Speech by John Howard.

"The reporter referred to me as Howard. Not the Prime Minister the Honourable John Howard. Just 'Howard.'

"He called my speech in the Parliament a "rant." He was trying to delegitimate my position and the Parliament."

Isn't this despicable?

Typical Howard.

Standing on the dignity of your office is the last refuge of the intellectual weakling.

Except that Howard never said it.

It is a paraphrase, mutatis mutandi, of a speech High Court Judge Michael Kirby gave to young lawyers.

See:

http://abc.net.au/news/stories/2007/08/24/2013779.htm?section=business

The linked web page is a sanitised summary of Kirby's words. The paraphrase I gave above attributing the words to John Howard, better captures the flavour of Kirby's rant.

Standing on the dignity of your office is the last refuge of the intellectual weakling.

BINGO Steven.. exxxxxxxxactly. Kirby does it himself...but does not see it.

"There are none so blind as those who WILL not see" no, Jesus did not say that.. but He DID say:

"If a blind man leads a blind man, won't they both fall into a pit"

even better I reckon.

Kirby has AN AGENDA

ROMANS 1
18 The wrath of God is being revealed from heaven against all the godlessness and wickedness of men who suppress the truth by their wickedness, 19since what may be known about God is plain to them, because God has made it plain to them.

Even their women exchanged natural relations for unnatural ones. 27In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

The last sentence....is GOD's agenda....and standard.

Let me make something plain.

I don't give a rodent's rectal cavity about Kirby's sexual preferences. Nor does it bother me that he campaigns for what he considers to be gay rights.

I do care about our arrogant, self-righteous judiciary.

Here is a sobering thought.

I could call Howard a rotten Prime Minster and suffer no consequences.

If I were to call Kirby a rotten judge I could be cited for contempt.

Why do judges have this immunity from criticism?

Steven, could you please provide a link to the full text of Justice Kirby's speech? The link you provided bears little resemblance to your 'paraphrase', and in fact looks perfectly reasonable, on the face of it.

Boazy, you're raving again. I think that repetitively posting biblical texts to justify homophobia is more like "the last refuge of the intellectual weakling".

CJ Morgan,

Unfortunately I do not have a link to the actual text of Kirby's speech. I based my precis on a segment I heard broadcast on one of the ABC stations.

While I am unable to quote Kirby word for word I can make the following observations.

--Kirby complained that a reporter had referred to him as "Kirby" without mentioning his title.

--The reporter had referred to one of Kirby's written or verbal statements as a "rant."

--Kirby complained that the reporter was trying to delegitimate him and the court. (He used the word "delegitimate"

To learn further I suggest you send an email to Kirby via:

enquiries@hcourt.gov.au

In my summary I have not altered the thrust of the broadcast segment. I do find it interesting that the ABC saw fit to Bowdlerise what was a very strong and contentious speech.

I am still at a loss to know why judges should enjoy such immunity from criticism.

stevenlmeyer,

If you were to read Justice Kirby's address to the La Trobe University Law Students Association delivered on 30 April 2004 (see this link: http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_30apr04.html ), you would find under the heading "Facing criticism - legal and personal" that at least Justice Kirby does not believe judges are immune from criticism. In answer to a question from the audience, he said:

"..............

We live in a free society. The opinions of the High Court and of any other court are not immune from criticism. It is the right of everybody to criticise judicial opinions and to say that they disagree with them. They can even call us 'nominalists'. I mean 'nominalists' is pretty tame. We've been called 'basket weavers' and various other things[36]. 'Nominalists' is positively nice. You can get used to it. I don't ever resent criticism directed at issues.

It is, however, disappointing when criticism and insult are directed at persons. ......"

You may have fallen victim to a bit of media arrogance, specifically that arrogance on the part of journalists or reporters (and their editoriate) that demands to be able to accurately summarize a complex issue and then competently expound upon it in the space of a few short words. When this arrogance is pointed up by observations such as Justice Kirby is claimed to have made, the media-ocrities noses get put out of joint. They, in an attempt to salvage their offended dignity, then feel quite free to report their well-earned rebuke in a way disparaging of a senior officer of the Court. In the process they disparage us all.

