The number of commissioners sitting on the Australian Law Reform Commission had been slashed, while too many big legal cases were being mediated, denying the courts a say in how disputes were settled, Mr Kirby told a packed audience at the Melbourne Law School.
“In my day, there were always at least four full-time commissioners and there were sometimes as many as 10 part-time commissioners,” he said. “Up until recently there was just one commissioner, President Professor [Rosalind] Croucher.”
Mr Kirby was a member of the commission from 1974 to 1984 when as many as six full-time commissioners served at any one time. In the years since, that number has steadily fallen and in 2016 there were fewer commissioners serving than at any previous time, with only one full-time and two part-time appointments. A second full-time commissioner, Judge Matthew Myers, was appointed last month.
“Why is that so?” asked Mr Kirby. “Is everything in Australia all so perfect, so wonderful? Does parliament work so effectively it doesn’t need law reform or law reform commissioners? Of course not.”
Mr Kirby suggested government was hindering transparency and functionality of the legal system and likened current reform to a “patchwork quilt, changing a little bit here and a little bit there” without allowing due consideration of the broader issues.
“The fact that we can’t even find the money in Australia to support the continuance of what was always a relatively modest federal agency is really shocking.”
“Is everything in Australia all so perfect, so wonderful? Does parliament work so effectively it doesn’t need law reform or law reform commissioners? Of course not.” — Michael Kirby
Australia had moved away from a system of law fundamentally shaped by judges, Mr Kirby continued, towards a system of law dominated by parliamentary statute reform.
Mr Kirby, who received the Order of Australia in 1991 “for service to the law, law reform, to learning and to the community”, said the High Court was far from overworked with cases reaching the court having halved in the last 50 years, meaning that the ability of judges to influence the future was very limited.
“The development of the law is imperiled to some extent by mediation and the fact that a lot of big cases now are not going to court at all,” he told last week’s gathering. “They’re just settled by the power of money and the power of parties to determine out of court.”
A famed dissenter himself, Mr Kirby added that the flawed system of reform was not helped by the current lack of dissent on the bench of the High Court, calling it “bad”.
“I say bad because you oughtn’t to be in the High Court if it’s all so clear and it’s all wrapped up and uncontroversial.
“A little more disagreement would be worthy of the High Court. The job of the court is to elucidate and develop the law, that is what a final national court does.”
Mr Kirby also criticised the attorney-general’s department for being too fixated on criminal law.
“The whole place is jam-packed with people who are looking at policing and anti-terrorism. I’m not decrying that or saying that policing is not important or that terrorism is not a danger, but it’s not the only danger of a civil community. There is also a danger if we don’t keep our laws up to date.”
Referring to his dissenting opinion in the 2004 Al-Kateb v Godwin High Court ruling that indefinite detention of a stateless person was lawful, Mr Kirby pointed to a need for international guidance on definitions of justice within constitutional law that would allow Australians to “look outside our municipal system into the international legal system.”
“In the courts, we are also entrusted to exercise a form of international jurisdiction and that is a natural development of understanding our law in the context of international law.
“Some people in the United States, and particularly in Australia, don’t agree with that but I think it is inevitable that, as time goes by, both international commercial law and international human rights law . . . will become accepted.”
Mr Kirby said opposition to such overreaching laws may have been understandable once but not since 1945 when the United Nations Charter was agreed upon and ratified by Australia, setting down the principles of justice, peace and universal human rights, including equal rights for men and women.
“Unless we can see ourselves as part of the unity of the human species and the biosphere of this little blue planet, then the long-term prospects of human kind are rather limited.”