The particularism of human rights discourse

The particularism of human rights discours

RETHINKING ASYLUM SEEKER DETENTION AT SEA: THE POWER TO DETAIN ASYLUM SEEKERS AT SEA UNDER THE MARITIME POWERS ACT 2013 (CTH)

RETHINKING ASYLUM SEEKER DETENTION AT SEA: THE POWER TO DETAIN ASYLUM SEEKERS AT SEA UNDER THE MARITIME POWERS ACT 2013 (CTH

The brennan court

Sir Gerard Brennan served as Chief Justice of the High Court for just over three years: from 21 April 1995, when Sir Anthony Mason retired, until 21 May 1998. Appointments to the Brennan Court are widely believed to have shifted the balance of judicial philosophies on the Bench in favour of a more orthodox, legalist outlook.1 Four members of the Mason Court were at the forefront of its most progressive decisions:MasonCJ, Deane, Gaudron, and Toohey JJ. Although Deane J was replaced in late 1995 by an equally progressive judge, Kirby J, the appointment of Gummow J to fill the vacancy created by Chief Justice Mason’s retirement meant that the most progressive judges were now thought to be outnumbered.2 However, this belief is questionable. Justice Gummow’s political skills within theCourtmadehimoneof itsmost influentialmembers. Although his judgmentshadthe trappings of orthodox legalism, he ledavery creativeapproach in both the interpretation of statutes and common law and the expansion of the Constitution’s protection of judicial authority and independence-particularly at the state level-that was as ‘activist’ as any of the Mason Court’s innovations. While this development began during the Brennan Court, it continued during the tenures of Gleeson CJ and French CJ. At the same time, the changes wrought by the Mason Court were consolidated. The composition of the Bench Justices Gaudron, Gummow, and McHugh served alongside Brennan CJ throughout this period. Justice Kirby was appointed on 10 November 1995 to replace Deane J; Dawson J retired on 15 August 1997 and was replaced by Hayne J; and Toohey J was replaced by Callinan J on 3 February 1998. These final two appointments - and especially the last - came too late to have a significant effect on the character of the Brennan Court. Justice Hayne sat in only two constitutional cases in this period, while Callinan J sat in only one - Kartinyeri v Commonwealth - but did not deliver a judgment after being persuaded to disqualify himself