Stop playing politics with the law

24 February 2015 By Justin Whealing
Justin Whealing Eaton Capital

When governments attempt to fiddle with statutory legal bodies, it is our democracy that threatens to burn, writes Justin Whealing.

One former and one current Liberal / National Party government has poured cold water over deeply-held conservative principles to uphold the status quo and respect the separation of powers in a Westminster system of government.

Let’s start with the latter government, the one still in office (for now).

Prime Minister Tony Abbott’s rubbishing of the Forgotten Children report and the integrity of Australian Human Rights Commission president Professor Gillian Triggs is a classic case of playing the woman and not the ball – classic Abbott style really.


On the one hand – the PM’s claim this is a political “stitch up” is a ham-fisted attempt to deflect attention from the damning findings of both the report and the public’s view of his fitness for office.

The possible long-term repercussions of Abbott’s expressed sentiments is no trifling matter though.

His comments show a flagrant disregard for the independence of statutory legal bodies.

In a rare joint communique, the Australian Bar Association (ABA) and Law Council of Australia (LCA) put the PM in his place.

“Professor Triggs has a distinguished career in the law and is highly respected. She was the Dean of Sydney Law School and has lectured and written extensively in international law and human rights.

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"Personal criticism directed at her or at any judicial or quasi-judicial officer fulfilling the duties of public office as required by law is an attack upon the independence and integrity of the Commission and undermines confidence in our system of justice and human rights protection,” said ABA president Fiona McLeod SC.

Ms McLeod also went on to make the point that the report made stringent criticisms of the Rudd / Gillard / Rudd administration’s detention practices and welcomed the reduction in numbers of children in detention under the Abbott government.

Rather than make a sober acknowledgement of the obvious – that being in detention is harmful to children and we are working to get as many kids out as possible – our PM’s anger was unleashed at a time when a consensus-driven and compassionate approach would have made more practical and political sense.

The ABA and LCA, two organisations not known for being overtly political, were right to speak out on such a transparent trampling of the independence of statutory legal bodies.


Taking heed from the vanquished

The PM should look to the experience of the now out-of-work Campbell Newman as an example of what can happen when you marginalise significant chunks of the legal profession.

Ex-Queensland Premier Newman took the approach that an independent judiciary and legal advocacy was a fly in the ointment to the running of his state akin to a corporation.

While it would be wrong to point the finger at Mr Newman’s legal mis-steps for one of the most spectacular political falls from grace in living memory, since there were a host of valid reasons why he was turfed, sidelining vast swathes of the legal community which traditionally forms a solid base of support on the conservative side of politics did not help.


To briefly recount

Mr Newman appointed the green Jarrod Bleijie as the state’s attorney-general.

Even though Mr Bleijie is a lawyer, he thought it was appropriate to defy convention and release details of a conversation he had with Court of Appeal president Margaret McMurdo concerning the appointment of a vacancy on the Court of Appeal.

We then had the matter of Bleijie and Newman being sued by Gold Coast lawyer Chris Hannay for defamation with regards to comments made by the pair over Hannay’s representation of bikie gang members.

Mr Newman had previously told the media that lawyers who defend bikies were part of a “criminal gang machine” – comments which did not amuse the Queensland Bar Association and Queensland Law Society.

Those two skirmishes were merely a precursor to the daddy of all political versus profession stoushes, the appointment of Tim Carmody as Queensland’s chief justice.

That decision saw all of Queensland’s 25 Supreme Court judges boycott his swearing-in ceremony.

Oh, and let’s throw into the mix Tony Fitzgerald QC, the man who led the much-heralded inquiry into the entrenched corruption of the Bjelke-Petersen regime, who said just prior to last month’s election that the Newman government was no great shakes when it came to integrity and fairness.

“I’m not suggesting there’s corruption of the sort that we saw 25 years ago,” Fitzgerald told Leigh Sales from the ABC.

“But the same sort of practices are starting to take hold, not necessarily of the people presently in office, but in 20 years’ time, 15 years’ time, maybe 10 years’ time, we’ll have all the bad old habits entrenched again.

“The foundations are being inadvertently laid.”

Mr Abbott, who has already put the learned profession of medical practitioners offside, should be careful before picking a fight with the legal community.

History shows he is likely to emerge battered and bruised, and unlikely to win.

Justin Whealing (pictured) is an associate director with Eaton Capital Partners

Stop playing politics with the law
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