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10 February, 2010  
Judicial rockstars

What sort of judges do we really want? ... Michael Kirby and Nino Scalia get it on in the NSW Banco Court … Horns locked on application of “foreign” laws … Bills of Rights … Democracy … Reporter Yarran Hominh was there with his notebook

imageThe stage was set in the Banco Court.

In the left corner – Michael Kirby, formerly of the High Court, but still active on the club circuit.

On the right, all the way from the US of A, Antonin Scalia – referred to by our own Law Council as “the Arnold Schwarzenegger of American jurisprudence”. (Wince.)

As referee and moderator we had the forbidding Murray (Smiler) Gleeson, who at the outset expressed concern for Kirby’s welfare at the hands of the indomitable US Supreme Court judge.

These “international rockstars”, as one audience member described them, were shaping-up to throw a few punches on matters as provocative as the proper democratic role of judges, the use of foreign and international law, and Bills of Rights.

Nino Scalia climbed into the ring first, pudgy yet pugnaciousness.

He railed against the use of foreign law in constitutional interpretation, describing the advocates of such perversity as the “priesthood of the living constitution”.

They have usurped the rightful democratic role of the people by positing broad human rights.

“If you believe that there is – up there in the sky – platonic human rights, why in the world would you leave it lawyers to figure it out?”

imageFor Scalia, this leads to “universal disagreement”, which brings business and power right into the hands of those priest-like, unelected judges.

Like all good prophets, those pesky pushers of “the living tree” metaphor (a phrase given to us by Canadians) pick and choose where and when to apply their judiciously chosen snippets of foreign law.

What a neat jab at some of Nino’s fellow Supremes.

Smiler rang the bell for the second round.

Somewhat disappointingly, Kirby sought out common ground. Whereas the key phrase for Scalia was “logic”, for Kirby it was “dialogue”.

“What we share shows where we differ,” Kirbs declared as he went on to pour praise on his opponent’s virtues; Scalia’s talent for dissent and his history as a teacher, not only of law students at the University of Chicago, but of judges from other worlds, including Kirby.

There was an invitation for shared therapy, to deal with their mutual frustrations at being rejected by other members of their respective high courts.

Kirby said the experience of the US Bill of Rights was irrelevant to the current Australian debate, not on the grounds of “national exceptionalism”, rather because the “hard” model of a constitutional Bill of Rights was not on the cards for Australia.

The “dialogue” model proposed by the Brennan inquiry would bear no resemblance to the American model.

This seemed to send a chunk of Nino’s submission to the bottom of the harbour.

Kirbs had the entire Banco in his thrall as he proceeded to cite the Mabo (No.2) case as an instance of how international law can be applied for the uplift of humanity.

That was where Brennan J famously drew on the International Covenant on Civil and Political Rights to ground common law recognition of native title.

Where the legislature is reluctant to act, nimble judges will lead the way.

Naturally, the former judge could not let the occasion pass without s*x rearing its head.

To sustained applause he challenged his sparring partner to define the damage caused by the legalisation of homosexual relationships.

Let’s face it; if the real Arnold Schwarzenegger cannot find any, very likely none exists.

Nino looked pained.

“Lawyers deal with the law. What do they know about whether there should be a right to same sex marriage?”

Question time saw old warhorses such as former premier Bob Carr and former solicitor general David Bennett clamber to their feet for a moment in the pale sun.

Carr continues to relentlessly misrepresent his slim grasp of the facts.

He claimed that Canada, with a bill of rights, has more proscriptive defamation laws that Australia.

The widely reported Canadian Supreme Court’s decision in Grant v Torstar Corporation, which engaged the Canadian Charter of Rights and Freedoms, must have been off his radar.

Politely no one asked about Nino’s hunting trip with Dick Cheney, his refusal to recuse himself from a case that challenged the legality of the VP’s actions and which ended in him ruling in the Veep’s favour.

However, the real debate was not about the Bill of Rights, the Constitution, or even democracy.

The question the audience was left with was what kind of judges do we want?

Apart from those who find in our favour, do we want judges who are bridge builders, or do we prefer those who are wedge drivers?