I have to agree with CJMorgan; "The link you provided bears little resemblance to your 'paraphrase', and in fact looks perfectly reasonable, on the face of it.". I gather from your use of the word 'sanitized' that Justice Kirby was actually much more incisive than indicated in the report.

It is also instructive to read Justice Kirby's views with respect to aliens, citizenship, and the Constitution in the address he gave.

Forrest Gumpp

As I freely acknowledged in my original post and later in a reply to CJ Morgan, the ABC published a sanitised version of what I heard Kirby say. I am therefore unable to post a link to his actual words.

If you do not believe that he spoke as I reported there is nothing I can do about it.

More insight into the degree of intellectual weakness displayed by Justice Michael Kirby may be obtained from the Fifth Sir Ninian Stephen Lecture delivered at Newcastle, Thursday 20 March 1997. Here's an excerpt:

"In the late 1940s, my grandmother remarried. Her new husband, Jack Simpson, had been born in New Zealand. He fought at Gallipoli. He was gassed on the Somme. For his military prowess he was honoured with medals. But he was disillusioned with war and with the Depression which followed. He threw away his medals. He became a communist. As a child of nine, I recall accompanying him on his rounds in Tempe, an inner Sydney suburb, as he fixed electoral posters to lamp-posts. They were red of course. "Vote 1, L L Sharkey, Communist". His electoral efforts were completely fruitless. The Menzies Government was returned in the election . It had a clear electoral mandate to ban the Australian Communist Party and to proscribe communists. The newspapers were full of frenzied condemnation of communists. Communists were demonised, as many minorities before and since have been. But for me, the only communist I knew was a kind and idealistic man who was now a member of my family.

I recall that anxious time as the challenge to the Communist Party Dissolution Act was before the High Court. Had the Act been upheld, my new "uncle" would surely have been "declared" under its terms. In childhood days I knew little of the law: only that the happiness, and possibly the liberty, of Jack was somehow at stake.

When the news came that a court had removed the danger, I knew nothing at the age of 11 of the doctrine of ultra vires. Still less did I appreciate the blessings of the Constitution or the strength of purpose of the Justices of the High Court who had upheld it. I did not know then of the courage of the opponents of the legislation, in all political parties, who objected to a law which would penalise Australians for what they believed or thought, rather than for what they did. ....."

There is, of course, a purpose in quoting this excerpt. It has been done because it highlights a matter which is of lasting interest to Justice Kirby. There is a footnote to the history surrounding this decision, and the working of the Constitution at around that time, of which Justice Kirby may be unaware.

The finding of the High Court that the Communist Party Dissolution Act 1950 was unconstitutional was followed by the submission, on 22 September 1951, of the Constitution Alteration (Powers to Deal with Communists and Communism) to the people at referendum.

Year Book Australia 1953, in the place where it would usually report a result in Chapter III, makes a single passing reference to that referendum on page 72, in the following terms:

"For details of the voting in the referendum held on 22nd September, 1951 to determine whether the Constitution should be amended so as to grant the Commonwealth Government powers to deal with Communists in Australia, see Appendix to this volume."

The results of the Federal elections held on 28 April 1951 were published, by contrast, in the usual manner and place, in Chapter III, on page 71.

The textual notation that preceeded the tabulation of results, on page 1342 in the Appendix, contained two false assertions. The first was that the referendum had secured a majority of "Yes" votes in three States. It did not, obtaining a majority in only two States. The second was that the referendum had secured an overall majority of "Yes" votes across the Commonwealth. It did not, with the table clearly showing, even by the misapplied method used to calculate it, which had failed to take into account informal votes in the manner prescribed by Section 128 of the Constitution, a "Yes" vote of only 49.4% of the total formal vote.

