Tara Anglican School for Girls
The Justice Game:
Related Texts
Conflicting Perspectives
Module C
Year 12
Page | 1
BASTARDRY AND HIGH PRINCIPLE
David Marr
Geoffrey Robertson
The Justice Game
Chatto & Windus $35hb, 415pp
0 7011 6348 8
T
HE MEMOIRS OF ANY BARRISTER still in harness are, by definition,
advertising. The mystery of The Justice Game is what on earth Geoffrey Robertson
needs to sell. He's much too busy already. A queue of life's victims wanting his
help in court would stretch twice round the Temple. But drumming up business is
not what the book is about. It's real purpose, I suspect, is to show that despite a
certain radical reputation Robertson is a sound man.
True he's from Australia but he reached Oxford in the '60s on a Rhodes
Scholarship, found a toe hold at the London Bar and fixed his vowels. Very early
on, a chambers' clerk advised him not to work for the National Council for Civil
Liberties if he wanted 'a career' in the Law.
'Take my Guv'nor' "Lewis Hawser QC" 'He is the best fucking silk there is. And
why is he never going to be made a fucking High Court judge? Just answer me
that. I will tell you why he's never going to be made a High Court judge. Because
when he was a young barrister, he took calls from the National fucking Council for
Civil fucking Liberties.'
Robertson took those calls, fought some famous cases very well, prospered hugely
and after thirty years has reached that legal plateau where only the mountain range
of the high judiciary is left for him to conquer. Now he's written The Justice Game
which lays out a version of his career from Abbie Hoffman saved at Heathrow in
1971 to the Tory sleeze Neil Hamilton destroyed in 1996. He's caused havoc to the
Establishment yet argues on his own behalf that he's a cap to be trusted.
Robertson has holidayed in Tuscany with Tony Blair, could have a peerage if he
wanted one, puts a lot of daylight between himself and 'the Left', deplores people
making jokes in Who's Who, has attended at least one Anglican harvest festival,
trowels on the flattery of judges and QCs, can ask 30,000 pounds to take a case, is
Page | 2
silent on changing the 'pantomime' of Bar rituals, believes in trials not truth
commissions, can see the 'poetic justice' of summary execution, takes tea with the
morals campaigner Mary Whitehouse and sits from time to time as a judge of the
Knightsbridge Crown Court.
Sounder still is the pervading optimism of The Justice Game. He admits the
Establishment is as mired as ever in self-regard. He's good on what he calls 'the
canker of cover up'. The argument he makes for a bill of rights is as persuasive for
Australia as it is for Britain. He acknowledges how terrible the libel laws are ('pay
attention again, Australia') and has a shrewd outsider's eye for the way class infects
the operation of British justice.
Yet in all his years in London he hasn't lost faith in the high romance of the Bar.
He reckons advocates are better these days, juries more merciful and judges are
being appointed with 'a more acceptable social, sexual and racial mix.' (Note:
nothing about a more acceptable political mix.) He claims the Law as portrayed by
writers and dramatists is caught in a time warp. Horace Rumpole, Robertson says,
would be bankrupted these days by costs awarded against him for wasting
everyone's time.
Sound chap. But that this is the memoir of a man eligible for high office in Britain
is the least reason for recommending it to Australian readers. Writers forget that
lawyers, too, are story tellers to the tribe and Robertson tells the tales of his great
cases with passion and clarity. These are stories of gun running, government
deceit, negligence in war and cruelty in peace, the thuggery of dictators 'Malawi,
Singapore, old South Africa', the inexhaustible madness of morals campaigners
and the pretentions of the very, very rich. This is life beating fiction at its own
game, complex tales told with a sure instinct for detail against a background of
high political drama.
Incomplete:
David Marr, biographer of Sir Garfield Barwick and Patrick White, now writes about the
law, politics and the arts for The Sydney Morning Herald.
Page | 3
Field Marshal Rudd uses fog of war to get things
done with minimal opposition
Annabel Crabb
February 7, 2009, SMH
Kevin Rudd sounded like a wartime leader on Thursday when he appeared in Parliament House's
main committee room, flanked by his excited state and territory colleagues, to outline just how his
deficit billions would be spent. "There will be a single Co-ordinator-General in each state and
territory jurisdiction, and as appropriate separate program co-ordinators in the three to four program
areas, and arguably four to five program areas depending on what the Commonwealth does longer
term on long-term infrastructure," he barked.
He could have been a British field marshal on the Western Front, with map and pointer."Now,
chaps. Jerry will be here, here, and … here."His tone was determined, tough.He talked of
"deploying" money, rather than "spending" it.
