The rights stuff

While it is always enlightening, given the attention paid to, first, the Roberts nomination and appointment to the US Supremes and the current nomination of Miers to join him, the candid thoughts of another High Court Justice are very refreshing. Retiring High Court Justice Michael McHugh reveals that jurists are not always driven by their personal beliefs, nor the public mob, but do hold the office above their own prejudices. After all, every decision they make must be supported by legally found fact, legal precedent, articulated logic and published for all the world to read and second-guess. You can only wish that governmental processes were somewhere near as transparent.

From the SMH: http://www.smh.com.au/news/national/our-human-rights-are-poor-judge/2005/10/12/1128796590039.html :

"In his last speech as a member of the High Court, he told Sydney University law students that judges were being "called on to reach legal conclusions which have tragic consequences".
These verdicts could often be at odds with their personal beliefs because of the respect which had to be paid to Parliament.
Justice McHugh urged the adoption of a bill of rights, saying its absence was the main reason our judges were not as empowered as those in the United States Supreme Court to defend fundamental human rights.
And he agreed with a comment that Australia's legal system was "seriously inadequate in protecting the rights of the most vulnerable and disadvantaged groups in our society".
He cited the 2004 decision of al Kateb, in which the court said a provision which allowed unlawful citizens to be detained until they could be deported was not unconstitutional. Ahmed Ali al Kateb was stateless and unable to leave Australia [and so could be detained forever].
Justice McHugh said there was "a powerful argument" that the verdict of the 4-3 majority - "who, I'm afraid, included myself" - would have been different with a bill of rights.
Justice McHugh, who will be replaced by Susan Crennan when he steps down from the court on November 1 - his 70th birthday - follows figures such as the former chief justice, Sir Anthony Mason, and a former prime minister, Malcolm Fraser, in pressing for rights to be enshrined in the constitution.
He said Australia had played a leading role in encouraging human rights and had been praised as a model member of the United Nations. "Given this record, why then have we been recently called a wolf in sheep's clothing? It is undoubtedly the case that Australia's international reputation as a champion of human rights has been somewhat tarnished over recent years."
He said Australia was "very much the odd man out" and that by failing to adopt a bill of rights the nation was arguably failing to meet its obligations under international law.
It would provide "a set of navigation lights for the executive … [and] allow the public a clear overview of the rights they are being asked to give up in the name of national security, for example".
Justice McHugh said,: "My own social views are probably as radical as anyone in this room - maybe more so - but when you are a judge there are constraints. You have to give effect to what the purpose of Parliament is."
He said a former High Court colleague, Justice John Toohey, had once told him: "You are very radical in relation to the common law and equity but you are very conservative in relation to the constitution and statutes".
Justice McHugh said: "I think that's very accurate … In relation to the constitution it's my belief … that judges don't have the legitimacy to be making up the rules and pushing their own social views."

Similar sentiments: http://guambatstew.blogspot.com/2005/09/unrepresentative-swill-part-2.html