The error in method of determining a referendum result revealed on this occasion first arose after the 1910 referenda, and is championed to this day by the Australian Electoral Commission. Nobody has picked it up! Over to you, Your Honour!

Thanks for opening the gate, stevenlmeyer!

Nice one, Forrest. While I haven't followed Justice Kirby's career closely, "intellectual weakness" has never struck me as one of its features. Stevenlmeyer may well be an intellectual strongman, but apparently we have to take his word that his interpretation (indeed, his projection of that interpretation on to John Howard) of Justice Kirby's apeech is an accurate rendition.

Sorry Sreven, but if you want to play such discursive games you really need to provide a verifiable source. Personally, I'm not convinced.

With respect to contempt provisions in law, my lay understanding is that they apply to criticising judiciary in cases that have yet to be finalised, rather than as a generalised thing. That is, you can call a judge pretty well whatever you like without fear of prosecution, as long as you're not referring to a continuing case over which s/he is presdiding or otherwise contravening defamation laws. However, that is not to say that when e.g. the media attack individual judges, members of the judiciary are not allowed to comment.

Maybe you should think some things through before starting a thread about them, Steven - not to mention providing some kind of verifiable reference. Just sayin'...

If you don't believe me you don't

There's nothing I can do about it.

stevenlmeyer,

I have re-read your opening post, and your second post. I must admit I formed the impression that a reporter had said the words, rather than that you had actually heard them from Justice Kirby's own mouth in a broadcast interview. I am quite prepared to believe you, since I now understand you heard the words yourself.

The fact is, whether we like it or not, there is a certain dignity that attaches to the high office of a Justice of the High Court of Australia. We, any of us, damage that at our collective peril. We should not allow our own perceptions of any particular appointee to such office to blind us to our obligation to respect the office, even if we feel the person filling the appointment falls short (I shall deliberately refrain from the use of the archery term) of the standard required in one or other respect. So if Justice Kirby was perhaps a little nettled, and stood on the dignity of his office on this occasion, it seems only fair to judge him on his record as a judge and in his office, if judged he must be. Some small part of that record I have set before you in preceeding posts.

If a Justice of the High Court is to be criticised, I can only commend, as an example of how such criticism should be delivered, the recent OLO article by Sir David Smith, "Sir Anthony Mason’s judicial activism is alive and well, even in retirement" dated 25 July 2007 (see: http://www.onlineopinion.com.au/view.asp?article=6147 ). You may also find the comments thread to that article interesting in the light of what has now been put into the public domain in my last post before this one.

It certainly seems that the Australian Electoral Commission's interpretation of Section 128 of the Constitution with respect as to how a majority "Yes" vote at any referendum is to be determined would be a good place to start if any test of intellectual weakness is to be applied.

I have written to the Justice Kirby at the High Court asking whether I can obtain a transcript of his speech.

CJ Morgan you are wrong in your understanding of contempt of court. There is no statutory definition. One ground for a contempt of court citation is that it will "impair public confidence in judicial proceedings."

This can and has been interpreted widely and judges have used it to muzzle critics.

See:

http://www.presscouncil.org.au/pcsite/fop/auspres.html

Quote:

Such acts as scandalising a court, revealing jurors' deliberations, revealing what has taken place in court, revealing information concealed from those present at court proceedings and alleging without grounds that a judge is biased in favour of or against a particular litigant fall within this category. AT ISSUE IS WHETHER THE MATERIAL IS SUCH THAT IT TENDS TO IMPAIR PUBLIC CONFIDENCE IN THE JUDICIAL PROCEEDINGS. (Emphasis added)

How this is sometimes applied in practice is shown here:

http://www.abc.net.au/news/stories/2003/05/02/845241.htm

Judges have, in effect, said, "If you impair public confidence in me it will impair public confidence in the administration of justice so I am going to shut you up."

It is not clear to me why judges deserve this extra layer of protection. I could equally say denigrating John Howard will impair public confidence in the governance of the country.

