Thursday, November 27, 2003


Activist judges are alert and aware of common decency. They can make governments accountable for breaches of human right standards. Over the past week at the University of Exeter, High Court Justice Michael Kirby has delivered a series of tongue-lashings to his critics, those "bully boys (and girls)" who believe activist judges undermine the democratic deal and dare to say so.

Kirby's insight is decent, last week Justice Kirby threw at the Federal Government's barrister, the Solicitor-General David Bennett QC, in a ground-breaking case heard in the High Court, testing for the first time Australia's Mandatory Immigration Detention Scheme.

Australia's highest court finally rebels against the outlandish efforts of the Howard fascist government.

Fortunately, Kirby is delivering knowledge to his critics for the sake of humanity. He told his English audience that critics of judicial activism "are contemptuous of fundamental human rights and jealous of any source of power apart from their own". They "hate it when judges express the law in terms of legal principles to protect minorities, the weak and the vulnerable".

Contemptuously those bullies who criticise judicial activism are feeding their greed and lining their filthy pockets all the time. These vultures are all too willing to side with fascist governments regardless of human rights.

Dictators like John Howard and his cronies have lost sight of human rights standards.

Howard has undermined the parliamentary process and the rule of law. Politicians and (corporate club critics) who grasp at the notion of "human rights". Critics who lie, bend the truth and deceive us all, a result that is politically motivated and makes them feel good but bears little relation to democracy and justice for all in the struggle of life.


On guard to protect liberty from evil minded rulers, thoughtful? You bet. Judges who use their role to encourage human rights (and therefore promote liberty) have reminded us of their job description. Of course, judges have to make choices when they interpret vague laws.

Undoubtedly, the common law legitimately moves in small, incremental ways. The benefit is that when you give them a platform judges take a deep, intricacy Kirbyeinsight mile to tell you what is in their soul. They travel down roads they have a right being on, using as their road map their own vast personal experience and knowledge.

Guantanamo escape may be justified: Kirby

For example, inside Kirby's Guide to Law-Making you will probably find a long chapter on "human rights" followed by an even fatter chapter on international law, because, as Kirby said in an interview in April: "(International law) will make us more creative." And then there is the chapter on protecting "minorities, the weak and the vulnerable" where phrases like "community values" and "social justice" will equal any references to the rule of law.

Why? Because the rule of law is guided by community values and social justice. So for all those critical bullies (Un-Australian's) that think they're not in the same boat. Think again! In other words the Un-Australian's don't see themselves as 'equal', that's why judges speak out above their critics.

As one judge on a bench of seven, Kirby's activist forays make human rights a reality opposed to fascist governments and corporate media who just don't care. But don't you worry, because they'll get by without their rabbit pie.

In NSW, unfair dismissal laws stop unscrupulous employers who try to pay employees below award rates by using independent contractor arrangements. Think garage sweatshops and overworked, underpaid migrant workers.

The Un-Australian newspaper said, "You soon had senior executives claiming unfair dismissal, using the same laws to secure $14 million option packages and has been extended to corporate executives who are neither weak nor vulnerable."

Are senior executives equal regardless of their status? Should corporate media journalists place barriers before equality and the law, for their hip pocket nerve endings? How would they react if it were their job on the line? Was this argument by the Un-Australian newspaper, just a sleazy way of undermining judicial activism? A payback? Or simply a way to undermine unfair dismissal laws as being useless and invalid?

An alleged expert Sydney lawyer John Colvin put on a pedestal by the Un-Australian newspaper to back up their story, who is in employment law said, "he has seen the IRC become the rich boys' legal playground."

He has written about the "lucky executives in NSW" who can apply to the IRC to "set aside negotiated contracts of employment even when they provide for lengthy notice periods, termination payouts, share schemes and bonuses.

"An employee will always call a termination "unfair" but why do IRC judges so often agree? Because they can. "Fairness," says Colvin, "is a bit like beauty, which can reside in the eye of the beholder." NSW politicians made it easy for them by drafting vague laws, leading the judges out into the wilderness and abandoning them, as former High Court judge Hayden Starke said once."

"Laws can translate into expensive litigation. Employers will pay a premium to avoid those costs. That jacks up the costs of employment and that, in turn, acts as a disincentive to business to set up headquarters in NSW."

But do unfair dismissal laws act as a deterrent to keep away bad business practice in NSW. If the answer is yes then perhaps it serves the greater good Mr Colvin?

The IRC has claimed jurisdiction over all sorts of commercial contracts far removed from the original intention of parliament. Fortunately, the state's highest court is [allegedly], objective and impartial.

Overturning a decision of the IRC, the president of the NSW Court of Appeal, Keith Mason, recently delivered a scathing critique of the IRC: "Like the Chief Justice, I am profoundly troubled by the march of the commission's jurisdiction into the heartland of commercial contracts."

On it went. "The matter is also troubling," said Mason, "because it must frankly be stated that the members of the commission do not generally have the experience of the judges of the Equity Division in such matters and because ... the commission lacks the ongoing assistance of appellate and other supervision by the Court of Appeal or the High Court in such matters." Translation: An interventionist court out of control and out of its depth. That about sums up what's right about having a balance with judges.

What would Kirby make of this latest criticism from judges of the NSW Court of Appeal?

You are entitled to your opinion!

By No Rabbit Pie 27 November 03

THE FOX: They'll get by without their rabbit pie so run rabbit, run rabbit, run run, run!


Justice Kirby concerned at self-representation
High Court judge Michael Kirby says Australia's justice system is weakened by the increasing number of people representing themselves in court. Justice Kirby says he agrees with One Nation founder Pauline Hanson's concerns about the high cost of legal advice.

Litigants are drowning: in the High Court
There were so many self represented litigants appearing in the High Court that more than half of its registry staff's time was taken up in dealing with them. The "go it alone" litigants have to take on tasks well above their qualified league causing them stress. This growing problem cannot be left unchecked.