There is an old joke that runs, 'Everyone hates a lawyer until they need one.' The reason that lawyers and courts are both so unpopular and so necessary is not hard to find.
The law has developed organically over 800 or so years and comes complete with its own jargon and labyrinthine processes, making it relatively inaccessible to most. At the same time, however, the courts are supposed to be the final arbiters of the rights of citizens.
The traditional idea of Westminster constitutionalism goes back to the Enlightenment and is largely reflected in Australia’s Constitution. It is that people’s interests are protected by a delicate balance between the three arms of government.
The law-making body (Parliament, in Australia) is answerable to the people which elect it. It is constrained by the Constitution as well as by free and fair elections.
The executive, which carries the laws out, has the most power but is answerable to both Parliament and the Courts. The Courts, finally, determine whether the laws are applicable in any given case. As the guardians of individual rights, the Courts are therefore a vital part of a functioning democracy (even though they are the weakest of the three branches). This week we saw a number of developments which indicated that, in Australia at least, these constitutional ideas appear to be fading.
In the first case, we have had Parliament rush to gag the High Court as it was about to question whether or not the offshore detention of asylum seekers was legal. Here, the idea that the Court decides the rights of those before it and whether or not the law is applicable in any given case would be subverted by the Government, not only giving itself extra powers to detain asylum seekers overseas, but also making them retrospective to effectively remove rights currently held by the asylum seekers suing the Government.
The Opposition, effectively the Parliamentary watchdog, has agreed to roll over and have its tummy tickled in the name of being cooperative. This is despite the fact that the UN, Immigration and Border Protection’s own internal reviews and an on-going Senate enquiry into the offshore camps continue to reveal abuses, facilitated by the fact that there is no real accountability as to their operation.
In recent days, Mr Abbott announced (in a lecture commemorating 800 years of Magna Carta, no less) that a modern day sentence of banishment was necessary to protect