By Andrew Goode, Mellor Olsson Lawyers
Another Anzac Day is nearly upon us. Personally I regard this as our national Australia Day as it commemorates in part our nation’s fight to continue to enjoy our independence and our democracy which includes an independent judicial system. We are able to live in a country where the government of the day remains answerable to the people at election time, and when necessary to the Courts.
Anzac Day is also a reminder of how suddenly world events can lead to a challenge to our liberty and our lives. If you had told my former senior partner Jim Mellor (now deceased) in the late 1930’s that he would soon be fighting in the Libyan desert and elsewhere against the German Army and its allies rather than practising as an Adelaide solicitor he would have been shocked.
The same goes for my father. He went from being a hard working student (so he tells me) in the 1930’s in Port Pirie to flying a Sunderland bomber over the Atlantic Ocean before he was 21.
What they fought for was the right to live in a democracy where if we do not like the elected government, we get a chance to vote it out in a 3-4 years time (depending on whether it is Federal or State). You can also take a case to an independent judiciary and seek a review of the Government’s enforcement policy, or indeed the legality of its laws, knowing the Court can bring down a judgment which may severely embarrass the government of the day without fear of jail or worse.
I am at the moment working my way through a biography of Adolf Hitler by a Professor Kershaw which makes frightening reading in relation to Hitler’s philosophy and plans conquered nations.
Not surprisingly he did not get on with all of the judges or lawyers in Germany who on occasion delivered decisions that he did not like. While it seems most judges and lawyers acquiesced to his dictatorship, some did not. In fact he was so incensed that at the last Reichstag in 1942 he had a law passed so he was above the law. That was the end of any semblance of the critical balance needed in a proper democracy between the rights of the state and the individual.
I couldn’t help but be drawn to the following quotes in the book where Professor Kershaw in describing Hitler’s reaction to one court decision said that it:
"matched all his prejudices about lawyers and fell precisely at the time when the judicial system was being made the scapegoat for the difficulties on the home front."
He also at that time apparently treated a small audience at the Wolf’s Lair "to a prolonged diatribe on lawyers and the deficiencies of the legal system, concluding that "every jurist must be defective by nature, or would become so in time."
Talk about the pot calling the kettle black!
Kershaw noted that "Hitler’s populist instincts had not deserted him. Less elevated sections of the population enthused over his assault on rank and privilege. This had successfully allowed him to divert attention from more fundamental questions about the failures of the previous winter [1941/1942] and to provide a much needed morale-booster through easy attacks on cheap targets" [Lawyers].
No doubt a familiar lament by politicians over the centuries about difficult lawyers and judges.
While fortunately our politicians have never been (and hopefully never will be) in a position to wield the same sort of power as Hitler it remains vitally important that we have an independent judiciary and legal profession that can stand up to the politicians, and make unpopular decisions (in the case of Judges) or represent unpopular clients or causes (in the case of the lawyers) without fear or favour.
The valiant efforts and sacrifices of our Anzacs in World War 2 (and I do not mean to detract from the veterans of other wars) against Hitler helped to ensure we avoided the fate that Hitler and others had in mind which I suspect may have been a life of slavery.
Anzac Day reminds us we must always remain vigilant, give thanks to the veterans of all the wars and ensure we have a strong robust defence force to meet future potential threats so we can continue to enjoy an independent and democratic system in the future.
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