Michael Kirby is not an intellectual giant. He also allows his personal beliefs to get in the way of the law. Read some of his judgments and the reasoning he uses to get his personal beliefs across is tortuous. It does not make for good law. He is often the dissenting judge or, where there is more than one dissenting judge, the other judge will have a reasoned argument backed by good legal research.
Compared with judges like Dixon, Mason and Stephen he does not appear to have much to offer. Perhaps his associate needs to do better when doing the hack work.

Stevenlmyer says for the second time ..."If you don't believe me , you don't.There's nothing I can do about it ".There is Steven.
You can be a fair bit more persuasive and convincing in your arguments about Justice Kirby.

For mine ,I have appreciated the "counterpoints " in his judgements as a measure of his understanding of the human condition and his abilities to see another plane in the application of the Law .
One only has to look at the Indecent, Racially Discrimatory and Abusive application of Federal Government Power in the Northern Territory Aboriginal Intervention Act to see why we need more Independence in the High Court [and a change of Government for Australia ].

Ms Fiona Hamilton of the High Court Has written to say that Justice Kirby spoke "off the cuff" and no transcript is available.

So, for the third time, kartiya jim, if you don't believe me there's nothing I can do about it.

I'm all in favour of an independently minded judiciary kartiya jim. But that's no substitute for a GENUINE BILL OF RIGHTS. An activist judiciary can just as easily dial back civil liberties as advance them.

I stand by my original point. Standing on the dignity of your office is the last refuge of the intellectual weakling. We would treat a PM who tried that stunt with DERISION and we should do the same with judges.

I also fail to see why judges should have such sweeping powers to cite people for contempt. Some do use it to immunise themselves from criticism. The mere fact that judges have such sweeping powers is likely to cause journalists to practise self-censorship.

BTW kartiya jim, judging by the number of times Kirby is a dissenter, his colleagues seem to find him as unpersuasive as you find me.

stevenlmeyer,

Thank you for the links in your fifth post. They help explain your position, although it did take some time to digest the totality of the Australian Press Council link. I sense that you may be posting from the perspective of a lawyer or para-legal professional, perhaps with some connection with the press or journalism. For my part, my observations have only arisen from experience gained, amongst other things, as a prospective defendant in a contempt matter, so perhaps lack the legal polish that may attach to some of the points you are attempting to make.

It seems to me that you seek, on behalf of the press, or journalists, a freedom to resort to the personal criticism of judges in circumstances where criticism of their judgements may be difficult to sustain. The Press Council link in its totality is a veritable manifesto for the overthrow of the existing Constitution, and its possible redefinition along lines as proposed in the (failed) Commonwealth Powers referendum of 1944. Consequently it is not difficult to see why you wish to see judges on an even footing with, for example, journalists and editors. Judges, at the peak of the profession of law, constitute the High Court. The High Court is charged with the interpretation of the Constitution, and thus stands in the way of the press supplanting the judiciary as the arbiters of the limits of power.

Acquire the right to criticise judges at will and you acquire the ability to pull down the High Court.

Your own fifth post contains the key to much of what I think to be an unfounded concern as to the likelihood of citation for contempt as a means of muzzling a free press. You use the words "without grounds", and that is the nub of the matter.

I note that the second link you gave, to an ABC News story from Friday 2 May 2003, indicates that the judge in question was going to make a decision with respect as to whether he would cite certain persons for contempt. Did he in fact do so?

So I guess we'll have to take Steven's word for it. One wonders why, with dozens of Justice Kirby's speeches available in full text on the Internet, Steven chose to base this thread on one which is unverifiable. Surely, if Justice Kirby has been such an "intellectual weakling" in his time on the High Court bench, this would be evident in his other speeches?

I don't suppose the fact that Justice Kirby is openly gay, and has been targetted for personal criticism by the lunar right for this, has anything to do with it?

There was a front page article in the Australian attacking justice Kirby. Even by the standards of the backpage editorial it lacked integrity. There was something out of place about it, like the editors of the paper had a personal vendetta and let it cloud their judgement.

http://ozpolitic.com/forum/YaBB.pl?num=1183184822/86#86

BTW Steven, I would never trust someone who relied on 'paraphrasing' the words of someone else in order to criticise them. Instant strawman.

