2014 will be marked as a year of fantastic schemes of overindulgence and overreach on the part of lawyers and lawmakers.
Whether it be national security, the elevation of cronies, the unleashing of inquisitorial powers, or the conduct of litigants, new territory was conquered for the law.
It had long been said that the common law never stands still – it moves constantly, in a glacial fashion. As we know, the glaciers and the icecaps are melting rapidly, and so it is with established norms of legal restraint.
We need go no further than national security, and new laws which dilute freedoms and rights in the hope that we’ll be as safe as houses. The vanity of that hope was seen in Martin Place’s pre-Christmas hostage siege.
The Abbott government’s new measures will allow for the designation of “special intelligence operations”, which then unleash jail terms on anyone who discloses details of these operations, regardless of how unintelligent they might be.
After declaring the anti-leak law will only target “reckless” journalists, the free-speech-loving attorney general George Brandis, in the manner for which he is justly famous, muddled the message on the ABC’s Q&A by saying journalists might not necessarily fall foul of the provision if a whistleblower had published the secrets first.
There are other nifty powers that allow for the speedy confiscation of the passports of troubled citizens who want to take the family on fighting holidays to Syria.
We kept asking why the authorities wouldn’t cancel their passports after they arrive in downtown Aleppo. Wouldn’t that be better than trapping them here, scheming and fermenting? No comforting answer has been provided by the authorities.
The best of the security overreach is yet to come, with laws mandating that telcos store your phone, email and web data for two years, to be made available for warrantless inspection by the government and all sorts of other authorities, ranging from your local council to the RSPCA.
Never mind those pinkos at the UN who described the collection of personal data in this manner as a “highly intrusive act”.
The lavishing of more and more power and resources on agencies such as Asio pales into insignificance when considered alongside the generous lashings of extra capability awarded to the minister for border protection.
In the dying embers of the 2014 parliament, legislation stripped the provisions of the Refugees Convention from the Migration Act and said that the minister can hold people on the high seas and then refoule them back to the places from where they escaped.
The minister’s decisions will fall outside the normal mechanisms for administrative review. There’ll be “fast track” reviews on the papers alone and for non-fast track asylum seeker the reviews will be by departmental people.
Already, “the sugar was off the table” in November when the God-fearing Scott Morrison said people with refugee status waiting in Indonesia would be denied entry to Australia. His next step was to fill the sugar bowl with hemlock.
We’ll see what the high court has to say about some of this in 2015.
From legislative overreach, to the application of star chamber principles to those the government deems are in need of a good session with the thumb-screws: so it is we got the pink batts and the trade union royal commissions.
Apart from providing full employment to ranks of lawyers who might otherwise have had a lean Christmas, citizens are scratching their heads trying to work out what brilliant new insights have been uncovered as a result of all this forensic effort.
One exciting initiative was the development of a principle that says it is in the public interest to hand over privileged cabinet documents to royal commissions in the hope that in the process one’s political opponents can get a nasty bite on the ankle.
So far the highlight of the trade unions royal commission was the attempt by barrister and former lover of Kathy Jackson, Mark Irving, to cross examine the Health Services Union national secretary. Kathy’s response:
Forget the former lover stuff. Everyone makes mistakes and has a charity shag along the way. I just could not believe he had the audacity to sit there any want to cross-examine me.
Then there is Icac, which has done a heroic job in probing the dark recesses of some of the finest adornments of both the Labor and Liberal parties.
More recently, it has sought to extend its ambit to Margaret Cunneen, the NSW deputy senior crown prosecutor. Icac wants to probe whether she perverted the course of justice with a breathtaking scheme for her son’s girlfriend to avoid a police breath test.
So far the result is locked two-all in the courts.: two judges in favour of Icac’s powers, and two against. In March it goes to the final umpire, the high court, which has to decide whether Icac is overreaching itself or not. Cunneen puts the whole thing down to nothing more than a family rift with a sister.
We should not forget the other spoils of office, especially the right to appoint the best and brightest (or at least sound ideological confrères) to positions of the upmost fame.
Consequently, we saw the elevation by the Newman government of law and order man Tim “Knockabout” Carmody in one majestic swoop from chief magistrate to chief justice of Queensland. This was accompanied by some well placed dismay from lawyers, and even other judges of the court, who claimed that Carmody was not up to it and that his earlier record as a judge was littered with mistakes that could have been avoided by a first year law undergraduate. Hence, his nickname around the traps: Carmody of Errors.
Not to be outdone, the Northern Territory government had the unfortunate experience of overreaching in its defence of Magistrate Peter Maley, who while holding judicial office was handing out how to vote cards for the local Country Liberal Party and well as sitting on the board of the party’s corporate slush-fund.
The NT Bar Association said this version of judicial independence was a bit much to swallow and something should be done about it. In the end, Maley stepped down after the NT News moved crocs off its front page and reported that, as a solicitor, Maley sought a donation to the Party of $10,000 from a mining prospector, in exchange for which the donor could get a peek at confidential government files.
On the national stage Brandis scooped up one of the favourite sons of the Institute of Paid Advocacy (IPA), Tim Wilson, and sent him to the Human Rights Commission to look after our freedoms.
With his sponsor ruthlessly hacking away at those freedoms in the name of national security, it’s been a hell of a time for young Timbo, as he tries to plug a dyke constantly spouting leaks.
The IPA was at the forefront of the campaign to abolish section 18C of the Racial Discrimination Act, which makes it unlawful to offend, insult, humiliate or intimidate anyone on the grounds of race, colour or ethnic origin.
Brandis came up with proposed amendments that were lamentably cack-handed, and in the process declared to a grateful nation that people had the right to be bigots. He also told a puzzled human rights awards night in December that, “My objective as attorney general is to elevate the debate about human rights”.
The culture wars surrounding 18C and “freedoms” were so top-heavy with spurious assertions that the whole scheme crashed to the ground.
At the same time royalist sentiments bubbled to the surface. The prime minister reserved the right to hand out royal baubles to favoured people. Suddenly bar associations along the eastern seaboard thought that barristers should be able to convert the muted plumage of senior counsel (SC) into the finery of Queen’s counsel. The Victorian Bar Association even threw in discount framing of QC Letters Patent for its members.
The prime minister is often derided for his comments about women doing the ironing, but one lesser-known legal milestone was the discovery of a federal court judge who would not be unhappy with his remarks. Justice Annabelle Bennett gave her travel tips to the February issue of the Qantas magazine:
Most valuable to me is an iron and ironing board. Not to carry, although I have owned travel irons and steamers, and taken them everywhere. Now, the first thing I do at a hotel is to check that there’s an iron and ironing board.
Let’s leave the final word about the law and press freedom to the Titian-haired high priestess of British tabloid journalism, Rebekah Brooks. Brooks escaped the noose after a long trial at the Old Bailey, during which she was asked whether she approved of her reporters riffling through people’s rubbish bins:
I told my news desk our standards had to be high. We have to be above the law ... sorry, within the law.
Above and within the law – this year it seemed so easy to get them muddled.
