A-G sees red over judge's opinions

The Australian
22 November, 2008
By Michael Pelly

NSW Attorney-General John Hatzistergos has staged an extraordinary attack on High Court judge Michael Kirby, describing recent comments as unnecessarily provocative and profoundly wrong.

Mr Hatzistergos took aim at the outgoing judge's support for a charter of rights and his claim last week that the tenure of judges should be limited to 10 years.

While the conservative side of politics has often taken aim at the judge, the comments represent perhaps the first time that a Labor politician has taken aim at "the great dissenter".

"Justice Kirby has said a lot of things in recent time that I don't agree with," the Attorney-General said.

Mr Hatzistergos's federal counterpart, Robert McClelland, said he welcomed Justice Kirby's views, but Mr Hatzistergos warned that the judge was on dangerous ground.

"I think it is important for judges to be able to make contributions to public discourse," Mr Hatzistergos said.

"They have tremendous capacity to be able to provoke debate on issues that are important to us as a society.

"But I think -- particularly if they are serving judges -- that entry into debates that might lead to criticism of themselves may also reflect adversely on the court. I think people need to be circumspect and be sure the balance is properly struck.

"I don't agree with the views of His Honour in regard to a use-by date for judges. I think that was unnecessarily provocative.

"I think there are a number of judges who have been outstanding and who have served the court for a very long period of time and if I may say so, with respect, that he is probably one of them."

Justice Kirby said last week: "Ensuring change and turnover, fresh ideas and a reflection of the values of different generations, is a vital aspect of a dynamic and open-minded final national court."

Mr Hatzistergos said he favoured giving judges different experiences over the "blunt instrument of termination".

Mr McClelland described Justice Kirby as a highly regarded and well-respected judge.

"However, the Government has no plans to change the current term arrangements for the High Court," Mr McClelland said.

The NSW Attorney-General also said he disagreed profoundly with Justice Kirby's support for legislative protection for human rights, whether in a bill or a charter.

Mr McClelland has declared his support for a charter and the Government has set aside $2.8 million for public consultations on how best to protect rights.

"His Honour is profoundly wrong," Mr Hatzistergos said. "Frankly, it's not his role to legislate. He doesn't have the mandate. No one is ever elected judge to be able to go out there and institute social change and that's what a bill of rights effectively does.

"We have democratically elected politicians with the capacity, the mandate, the authority, the skill and the experience to be able to reflect the values of the community and distil those into legislation.

"The judge's role is to interpret and apply the law of the legislature. It is not to be make it up as they go, the way they would like it to be."

Justice Kirby must retire on turning 70 on March 18 next year, but is widely tipped to hand in an early resignation to allow his replacement to take his seat in the court at the start of the legal year in February.

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