There needs to be an agreed process by which courts can respond to egregious commentary. It is for the courts to remind the public that they can be trusted, that they are staffed by people of integrity, with honour and commitment to seeking truth,” writes HUGH SELBY.
No one was paying him any attention as he asked: “Where’s trust gone?”
A quiet word revealed that he had a simple mission: to alert those around him to the end of honour, the loss of integrity and to the collapse of any distinction between truth and lies.
Without those values there can be no trust.
He had a point. Where is honour when a man found by the courts to have wantonly killed unarmed civilians, and wrongly awarded medals of valour, can expect to be welcomed at the War Memorial that honours those who gave their lives?
Where is integrity when yet another leading consulting firm, the recipient of many millions of taxpayer dollars, is belatedly forced to confess that it misused the information from its clients to make more profit?
As for the fusion of truth and lies, I take my hat off to Pauline.
She has grasped the essence of the Emperor Donnie’s success and given it the true Aussie twist.
Pauline understood well before his Iran War triumph that the key to Donnie speak is to ignore the obsolete distinction between truth and lies.
In their place he created reality social media. The only facts are as he states them in the moment.
When that moment passes there is a new moment to be filled by new assertions which may, or may not, have any link to the past facts of just minutes, let alone hours or days, before.
Pauline’s genius has been to add to the Trump political manual the great Aussie trait to gamble on anything in wilful ignorance of the facts. Ignorance is bliss.
She says: “Put your trust in me and Barnaby. We’re one nation, together, monocultural, united in our darkest fears against coloured outsiders who will damage our way of life by taking our jobs, taking over the cricket and soccer teams, and who have already upended our eating habits by offering weird food beyond the fish and chips we all love”.
And in large and increasing numbers your average Aussie says: “Let’s take the chance. Let’s trust her. Can’t be worse than the surging cost of living, housing crisis, monstrous debt burden we have now”.
What’s in the paper wrapping?
Remember how the fish and chips used to be wrapped in newspaper? You could dip a chip in the tomato sauce, crunch the batter, and read the news from barely a week back.
And it was news that we accepted because, rightly or wrongly, we trusted the journalists to tell us the facts.
The Media Entertainment and Arts Alliance (MEAA) is the union that has covered journalists for yonks.
It has a 12-point code of ethics to which its journalist members subscribe.
It begins: “Respect for truth and the public’s right to information are fundamental principles of journalism. Journalists search, disclose, record, question, entertain, comment and remember. They inform citizens and animate democracy. They scrutinise power, but also exercise it, and should be responsible and accountable”. [Emphasis added]
Among the 12 points is this one:
Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis…
Some argue this code does not apply to opinion writers or writers of press releases, that these groups are free to mislead at will.
But that’s an approach that does not “animate democracy”: it undermines it.
Let’s now look at a recent example of that undermining.
It was October when the WA Chief Justice, Peter Quinlan, gave a speech entitled, “We’re All In This Together” to a gathering of judges from around Australia. His focus was on civility among judges and institutional trust.
The chief justice’s observations ought to have been front of mind for a current Federal Court judge as he prepared a recent speech. In that speech he commented on excessive delay in delivering judgments by named judges in identified cases.
The judge was wrong to do that. In an otherwise interesting speech, that naming and shaming had him taking on the roles of accuser, judge and sentencer, and doing so when he didn’t have background information as to the causes of the delay.
Delays in judgments erode public trust in our judiciary. However, that problem could, and should, have been raised without descending to public humiliation.
As the chief justice explained: “A personal attack by one judge of another is precisely that: personal. It is a tacit, if not explicit, assertion by that judge that, ‘I, by reason of my personal intellectual virtues, can be trusted to provide justice, whereas the other judge cannot’.
“It is a display of the judge’s personal trustworthiness. And as a display of personal trustworthiness, it seeks to elevate the speaker over the institution to which he or she belongs.
“And for this reason, such a display, no matter how much the subject of approval or adulation, is corrosive of the trust upon which the judiciary’s legitimacy depends. It is an assertion of personal integrity over and against institutional integrity.”
Ignoring Chief Justice Quinlan’s truths had sad outcomes. Instead of some discussion about what to do about delayed judgments (a problem that has no “one size fits all” solution), the public focus has been upon the naming and shaming.
