Optional extras

Uncle at ABC Watch posts an item taking a passing sideswipe at retired American Anglican Bishop John Shelby Spong for misusing his clerical office to promote personal opinions arguably intrinsically inconsistent with Christian ministry . Uncle probably has a point, because as far as I can see Spong doesn’t actually believe in God. On the other hand, although this may be a revelation to Sydneysiders accustomed to the fundamentalist certainties of George Pell and the Jensens, clerical atheism may not be confined to Septic Tanks, as this (almost 20 year old) episode of Yes Prime Minister reminds us:

Sir Humphrey: “The Church is looking for a candidate to maintain the balance.”
Master of Baillie College: “What balance?”
Sir Humphrey: “Between those that believe in God and those that don’t.” …

Sir Humphrey: The Queen is inseparable from the Church of England.”
Jim Hacker: “And what about God?”
Sir Humphrey: I think he is what is called an optional extra.”

Actually, Uncle’s bitchslap at Spong is just a pretext to allow him to deliver a well-merited rebuke to High Court Justice Michael Kirby, who the other day weighed into the death penalty debate triggered by John Howard in the wake of the terrorism trial of Bali Bomber Amrozi.

Leaving aside substantive arguments about the merits or otherwise of execution of convicted terrorists, the main thing that concerns me about Kirby’s speech (and Oz opinion piece) is that it suggests His Honour regards the normal protocols about judicial freedom of speech as optional extras. High Court Chief Justice Murray Gleeson explained the rationale:

Judges are accorded a measure of respect, and weight is given to what they have to say, upon the faith of an understanding by the community that to be judicial is to be impartial. Judges, as citizens, have a right of free speech, and there may be circumstances in which they have a duty to speak out against what they regard as injustice. But to deploy judicial authority in support of a cause risks undermining the foundation upon which such authority rests.

One of the ways in which the demands of impartiality and judicial free speech rights are conventionally reconciled is by voluntarily honouring a principle that a judge should normally refrain from commenting publicly on the merits of an issue that might conceivably arise before him/her for judicial determination at some time in the future. Although the political odds aren’t all that high, it can’t be regarded as entirely improbable that the death penalty, at least for terrorism, might one day be re-introduced in Australia. If that ever happens, Justice Kirby might well be called on to adjudicate on legal or even constitutional issues arising from a death penalty case. He should have kept his mouth shut.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2022 years ago

Ken, you are wrong. Kirby will retire from the High Court no later than May 19 2009, the date of his 70th birthday —

Scott Wickstein
2022 years ago

That’s six years away Dave. If a week is a long time in politics, what is six years?

Dave Ricardo
Dave Ricardo
2022 years ago

The legal system moves in geological time. Six years (actually 5.5 in this case) is a blink of an eye.

Ken Parish
Ken Parish
2022 years ago

Dave,

It’s by no means unusual for judicial review matters (as opposed to tort or contract litigation where there’s pleadings, discovery and lots of evidence) to move from first instance trial to completion of High Court appeal in 3 years or so. Moreover, there’s a least a theoretical possibility of a challenge in the High Court’s original jurisdiction. In either case, if any form of death penalty (even confined to terrorism) was legislated within the next 2-3 years there’d be a fair probability that a challenge relating to it could reach the High Court before Kirby retires (though only if – God forbid – a terrorist event occurred and resulted in someone being charged). My original post noted that such a sequence of events wasn’t all that likely, but it certainly can’t be ruled out.

Dave Ricardo
Dave Ricardo
2022 years ago

Ken, all the state and territory governments are Labor governments. None of them will introduce hte death penalty. (You never quite know with Bob Laura Norder Carr, but even in his case it won’t happen.) At present, the only Labor Govt which looks like it might lose at the next election is Gallop in WA, which if it happens, will be early in 2005.

Suppose Gallop loses and the Liberals led by Colin Barnett win. I don’t believe that Barnett is a supporter of the death penalty, but suppose he reintroduces it anyway. If there has been a recent terrorist incident, especially in WA, he could do it quickly —

Homer Paxton
Homer Paxton
2022 years ago

Kirby like Bloggers can’t keep his mouth shut.

He should have never been appointed to the high Court.

Ken Parish
Ken Parish
2022 years ago

Dave,

Your assumption that all states will continue to have Labor governments indefinitely is interesting. However, even if it’s correct, the Commonwealth has constitutional power (though not exhaustively) to create offences of terrorism, and has done so. See Security Legislation Amendment (Terrorism) Act 2002 at http://scaleplus.law.gov.au/html/pasteact/3/3590/top.htm . It currently provides for life imprisonment for terrorism offences, but I wouldn’t be entirely surprised if Howard tries a wedge at some stage and seeks to amend it to provide a death penalty. He might even get it through the Senate if a couple more conservatively-minded Independents or One Nation types are elected. As Scott commented, a week is a long time in politics and 6 years is an eternity.

Dave Ricardo
Dave Ricardo
2022 years ago

“Your assumption that all states will continue to have Labor governments indefinitely is interesting.”

My assumption, which is obvious from my post, is that all states (except maybe WA) will have Labor Governments for long enough that no death penalty law or case will reach the High Court before Kirby’s retirement, which will be no later than 2009 – and could easily be
earlier.

As for Howard, if we get a Bali like incident in Australia, he could well try it, but it’s a big if. And even then, if the law if passed (another big if) no one would be sentenced to death for that incident. We’d need another incident, a trial etc. All of this would take time. I repeat, Kirby will not be hearing any death penalty cases, not in this lifetime, in any case.