The South Australian Premier, Mike Rann, helped out by observing that the nation was now
experiencing "the economic equivalent of war", at which Field Marshal Rudd gave a terse,
affirmatory nod.Your correspondent, who had deployed $7 worth of mild fiscal stimulus on a
sandwich and was covertly eating it in the back row, couldn't help marvelling at the powerful effect
of crisis on national politics. In wartime, the extraordinary seems ordinary.The fog of war, while
scary and impenetrable, also doubles as a handy basis for political sleight of hand.Think about this
$42 billion package, for example. The observer's eye is caught first by its size. This is, of course,
partly because it's so freaking big.But it's also because Kevin Rudd set the scene on Monday when
he staged a press conference solely to tell us that Australia had slipped $115 billion closer to Queer
Street.
Having had the bejesus scared out of us by a big number, we therefore were conditioned to look
immediately to the scale of the response, rather than its exact content.Big problems demand big
solutions, and $42 billion sounds satisfyingly big.The air of crisis dulls the conventional responses
we tend to have when a politician spends $42 billion on school libraries, roads and cash handouts
20 months before an election.
This National Building and Jobs Plan may well be an effective way of spouting cash into the
economy at a time when it is direly needed.That shouldn't prevent us from noting that it is also a
sensational recipe for re-election.When John Howard chucked cash around for school buildings and
roads, Labor called it "pork-barrelling". Thanks to the fog of war, it's now unacceptable to call it
anything but "nation-building".This is not to suggest that the $42 billion package won't "support"
jobs, as the Prime Minister is arguing.I just can't help thinking - in a happy spin-off for its author - it
will support one job in particular.Similarly, after 2001, the fog of war smothered conventional
responses to certain government behaviour.Let's take a couple of random examples: the
abandonment of habeas corpus, and the requirement to surrender toenail clippers to airport
security.
In peacetime, the human response to these initiatives might be, respectively, "That seems a bit
excessive" and "Are you out of your minds? What am I going to do - pedicure someone to
death?"Seeing as it was wartime, however, we co-operated, for fear of seeming a bit
terroristy.From what else can the fog of war distract our attention? Lots of stuff. Like dramatic
changes in the behaviour of our leaders.
Twelve months ago, we were all poking fun at Kevin Rudd because of his inability to order a
sausage roll without first having it fully benchmarked.Now, the very same man gets his undies in
a bunch when the Senate won't give him $42 billion by teatime. Those crossbench senators must
have been a bit surprised to see Field Marshal Rudd's performance on Thursday.
Page | 4
They haven't even said they're going to approve the legislation, and already he's pouring the slab
for the first high school performing arts centre. Haste isn't irresponsible any more - it's an urgent
patriotic duty. Yesterday, the PM told a group of schools representatives in Canberra not to worry
about the bureaucracy too much, but to get on with spending the money as fast as possible.
Don't worry about the bureaucracy? Who are you, Sir, and what have you done with Kevin Rudd?
Lastly, the fog of war can inspire feats of reckless bravery.This week, it was the turn of Lance
Corporal Turnbull and his band of counter-revolutionaries to spill forth out of the trenches to face
an uncertain fate.
Their wholesale opposition to the $42 billion lollybag has bought them a day-in, day-out regime of
political blackmail, as the Government accuses them of denying Hairy Maclary books to a
generation of needy young Australians. After the decision was announced, Liberals roamed the
corridors of Parliament House nervously backslapping each other, and quoting from Henry IV's
speech before the battle of Agincourt. They all agree with the decision they've made, for once the sincere disapproval of the Government's spending proposals was about as unanimous as you
will ever get inside the Coalition's party room.
It's just that there is the distinct fear that this might fry them. In the privacy of their offices, as MPs
penned last letters to their loved ones and tucked lucky amulets inside their greatcoats, there was
the occasional moment of reflection."We've only been here for a day, and we're already rooted,"
one Liberal said drily.
C:\Users\Home\AppData\Local\Temp\Field Marshal Rudd uses fog of war to get things done with
minimal opposition-2.mht (accessed 12 June, 2009)
Page | 5
How lawyers helped create Guantanamo
Richard Ackland
February 5, 2009 - 1:14PM
What works better in the war on terrorism? Trials that are rigged to produce verdicts of guilt for bogus
charges based on coerced testimony - or a system of due process that respects the rights of the accused?
Dick Cheney was pretty clear about what is more effective. As vice-president he said the Guantanamo Bay
prison, coupled with the military commissions, prevented a repeat of September 11.
President Obama told the world in his inauguration speech, "Our security emanates from the justness of
our cause; the force of our example; the tempering qualities of humility and restraint."
