George Brandis comments on the role of lawyers, and the Fitzgerald Principles

Opening the International Bar Association (IBA) conference in Sydney on Sunday night, Attorney-General George Brandis made a staunch defence of the rule of law, highlighting the need for lawyers to contribute to its protection.

Harkening back to the adoption of the IBA’s adoption of its constitution in 1947, soon after the atrocities of WWII and just prior to the adoption of the Universal Declaration of Human Rights, Brandis explained the need to re-examine the rule of law in modern society: ‘Increasingly sophisticated international criminal syndicates, enabled by the latest technology and protected by encrypted communications, pose unprecedented threats to law and order.’

‘These phenomena are all, of course, problems of profound political, cultural and strategic importance; to deal with them is the work of political leaders and of governments’, asserted Brandis, who then went on to say ‘[these issues] are of concern to lawyers as well, and lawyers – as the custodians and guardians of the rule of law – have obligations too.’

Considering the role of legal practitioners in defending the rule of law, Brandis explained a lawyer’s duties saying ‘[W]e, as lawyers, must always be alert to ensure that due process is always observed … that judicial power is not subordinated to executive discretion, and that ministers and officials always respect the rule of law and the authority of the courts as the ultimate arbiters of the rights of citizen.’

Brandis asserted that protecting the rule of law is an essential aspect of a lawyer’s professional duties, saying ‘the professional obligation of lawyers involves more than merely providing a service to clients … It extends to upholding and defending the principles of the legal system itself, and paramount among them is the rule of law, and the values implicit within it.’

In what has been construed as an attack on Peter Dutton’s comment in August that the actions of lawyers representing asylum seekers were ‘un-Australian’, Brandis affirmed that ‘Upholding the rule of law may involve lawyers in controversy.  Often, it may mean standing up to the powerful, or defending the vulnerable, the marginalized or the despised.  Lawyers who do so serve the finest traditions of our profession.’

In a society where Government reach into the private lives of citizens is extending (in particular due to security concerns), the rule of law is a concept deserving of examination, particularly regarding to what extent it is viewed as a political rather than a legal principle. Reform of the legal structure of both the state and society is fuelled by recognition of the importance of the rule of law. Even more important is the ‘re-elevation’ of the rule of law from a rhetorical label often used as a synonym for ‘good’ to a meaningful and potent principle of the legal system.

Questionable, however, was the Attorney-General’s pointed comments directed towards Tony Fitzgerald – former judge of the Federal Court – who presided over the Fitzgerald Inquiry into corruption in the Queensland government. Brandis referred to the ‘conceit of one high-profile former judge in this country who once foolishly wrote “democracy is too important to be left to the professional politicians.”’

Brandis appears to ignore the fact that democracy entails far more than the exercise of legislative power by elected representatives. Indeed, essential to the operation of the rule of law is the subjection of elected representatives to powerful restraints by the judiciary, and what many see as a developing ‘fourth branch’ of government comprised of accountability bodies and measure such as the anti-corruption commission spearheaded by Fitzgerald.  This omission by the Attorney-General is, of course, in line with his previously expressed view that a bill of rights would imbue judges with excessive power.

Notably, no Coalition MPs – including Brandis himself – signed up to The Fitzgerald Principles, a code of conduct developed by Fitzgerald to provide a much needed ethical code for Federal MPs. Fitzgerald stated that ‘The major parties surely realise that the public wants politicians to behave honourably and that the scandals which are causing Australians to lose faith in democracy involve their members’, a comment which confronts Brandis’ misconceptions of some aspects of the relationship between legal practitioners, democracy and the rule of law.

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