LAWYERS HAVE a special responsibility to protect Australia’s long-held civil liberties in the face of a Government with an unfettered parliamentary majority, High Court Justice Michael Kirby said last week.
“A belief in brute majoritarianism of parliamentary votes, sustained by nothing more than triennial visits of the citizens to the ballot box with uncontrolled power thereafter is an infantile conception of a modern democracy,” he told graduates of the College of Law at a ceremony in Sydney. “Lawyers know that the reality is more complicated and more nuanced.”
“In living memory, great and civilised nations have lost their democratic and law-abiding character. Vigilance is therefore constantly required to preserve our liberties.
“Lawyers, because of their greater knowledge about history and institutions, and of the fallibility of humanity and its legal processes, have a special duty to raise their voices and act as they can whenever they believe that the fundamentals of the Constitution are endangered by extreme laws or actions out of harmony with our traditions.”
Kirby named several “disappointing” court decisions that had also wound back democratic traditions. These included Combet v The Commonwealth (2005) HCA 61, which he said diminished the accountability to effective parliamentary scrutiny of government appropriations.
Cases such as Al-Kaleb v Godwin (2004), Baker v Queen (2004) 8 ALRJ 1483, 210 ALR 1 and Fardon v Attorney-General for the State of Queensland (2004) 78 ALJR 1519, 210 ALR 50, had upheld “prolonged powers of preventive detention”.
There were also cases denying prisoners “full and equal rights before the courts” such as Muir v The Queen (2004) 78 ALJR 780; 206 ALR 189.
“For me, these and many other decisions are disappointing,” he said.
Kirby continued that there have, however, been positive developments in the law: Judges are now more transparent about the reasons for their decisions, he said, and the “discredited mythology of ‘strict and complete legalism’ has been all but abandoned”.
“In appellate courts, lawyers worth their salt analyse statutes and past decisions but also add submissions on legal principle and policy to help the courts to reach a just and lawful result,” he said.
Kirby said that in his lifetime, many discriminatory laws had been dismantled, including the White Australia Policy. “True, our country, like many others, sometimes exhibits xenophobia. We see that occasionally in attitudes to refugee applicants. But we have also seen a great shift from the legal policy of exclusion on the ground of race to the national commitment to multiculturalism.”
He said there remain obstacles in the legal profession and in the “legal rules” that “unfairly burden women”, but “we have begun an inexorable journey towards correcting them”.
When Kirby began to practise law, laws still criminalised homosexuals and bisexuals “in a way that we can now see was an affront to science, truth and basic human rights”.
“All of those criminal laws have now been swept away. There remain discriminatory laws on this score. There remain discriminators. They are the usual suspects. But I believe that the remaining unjust laws will be changed. That is the nature of our country and the character of its legal system.”
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