Those of us who oppose the Newman government’s hysterical new laws designed to destroy the ‘menace’ of bikie gangs are obviously disinclined to have Mr Newman’s back now that a donnybrook has begun between a justice of the Supreme Court and the Executive (which is to say, Mr Newman). The temptation to pile on over this particular brawl, however, must be resisted because the either/or ginned up today in the media is nothing more than a trick designed to plaster over the very real and very worrying tendency of Australia’s magistracy and judiciary to see themselves as a House of Lords charged with vitiating the excesses of legislatures. That’s a round-about way of saying the robed and/or wigged worthies of the bench are frequently seen to be near-contemptuous of democracy.
Listening to ABC FM this evening I was shocked – shocked! – to hear Mr Newman’s unquestionably imprudent comments about the preferred role of courts in the Bikie Wars analysed thus:
Justice Fryberg told the Court the Premier’s comments could put the public’s perception of justice at risk. Legal experts say the move is unprecedented, as Nance Haxton reports.
Nance Haxton then ‘reported’ the view of a senior law lecturer in Adelaide of all places:
GABRIELLE APPLEBY: I don’t think we’ve seen a stoush like this between the Government and the courts, or the Executive and the courts, since we saw something quite similar in 2002 between the Immigration Minister, Philip Ruddock, and the Chief Justice of the Federal Court, Chief Justice Black.
As a former Queensland Premier might have said, “my goodness gracious me.” So we haven’t seen anything like this for more than ten years? Could Miss Haxton the ABC reporter not have access to the archives of, say, Lateline?
Specifically, the programme aired on 1 September 2011? Gillard attacks high court over ruling.
Remember that? Yes, the Prime Minister of Australia went on the rampage against Robert French, Chief Justice of the country’s highest court. But wait, as they say in the world of ab-crunchers, steak knives and cafes frequented by Christine Nixon, there’s more. Our Adelaide legal expert – the one with amnesia – goes on to say that at least Mr Ruddock thought better of his remarks and …
… the Government was very careful to retreat from that position.
Not like the appalling Mr Newman:
So it’s very concerning to see that Premier Newman has responded to keep pressing this point, rather than, as we saw back in 2002, a retreat to protect the sanctity of that separation of judicial power.
When was the last time we saw such an example, of a politician preferring to double down in a fight with a judge rather than sagaciously “retreat”? There is another obvious answer to this historical teaser but, sadly, FM ‘reporter’ Miss Haxton cannot find oldSydney Morning Herald articles with her computer:
3 September 2011: Gillard resolute on her criticism of Chief Justice.
So the worst example – perhaps in all of Australian history – of a government leader breaching the separation of powers for a populist cause was Julia Gillard slamming the Chief Justice of the High Court after she had bungled yet another asylum seeker fix. But neither Gabrielle Appleby nor Queensland University of Technology Professor of Political Science Clive Bean – his remarks come later in the segment – could remember that case.
Could there be a better demonstration of why it was that Mr Newman attacked “the insiders in the legal system” in the first place? For there does appear to be a one-sided political agenda in play. One further example from the same ABC FM segment illustrates the point. Here we simply quote Justice Fryberg, speaking today:
It is essential in our system that justice be seen to be done. If we hear remarks on the record that are not withdrawn, it would be very difficult for members of the public to avoid the conclusion that the Court was bending to the will of the Government. Justice would not be seen to be done.
Now let us imagine a fantastic hypothetical to test how committed the Australian judiciary is to justice being both done and seen to be done. Imagine a lawyer running for preselection for the Labor Party’s left-wing faction, failing, and winding up as a judge presiding over the trial of the country’s most influential critic of the very same Labor Party.
Would that be possible? Surely not.