Imagine, for a moment, a different kind of Australia – one where the concept of a fair go for all doesn’t exist, where human and civil rights and political freedom are not valued, and the courts are not independent but instead merely a puppet of the government.
It is a somewhat dystopian vision but the freedoms we take for granted are owed to our robust belief in the rule of law, independence of the judiciary and access to justice. Lawyers talk about these pillars of democracy a great deal. We are not pontificating. It’s for good reason that we remind Australians of these things and raise the alarm when we believe they are under threat: they are critical to the fabric of society and our way of life.
The recent criticism of Victorian judges is not helpful and serves only to undermine the public’s confidence in the judiciary. It’s up to all of us to protect the separation of powers and to denounce anyone’s criticism, especially politicians seeking bumps in the polls.
Last week while visiting the Malaysian Bar Association, I listened to former Pakistan Chief Justice Chaudry, who has first-hand experience of why citizens must understand and value the rule of law in order to defend it. During 2007, Justice Chaudry was suspended by then-Pakistani dictator General Musharraf. Musharraf’s decision proved unsuccessful because the courts overturned it and, more importantly, because the people supported the independence of the courts, the judiciary. People lined the streets to support Justice Chaudry, exhibiting a complete understanding of how critical a moment it was to Pakistan. Musharraf was later dismissed by the judiciary whose independence had been preserved. Without that independence, a dictator would have survived.
At the heart of things is the question of why our Westminster democracies have worked so well and stood the test of time. It is because of the separation of powers and society’s understanding of that doctrine and willingness to defend it. The doctrine is simple. Each arm of government is independent of the other, including the judicial arm. The others are the legislative and the executive arms. Each is a check and a balance on the other. What is absolutely vital if this remarkable system of government is to work, is that the independence of each arm is paramount: without it, our system will fail very quickly.
It’s why we should all be concerned about recent criticism of judges and magistrates in Australia by parliamentarians.
The creation of public distrust in judges is dangerous.
Judges are accountable like the rest of us. Their reasons for judgments are published and their decisions are subject to appeal.
However, commentary about the judiciary and their decisions ought to be informed. Commentary on the judiciary by a parliamentarian, in particular, must be measured and not unwarranted and uninformed.
The function of judges and magistrates is to interpret and apply the law. Law is made by the parliament. The judiciary is not some law unto themselves: their job is to interpret what Parliament intended and to work that into their decisions. What’s more, they are called judges because we appoint them and trust them to exercise judgement, and that is a very good thing.
There is no point complaining of decisions made by judges that happen to reflect the laws passed by parliament.
For instance, in the majority of bail hearings there is a presumption in favour of granting bail. If that is a concern, it is open to parliaments to remove the presumption in favour of bail or even introduce a presumption against bail.
We have a failsafe system because if there is an error in law our judicial system allows for appeals all the way up to the High Court of Australia if that is warranted. The system provides for the law to be tried and tested and then applied, a system that we refer to as the establishment of legal precedent. Years of judicial wisdom have built the edifice that is our system of justice. Courts of appeal containing our very best legal minds set the parameters for courts in the first instance to follow, which includes setting the tariffs to apply in sentencing criminal offenders.
By world standards, our judges are expert, experienced and independent. We do not need the uncalled for erosion of confidence in our judges and our judicial system, which sows unnecessary doubt in the mind of the public and can cause damage to our justice system. Unwarranted commentary by parliamentarians, particularly for party political reasons, will do just that. The creation of public distrust in judges is dangerous. What is needed, instead, is an orthodox application of the Westminster system of government, separating out the respective roles of the legislature, the executive and the judiciary and not seeming to blur the lines by allowing intrusion from one into the other, however well-intentioned.
The independence of the judiciary once eroded is not easily regained.
When parliamentarians do proceed in this way it can be interpreted as an attempt to erode the independence of the judiciary, by calling into question its validity. No judge ought to commentate on parliamentarians, save in ruling about the lawfulness of law made by them, and their own lawfulness, because just like judges they are not above the law. Likewise, parliamentarians ought not to provide a running commentary on what is perceived to be the robustness or otherwise of legal decisions by the judiciary. Our failsafe system of appeal takes care of that.
The public has a critical role to play. The doctrine of the separation of powers is only as good as society allows it to be. If we, as the people, let down our guard we will ultimately pay for it. The bricks that build our democracy once torn down cannot easily be re-made. The independence of the judiciary once eroded is not easily regained.
The importance of the rule of law must be understood by Australians, and that in itself is a challenge because when you have it, you don’t notice you have it. You only notice it when it is gone. When access to proper justice is no longer possible. When injustice is a daily experience. When inequality and inequity are the norms. When your blood boils at the thought of the wrong that is meted out to citizens yet when nothing can be done, because an independent system of justice is gone.
I am not being prosaic. We have seen stable countries slide into instability very quickly because the pillars of governance have been compromised, often by those who think they are doing the right thing according to their beliefs.
It is time for Australians to remind ourselves of what we have and to never let it go. We have an inherited system of government that has stood the test of time. Any attempt made to erode the doctrine of the separation of powers, in this case, the independence of the judiciary, requires condemnation in absolute terms.
It also requires an acceptance that not all of our views will always align, but that is the strength of democracy. We are, at our heart, a pluralistic society. If we feel that is teetering, or at least being tested, then it is the moment to remind ourselves of basic principles.
Those principles are that our system of government, successful for centuries, requires parliamentarians to stay away from judges and judges to stay away from parliamentarians, in their actions, their dialogue and their intentions. Uncompromised separation of our arms of government is what is necessary to hang on to what we’ve got. Let’s never forget it.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.
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