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.