Thank you freediver. I was utterly unaware there had been an attack upon Justice Kirby in The Australian on 3 August 2007. See: http://www.theaustralian.news.com.au/story/0,25197,22180819-5013404,00.html . (I tend to follow Thomas Jefferson's advice with respect to newspapers. See: http://forum.onlineopinion.com.au/thread.asp?article=5018#58271 )

What insolence on the part of Chris Merritt, who wrote the article in The Australian. (And what inverted irony in the name, for merit the article certainly does not have!) Last I heard it was Sir Owen Dixon who was a former Chief Justice of the High Court, not Owen Dixon. What is wrong, when presuming to instruct all Australians as to alleged present deficiencies in the composition of the High Court, with referring to people by their proper title? As a journalist, Chris Merritt insults us all with the manner of address chosen, a peremptory manner typical of the Nazi press in a former era, I might add, since s/he chooses to refer to fascism in the article.

stevenlmeyer,

Was this the article to which Justice Kirby was responding when, in your view, he revealed himself as an intellectual weakling through standing on the dignity of his office in the manner indicated in your paraphrasing?

Also, to be completely clear, were you actually present where Justice Kirby was addressing the young lawyers to which you refer, or was it that you saw/heard a report of the actual words/demeanour of Justice Kirby on that occasion?

Do you have any connection, directly or indirectly, with The Australian newspaper or Chris Merritt?

Answer very carefully, as I think I can see an orchestration of a deliberate eliciting of comment intended to further delegitimise Justice Kirby, and thereby scandalize the High Court.

For all of the foregoing, stevenlmeyer, you have been instrumental in bringing to the attention of at least one Justice of the High Court certain serious misrepresentations with respect to past reporting of Constitutional referenda results, and of an ongoing error on the part of the Australian Electoral Commission.

Forrest Gumpp

In answer to your questions:

I have no link with any newspaper or any other media outlet.

I actually share Kirby's aversion for control orders and various other laws that increase the powers of the state. It illustrates yet again the need for a BILL OF RIGHTS in Australia

MY POST WAS NOT SPECIFICALLY ABOUT KIRBY. I simply thought his comments were an especially egregious example of judicial pomposity, arrogance and self-righteousness. If any other of our DICTATORS IN FANCY DRESS had made similar comments I would have used him or her as an example.

I was not present when Kirby gave his speech. As I have made very clear, I rely on a segment about Kirby's speech broadcast on one of the ABC radio stations. My paraphrase accurately reflects the tone and substance of what I heard.

There is no need for posters here to repeat ad infinitum that they don't believe me. I noted it the first time around.

I see no reason why the media should not be able to treat members of the judiciary as robustly as they treat politicians, business people and non-judicial civil servants.

Perhaps someone here can enlighten me as to why judges, as opposed to say prime ministers or CEOs of major corporations, deserve special protection from media comment.

stevenlmeyer: "Perhaps someone here can enlighten me as to why judges, as opposed to say prime ministers or CEOs of major corporations, deserve special protection from media comment."

Actually, I think you're exaggerating the extent to which they are protected from media comment. There's certainly been plenty of media commentary about political adventurism in the courts, and Justice Kirby and others have frequently been subject to quite aggressive campaigns of thinly disguised personal vilification in the media.

Contempt provisions only apply to comments and acts that undermine or detract from the effectiveness and authority of the Courts, rather than individual judges. Otherwise, members of the judiciary are protected by the same defamation laws as the rest of us.

I understand that the legal, traditional and constitutional basis for these protections are to be found in the Common Law and in the Separation of Powers provisions in the Constitution.

Further, it is my understanding that the Townsville case to which Steven referred us as evidence never actually proceeded. In any case the issue was the authority of the Court rather than the character of the judge, as this quotation indicates:

"Judge Wall says he is concerned statements by mayor Tony Mooney and councillors Jim Gleeson and John Robertson, reported in the local newspaper, may undermine the public's confidence in the administration of justice."

