“Two matters in the legal arena illustrate how secret decision making is now suspect: that distrust has replaced trust as the default.” Legal columnist HUGH SELBY laments how quickly expectations of probity, decency and fairness in public life have fallen.

When it was reported that President Donald Trump had contacted FIFA President Giovanni Infantino to ensure that a red card would not remain an obstacle to one of the US team playing in the upcoming game against Belgium, was anyone surprised?

That lack of surprise is a telling indicator of how far, and how quickly, expectations of probity, decency and fairness in public life have fallen.

Once, not so long ago, the suggestion that the US President would even consider interfering improperly in a sports competition would have been laughed off as ridiculous. Now it’s reality.

Later it was reported that a committee within FIFA had reviewed and then removed the card.

Once, and again not so long ago, we would have accepted that decision, even though it was done behind closed doors. Spectators would have trusted the FIFA processes to be trustworthy.

Not any longer. It’s quite possible that the decision to lift the red card was the right decision, made in good faith by qualified people. That no longer matters because the secretive process is viewed by the public through the venality that Emperor Donnie reveals repeatedly in his public life. 

That perception is widespread. The victorious Belgians made no secret of their contempt for the actions of both Trump and the FIFA president.

A clever, home-grown comment upon this incident can be found under this heading “USA through to final eight after FIFA agrees to overturn loss to Belgium”. Anyone who thinks this article is over the top has been asleep since Trump’s inauguration. 

When trust has been compromised

It’s just a coincidence that two current matters in the legal arena also illustrate how secret decision making is now suspect: that distrust has replaced trust as the default.

One is the question of the fitness for office of the NSW Director of Public Prosecutions, Sally Dowling SC. 

Did she, or didn’t she play an active part in the release from her office to a shock-jock radio show of misleading information about how NSW District Court Judge Penelope Wass allowed a “welcome to country” to be used in a criminal sentencing case with an indigenous offender in October 2024?

Ms Dowling claims that although she was present at the meeting that led to that infamous, improper conduct her attention was elsewhere. 

The NSW Attorney-General Michael Daley, the cohort of more than 100 salaried NSW Crown Prosecutors, the DPPs from around the country, and the local professional bodies have valiantly come to her aid this week with statements of support.

Friends in times of need are friends indeed.

Perhaps they have information not shared with the rest of us.

What we do know is that there has been a noticeable absence of supporting evidence from the others at that meeting to back up her story. It raises suspicions, perhaps well founded, perhaps not, that critical information is being wilfully withheld.

True it is that the mere absence of evidence (to support her) is not evidence of its absence (ie, that her account is false).

However, the tantalising fact – per the reporting – is that the others at the meeting, for the most part, declined to appear before, or provide their written records of the meeting, to the Parliamentary Committee.

Those others are not at risk of criminal prosecution, so why are they not co-operating to publicly clear their boss? 

Is their non-participation caused by self-preservation, misguided loyalty or some other non-disclosed factor?

There is another aspect of this sorry tale that is worrying. Ms Dowling has expressed her regret for not being properly attentive at the fateful meeting. However, there is no report that she has apologised to Judge Wass for the harm done to the judge by the improper release of material from the DPP office.

Her failure to apologise (if that is the case) would be a stark failure of leadership. So much so, that if she has apologised that should be publicised. It would help to restore some trust.

As would attending to the root cause of the problem faced by the DPP: restoring confidence among experienced criminal lawyers that decisions to prosecute in sexual offence cases are made by strict adherence to objective assessment of the strength of the evidence, free from any emotional preference for one class of witness over another. 

Decisions by the DPP to prosecute or not to prosecute are not reviewable. They stand in a privileged position that even judges and political leaders do not share. It is an accident of history, born of unquestioning trust in those appointed to be DPPs, that these decisions are unchallengeable.

Nowadays such unquestioning trust is naïve at best. It is not supported by the evidence.

The courts cannot review such decisions by the DPP. However, there are other mechanisms for review, well tried, but determinedly ignored.

When trust in judges is no longer unqualified

Restoring and sustaining trust is a task that our judiciary too, across the country, needs to confront.

Where once we were content to have complaints about judicial conduct considered by other unnamed judges, with no publication of reasons, that time has passed.

By and large we trusted the judges as we would trust sports officials. It’s not their fault that times have changed, that matters must now be handled differently.

Ms Dowling made complaints to the NSW Judicial Commission about judges who had criticised decisions to prosecute made by her office. Some of those complaints were upheld, some were not, but the reasons for those outcomes had to fall off the back of a truck.

That doesn’t cut the mustard in 2026. Part 6 of the NSW Judicial Officers Act, 1986, needs to be amended after 40 years, to reflect the greater transparency and public accountability that is now expected.

The Australian newspaper has recently printed, “Could it be that [the NSW Judicial Commission] is using its position as apex judicial predator to impose some form of ideological purity on judges?” 

The current, secret procedures of the Commission give the opportunity to promote the wild claims within that question as being reasonable. 

That should worry not just the judges, but everyone who values trust.

Distrust sits where trust once sat. It will take concerted action to restore trust, actions rather more persuasive than uncritical public support for a beleaguered colleague, or bland assertion by this or that politician or judge that all is well across the judicial landscape.

Former barrister Hugh Selby is the CityNews legal affairs columnist. 

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