National Observer Home > No. 51 - Summer 2002 >Legal Notes

An Impeccable Cheif Justice, A Dubious Attorney-General

The Chief Justice of the High Court, Mr. Murray Gleeson, was appointed on the basis of his outstanding legal abilities and the general respect in which he is held. Since his appointment his behaviour has continued to be exemplary and a model for other judges.

Recently Chief Justice Gleeson has properly cautioned certain other judges who have not restrained themselves from illegitimate entry into public controversy.

In his 2001 State of the Judiciary Address, the Chief Justice said that judges “should not speak out in ways that could lead a fair-minded person to distrust their ability to decide politically sensitive cases in a non-partisan fashion”.

In particular, he quoted from Canada’s Ethical Principles for Judges:

“Judges should refrain from . . . taking part publicly in controversial political discussions except in respect of matters directly affecting the operations of the courts, the independence of the judiciary or fundamental aspects of the administration of justice.”

He then went on to state of the relevant principle: 1

“Some of our most respected judges were prominent in political life before appointment. But it means that once they accept judicial office, judges must disengage from political activity and must avoid conduct that could lead a fair-minded person to distrust their ability to decide politically sensitive cases in a non-partisan fashion.”

Chief Justice Gleeson’s statements have been seen as apposite in regard to one of the more controversial members of the High Court, Justice Kirby. Justice Kirby has, for example, been described as attracting “unprecedented rebuke from Mr. John Howard in May 2001 when he criticised the Federal Government’s schools funding policies”. 2

Justice Kirby was criticised on similar grounds in an article in this Journal entitled “Homosexuals and the High Court”, 3 which discussed an address by him in Sydney to students of St. Ignatius’ College, Riverview, on 24 February 2000, in which he attacked various critics of homosexual behaviour and told the students that “from the earliest days of puberty, you just know that is how you are [that is, what your “sexuality” is].”

On the one hand this statement of Justice Kirby was factually wrong. (Many young people of both sexes pass through stages of aberrant behaviour but subsequently lead normal lives.) On the other hand it was singularly inappropriate, and indeed was seen as highly improper, for a High Court Justice to enter into a controversial public debate in circumstances of this kind. The incident did much harm to Justice Kirby’s reputation, and to that of the High Court, and one may hope that it will not be repeated.

The Attorney-General, Mr. Daryl Williams

One passes unfortunately from an exemplary Chief Justice of the High Court, Mr. Murray Gleeson, to an Attorney-General, Mr. Daryl Williams, who has attracted much criticism. 4

Mr. Williams reportedly owes his position in the ministry of Mr. John Howard to geographical considerations — he is a Western Australian, and Mr. Howard has attempted to give all States what he sees as proper representation amongst Ministers. However the choice of Mr. Williams appears to be particularly unfortunate.

More recently a further example of misleading conduct by Mr. Williams has arisen, in regard to the proposed International Criminal Court, which is intended to have very wide powers and which is a serious threat to Australia’s interests. 5 It would, if set up, permit questionable judges sitting in The Netherlands to extradite Australian military personnel and civilians in specified circumstances, and the I.C.C. would be able to override both the Australian Parliament and the Australian Courts.

Nothing could be clearer than that the I.C.C. would derogate very seriously from Australian sovereignty. Yet in an address to the Australian Red Cross on 9 August 2001 Mr. Williams asserted remarkably that the claim “that any decision to ratify the I.C.C. would be to surrender Australian sovereignty” is “unfounded”.

Mr. Williams went on to make a number of tendentious comments intended to support ratification of the I.C.C. — he is an internationalist with apparently insufficient concern for Australian interests — and ignored the realities that it cannot be known whether the judges of the I.C.C. would be from, say, Indonesia, Serbia, Brazil, Nigeria, Egypt or any other particular country. He glossed over the fact that such judges would be able to decide (and might do so under the influence of particular social or political views) whether Australia has been “unable or unwilling” to prosecute various nebulously-defined “crimes” such as genocide or crimes against humanity; and the decision of such judges would override the Australian Parliament and the Australian Courts.

This conduct bears out the earlier criticism of Mr. Williams: “Mr. Williams has proved himself to be one of the least satisfactory Attorney-Generals of the past several decades, and it would be appropriate that he be replaced by someone perceived to be more capable and commanding greater respect.” 6

I. C. F. Spry

 

1. The Australian, 15 October 2001.

2. Ibid.

3. National Observer, 2000, Issue 45, pages 60-64.

4. See for example “The Credibility of Mr. Daryl Williams”, National Observer, 1999, Issue 42, pages 10-11, where a biased address by Mr. Williams was discussed in which he, a republican, claimed incorrectly that the then-current referendum proposal was one whereby the Prime Minister did not gain greater power and that the proposal would not make the removal of a president any more likely than the removal of a Governor-General.

5. See National Observer, 2000, Issue 46, at pages 53-57; 2001, Issue 48, at pages 13-20; and 2001, Issue 50, at pages 58-60. The matter is further considered by Professor Geoffrey de Q, Walker at pp. 33-38 et seq., supra.

Dr. I. C. F. Spry Q.C.

National Observer No. 51 - Summer 2002