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Jackson, Hal --- "The Rule of Law and the Constitution by Murray Gleeson, Through the World's Eye by Michael Kirby, and Change and Continuity, Statute Equity and Federalism by W.M.C. Gurnrnow" [2001] AltLawJl 113; (2001) 26(6) Alternative Law Journal 312

Reviews

The Rule of Law and the Constitution

Murray Gleeson, ABC Books, 2000; $19.95 softcover.

Through the World’s Eyes

Michael Kirby, Federation Press, 2000; 256 pp; $43.94 hardback.

Change and Continuity, Statute Equity and Federalism

by W.M.C. Gummow, Oxford, 1999; $ 110.00.

It is unusual enough in Australian legal circles for judges, even very senior ones, to publish extended works outside their court judgments whilst in judicial office. Most never do, in or out of office. It is, I venture to think, uniquely the case that three of Australia's most senior judges have now separately published such works almost simultaneously. The works are quite different and meant for different audiences. The collection of some 15 of Justice Michael Kirby's lectures and essays in Through the Worlds Eye by Federation Press, 2000, is the third book of this type his Honour has published following his (then) controversial 1983 Boyer Lectures entitled The Judges and his Reform the Law in the same year. It cannot be said that his Honour has been idle in the meantime and few Australians, let alone anyone likely to read this review, will have failed to have heard of him and perhaps to have formed views on his utterances. Before and since, his Honour has been a prolific lecturer and eassayist as well as a highly distinguished contributor to Australian and international life on and off the bench in a number of ways.

The scope of the present work is evident from a description of its subject matter but his Honour has ventured far beyond even these essays recently, attracting attention for speeches on homosexual matters to a Catholic boys college and on the state of government schools. [Years ago I even heard it rumoured that he had delivered a speech in Africa entitled Breastfeeding in the Third World.] To public lectures and the workload of an enthusiastic High Court Justice he has added an astounding array of other activities. However, back to the book in question. The essays are divided into Law Reform and Human Rights, and the Law and its Institutions, introduced by laudatory forewords (and a little gentle chiding) by Lord Cooke of Thomdon and Geoffrey Robertson QC.

Topics range in Part I across non-violence in the international arena, refugees, Cambodia, the human genome project, the relationship between privacy and modem telecommunications and in particular the Internet, same sex relationships, AIDS. The discussions of New South Wales reforms in the area of same sex relation­ ships will be of particular interest in Western Australia given the new State government's legislative priorities.

In each case Justice Kirby raises issues and places them in the context of a regime of human rights and personal freedoms, rather than prescribing detailed responses.

Part I ends with an essay on his experiences as a young lawyer for the Council of Civil Liberties. The recounting of his own miscalculation of risks before a District Court judge makes welcome reading to those of us destined to be plodding midfielders in the law's provincial Third Divisions. Even the Strikers in the National League or in Justice Kirby's case, the World Cup, have it seems on occasion miskicked at goal even if only in training.

Part II is entitled The Law and its Institutions. Chapter 9 on Judicial Activism, chapter 10 on the Mason Court and chapter 11 on Lionel Murphy as judge, to this reader, are perhaps the most interesting of the book.

They, in sum, briefly essay the limits and possibilities of what is often called judicial activism and then describe the case studies of two quite different but highly influential men. Untypically for his Honour, he uses the third of these essays to repay an old score or two of his own and on behalf of Justice Murphy. Chapter 12 on Popular Sovereignty as the basis of the Australian Constitution is brief given the implications of the subject matter. The final two chapters on Attacks on Judges and

Judicial Stress are, I think, less important. His Honour's range nonetheless is unparalleled in Australian (at least) judicial history.

Justice Gummow is not of this mould. His other highly learned works are in the more esoteric specialised branches of the law meant only for a select audience working in those areas. The present work originated as lectures given at Oxford. Justice Gummow's book consists of the series of three lecture dealing in turn with the Law and Statute, Equity, and the Law and Federalism. Of the first two the most interesting sections to this reader were those concerning the ways in which doctrines developed at common law and in equity survive and assist the operation of statute. Albeit each is relatively short, they are densely packed and written in the style to be expected of one of the co-authors of Meagher, Gummow and Lehane's Equity-Doc­ trines and Remedies. Numerous issues are raised. In many cases the reader is left to ponder without the benefit of the author's concluded view but there is no doubt in the end that equity is the author's hero.

The third essay, on Federalism, is largely directed to a UK audience and no doubt of expanded interest because of contemporary movements towards 'federalism' in that country, both internally as between its constituent parts and externally as part of its European commitments. In one matter, at least, his Honour gently points out that reference to the approaches taken in federations such as Australia may have been of assistance to British courts in such matters. Nonetheless to the Australian reader also it adds to the depth of under­ standing of the complexities of legal approaches in a federation. Indirectly, the discussion of British developments is of interest to Australian readers in terms of our own situation, as well as fascinating in itself. In passing, one notes that in all three essays his Honour continually refers to passages from the judgments and writings of Sir Owen Dixon, but infrequently to those many others who have also sat on the High Court of Australia.

Justice Gleeson's essays are the published Boyer Lectures for 2000. They are therefore addressed to a wide range of general readers. They include surveys of the roles of law and of courts in a modem liberal democracy, some of the history of the Commonwealth Constitution and comments on some of the major issues of constitutional disputation. Much of this will be known of course to most lawyers, although, for this reader, at a number of points knowledge was improved or memory refreshed. The discussion is of a much less legally intense nature than that of Justice Gummow's essays and of course intended for a quite different audience.

In two appendices to the radio lectures the printed volume adds a lecture on Current Issues for the Australian Judiciary given to the Supreme Court of Japan, and one on Judicial Legitimacy given to an Australian Bar Association conference in New York. Of these, the first ventures into different areas - such as the independence and account­ ability of the judiciary when the provision of resources is dependent on the executive, and the demands of case management intrude into judicial duties -along with issues of delays, legal aid, and the unrepresented defendant. The second outlines both the claim of the judiciary to democratic legitimacy, the means of maintaining public confidence and the limits on judicial behaviour that result.

HAL JACKSON

Justice Hal Jackson is a judge of the District Court of Western Australia.


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