From The Age
“Kirby’s last dissent: my fellow judges racially biased
* Leo Shanahan and Andra Jackson
* February 3, 2009
JUSTICE Michael Kirby has retired from the High Court in a blaze of controversy, accusing fellow judges of exercising racial bias against Aborigines in the Northern Territory intervention case.
Justice Kirby’s attack drew an extraordinary rebuke from Chief Justice Robert French, who attacked the departing judge for his “gratuitous” suggestion that the bench had made a ruling based on the “Aboriginality” of those involved in the case.
And not for the first time, Justice Kirby was the sole dissenter in a 6-1 decision. In this case a majority of judges ruled against Aborigines who challenged the constitutionality of a key aspect of the former Howard government’s 2007 intervention.”
(due to the great public interest importance of this story, and the fact that some news item cease to be available after a short time – the remainder is reproduced here – we acknowledge the copyright of The Age – Songlines).
“About 60 protesters stormed the lobby of the High Court building in Canberra after the decision, several clashing with police trying to push them out of the building. One man was arrested.
The row came on the same day as a complaint was lodged with the United Nations against the NT intervention, claiming it was racist and responsible for “an escalation in racist incidents”.
In yesterday’s High Court ruling, the majority of judges found that an amendment to the Aboriginal Land Rights Act allowing the Commonwealth to take five-year leases over land, communities and town camps was valid. They found, however, that there were grounds for land councils to ask for “just terms” compensation.
The case was launched by senior members of the Dhukurrdji clan, challenging the validity of the lease over the Maningrida land in Arnhem Land.
Justice Kirby sparked the ire of Chief Justice French by suggesting that the Aboriginality of the applicants influenced their decision. “If any other Australians, selected by reference to their race, suffered the imposition on their pre-existing property interests of non-consensual five-year statutory leases … it is difficult to believe that a challenge to such a law would fail as legally unarguable on the ground that no ‘property’ had been ‘acquired’,” he said.
“The Aboriginal parties are entitled to have their trial and day in court. We should not slam the doors of the courts in their face. This is a case in which a transparent, public trial of the proceedings has its own justification.”
Chief Justice French’s rebuke was blistering, accusing his former colleague of insinuating discrimination by the rest of the bench. “The conclusion at which I have arrived does not depend upon any opinion about the merits of the policy behind the challenged legislation.
“Nor, contrary to the gratuitous suggestion in the judgement of Kirby J, is the outcome of this case based on an approach less favourable to the plaintiffs because of their Aboriginality,” he said.
Indigenous Affairs Minister Jenny Macklin said later the Government had supported “just terms” compensation and would immediately negotiate with payments to landowners.
Ms Macklin said that the Government would also examine reducing the boundaries of the current five-year leases.
Meanwhile, a formal complaint has been lodged with the UN against the intervention, saying the Commonwealth is in “flagrant breach” of its obligations under the International Convention on the Elimination of Racism, that the intervention is illegal under international law and violates human rights.
It claims the intervention has undermined Aboriginal communities to the extent that they have been left in “collective existential despair”.
The complaint urges the UN to direct Australia to suspend the intervention while it enters discussions with the NT Aborigines to ensure compliance with the convention.
It points out that Australia suspended its Racial Discrimination Act to allow the intervention to be implemented.
The complaint was sent last Wednesday to the UN Committee on the Elimination of Racial Discrimination in Geneva. It was presented on behalf of the Prescribed Area People’s Alliance, a range of communities affected by the intervention, by a legal team led by former Federal Court judge Ron Merkel, QC, and including human rights lawyer George Newhouse.
Twenty people from various Aboriginal communities across the Northern Territory signed the complaint.
Mr Newhouse said the complaint was the only avenue of redress left to the communities after yesterday’s refusal by the High Court to rule the intervention illegal.
The UN committee’s rulings were not legally binding but carried a moral force, he said.”