It was with some confusion that I learnt the prime minister yesterday had “attacked”, “hit out at”, even, in the words of one excitable hack, “lashed” the High Court yesterday.

Lashed. Ouch. Not even those thick judicial robes could protect the tender skin of their honours from such rougher-than-usual handling.

I confess I didn’t hear the sharp crack of the bullwhip wielded by Ms Gillard. I did hear the prime minister refer to a “missed opportunity” and note the chief justice had made a different decision in his current role to one he’d made in similar circumstances in a previous role. Why such an anodyne statement of fact is some sort of savage attack by La Gillardine is a bit of a mystery to me, I confess.

The real problem with her remarks, I thought, was her attempt to paint the whole business of the overturning of the Malaysian Solution as a sort of deus ex machina, with the High Court unexpectedly and dramatically intervening from nowhere in a manner that no one could have anticipated. That’s an interpretation the validity of which can’t be assessed without access to the Commonwealth’s legal advice, against which we can then judge the government’s decision not to amend the Migration Act to implement its agreement with the freedom-loving government of Malaysia.

In the meantime, Australia’s Finest Jurist™ George Brandis fulminated and frothed and flapped about the ruthless treatment meted out to their honours by the prime minister. I liked that it was the same day that ardent advocate of free speech, Sophie Mirabella, urged a clutch of angry old white people to “not be intimidated” by Anthony Albanese, at whom they were directing a protest over the usual — carbon prices, UN world governments, lack of subsidies for tinfoil. Oh, and “tolerance” apparently as well. Albanese tried to intimidate these stout yeomen and women by standing there listening to their screamed abuse and allowing himself to be jostled by them, a shameful act of aggression toward the citizenry that will live in infamy.

For a country that allegedly likes its politics “rough and tumble”, we’re suddenly all very precious.

But back to the legal system which, as people might recall, received the utmost respect from the Coalition when it was in office. Who can forget the warm, almost cosy, relations between Phillip Ruddock and Alastair Nicholson of the Family Court? Or deputy prime minister Tim “bucketloads of extinguishment” Fischer’s good-natured, high-minded endorsement of the separation of powers in relation to the High Court’s native title decisions — so high-minded as to earn a letter from Chief Justice Brennan? Certainly no suggestions of judges going off on “legal frolics” or recommendations that they might resign from the bench and enter parliament if they wanted to get into politics. Certainly John Howard never criticised “emanations from the judicial area” to “give the parliament a hurry-on”.

Goodness me, no. There was none of that.

There’s always been an extraordinary degree of sensitivity on the part of the legal industry toward any criticism by politicians. It’s of a piece with the industry’s enthusiasm with theatre and secrecy that has for centuries been the main tools for minimising accountability for it. This is an industry that obsessively controls information, cloaks its operations in elaborate rituals to intimidate outsiders, rejects any effort to increase external scrutiny and insists that elected officials should abjure from criticising the decisions of appointed officials, no matter how egregious. Indeed, the industry goes further and argues that it should be the job of politicians to actually defend judges, as if the full weight of the justice system and enforcement apparatus of the state wasn’t sufficient protection for them.

“Public confidence in the constitutional institutions of government is critical to the stability of our society,” Brennan warned Fischer. That’s a rather high-stakes claim — criticising judges could lead to anarchy. In fact, it’s no more likely to lead to anarchy than any other expression of free speech. Powerful industries always insist that they’re a special case to which different rules should apply because they’re so much more important than other sectors. The legal industry is no different.

In response to the Brennan letter, John Howard said “there is nothing wrong with criticizing judgments, people frequently criticise the judgments of the courts”. He was perfectly correct. Like everyone else at the moment, the legal industry should be a little less precious about criticism.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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