Legal drama unfolding in the United States around US President Donald Trump’s bid to restrict immigration has prompted retired High Court Chief Justice Robert French to make pointed comments about the importance of respect for the law.
He said: ‘There has never been a more important time to encourage an understanding of the importance of the rule of law to the protection of our rights and freedoms.’ Gaps left by a lack of awareness were ‘readily filled by snake oil salesmen’.
French was speaking at Victoria Law Foundation’s Law Oration in the Supreme Court on 9 February 2017.
Speaking about law and its relationship to rights and freedoms, he warmed to the theme that no one is above the law and that we are all equal before it, those principles being essential elements of a free society.
Referring to checks on the exercise of official power in Australia, he said, ‘there is no such thing as unlimited official power be it legislative (laws made by Parliament), executive (power exercised by the Prime Minister and Cabinet) or judicial (power exercised by the courts).’
He referred to section 75(v) of the Constitution, a potential check on the misuse of power by the government as it gives the High Court the power to review ‘the decisions or conduct of Commonwealth Ministers and officers for jurisdictional error – which broadly speaking includes conduct in excess of constitutional or statutory powers.’
However, he warned that constraints on official power should never be taken for granted as there are many ‘who are impatient with the rule of law’, and the way it constrains the exercise of legislative and executive power.
Looking to the United States as a timely example of a politician railing against limits on their power, he spoke of US President Donald Trump’s frustration at court decisions that stalled his bid to ban people from seven Muslim countries from entering the United States. As we know, Mr Trump’s executive order was stayed (suspended) by US Judge Robart.
French reflected that Judge Robart’s decision was ‘uncontroversial and would be regarded as equally uncontroversial in Australia.’
However, posting on Twitter, Mr Trump showed he thought the judicial decision was anything other than reasonable. Indeed, the US President revealed a distinct lack of respect for the Judge’s role in making sure the government complied with its own law and Constitution. As Mr Trump tweeted: ‘The opinion of this “so-called judge” which essentially takes law enforcement away from our country is ridiculous, and will be overruled.’
French said the President’s tweet could not be dignified as a ‘criticism of a judicial decision, but rather was designed to mitigate Mr Trump’s political embarrassment at being overruled, and to suggest the judge lacked legitimacy.’
He added: ‘It is abundantly clear that neither judge nor appellate court would be intimidated or influenced by the president’s remarks (yet) … such remarks by Mr Trump may be calculated to undermine the rule of law.’
However, on a note of optimism French added: ‘The president and his government have indicated an acceptance of the rule of law to the extent that their response has been to appeal.’
So how would the Australian political system cope with a leader who attacked and undermined the judiciary, and made wide-reaching executive orders. How well are our rights and freedoms protected?
For a thought provoking discussion on the vulnerabilities in the Australian political system see this opinion piece in The Age published February 12, 2017.