Wise words. The public comments and some of the minority reports of one current High Court Justice should be enough to warn us off a "representative" judiciary.

So, in the fantasy world in which, say, Julian Burnside is appointed to the High Court, we can expect Professor Flint to cheer the appointment? I'd like to see that.

David
More information please about the State that advertised for a Chief Justice and got applications from the penitentiary. Sounds like an urban myth to me. Even if it is true I am sure I am sure there are many highly qualified lawyers behind bars - but not nearly enough!

Of course our Judges are selected on merit. But the issue is who is making the selection against what criteria.

I'm sure one of the posts above directed criticism at Justice Kirby. This while not entirely unfounded needs to be qualified. As any person with a legal background will testify to, Kirby's judgements are often the easiest to read, the best researched, and the least patronising. Being a homosexual doesn't make him an activist as such but rather a judge who is homosexual.

It should also be remembered that the very function of the High Court in Australia is to make decisions on matters that have fallen through legislative gaps. This often creates an impression amongst the public that the court is 'making up' the law. This is more than often incorrect, and unjustified.

As a conservative it does concern me greatly when the legislative arm does not have the foresight to ensure gaps don't exist when major issues come along. The government represents, and so it should be responsible of enshrining the values of the greater community in law. However what is a court to do when for lack of intestinal fortitude the government passes on this responsibilty?

Oh! David: Don't you know that liberals appoint liberal leaning - "so called impartial judges" and labour appoint labour leaning "so called impartial judges". It's the way the system works.
PS. Not on the subject but I cannot keep quiet. Did you read dear david that the queen of england congratulated the english cricket team on their recent victory over the Australians? When oh when will the queen of Australia congratulate HER?! Australian team on their 16 years on top?. numbat

An excellent article, David. When considering the High Court, we should at least be grateful that we have not been burdened with a bill of rights, and some of the astounding decisions handed down from the US Supreme Court. The one that comes to mind was made in 1965, when a Connecticut law banning contraceptives was overturned as infringing the third amendment (which prohibits the billeting of soldiers in private homes). What I would really like to see (but know it will never happen) is for an amendment to provide that the failure, in the opinion of the Governor-General, of any justice of the court to interpret the Constitution in accordance with the ordinary meaning of the words contained therein shall constitute proved incapacity within the terms of section 72 of the Constitution. After all, what is the point of us voting no in referendums if the same result can be achieved by judicial interpretation? How long will it be before the clauses relating to the Queen will be delared temporary provisions, and implied clauses discovered requiring a president to be elected by Parliament? Anyone who believes that our Constitution is interpreted on a rational basis should look at the interpretation of Section 41.