Michael Kirby. Being a great advocator of human rights Kirby was in the dissenting judgment in the case of Al-Kateb v Godwin[7] where the case was about Al-Kateb who was a stateless person, was to be held in a detention centre indefinitely.

Constitution.” 

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The majority decision in Al-Kateb was decided in contrast to the interpretation

evidenced in Calwell, representing a backward step by the High Court. It should be mentioned that such a decision was made by the majority, despite intervention by the Attorney-General and the Human Rights and Equal Opportunity Commission. Kirby J found the majority to have “flawed” reasoning this giving insufficient protection for human rights and called for greater protection of rights through the implementation of an Australian Bill of Rights.  Kirby has also stated that the interpretation is based on context as the touchstone of modern constitutional and statutory interpretation. His enduring value to constitutional law is to fight for our human rights and as such is trying to stop  'Australia is isolating itself from the rest of the developed world', and in doing so he is trying to ensure that Australian citizens will one day receive the protection of internationally recognised rights that are currently being denied.

In the case of Shaw v Minister for Immigration and Mulitcultural Affairs  the        

applicant, Shaw came to Australia as a small child in 1974 on a transitional (permanent) visa which, unless revoked according to law, permitted him to remain in Australia indefinitely however in 2001 he was deemed to have a "substantial criminal record" within the meaning of s501(7) of the Act and as such did not pass the

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character test. Kirby expressed that the Minister for Immigration and Multicultural

Affairs should not have the power to deport the applicant under the guise of an 'alien' whereas the Minister believes that under the Migration Act that he is entitled to deport the applicant from Australia. Kirby believed that the minister's actions were not sustained by any valid federal law as the minister only had discretionary power to cancel temporary visitor visas and specifically excludes British citizens.  The  enactment of the Australia Acts in 1986 represented an important constitutional moment whereby persons arriving as immigrants ...were not "aliens" and as such they cannot be deported ... Further he says that 'only this Court can say when such a moment of constitutional change arrived.  The Parliament could not do so.  Nor did it purport to do so by introducing the statutory concept of citizenship' and most importantly that ...Australia must accept the applicant as an Australian and a "subject of the Queen".  This status protects from expulsion a person with a  bad criminal record such as his, on the basis that, doing so, acknowledges constitutional recognition and protection...  This case represents a need to interpret the constitution as it should be interpreted and the writer does agree with Kirby J's

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findings as it is appears blindingly obvious that there is a clear date where constitutional change occurred it could be said that this dissenting judgment is not one of enduring value but one that is simply clear cut.                                                                                                                

Wurridjal v The Commonwealth of Australia was a controversial judgment in particular whether the issue for

        'decision is not whether or not the approach of the majority is made on a         basis less favourable because of aboriginalty. It is concerned with the         objective fact that the majority rejects the claimants' challenge to the         constitutional validity of the federal legislation that is incontestably less         favourable to them upon the basis of their race and does do so in a ruling         on a demurrer.  Far from being 'gratuitous', this reasoning is essential and,         in truth, self-evident.  The demurrer should be overruled'.

Kirby argues that any dimunition of the rights of indigenous people over their land needs to be viewed with suspicion due to  Australia's history and that the intervention occured without genuine consultation with indigenous people. Furthermore arguing that the acquision of land was not done on 'just terms'.Such an acquision ... in property belonging to traditional Aboriginals,.. (S)uch interest are, or may be,

essential to the identity, culture and spirituality of the Aboriginal people concerned. Taking a stand on 'just terms' meant that the acquision should proceed in a just and                                                                - 6 -

fair way.  In particular, given the history an acquision should only go ahead with proper consultation. The majority concluded that the leases did constitute an acquisition for the purposes of s 51(xxxi) If had it not it could create a mockery of the Land Rights Act. 

Fardon v Attorney-General (Qld) is a case regarding the separation of powers in Australia.  Queensland passed legislation relating to sex offenders, allowing the Supreme Court of Queensland to continually detain a particular class of prisoner to protect the community. In this case the applicant was held in prison after his sentence expired. The majority found the law valid while Kirby in dissent regarded the law to be invalid looking to the substance of the law rather than intention finding it was evidently a punitive law which relate to the principles of double jeopardy and retrospective punishment. Although Kirby is again protecting the human rights of Australians, but as far as enduring value to the constitution is concerned when the applicant was finally released in November 2007 he reoffended and was returned to prison. The majority were correct in finding the law valid offering protection to Australians at large.

To his credit, Michael Kirby has attempted to be a positive power for good insofar as it affects Indigenous Australians. From cases involving the power of federal authorities

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to hold a stateless person indefinitely in detention to the power of federal officials being able to potentially to expel British subjects from Australia as ‘aliens’, also the power of State Parliaments to engage judges in the indefinite detention of prisoners who have completed serving their prison sentences, as well as the constitutionality of the legislation enabling the Northern Territory intervention the above mentioned cases will be discussed in this essay relating to Kirby’s dissenting judgments and whether Kirby has an enduring value to constitutional law.Overall the judgements show that Michael Kirby's enduring value is that he has added considerable strength in dissent to the protection of our human rights and may perhaps one day be considered obiter dictum in future lower court cases.

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