Lastly, I agree with Steven that Australia needs a Bill of Rights.

How interesting that this thread is now starting to focus upon promotion of a bill of rights. This now makes it necessary for me to point out an error in one of my previous posts, the 17th post in this thread.

I mistakenly referred in that post to a 1944 Australian referendum as the Commonwealth Powers referendum. I should not have gone from memory. The 19 August 1944 referendum was the Constitution Alteration (Post-War Reconstruction and Democratic Rights) referendum.

There was to have been a 1942 Act called the Commonwealth Powers Act, which contained essentially all of the proposals that were subsequently to be put to the people in the 1944 referendum proposal. The Commonwealth Powers Act failed to get off the ground because, alone of all the Houses of the various State Parliaments of Australia, the Legislative Council of Tasmania refused to ratify a proposal to refer virtually all State powers to the Commonwealth during the then emergency of war.

Both attempts, first, the referral of powers by the States, and then, subsequently, the referendum, failed.

I find it extremely interesting that some sort of Bill of Democratic Rights (remember all those 'Democratic' Republics?) was put on offer at referendum in 1944, but only after a relatively covert attempt was first made to institute them under what was perhaps a more honest description of the real effect of that proposed legislation, the enhancement of Commonwealth power.

What makes it even more interesting in the present day is that, in the event of an ALP government being returned at the upcoming Federal elections, nothing will stand in the way of such a referral of powers scenario as that of 1942 occurring, and this time succeeding. Such would mean the end of federalism, the end of the Constitution, and, with the end of the Constitution, the end of any role for the High Court.

Stevenlmeyer, you have just handed John Howard his election-winning issue! A real concern for all Australians, something to really fear.

If its his government that goes to election as expected, that is to say.

stevenlmeyer,

Precise attribution in your opening post as to what was said, and in response to whom, would have been nice, but let me make it very clear that I do not disbelieve your rendition of the tenor of Justice Kirby's remarks on this occasion. Indeed, I agree with you that it is very telling that the ABC saw fit to, in your words, 'Bowdlerise' or 'sanitise', but in mine 'tone down', what Justice Kirby said. I only disagree with you as to what it revealed about Justice Kirby, and that certainly was no revelation of his being an 'intellectual weakling', or of his taking refuge from criticism. Quite the reverse.

By now, all of the other Justices of the present High Court, let alone all of the aspirants to future appointment thereto, will be silently (or perhaps not so silently) thanking Justice Kirby for being the 'duty target' in this disgraceful attack upon the dignity of the High Court by The Australian newspaper. It has to be either that article, or that reporter, to which Justice Kirby responded so incisively, and indeed with such restrained precision, that your topic has indirectly brought to the attention of OLO, and thereby revealed to all Australians, surely.

This whole matter may be about to become a classical illustration of the failure of the mainstream media to get to grips with the fact that the real news now comes out only from the blogosphere, if it is correct to place OLO under that umbrella term. See: http://www.onlineopinion.com.au/view.asp?article=6276 "Rupert was right to Worry", an article that has perhaps not received the attention of which it is worthy from OLO readers.

All of which goes to the utter undesirability of the 'press', in any way establishing itself on an 'equal' footing with the High Court outside the bounds of legitimate criticism based upon real grounds. "This year’s federal election will be the first in which mainstream newspapers have lost their near monopoly on analysis and comment.", says Margaret Simons in that article. Indeed.

A further footnote to history in connection with the determination and reporting of referenda results resides in the Year Books 1942-43 and 1944-45, a footnote Justice Kirby may find interesting even if it is a bit dreary to OLO readers, if indeed he doesn't know it already.

The detailed content of the proposed Commonwealth Powers Act of 1942 was published on pages 63 to 66 of Year Book Australia 1942-43.

