These actions have included the signing of various executive orders targeting BigLaw firms in the US, including removing security clearances, restricting access to federal buildings for lawyers at those firms, and preventing government contractors from working with the firms.

Several of the firms targeted by the White House have since entered into agreements to provide hundreds of millions of dollars in pro bono services to causes championed by the Trump administration, while others continue to fight the White House in court.

Elsewhere, Trump has targeted 20 BigLaw firms, including several with Australian offices, about their DEI-related employment practices. Some of those firms – including White & Case, which has a presence Down Under – have since scrapped their DEI practices. Such decisions by BigLaw firms led Lawyers Weekly to probe whether global firms operating in Australia remain committed to DEI in the age of Trump.

Legal bodies across the globe, including the Law Council of Australia, have condemned the targeting of lawyers, via a joint statement calling on the US government to “immediately halt” all acts of intimidation and harassment of legal professionals, domestically and abroad, noting such attacks violate international human rights law and undermine the rule of law.

Perhaps most shocking has been the recent arrest of certain judges, including Milwaukee County Circuit Court judge Hannah Dugan, who was accused, as reported by The New York Times, of directing an undocumented immigrant to leave through a side door in her courtroom while federal agents waited to arrest him.

VIEW ALL

Since then, more than 150 retired state and federal judges signed a letter to US Attorney-General Pam Bondi, noting: “This latest action is yet another attempt to intimidate and threaten the judiciary after a series of rulings by judges appointed by presidents of both parties holding the Trump administration accountable for its countless violations of the Constitution and laws of the United States.”

The abovementioned actions by the Trump administration have given rise to intense discussion about the rule of law and separation of powers in the US.

As Reuters columnist Gabriel Rubin recently wrote: “Laws are meaningless, and ultimately unenforceable, if those in power choose to ignore them. An unaccountable executive branch combined with neutered judicial and legislative branches would hobble companies, organisations, nations, and individuals who depend on the promises of the federal government, as well as the open markets and society that are the bedrock of US stability and prosperity.”

In late March, this brand wrote that “it is inconceivable that an Australian prime minister would move to blacklist a law firm perceived to be aligned with the opposition party”.

However, it is still worth exploring whether the Australian government of the day could take such steps (even if they wouldn’t). To this end, Lawyers Weekly reached out to legal academics to ask if our laws and system could or would allow for such executive actions and authority and how we should be viewing our own laws and system in the wake of what we’re seeing in the US.

According to Professor Luke Beck, who is the associate dean of education in the Monash University faculty of law, there are some “pretty major differences” between the US and Australia when it comes to governmental operation.

“Our system of responsible government means that Australian governments are accountable to Parliament in a way that American governments are not accountable to their Congress,” he said.

Moreover, Professor Beck continued, “Australia has an apolitical public service where public servants must be appointed based on merit. By contrast, lots of public sector appointments in US government agencies are explicitly partisan.”

“The head of government in Australia, the Prime Minister, has no special legal immunity from criminal prosecution, whereas the US Supreme Court has recently said that the US President does have a special legal immunity from criminal prosecution,” he said.

“The head of government in Australia can be ousted by their own party at any time, which provides an additional level of accountability that doesn’t exist in the US.”

Additionally, Professor Beck noted, the Governor-General’s reserve powers are “generally understood to include the power to dismiss a government for persistent and serious illegality”.

He also pointed out that, in 2017, three Coalition government ministers were forced to apologise to the Victorian Supreme Court regarding comments criticising the judiciary over sentences for terrorism offences.

Professor Patrick Keyzer of the Thomas More Law School at the Australian Catholic University explained that the constitutional systems of Australia and the US are “grounded in one identical principle: is the province of the judicial branch of government to declare what the law is”.

“The principle is associated with the decision of the US Supreme Court in Marbury v Madison. That case is cited as authority by the High Court and has been upheld here in numerous cases. Its effect is enshrined in section 75(v) of our Constitution,” he said.

Historically, Professor Keyzer explained, “the executive government in both of our countries has obeyed the rulings of the courts. Trump’s lawyers are arguing that Abrego Garcia and other people who have been removed from the country without habeas corpus are now held in a foreign country, El Salvador, and that there is nothing the US government can do to secure their return”.

“That is a dishonest argument – legally, morally, and practically,” he said. “This has created a showdown between the judicial and executive branches, which is dangerous not only for the people who have been unlawfully detained, but for the entire system of government.”

If the US government stops obeying the courts, Professor Keyzer warned, “we will almost certainly slip into a global depression. Prisoners rely on judicial review, but so do businesses.”

Professor Keyzer also added: “Before any Australians contrast the current US approach unfavourably with Australia, they should read the decisions of the United Nations Human Rights Committee that reflect on our system of detention of asylum seekers and deportation of people with modest criminal records.”