Tony Abbott has been warned that he risks undermining public confidence in the courts by attacking the decision of a senior Victorian magistrate to grant bail to an alleged terrorist sympathiser. Mr Abbott said in the radio interview that he accepted the doctrine of the separation of powers, “but you really want to see a bit of common sense on the bench”. Abbott added, “It does seem a very, very questionable bit of judicial judgment – injudicious judgment by the judiciary. That’s how it seems to me.”
The doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. In Australia the executive is drawn from the legislature which makes the concept separation problematic but the separation of powers clearly requires that the “political branches” should not interfere with judicial activity,
In Australia, it is a very important principle because the judiciary is often required to make decisions about the actions of the government as has been seen in recent cases regarding political asylum seekers.
We are extremely fortunate in Australia that the judiciary is in no way beholden to the executive for the legislature. Perhaps this is the bit that Tony Abbott didn’t understand about the separation of powers.
Because it means that politicians, particularly the Prime Minister, should not conduct a running commentary on the decisions of the judiciary.
Which is exactly whatTony Abbott did.
First an observation: Abbott has done a law degree at the University of Sydney so he should know better. However he’s not a lawyer nor is he a magistrate. Jelena Popovic is both a lawyer and a magistrate. In fact, she is the Deputy Chief Magistrate of Victoria, one of our most senior judicial officials. So we all need to have confidence that she is doing her job properly. No doubt when the case returns to court, she’ll make the reasons for this decision is clear.
Abbott’s commentary should be seen for what it is: a direct assault on the independence of the judiciary. He should be, and probably will be universally condemned for what he said. He certainly won’t have won many friends in the legal fraternity.
Abbott’s problem is that this was just a really dumb thing to say. In effect Abbott is saying “I don’t care what the law says, my judgements of what constitutes common sense should take precedence over the law .” This is arrant and arrogant nonsense.
This incident also calls into question Abbott’s political judgement. He is given to making a running commentary on anything related to terrorism, thinking that it will show that he is tough on terrorism and strong on national security. But all that his commentary has done is to show that he does not understand the separation of powers and has little respect for the decisions of the judiciary. Obviously Peta Credlin was on leave (again).