The detail and result of the 19 August 1944 Constitution Alteration (Post-War Reconstruction and Democratic Rights) referendum was first reported in Year Book Australia 1942-43, (and no, its not a typo.) on page 64 thereof. That report consisted of a two-line mention of the date of the referendum and a reference to the fact that the referendum results could be found (you guessed it!) in the Appendix. The Appendix is headed by a parenthetical notation which says:

"(Recent information and returns which have come to hand since the various chapters were sent to press are given hereunder)."

It is to be noted that in the text of Chapter III, on page 64, this referendum is referred to as having already been held and the results known. In that circumstance, the publication of the table showing the results in the Appendix was done not for the reason stated thereon, but because it was not wanted on display for some reason with the main text up front in Chapter III.

The second reporting of the 1944 referendum was in Year Book Australia 1944-45 in Chapter III-General Government, not in an Appendix as had happened in the previous edition. This time the table included, in addition to the 'Yes', 'No', and Informal totals, a column showing percentages of the formal vote constituted by each of the 'Yes' and 'No' votes.

The important difference was that the 1944-45 reporting presented again to both public and Parliamentary view an error sown in earlier Year Books that the informal vote was to be disregarded in determining a result in a referendum proposing alteration of the Constitution.

Try this link John. http://forum.onlineopinion.com.au/thread.asp?discussion=967 It might mean something to you if you can wade through it all. Also http://www.aph.gov.au/house/committee/em/elect04/subs.htm Subs 123 and 161 if you have the time. We got a real big problem.

Oops, my immediately preceeding post seems a bit out of place here doesn't it? That'll teach me to try and be on the phone and typing a post at the same time. You can forget who you are typing/talking to. As there are no posts other than this one following it, it won't offend me or appear sinister if someone wants to press the big red X and have it removed for being off-topic. The first link is to one of my posts in the Technical Support thread, and the second I will place on that thread just in case anyone has used it and needs to refer to it again.

Just by way of clarification, in my third post in this thread I stated that the apparent error in method of determination of a referendum result had crept in after the 1910 referenda. That could be slightly misleading. The 1910 Year Book reports, in the Appendix at page 1187, the substantive outcomes of the referenda held on 26 April 1911.

The reporting format for the 26 April 1911 referenda results published in YBA 1910 was either advised to, or decided upon by, the Commonwealth Statistician BEFORE the Chief Electoral Officer of the Commonwealth could have published any statement as to the results of the referenda in the Gazette. This can be said because the result published in the Year Book was an interim result as at 1 May 1911, only five days after the referenda had been conducted, with that fact precluding the possibility of there having been, as at the Year Book publication deadline, any formal statement as to result published in the Gazette by the Chief Electoral Officer.

Whether the order of publication of the respective tabulations of results is indicative of there having been any external attempt to influence the manner in which the Chief Electoral Officer reported the referenda results of 1911 is open to question.

Further to the clarification in the preceeding post, the table at page 1187 of YBA 1910 makes no mention of informal votes. It does have a column headed "Majority Against" in the tabulation of results for each question.

The extent of the informal vote is able to be calculated from the final results published on page 839 in YBA 1914. Informal votes are not mentioned by name in the final results table, but a column is headed "Electors to whom Ballot Papers were Issued". Experience would indicate that the difference between total paper issues and the combined total of votes for and against is pretty close to being the informal vote total.

The failure to expressly account in the YBA 1914 tabulation for informal votes, should it have been a reflection of the Chief Electoral Officer's 1911 statement in the Gazette, was serious enough should it have come to be taken as a precedent for result determination in circumstances of a future result being very close. If, on the other hand, informal votes were recorded in the Chief Electoral Officer's gazetted statement, then it is difficult to see why they were not so reported in the Year Books.

Granted, informal vote totals could not have been provided with the 1911 interim results (which overall results they could not have affected), but this should not have become an excuse for their omission from the 1914 final results table. As can be seen, the 1911 Year Book tabulation format was not just slavishly copied in the 1914 Year Book, so why did this apparent departure from the Constitution continue?

