Premier’s attacks on law the thin end of the wedge

Chris Merritt                 19 November 2020

Published in the Australian Newspaper

In Australia, unlike less fortunate countries, direct attacks on the rule of law are so unusual they are usually dismissed as aberrations, particularly when most people are unaffected. It’s time to reject this complacency.

NSW ignored the rule of law five years ago when the government of former premier Mike Baird retrospectively validated unlawful conduct by the state’s Independent Commission Against Corruption.

We saw it again in August when Mark McGowan’s government in Western Australia retrospectively stripped Clive Palmer of access to remedies available in the state’s courts over wrongdoing by the government.

These governments, from different sides of politics, decided that a handful of people should be denied access to justice because politicians, not the law, considered this appropriate.

These cases are important precisely because they affected minorities. Key components of the rule of law were sliced away while most people felt no pain. History has taught us where that can lead. These incidents deserve condemnation. And while the rule of law is generally safe in both states, there is no escaping the fact that the techniques used by Baird and McGowan would be familiar to those who wield arbitrary power.

Consider what is happening in Hungary and Poland, where the rule of law is in trouble. The lessons from these countries should not be ignored.

Legal academic Martin Krygier describes what is happening there as “the salami tactic”: aspects of the rule of law are being stripped away by elected governments using techniques that cause little community disruption.

“You get these guys who start off using, particularly constitutional law, as an instrument,” says Krygier, who is the Gordon Samuels professor of law and social theory at the University of NSW. “They don’t do what Lenin did. They don’t just kick lawyers in the teeth and kill them. They use the law against the purposes for which the law was generated.”

After Hungary and Poland emerged from communism, they joined the European Union, where respect for the rule of law is mandatory. But in this part of eastern Europe, the rule of law is a transplant with shallow roots.

For more than half a century, law had been used to stifle liberty and both countries are still struggling to embrace the idea that law should entrench liberty by controlling those in authority.

After examining developments in both countries, the European Commission produced a report that highlights their problems. In Poland, the report says, concerns over the independence and legitimacy of the Constitutional Tribunal have not been resolved, and a new chamber has been added to the Supreme Court and given the power to discipline judges.

The new disciplinary chamber is appointed by the National Council of the Judiciary, which is composed mainly of politically appointed members. The report says the disciplinary regime for judges has raised concerns that it lacks appropriate safeguards to protect judicial independence due to the risk that judges may be sanctioned because of the content of their decisions.

And while freedom of expression is protected under Poland’s constitution, the report says the criminal code includes offences such as insulting state symbols, senior public officials and religion. The erosion of freedom of expression in Poland will come as no surprise to Sydney University academic Wojciech Sadurski, who has just fended off criminal defamation proceedings for criticising a television station controlled by the Polish government.

Sadurski, who is the Challis professor of jurisprudence, said on Twitter that a murdered politician had been hounded by government-owned media. He has called the ruling party “an organised criminal group”. When charges were laid against Sadurski, former High Court judge Michael Kirby used his authority as co-chair of the International Bar Association’s Human Rights Institute to call for the repeal of defamation laws that could have sent Sadurski to jail.

On media freedom, the EC report on the rule of law says criminalisation of insulting public officials “remains problematic”.

The response of the two governments to the EC’s report has been revealing. They have announced plans to establish their own rule of law institute with the goal of pointing out that problems identified by the EC are also present in other countries.

The aim, according to Hungary’s Foreign Minister Peter Szijjarto, “is not to be taken for fools” and ensure both countries are not subjected to double standards over practices that are also found elsewhere.

Krygier sees things differently: “It’s pure window-dressing and a defensive manoeuvre” by both governments. “Law has not traditionally been central to the Polish and Hungarian imagination and how things work,” he says.

“These, to most Poles, would look to be side issues. It’s what I call a salami tactic — slice off the constitutional tribunal — that’s a new institution so who cares?

“Invent a new disciplinary tribunal in the Supreme Court, which can discipline judges for the actual content of a judgment, not because they have been drinking or were corrupt, but just because a judge doesn’t agree with the government.

“All this stuff happens. On the one hand they try to emasculate legal institutions. And once they have done that, they take them over and try to build them up with their own people.”

Compared to Poland and Hungary, Krygier says he constantly gives thanks that he has the privilege of living in Australia, with its deep respect for the rule of law. So what is his assessment of the use of retrospective legislation in WA and NSW? “They should be condemned,” he says. “But so long as they are few and far between they do not yet, as far as I can tell, represent some cancer in the system.”