Kings and prime ministers being upset with the lawyers in their midst is not uncommon. Apparently at a cabinet discussion a few weeks ago senior members of the Abbott government got frustrated with those of their colleagues who had legal backgrounds. The lawyers in cabinet had objected to a proposal to remove the citizenship of suspected terrorists. Julie Bishop, a former lawyer, said of the meeting: "Of course there's discussion and debate. There are a number of lawyers in cabinet, [and] lawyers always have a view on the legal aspect of things."
In 1404, the English king Henry IV refused to allow lawyers to sit as members of Parliament. Other kings had previously unsuccessfully attempted such a tactic. Henry thought lawyers were too "troublesome". Two reasons are usually given to explain his decision.
The first is that lawyers spent too much time talking about themselves and their own concerns. Some would say that in 600 years not much has changed. Anyone following the pointless debate about whether especially esteemed barristers should have the letters QC or SC after their name would sympathise with Henry. Last year an inquiry by the NSW Bar Association into this weighty matter decided on a 4-3 vote it was not in the public interest for barristers to choose what to call themselves.
It's said the second reason why Henry IV wanted lawyers excluded from Parliament was that lawyers understood the law.
More than just the lawyers in Tony Abbott's cabinet were concerned about the government's citizenship proposals. It was reported that during the meeting Barnaby Joyce asked the sort of sensible question only a non-lawyer would have the courage to ask: "Isn't that what we have courts for?" Joyce doesn't have a law degree. South Australian Liberal Senator Cory Bernardi isn't a lawyer either, but he put the case against the proposal better than any QC or SC could: "The principle that someone with only Australian citizenship can be stripped of that citizenship, without a court of law, by ministerial directive, for an offence, I think is a very dangerous precedent because who's to say the range of offences won't be expanded in the future. This is the sort of power creep that I think is very dangerous from any government." Bernardi emphasised that no one wanted to stop terrorism and extremism more than he did, but the plan was a "step in the wrong direction".
CICERO'S FATE
The balance between the government keeping its citizens safe and allowing them their individual liberty is delicate. The Prime Minister recently said: "The first duty of government is protection of the community; or as Cicero put it 1200 years before the Magna Carta: "Salus populi suprema lex", the safety of the people is the supreme law." That's true — up to a point. A slave chained to a stake in the ground is safe, but they're still a slave. In 63 BC as a Roman consul during the so-called second Catiline conspiracy, Cicero supported a law which permitted execution without trial of alleged traitors against the Republic. In a touch of inevitable irony, a few years later Cicero's opponents attempted to use a similar law against him. Cicero's fate was to be murdered by Mark Antony's henchmen because Antony had declared Cicero an enemy of the state.
TURNBULL: VIGILANT SCRUTINY
Achieving the balance between security and freedom was the subject of an important speech by Malcolm Turnbull at the Sydney Institute on Tuesday. Turnbull clearly and deliberately outlined his belief that the Abbott government had so far got the balance right. But the key point of his speech was that we must remain vigilant in our scrutiny of what the government does to keep the community safe. On this Turnbull is surely right. The very real threat of terrorism is not a blank cheque for the state.
Perhaps the most fundamental question for a liberal democracy is who decides the price to be paid to protect the community. If Australia is to remain a liberal democracy, this is a question that must be constantly debated and argued about. Because if ever we stop having that debate, we are no better than Cicero.
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