That damages the fabric of our legal system.
Given the reputation of the errant judge, a reputation for high quality, hard work, let us assume that he now regrets those few paragraphs. After all, we all make mistakes, including well intentioned ones.
The same assumption cannot be made for the writer of several opinion articles in a national media outlet.
Why silence is not an option
Following her first piece praising the errant judge for “outing” the wrongdoers, I wrote in CityNews about the judgment delays and the “outing”.
However, another misleading article from her followed.
This is the latest example to fit Chief Justice Quinlan’s observation: “In a media and wider culture that thrives on conflict and controversy, there are many who love nothing more than a ‘hero’ judge, who rises out of the… anonymity of the institution, and of the unglamorous exercise of the duties of their office, to send pointed barbs at… their colleagues”.
Alas, she sings the praises of the ‘hero” judge, but belittles those who draw attention to the danger that flows from personal attacks.
Hardly surprising, I suppose, when the personal attack is her forte. Readers may recall my articles rebutting her ad hominem attacks on judges of the High Court, the NSW Supreme and District Courts, and the ACT Supreme Court.
In her latest piece she attacks NSW Chief Justice Bell, ACT Chief Justice McCallum, Federal Court Chief Justice Mortimer, and High Court Justice Beech-Jones.
I guess that shows some hutzpah, but what else?
Another aspect of the deliberate intent to mislead is playing fast and loose with the facts, most particularly those facts that give the lie to her accusations.
One example must suffice. She wrote: “When Beech-Jones effectively threatened law students to steer clear of a body (The Samuel Griffith Society) that is committed to judges behaving like judges, not politicians, he behaved in a very unjudge-like way indeed”.
There was no threat. Moreover, the assertion that the Society is “committed to judges behaving like judges, not politicians” is false.
As she and CityNews readers well know, that Society is committed to a view of constitutional interpretation held by some Americans. It is in opposition to the pragmatic principles of constitutional interpretation developed over more than a century by our High Court.
She wants our judges to pretend that they have no interest in, or beliefs about, what is happening in our society.
There is some irony in her accusation that NSW Chief Justice Bell resides in a glass house from which, she says, he throws stones. A sealed glass house is where she wants our judges to be.
Fortunately for us, they choose to get out and about and to comment – in appropriate forums – upon those issues that affect the flow of information in our democracy and public perceptions of our legal system and its judiciary.
As it happens that is exactly what her “hero judge of the moment” did in his recent speech, save for the unfortunate and unnecessary attack upon named individuals.
Take a moment if you can, to check out her latest article against the extracts from the Journalist ethics set out earlier.
That done, ask yourself if her approach to journalism is what you want, and what you want for your children and grandchildren. Where has the trust gone?
The judges need to find a solution
The recent misleading, court institution damaging articles in a newspaper which claims a daily readership of better than a half million should not be shrugged off as “one of the cons in the pros and cons of free speech”.
There was a tradition that the attorney-general would defend the reputation of the courts, that was until the Commonwealth attorney-general abandoned the practice in 1996.
Nothing has replaced that practice.
Current judges set out their views on issues of importance in carefully crafted speeches to judicial and lawyer conferences.
Those speeches, like judicial decisions, are the message. There is no other.
The judicial authors can’t, and don’t, engage in argy bargy with journalists.
That silence helps those in the media who love conflict and controversy because they have the stage to themselves.
The bar associations tend to do nothing in response.
Therefore, there needs to be an agreed process by which courts can respond to egregious commentary.
It is for the courts to remind the public that they can be trusted, that they are staffed by people of integrity, with honour and commitment to seeking truth.
I’d like to think that if the judges were to put their minds to this problem a solution will be found and quite quickly.
If that isn’t done then the erosion of confidence in our judiciary will continue, as some commentators ape some politicians and wilfully ignore the distinction between truth and lies.
Dissatisfied voters may be happy enough to take a gamble on the unknown. But our judges know all too well from where the attacks come, the deliberate commitment to mislead, and that they will continue. There’s money to be made by promoting divisiveness and mistrust.
A throw of a judicial dice hoping for a change for the better is not an option, never has been, never will be.
Former barrister Hugh Selby is the CityNews legal affairs writer.
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