Get set for Kirby unplugged

At least he wears his activism on his sleeve. That is about the most one can say about the irrepressible Michael Kirby. Known as the High Court¿s Great Dissenter - a title Kirby relishes - he has always itched to practice his activism more effectively. But, alas, without a majority behind him, Kirby¿s creative attempts to make law have become little more than irrelevant footnotes in judicial history. Hence, Wednesday night¿s swipe at his fellow High Court judges.

His pain is palpable. He wants you to feel it too as he attacks a recent judgment of the High Court in Farah vs SayDee as a "formula for inaction". It was, he told his audience at Queensland University of Technology, a "fiction to leave all developments in the law to parliament". Kirby was once again sledging his fellow judges - William Gummow and Dyson Heydon in particular - for refusing to stretch the law of equity and trusts in the sexy area of "unjust enrichment". And how dare they overturn and openly criticise the NSW Court of Appeal for trying to move the law in Kirby’s preferred direction.

With due respect, Your Honour, give it up. When a judge becomes so frustrated at his failed attempts at judicial activism that he starts attacking the High Court for daring to overturn the decisions of a lower court, he has lost the judicial plot. And NSW Attorney-General, John Hatzistergos was right to condemn Kirby for his addiction to public debates, referring to Kirby's call on Wednesday for term limits for High Court judges and for a bill of rights. Kirby’s not so hidden agenda, of course, is for a clean and quick sweep of the current batch of judicial moderates on the bench to be replaced by more progressive judges a la Kirby himself and his activist hero Anthony Mason.

Happily, Kirby's retirement is just around the corner when he turns 70 next March and there is talk that he will call it quits before that. When it happens get set for Kirby Unplugged. Like a former PM who never accepted his demotion from political life, Kirby has given us a taste of his own upcoming relevance deprivation syndrome. But at least we know where Kirby stands. He is an activist judge who thinks Parliament is too dumb to make laws. Ergo, smart judges, such as himself, must be free to engineer a better society according to their own personal preferences.

At about the same time Kirby was giving his address on Wednesday evening, I was on the other side of the world listening to another judge talk about the judicial role. Sitting inside Israel's magnificent Supreme Court building where unhewn stone meet mirrors and modern white walls, I listened as Justice Dalia Dorner, a former Supreme Court judge, regaled us with the important decisions of her country's highest court. Judicial pronouncements which required the Israeli Government to recognize foreign gay marriages. Judicial pronouncements which require the recognition of equal rights for same sex couples. In the absence of a bill of rights, the Supreme Court, determined and upheld the human rights of Israelis boasted Justice Dorner.

I asked the esteemed judge whether these and other decisions have given rise to allegations that the Israeli Supreme Court is a political court delving into matters surely more appropriately determined by the people via the political process.

No, no, no, came the answer. Her court was entirely professional engaging only in legal issues. Judges on her court never succumbed to personal agendas, she assured me. Dorner's answer was that of a classic judicial activist. Deny. Then obfuscate. And end with a dose of sophistry.

Sure, what happens at Israel's Supreme Court is of no great consequence to us. Except that this court sits as a model of what happens when there is a cosy, self-selecting process that controls judicial appointments.

With talk in Australia of reforming the appointment process for judges, it's worth looking at Israel as an example of what not to do. Israel's president of the Supreme Court sits on a panel with two other Supreme Court judges, two Knesset members, two government ministers and two members of the governing council of the Israel Bar Association. With lawyers outnumbering the politicians, the result is predictable. It is a cosy self-selecting process where the legal profession gets to choose its own judges. If their bar association resembles our own, then activist judges are a shoe in. And the influence of three current Supreme Court judges will inevitably lead to the appointment of like-minded judges. Little wonder then that Israel's highest court has become highly activist and political in its decisions.

In Australia, political judges are in the minority. Hence Kirby's frustration at his own irrelevance. And while we will surely be treated to an ever more vocal Kirby when he finally leaves the High Court, we can at least be grateful that there are so few judges like him in Australia.

Over to you ...