Political attacks on judicial and quasi-judicial figures is nothing new. Former Premier Mike Rann and other members of his government made something of an art form of it.

I am pleased to observe that members of our current state parliament have not descended to such reprehensible conduct, however the same cannot be said for the House of Representatives at the federal level where it seems anything and anyone is fair game.

Of late we have seen three examples of this type of behaviour from both sides of the house. First members of the government attacked Gillian Triggs, the federal Human Rights Commissioner. Even if you disagree with Professor Triggs’ decisions and views, there are reasons why this type of attack is improper, which I will come to. For the record, however, there was a sustained attack first by members of the parliament and then by media sympathetic to the already expressed views.

The second example came from the other side when the Opposition attacked unions royal commissioner Dyson Heydon, a former High Court judge. Plainly there are different circumstances in both cases but the principle of a parliamentarian publicly attacking a commissioner carrying out a quasi-judicial function remains the same. In the case of Heydon, there is an established process by which to ask a judicial officer to recluse him or herself, in a court or commission or tribunal, by application – as has happened. There is no need for public commentary by politicians around that process, irrespective of the ultimate decision. If the parties are unhappy with the decision they are entitled to go elsewhere to make a further application.

Finally, there are the remarks made by the Prime Minister directed at a judicial challenge to the Carmichael mine in Queensland. True, his remarks were more directed at the plaintiffs and the process than an attack on the person of the judge and borne out of frustration, however it again raises the same consideration: is it proper to criticise a judicial process allowed by law, exercised by citizens who have a right like all of us to use the court to litigate for an outcome that they argue is just and lawful, whether they are successful or not?

Our conventions have been tossed out the window and apparently anything is fair game. I lament what the House has become.

The traditional response in such circumstances is to say that comment is premature and that one must abide the judicial result,  not charge in and start a commentary whilst the proceedings are on foot.

So what is wrong with this type of commentary? Broadly speaking – because there is a distinction to be drawn between commissioners and judges – the point is that judicial figures are required to be completely independent. Any criticism from an elected parliamentarian must be seen as an attack on that independence. At worst it could be seen as “pressuring” the decision-maker to take a different approach. At the least it is a clear attempt to erode independence. I have written before about the importance of the doctrine of the separation of powers in our democracy. To attack the independence of a judge is to attack that doctrine. It’s just not on if we wish to preserve our democratic values as we know them.

The other aspect of such attacks is that a judge has no right of reply. It is completely improper for a judge to enter into public debate for the very same reason – it would be demonstrating a lack of independence. It will also lead to a judge needing to disqualify him or herself from hearing any matter touching on the subject on which they have made public comment for the remainder of their tenure on the bench. More to the point, it is cowardly to attack a person who has no right of reply.

The public debate that has ensued following these three examples is concerning. While it is impossible to remove the political element from these events, one side of politics allowed its members to attack Gillian Triggs but the other, who were voluble in their criticism then, have celebrated the attack on Dyson Heydon. It is hypocritical and inconsistent. Any observer would draw the inevitable conclusion that no one is considering the principles at stake here in the rush to political expediency. To coin the old phrase, each issue has become a political football without any consideration of the damage caused to our democratic institutions and the reputation of parliamentarians.

We might have thought the House of Representatives had reached an all-time low under the last couple of administrations, but now we are treated to a performance worthy of farce rather than the great institution of Westminster democracy. Our conventions have been tossed out the window and apparently anything is fair game. I lament what the House has become.

One consequence of attacking the judiciary is that the public can lose confidence in our courts and judicial system, and it does not stop with the courts. As a judge once remarked to me, when a politician criticises a judge, not only may confidence be lost in the courts but all aspects of the justice system, including police, the legal profession, and the impartiality of the process.

As Fiona McLeod SC, President of the Australian Bar Association and Secretary of the Law Council recently said:

“The proper role of any court, tribunal or commission is to apply the law objectively and impartially on the basis of the facts before them. There has been a worrying trend towards politicians criticising decision-making simply because they don’t like the decision. This demonstrates a fundamental misunderstanding of the role of the courts and the protections provided by the rule of law.”

We are at the top of a slippery slope. It is imperative that parliamentarians leave off our judicial officers and keep their commentary private. As has been demonstrated by the South Australian Parliament, standards can be returned and maintained.

Politics should not be devoid of civility. After all, judges are people too, who must endure such attacks on their character, return home to their families and friends and try to put on a brave face. They should not be subjected to such treatment for simply doing their job.

We may not always agree with them, but some things are worth more than having a cheap public shot.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.