Two days later, he signed an order setting a 12-month deadline for the closure of Guantanamo Bay, and
suspending for 120 days all proceedings against detainees held at the Cuban base.
John Hutson, a retired US admiral and now a law school dean, responded to these latest orders saying
Obama "is dedicated to getting us back on track as a nation. This is the right thing to do morally,
diplomatically, militarily and constitutionally. But it also makes us safer."
Safer than Dick's suspension of the rule of law, lock-'em-up and torture 'em? Can the enforcement of
human rights be an effective anti-terrorism measure?
The proof is in the black hole pudding, so to speak. After seven years of the previous administration's
methods, all it got out of the Guantanamo military commissions were three convictions, some of them
pleas of guilty from detainees desperate for something to happen. David Hicks was one of them.
The real nasties, including some of the alleged September 11 conspirators, have still not been convicted.
In fact, Susan Crawford, Cheney's handpicked handmaiden who oversees the whole "legal" process, said
this month "we tortured" Mohammed al-Qahtani, one of the accused conspirators, and that is why he was
not sent for trial. It's reasonable to think that if detainees are being mistreated and subjected to a flawed
jurisdiction that might flow through to a developing sense of anger by people who want to be martyrs. That
is hardly a circumstance that makes America or her allies "safe".
It can only be assumed the Bush people went down this path because the alternatives, such as Military
Courts-Martial or criminal trials in civilian courts, did not guarantee convictions. Before the last election,
the Republicans were desperate for guilty outcomes and preferably executions at Guantanamo.
Still, the carefully crafted processes of the military commissions failed to deliver. So tainted was their legal
conception and so bent their procedure that endless constitutional challenges were inevitable. Even the
suspension of the Geneva rules for prisoners of war, the attempted move to remove habeas corpus from the
process, and the "intelligence extracting" methods of the CIA, didn't do much to help.
It would not surprise if Obama and his legal advisers reverted to the traditional military justice system for
the remaining detainees or, for some, the criminal courts of the US - with all the due process protections.
All that remain at Guantanamo are about 240 prisoners. At its peak it held about 600 detainees, mostly
hapless, innocent "floaters" scooped up in Pakistan and Afghanistan.
Of the 240, it is estimated that nearly 100 pose no threat to anyone and should be sent home. Some are
Yemeni and, according to the British-American lawyer, Clive Stafford Smith, they remain in Cuba solely
because of George Bush's reluctance to talk to the Yemeni President, Ali Abdullah Saleh.
Page | 6
About 40 detainees will face a trial at some point. The problem with the balance of the prisoners is that no
one else wants them. Most have been cleared by the US military but there is nowhere for them to go.
Stafford Smith points to Ayman al-Shurafa, who the Israelis refuse to allow to return to his Palestinian
home, even though he has been deemed not to be a threat. Then there's Ahmed bel Bacha, who would be in
danger from factional forces if he returned to his native Algeria. This is a man who once received a £30 tip
from the British Labour heavyweight John Prescott for cleaning his Bournemouth hotel room.
One of the lessons, if we need lessons, from all of this is that lawyers can always be recruited to sanctify
just about any illegality the state deems appropriate. There was the chief lawyer at the Pentagon, "Jim"
Haynes, Cheney's legal advisor, David Addington, John Yoo, from the Justice Department and now at
Berkeley, and Jay Bybee, who is currently a federal appeals judge.
All of them had various roles sprinkling holy water over suspension of habeas and Geneva, the overreach
of executive power, illegal presidential military commissions, torture, wiretaps, rendition and black hole
prisons.
The whole edifice of the bankrupt machinery for handling terrorism cases would not have happened unless
lawyers gave advice that black was white.
And Australia trotted along behind, wagging its approving tail. We now owe it to Obama, who wants to
repair the US fall from moral grace as well as send a pressing message to the Islamic world, to help him
empty Guantanamo. We could easily provide succour to some of those perfectly harmless, cleared,
stateless and otherwise unwanted souls.
justinian@lawpress.com.au
This story was found at: http://www.smh.com.au/opinion/how-lawyers-helped-create-guantanamo-20090129-7svk.html 15
June ,2009
Page | 7
How the fat cats made the quick lawyers jump
Richard Ackland
February 6, 2009 - 12:14AM
Advertisement
Should lawyers take some of the responsibility for the credit crisis and unravelling economic landscape?
Every other professional and quasi-professional group is in the frame: money lenders, investment banks,
credit rating agencies, accounting firms, regulators and politicians.
Why not toss lawyers in as well? They write the documents that govern the relationships between borrower
and lender, promoter and investor, bond buyer and bond seller and every other sliced-up tranche of the
collateralised world. Behind each step in the bad loans business were lawyers and legal documents usually documents that were quite incomprehensible, even to the lawyers. Presumably, they didn't blow the
whistle early and loud because the rewards from fat clients were too big to jump over.
