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Stop playing politics with the law

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

user iconJustin Whealing 25 February 2015 SME Law
Justin Whealing Eaton Capital
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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.

"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

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Comments (17)
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    Absurdiness Brown Thursday, 19 March 2015
    <p>Was puzzled by those descriptions myself. </p>
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    <p>I am a bit supporter of the Human Rights Commission, but I get a bit frustrated with the debate. I think the confusion arises from the description of Triggs as a judicial or quasi-judicial officer - she isn't any such thing! She is a part of the executive and not part of the judiciary. If she was part of the judiciary, that would mean that she was carrying out executive and judicial functions, which would be unconstitutional.</p><p>Her role is comparable to an Ombudsman, who can investigate matters and make recommendations, but it is not a judicial role. She cannot determine legal rights between parties. Once you realise she is not a judicial officer, it also stands to reason that there is no problem with one part of the executive criticising her actions. Indeed, it is common for one part of the executive to criticise another part of the executive and for parliament itself to criticise the executive - ever been to a Senate Estimates hearing!</p><p>The fact that Triggs is an independent statutory office holder does not mean she can't be criticised, but rather it means is that the executive can't tell her what do to or sack her. Fine to defend Triggs, but don't base it on an erroneous claim that she is part of the judiciary.</p>
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    <p>Exactly Absurdiness. Remember, Mr Whealing's article was not about the substance of the report, it was about an alleged 'attack' on Triggs.<br>From Mr Whealing's reluctance to deal with the substance of that 'attack' it can only be inferred that he cannot mount a defence of the timing of the report or Triggs falsehoods in giving evidence to the Senate.</p>
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    <p>The current Government carries the blame for those still in detention, and the responsibility for dealing with the previous one's sins. The timing of the report is therefor very politically charged, regardless of who prepared it. The delay in this situation is important. And indicative of bias.</p><p>I will share with you an experience on the hustings, election day 2013:</p><p>ALP member to chummy Green's member: Look, you can see the barbed wire on the (primary school's swimming pool) fence over the LNP bunting. Reminds you of a detention centre, doesn't it.</p><p>Green's member: (chortles, conspiratorially).</p><p>Me: Who's running the detention centres now?</p><p>ALP member: I don't want to get into that.</p>
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    <p>I'm sorry.<br>Again you refuse to deal with the apparent falsehoods peddled by Triggs (has she found the armed guards as yet?). Or is her apparent dishonesty a side issue?<br>"Political stitch up" is perfectly apt. Her position is untenable and she must resign.</p>
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    <p>Hi<br>Wally, Recent comments from Malcolm Turnbull on this issue show this should not<br>just be seen through the narrow prism of a “left vs right issue”. <br>My concern is<br>that in the last 12 months we have had two governments seek to denigrate legal<br>office holders and independent statutory legal bodies. They both happen to be<br>conservative governments (Firstly, the Newman administration in Queensland and<br>now the federal Abbott government). I would be just as concerned, and equally<br>scathing, if such conduct was exhibited by Labor governments. The tenets that<br>underpin democracy and accountable and transparent government are threatened<br>when any government seeks to intimidate and bully judicial office holders or legal<br>bodies. <br>The Law Council of Australia, Australian Bar Association, Queensland Law<br>Society and Queensland Bar Association have also publicly questioned the<br>actions of those aforementioned governments on the issues I raise. <br>By attacking<br>the integrity of Professor Triggs and the Australian Human Rights Commission with<br>the use of such terms as “political stitch up", the Prime Minister has deflected<br>much attention and debate away from substantive issues raised in the report, of<br>which there are many, including its timing. <br>I note in my article that children<br>in detention has decreased under the Abbott government. This is a good thing.<br>Governments of any stripe that seek to undermine independent legal bodies and denigrate<br>senior members of the profession certainly is not.</p>
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    <p>But danger is so much more interesting.</p>
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    <p>I always think overstatement is best done with gusto too, Justin.</p><p>Very little respect for convention on many parts. McMurdo, as Morrison QC pointed out, entered the arena first. It should have ended there but everyone wanted to part of the fun. Just as you should never get between a lawyer and a dollar, you should never get between a high profile lawyer and a media opportunity. They'll run you over.</p><p>Had Triggs gone ahead with the enquiry when first mooted or considered (in April 2013) there would be no weight to the suggestions that the report was politically charged. Her delays leave her open to attack on this point. It is more than a little like the Republicans in the US being suddenly concerned about Government debt once the White House falls to the Democrats. It is more than reasonable given the timing and delay to suggest that Triggs considered the nasty mess that the ALP created could only be made a political issue by the HRC if and when the ALP lost office, and that Triggs is therefor biased. (Not saying she isn't genuinely concerned about the children in detention (everybody is) but just not concerned enough to do anything if it would upset the Government that appointed her.)</p><p>Prof Triggs has also displayed questionable judgment before (such as the "Let's Give That Wife Killer A Bagload of Money and Let Him Go Free Decision") and by revealing her mutant ability to see the top secret Christmas Island Invisible Armed Guards Unit on patrol, which nearly breached national security. If the Indonesians find out that we are in possession of human cloaking devices, the towbacks will never work.</p>
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    <p>I've noticed this as well. The same goes for the ABC, SBS and the Fairfax papers. There has been a deliberate attempt to control mass media and professional organizations. They are all run by Lefty Feminist lunatics.<br>I think the center and more conservative members aren't politically active enough. They need to stand up and not be afraid to be counted.</p>
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    <p>Dangerous to be publicly conservative.</p><p>Particularly with all those panels to be on and public money flowing around.</p>
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