THE state's top judge has launched a stunning attack on "popular sentiment'' and "xenophobia'' in Australia, claiming only himself and his fellow judicial officers - not the government - could be relied upon to promote fairness and equality.
During a controversial speech to officially open the 2017 law year on Wednesday night, Chief Justice Tom Bathurst claimed the rule of law in Australia was in danger because of rampant racism, in a clear attack on populist government policies on immigration.
Coming in the middle of US President Donald Trump's crackdown on Muslim immigrants and the Brexit vote by Britain to quit the European Union, Chief Justice Bathurst's choice of topic to mark the start of the new law term will be seen as pointedly political.
Chief Justice Tom Bathurst said the "inflammatory" language of 1880s premier Sir Henry Parkes would be familiar today.
"It should give us pause that one of the most serious threats to the rule of law in Australia was grounded in xenophobia," Chief Justice Bathurst said, echoing concerns expressed by his left-leaning predecessor Jim Spigelman.
The chief justice referred to a historic legal case which could be seen as a parallel to current immigration policies.
In 1888, the NSW government ordered police to stop Chinese passengers getting off a ship which had arrived in Sydney Harbour.
After a legal challenge by one of the passengers, the Supreme Court ruled that the detention of the passengers was illegal.
Nevertheless the government of the day stood its ground and "maintained this defiance of the rule of law for a considerable period of time", leading the then-chief justice to "admonish the government's actions as unprecedented and in flagrant disregard of the law", Chief Justice Bathurst said.
He said the government finally gave in.
The story demonstrated the role of the judiciary and the legal profession in promoting equality, fairness and the rule of law "in spite of popular sentiment", the chief justice said.
He said the "inflammatory" language of the NSW Premier Sir Henry Parkes in 1888 would be familiar today.
Sir Henry had defended his government's actions, dismissing the court ruling as "technical" and saying "there is one law which overrides all others and that is the law of preserving the peace and welfare of civil society".
Chief Justice Bathurst said confidence in the justice system was crucial for victims to be willing to report crimes, witnesses to be willing to testify, and the community to be ready to "peacefully" accept court verdicts and comply with court orders - "even those which are vehemently disagreed with."
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