Judges be cool in times of temper: Kirby

By Lawyers Weekly|03 March 2012

IN THE light of talk about “parliamentary sovereignty” in Australia and New Zealand, an Australian High Court judge has pulled the judiciary into discussions. Justice Michael Kirby…

IN THE light of talk about “parliamentary sovereignty” in Australia and New Zealand, an Australian High Court judge has pulled the judiciary into discussions.

Justice Michael Kirby has claimed that although the two countries have different legal environments, the judiciary in each has a role to set their sights on a time measured by decades or centuries and not to respond to populist causes or tabloid fury.

Justice Kirby spoke to an audience in Wellington about the issue of sovereignty, and to whom it belongs.

Talk of parliamentary sovereignty is often not only incorrect, it is also misleading, Justice Kirby said. “It leads parliamentarians to believe that they enjoy a plenary and uncontrolled power. At least under Australia’s constitutional arrangements, that is never the case,” he said.

Where governments enjoy large majorities in a unicameral parliament, the role of the courts in protecting minority rights becomes more important, Kirby said. “It is a power to be exercised lawfully, wisely and for the purpose of protecting the true sovereign — all of the people of the polity concerned.”

Comparing the two countries, Kirby said that Australia will closely watch New Zealand’s dealing with the matter of human rights. Because the country has no written constitution, no “entrenched” and superior Bill of Rights, no tradition of judicial invalidation of “unconstitutional” laws and a history of temperate law-making, it is natural that judges will look at means to protect fundamental human rights.


It is natural that judges “speculate about the availability of judicial means to protect the people in truly extreme cases, even against a statute, apparently valid on its face”.

The protection of human rights, especially of minorities, is a great issue of law, Kirby said. In the current environment in which there is a clash of civilisations and as extremism and fundamentalism rise in many lands, the judiciary has an important role in protecting fundamental human rights.

“Judges often travel to the beat of a drum different from that heard by legislators and the executive. Judges’ sights are, or should be, fixed on a different timeframe — one measured in decades or centuries, not responding to populist causes, wedge divisions or tabloid fury.”

In New Zealand, “a nation engaged in a profound conversation about its constitutional future” may find its own means of protecting deep rights and constitutional conventions against erosion, Kirby said. “Perhaps it will elevate some of them to a superior legal status as constitutional norms, such as the rights of the indigenous people of New Zealand guaranteed in the Treaty of Waitangi.”

Australians will watch these developments “with the fascination of a sibling”, Kirby said. While this country has a written Constitution that is accepted as enjoying a superior and entrenched status, Kirby said, it may need a Bill of Rights. This is despite opposition to that notion on the part of those on different sides of politics who talk of “parliamentary sovereignty”, he said. New Zealand, on the other hand, has a legislative Bill of Rights.

In Australia, “it is inevitable that calls for a constitutional Bill of Rights will resurface and the pressure for its adoption will grow”, Kirby said.

“At least in a federation, with a written constitution, the notion of unchecked legislative power, that can diminish fundamental human rights without hindrance or protection from the courts, is not likely to prevail in the long run, in the antipodes anymore than elsewhere,” he said.

It is the role of judges in this current environment to remain calm and resolute. They should uphold fundamentals when they lawfully can — something, he said, that is “needed more than ever before”.

Judges be cool in times of temper: Kirby
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