Almost three years ago now, I stridently criticised some High Court analysis by David Marr. In particular, I was particularly unconvinced by his discernment of a new “liberty divide” becoming apparent on the High Court. It took me almost 3,000 words to do so.
Delivering the second lecture in the 2008 McPherson Lecture Series, Chief Justice Spigelman made the same point much more succinctly:
The minority of Gleeson CJ, Gummow and Kirby JJ, a singular and, as far as I am aware, unique concatenation of dissentients …
As an aside, it is also worth noting that Marr’s political characterisation of Justice Hayne seems, with hindsight, to have been spectacularly misplaced. The only two dissenting judges in Thomas v Mowbray (2007) 81 ALJR 1414; 237 ALR 194; [2007] HCA 33, the case that upheld the constitutionality of control orders—and where one would expect to see the “liberty divide”—were Justices Hayne and Kirby.
(For more background on the case, see the High Court media release summary. Professor George Williams and the Solicitor-General, David Bennett AO QC delivered interesting papers about control orders at the 35th Australian Legal Convention. See also [2007] 3 Obiter 8.)