CJ Morgan,

You last post is incredibly naïve. There is no statutory definition of contempt. Judges can and have interpreted it widely.

The mere existence of such wide arbitrary powers cannot but have a CHILLING effect on comment about judicial processes and the judiciary.

In the case I cited Judge Clive Wall in Townsville had merely to speculate aloud about whether he should cite the Mayor and councilors in contempt. That forced them to hire a legal team to argue their case.

Do you think they will be so forthright in their criticism next time?

What is the effect on other councils that don’t like judicial decisions affecting their towns and cities?

The sinister part of contempt is that the affected judge can act as his OWN JUDGE, JURY AND EXECUTIONER.

Let me rephrase my question.

Why should individuals and the media not have the same right to attack any judge in the same manner in which they are free to attack the Prime Minister?

Why should our dictators in fancy dress have greater immunity from criticism than our head of government?

Why should Kirby (or any other judge) have greater immunity from criticism than John Howard or any other Prime Minister?

stevenlmeyer,

As a footnote to the discussion on this thread, an article published in the SMH on Monday 1 October 2007 by Justice Kirby may set your mind somewhat at ease. (The full text of the speech, made on Saturday 29 September 2007, is downloadable as a PDF from this link: http://www.hcourt.gov.au/publications_05.html#MichaelKirby .)

The article referred to the recent decision of the High Court striking down the 2006 amendment to the Commonwealth Electoral Act that had taken away the right to vote from all prisoners in Australia. Whilst matters of contempt were not the subject of the speech reported, some insight into the Court's thinking with respect to the protection of the exercise of your constitutional right to choose (and by implication, criticise) your governors is given.

Justice Kirby, on page five of the full version of his speech stated "This week ...... the nation's institutions corrected themselves." He was referring to the operation of the judicial process of the High Court, as emplaced by the Constitution. He had earlier observed that "Hitler's Germany and Stalin's Soviets were full of law. Yet at critical moments, justice was missing. There were black holes where the law was silent and justice had no say. The rule of law did not run to defend the weak, the unpopular and the vulnerable."

Contempt powers exist to protect, in the ultimate, this institutionalised capacity for self-correction. I don't think, in the light of this, that you need be unduly concerned that citation for contempt, or the reminder of it, is used other than to preserve this capability.

Justice Kirby also observed that "There is no more precious office in our Commonwealth than that of citizenship." It is to be hoped this decision will open the way to restitution of the right to enroll and vote removed from perhaps one million permanently resident British subjects in 1984. The Constitution would appear to recognize them as part of "the bedrock identity of Australian society." They, and electoral roll accountancy, remain in a legislative 'black hole'.

Forrest Gumpp

The High Court was probably correct in striking down the law prohibiting prisoners from voting. It probably was unconstitutional.

It was also in my opinion an unjust law.

BUT, note that the law was struck down because it was deemed UNCONSTITUTIONAL, NOT because it was thought to be UNJUST. Kirby's speech notwithstanding, the High Court does NOT have the power to strike down laws because they are deemed unjust. Thus most of Kirby's speech is twaddle.

Individual judgments are not the nub of my argument.

My contention is this:

Judges ought not to have the power to shut down debate on their judgments any more than John Howard has the right to stop us debating his actions.

Because contempt of court is currently such an elastic concept judges in effect do have the ability to chill, if not stop, debate on their actions. Judge Wall speculating aloud about whether certain remarks constituted contempt of court illustrate quite clearly how judges can do this if they so choose.

To return to Kirby's speech:

Should laws be just?

Yes. But we also need to understand that ideas of what constitutes justice can differ radically between parties. (Think about abortion)


Should judges strive for justice?

Yes. But the same caveat applies. We also need to understand that bending laws to bring about what what a judge may consider justice in one case can cause the greater injustice of making laws uncertain in their application so that in the end a trial becomes a lottery. (Hence the old adage "hard cases make bad law.")

None of this gainsays the need for a bill of rights which, inter alia, entrenches the right to free speech.