas. Debate deferred, probably until next year.

It would have been interesting to get the judge’s views on the Momcilovic case. The case originally dealt with a challenge to a Victorian drug law that shifted the onus of proof onto the defendant. It violated Momcilovic’s right to be presumed innocent (under section 25 of the Victorian charter). The Victorian Court of Appeal, while letting the conviction stand, issued its first ever “declaration of incompatibility.” This was appealed to the High Court, and by a four to three majority the validity of the declaration was upheld – but only for state courts.

Helen Irving of the University of Sydney Law School has pointed out that three judges (Justices Gummow, Heydon and Hayne) ruled declarations were so outside judicial power as to be invalid and three judges (Crennan, Kiefel and Bell) upheld their validity. It came down to Chief Justice French, who ruled that while state courts could have non-judicial powers, federal courts (like the High Court) could, under Chapter Three of the Constitution, only decide on “matters.” So while Victorian Courts may issue as many declarations as they please, no federal court can ever do so. The case only confirms what former Justice Michael McHugh and former Chief Justice Sir Gerard Brennan have been saying – these dialogue charters are unconstitutional. That is, it’s beyond the constitutional powers of the High Court to issue “declarations” that action of the Australian government is incompatible with a charter.

That’s death to the model recommended by the Brennan Report in 2009.

Instead of presenting one side on the charter of rights I gave the gathering an account of what I thought were the problems of the Labor Party. Essentially they were the impact of globalisation on the Australian economy and the weakness in ALP leadership.

But as I said in the SBS forum the previous night, it is plain wrong to argue that the differences between the parties are not significant. In fact, they are as great as at any time. The carbon tax and the minerals resources rent tax are huge reforms that the coalition is dead against. So too with Wayne Swan’s reform to middle class welfare.

  1. Lisa permalink
    October 6, 2011 1:51 pm

    I’m sure it was not his intention – he is presently at a judicial education conference. Did you know that part?

    In any event, I’m sure you kept the crowd sufficiently engaged!

    • Bob Carr permalink
      October 6, 2011 2:02 pm

      Yes, they were all happy at the end of my energetic lecture – or seemed to be. Debate deferred. How do I get invited to the Bahamas? Why can’t we stage a debate there?

  2. Lisa permalink
    October 6, 2011 4:00 pm

    I think if you were to get yourself on to the High Court bench, you’d be a shoe in. If you were in the LNP, perhaps a mate would lend you his jet. The world is full of possibilities!

  3. Tom Round permalink
    October 7, 2011 11:39 am

    I know a lot of people who regard Kirby as God but this is the first I’ve ever heard of Kirby as Godot.

  4. Tom Round permalink
    October 12, 2011 1:33 pm

    > “So while Victorian Courts may issue as many declarations as they please, no federal court can ever do so”

    Can the High Court rule on such a non-“matter”-ial question as part of hearing an appeal from a State Supreme Court? Or are these sorts of advisory opinions effectively un-reviewable once issued or confirmed by the highest court within a State?

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