Australia’s courts serve us well, acting independently in their application of the law. However, that doesn’t protect them from attacks for performing their legal and constitutional duties.
Similarly, lawyers who act for people seeking to protect their rights are criticised for their role. Nowhere is this more stark than in the noble work of lawyers providing legal assistance to people seeking asylum in Australia.
Some of these attacks are personal and private, but increasingly they are public. An example is this week’s effort from The Australian’s associate editor, Chris Kenny, in response to applications to the High Court supported by Shine Lawyers’ George Newhouse.
Let’s leave aside the errors in Kenny’s 140 characters, such as the assertion that the government funds Shine for this work – like much of the work in this space, vulnerable people rely on pro bono assistance – and the questionable legitimacy/lawfulness (not to mention morality) of the policies.
Let’s also leave aside Kenny’s history of attacking this work, including suggesting that the “compassionistas”, and their barrackers in the “love media” either apologise or slink away, and leave the serious politicians to thrash out a policy “in the national interest”.
Let’s instead focus on the important role of the courts and of the lawyers who assist clients to bring their matters before the courts.
Rule of law checks the abuse of power
The concept of the rule of law is not well understood. It is, simply put, that rights are decided by reference to established law, not by the whim of individuals.
The essence of government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.
When James Madison and the other founding fathers of the United States were developing that country’s institutions, they considered it vital to create protections against abuse of power by governments. A key protection was independent courts.
Australia’s founding fathers agreed and many of the US protections found their way into our own constitution. Importantly, the rule of law has been protected through a number of mechanisms, starting with adherence to the rule of law.
In our legal tradition, A. V. Dicey’s conceptualisation of the rule of law has been generally adopted, although the term is certainly contested. Dicey described “rule of law” through three main tenets:
- Absolute supremacy of the regular law, as opposed to arbitrary power.
- Equality of all men in the eyes of the law.
- The law of the constitution is not a source of human rights, but the consequence of inherent human rights and these are upheld by the common law as defined by the courts.
Martin Krygier suggests that the rule of law allows people to live without fear as it “saves us from others and them from us” as well as “requiring rulers to operate under law”.
According to our own government, the rule of law underpins the way Australian society is governed. Everyone — including citizens and the government — is bound by and entitled to the benefit of laws.
The Attorney-General’s Department describes its primary responsibility as protecting and promoting the rule of law. This includes supporting “the Australian government in being accountable for actions, making rational decisions and protecting human rights”.
The World Justice Project defines the rule of law as a system of rules and regulations that upholds the following four universal principles:
- The government and its officials and agents as well as individuals and private entities are accountable under the law.
- The laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
- The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
- Justice is delivered timely by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the make-up of the communities they serve.
Another great American statesman, Jesse Ventura, observed:
You have to accept the rule of law, even when it’s inconvenient, if you’re going to be a country that bides by the rule of law.
Caroline Kennedy notes that:
The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.
Former Chief Justice of Australia Murray Gleeson said:
As an idea about government, the essence of the rule of law is that all authority is subject to, and constrained by, law.
That means that the law must be capable of being ascertained in advance and that its application must be impartial.
Supporting people before the courts
Despite these noble ideals, significant sections of the community have traditionally been denied any real opportunity to exert their legal rights. Their cases would not even come before the courts without meaningful assistance from lawyers.
Researchers have identified a number of Australian cases that have had significant impacts on public policy. These include anti-discrimination law, the government’s power to detain non-citizens, voting rights, asylum-seeker processing and other important areas.
Other research has gone further, identifying the role of community-based legal services in supporting clients in traditional poverty law areas, including housing, prisons, consumer credit, domestic violence, social security, discrimination and police.
Critics of the system fail to recognise that many cases of that sort are run by lawyers for little or no payment. The taxpayer might be said to pay for some of these cases in one of two circumstances. If the lawyer who brings the case is briefed by legal aid, they will be paid out of public funds, although generally at 20% to 50% of the rate that lawyer could otherwise charge.
If the claim succeeds against a public authority, the losing party will normally be ordered to pay costs, in which case the lawyer for the successful party will generally be paid.
Lawyers do have an important role to play in preserving and promoting the rule of law, and defending the rights of people to whom Australian governments owe a duty. Some do this by providing advice and assistance to the many clients who have legal problems and can’t get help. Some work to promote community understanding of legal issues. Some seek to do this through active engagement with policy makers, although recent funding restrictions will reduce this important work.
And, yes, some lawyers go to court with their clients. This is something that should be applauded, not vilified, in a country that respects the rule of law and the institutions that protect its peoples’ rights.