In the case of Shaw v Minister for Immigration and Mulitcultural Affairs16 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 character test17. 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'18 whereas the Minister believes that under the Migration Act19 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 visas20 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 … 21 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'22 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…
23 This case represents a need to interpret the constitution as it should be interpreted and the writer does agree with Kirby J's 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 Australia24 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'. 25 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'. 26Such 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. 27 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)28 If had it not it could create a mockery of the Land Rights Act.
29 Fardon v Attorney-General (Qld)30 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 majority31 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 to hold a stateless person indefinitely in detention32 to the power of federal officials being able to potentially to expel British subjects from Australia as 'aliens',33 also the power of State Parliaments to engage judges in the indefinite detention of prisoners who have completed serving their prison sentences,34 as well as the constitutionality of the legislation enabling the Northern Territory intervention35 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.