High Court Justice Michael Kirby went about as far as a judicial officer should go in commenting about public affairs when he called for greater funding for public schools in a speech at a graduation ceremony at the University of South Australia last week.
The public should not expect judges to be completely silent outside the courts, however, it is important that judges do not enter debates of major current political controversy. Justice Kirby has never been afraid speak on a wide range of topics. His words are usually chosen carefully and his tone is usually measured. In his role as chair of the Australian Law Reform Commission in the 1980s, Justice Kirby got into the habit of commenting on a wide range of topics. That was a critical part of his job. But now he is a High Court judge. And while no one expects him up to go into a cocoon, it would be more prudent for him to be a little more circumspect about what topics he talks about and what he says on those topics.
Last week, for example, he picked at particularly controversial topic – – the balance between public and private schooling. It has been a policy objective of the current government to set new parameters in this balance. Moreover, these have been roundly opposed by the opposition and key community groups. Whatever it one thinks of the Government’s position and the actions it has taken in the past five years on school funding, it is a matter of concern that a High Court judge should be seen to be taking sides in this debate.
Justice Kirby is a very proficient a gatherer of facts to lay the groundwork for any position he might take. In this instance he was at some pains present irrefutable facts that the funding of public schools has declined in relation to private schools in the past five years and that this has resulted in parents moving children from the public sector into the private sector. But he then urged that a the Public School System should get more funding.
“”It is indeed in the interests of all of us to it strengthen public education and do not to knock it,” he said. “To make sure that public schools and their pupils get a more generous share of the education budget.”
This statement puts Justice Kirby on dangerous ground because it is often the role of the High Court to scrutinise the constitutional legality of the spending and other actions of the executive arm of government.
Who knows, of the High Court might find itself charged with the task of determining issues directly related to the funding of education. Indeed, there has been at least one such case in the past – – when an organisation called Defence Of Government Schools challenged the constitutionality of federal funding to private schools.
High Court judges should take extreme care making statements relating to policy and other actions of the Federal Government. The High Court is at the apex of the judicial system, so each justice has the unappealable power on whether to disqualify himself or herself on the ground of perceived bias on the basis of past statements. If a judge acts in a way to give rise to that perception of bias it can easily undermine confidence in the judicial system.
As it happens, The Canberra Times has editorialised expressing similar concerns as Justice Kirby, but that is the role of a newspaper. So in this case it is a question of, “”We agree with what you say, but question the right of someone in your position to say it.”