Nice to see they’re hip cats on the High Court

I just read that the High Court is hearing a Constitutional challenge to those provisions of the Commonwealth Electoral Act 1918 (Cth) which prevent a person who is serving a sentence of imprisonment from voting (namely ss 93(8AA), 208(2)(c) and 221(3)).

Now that’s an interesting legal question in and of itself. But it gets even more interesting when you read the transcript of the hearing:

MR MERKEL: … I was going to say under section 93(8AA) the amending legislation defines “sentence of imprisonment”. That is at page 7. This was also a significant amendment because prior to this amendment there was a question about whether home detention or parole would be caught by the disqualification. So this amendment made it clear that you had to be in detention on a full-time basis. So that is in the extrinsic materials. So there was no question if someone on parole or on home detention would not be caught by the disqualification and that comes out as a result of that definition.

Can I take your Honours next to Part VIII of the Act starting at page 122 dealing with – – –

KIRBY J: So Paris Hilton would now be disqualified, but last week for a short time she would have been entitled to vote?

MR MERKEL: Yes, your Honour, and she would have been entitled if she were in Australia and an Australian citizen to be standing here unburdened by the five-year point at least.

KIRBY J: I just wanted you to know that I follow these things.

(Via Larvatus Prodeo)

What a hip cat that Kirby J is! Just check out his efforts as a rapper recently:

(Photo via Sydney Morning Herald)

Well, perhaps I should qualify that. He’s not always quite so down and jiggy wid’ it… Check out this beautiful little snippet of transcript from 2002, involving a case about contributory negligence and drink driving.

CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.

MR JACKSON: It would be a big night, your Honour, big night.

CALLINAN J: With the intention of getting drunk and they fulfilled that intention.

MR JACKSON: Well, your Honour, young people sometimes – – –

KIRBY J: I just think “drunk” is a label and I am a little worried about – it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.


KIRBY J: “A drunk” has all sorts of baggage with it.

HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.

MR JACKSON: I am indebted to your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

KIRBY J: I have never heard that word “hammered” before, never. Not before this very minute.


Filed under Australia, courts, crazy stuff, criminal law, high court, humour, law

14 responses to “Nice to see they’re hip cats on the High Court

  1. I just knew you’d be the sort of person to read HCA transcripts. Ah, good times.

    Justices McHugh and Kirby have a nice line in repartee (surprise, surprise). I’ve read some transcripts where it’s just the two of them back and forth – no chance of a word in for counsel – for pages.

  2. -k.

    There may be something wrong with me.

    I’m (meant to be) writing reports right now and I found myself wishing that LE would post more HCA transcripts to keep me procrastinating.

    They’re very amusing!

  3. pete m

    Nah, question time in Fed Parl is much better for a good laugh. I can’t stand these judges trying to show off their lack of knowledge of real life at every opportunity.

  4. Question time in Fed Parliament just depresses me. As I’ve said before in posts, I think I’d be a terrible politician.

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  6. Hahaha, just the sort of light entertainment I need to get me through a Friday night of studying, much appreciated!

  7. Not as cool, IMHO as Thomas v Mowbray & Ors [2007] HCATrans 76 (20 February 2007) where the Commonwealth Solicitor admits that Jesus was a terrorist, where Gleeson was tag-teaming with Kirby.

    My favorite bits are …

    MR BENNETT: Yes, precisely, your Honour. The second element is paragraph (b) of the definition which is that: the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public.

    Now, that definition can be very loosely – I do not suggest accurately – but very loosely summarised as ideologically motivated violence.

    GLEESON CJ: It is loose. Was whipping the moneychangers in the temple an act of terrorism?

    MR BENNETT: Your Honour, it might depend on a number of matters. The question of whether paragraph (c) would have been satisfied might have been involved there. Whether it is down to coerce or influence by intimidation, government, or whether to…

    KIRBY J: It is intimidating a section of the public. It was certainly intimidating a few moneychangers. They would not have liked it at all.


    BENNETT: History provides numerous examples of situations where it has been necessary for a polity to defend itself against a body other than a sovereign state. One could start with the book of Joshua in the Bible. If the Canaanite cities had had a federation with section 51(vi) in it there is little doubt that it could have been invoked against the children of Israel, although at that stage one could hardly describe them as a sovereign state in the traditional sense. Their only territory was the territory they were about conquer.

    KIRBY J: What was the defect of the Canaanites on this theory?

    MR BENNETT: There is no relevant defect except they lost.

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  9. Dave, that’s AWESOME. As I’ve said before, one man’s terrorist is another man’s freedom fighter…or, it seems, another man’s Messiah.

  10. jeez that Merkel dude gets around – what’s he charged with. This time.

  11. Wasn’t Kirby the only one to speak any real sense on the recent Food Review case?

  12. Ah, FXH, you have anticipated me. I intend to write a post about how Kirby J was the only sensible one. Generally, I like his judgments, but every now and then he has a crazy one which I don’t like!

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  14. I agree with ‘pete’ above –
    “I can’t stand these judges trying to show off their lack of knowledge of real life at every opportunity.

    and IMHO, any claims by judges to not knowing vile street vernacular might be UNTRUE, since judges have a constant stream of lowlife testimony before them all their working days, and should be more familiar with it than I am.

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