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  • High Court judge says dissent okay
  • AAP
  • 11/10/2007 Make a Comment (1)
  • Contributed by: admin ( 59 articles in 2007 )
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Judges and lawyers must sometimes champion dissent as one of the most important freedoms in a democratic society, High Court Judge Michael Kirby says.

Justice Kirby, who often finds himself at odds with his fellow judges, said that occasionally progress was only attained by candid disclosure of differences, "by planting the seeds of new ideas and waiting patiently to see if they eventually take root".

"The right to disagree or to dissent from the majority view in courts when things seem wrong or unjust is therefore one of the most important freedoms that exist in a democracy," the judge said in delivering the annual Hawke lecture in Adelaide.

"Australian society should value its dissenting citizens.

"Today's dissent may become the basis of tomorrow's consensus."

Justice Kirby pointed to the period in the 1980s and 1990s when the High Court was led by Sir Anthony Mason, a period that largely coincided with the federal Labor government of Prime Minister Bob Hawke.

It was during this time that the court delivered the now famous Mabo decision, upholding the equal entitlement of indigenous Australians to the legal recognition of their interests in land and also upheld in the Dietrich case the basic right to legal counsel for an unrepresented accused facing a major criminal trial.

Had Australians not lived through the period of the Mason court, they could have been forgiven, Justice Kirby said, for thinking that Australian law was always unbending and unchanging.

"These constitutional and other achievements were only notched up because a few lawyers and judges - at first in the minority - questioned the legal consensus," he said.

Justice Kirby said he doubted if those cases would be answered in the same way today without the Mason Court.

"Yet who can doubt that they were correctly decided?" he said.

"In retrospect, who can doubt that Australia is a juster, more equal, freer place because of these decisions."

However, Justice Kirby said, the time had come for Australia to strive for a new consensus on one subject, the rights and fundamental freedoms that belong to all Australians.

He said he did not advocate a constitutional-based bill of rights that was unlikely to be adopted in Australia because changing the constitution was nearly impossible.

But, he said, if Australia could find a new consensus on fundamental rights then former prime minister Bob Hawke's legacy, and his instruction about the importance of consensus in truly essential things, would be borne out.

"We will place basic rights above the partisan squabbles," Justice Kirby said.

"We will give the courts new powers, but not too many.

"We will reserve the last word, as we should, to elected parliaments.

"We will enhance public debates about fundamentals and the type of society we really want to be.

"We will distinguish between the proper place of consensus and the proper place of dissent."

    By:Harold from SA, Australia on July 19, 2011 @ 5:06 pm
    Onya F4J for dissenting against anti-family laws

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