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.