A Nice Australian Controversy
Must be something in the Antipodean water. Following on the controversy concerning McLachlin CJC’s speech on Unwritten Constitutional Principles
This one involves Justice Mason’s rejection of much of the judicial role under the Canadian Charter of Rights and Freedoms that would be familiar to everyone of Slaw’s readers within Canada. It’s all in the context of how much courts should touch issues of religion.
The swipe at Kirby J is quite delicious:
Kirby J said:
The language of “blessings” … is a distraction from the real subject matter of parental claims. Neither the invocation of Scripture nor the invention of a fictitious oracle on the Underground (not even its Australian equivalent) authorises a court of law to depart from the ordinary principles governing the recovery of damages for the tort of negligence. If such recovery is to be denied, its rejection must find some other and different reasons or another and different law-maker. If there is any area where the law has no business in intruding, it is in the enforcement of judicial interpretations of Scripture and in giving legal effect to judicial assertions about “blessings”…
Mason J thundered back:
In my respectful view, citation of the Bible is not an attempt to enforce interpretations of Scripture, any more than a judge who quotes Shakespeare to explain his or her thought processes is trying to enforce the dramatic themes of that playwright. If we want transparency in our lawmakers and judges, then we surely want them to be up front with the ideas moving them to decision-making.
Justice Mason concludes by referring to the major Australian wrongful life case, Harriton v Stephens
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