The NSW Chief Justice, James Spigelman, at a speech on Monday night to mark the opening of the new
law term, reflected on what he saw as some of the consequences for lawyers of a rapidly downward
sloping economy. As he put it: "The salience of commercial values in discourse about legal practice, which
threatened to overwhelm all other values, is now in secular retreat."
In other words, the idea of recent memory of lawyers trying to reinvent themselves as merchant banks
"would not be high on anyone's agenda".
Spigelman recalled the time when he acted for the companies regulator against Laurie Connell, who ran
Rothwells "bank". In evidence was a tombstone newspaper advertisement from the bank that read:
"Rothwells Limited - one day all merchant banks will be like ours". Spigelman added: "And so it proved."
A restoration of old-style legal professional values as opposed to commercial ones might be a bit much to
hope for, since already so much blood has been spilt on the altar of "the business paradigm". To get a
wider perspective, you'd have to go back to last August to a sell-out conference at the Banco court called
The Credit Crunch and the Law. The keynote speaker was John Coffee, a professor at Columbia University
who is the corporate law guru in the US.
Among other things, he gave a compelling explanation of how the credit ratings agencies were suborned to
the wants of about five or six big banks. In the good old days, no corporation issuing bonds that needed to
be rated accounted for much more than 1 per cent of the income of a ratings agency. With the arrival of
large-scale structured finance, a handful of banks accounted for more than 40 per cent of the credit
agencies' income. Quite quickly, those deciding what should be AAA or BBB securities became conflicted.
To some extent you see the same with banks and lawyers. Professor John Flood, an English law academic,
put it this way: "Banks are the uber-client. Upset them and law firms can expect to see a significant part of
their fee income evaporate."
There are public manifestations of this from time to time. The giant Canadian conglomerate Brascan
wanted to sue the Royal Bank of Scotland but it couldn't find a London law firm to take its case, either
inside or outside the Magic Circle firms.
The banker-lawyer club has long tentacles. The Chief Justice pointed to a 13 per cent increase in the
second half of last year of cases where lenders were seeking to enforce their mortgage rights.
Page | 8
Bank customers might be surprised to discover after going down in one of these heroic struggles that they
have to pay legal costs at virtually whatever rate the banks' lawyers decide. Almost invariably, this little
provision is never pointed out by the borrower's lawyer. Lawyers don't bat an eyelid at these sorts of
obligations for clients.
The Chief Justice, however, did point to one case in the Court of Appeal where the judges did save the day
for the "little person".
Known as the Khoshaba case, the court decided the details in the application for a "low doc" (that is,
subprime) mortgage had been falsified by intermediaries and brokers, amounting to an unfair contract.
This decision in 2006 had significant implications for lending practices and Spigelman thinks it helped to
limit the exposure of Australian banks and other lenders to the expediencies of the junk mortgage business.
It certainly led to a big shake-out in the mortgage broking business, a shake-out that sadly did not happen
in the US.
Back to Professor Coffee. He was asked to describe the "gatekeeper role" played by lawyers. He thought
lawyers should be required to give their opinions about offerings to investors. "The opinion would be to
the effect that everything that has to be disclosed has been disclosed to the best of the lawyer's knowledge
… No competent lawyer would give this opinion without some due diligence."
It would move lawyers beyond just the transactional functions back into the due diligence business. The
professor added: "It is a reform that securities lawyers will resist passionately."
justinian@lawpress.com.au
This story was found at: http://www.smh.com.au/opinion/how-the-fat-cats-made-the-quick-lawyers-jump-200902057yub.html (accessed 15 June, 2009)
Page | 9
National security means thumbs-up for torture


Richard Ackland
February 20, 2009 SMH
Every so often a lost soul can unwittingly set off a chain of events that alter a slice of the world. So it is
with Binyam Mohamed, an Ethopian-born British resident whose actual residence for the past 4½ years
has been Guantanamo Bay.
Before being sent to Cuba he had already been a refugee, drifted into drugs, and went to Afghanistan to see
Muslim countries "with his own eyes". In April 2002 he was arrested at Karachi airport while attempting to
return to England. The Pakistanis handed him over to the Americans who "rendered him to ghost prisons"
run by US and British intelligence agencies. In particular, he wound up in Morocco, where his treatment
was not good. Scalpels allegedly were used on his penis and chest to get him to talk.
He couldn't have had much useful to say because all that could be mustered against him was a charge of
conspiracy. It seems most of the evidence came from someone else who was waterboarded. The US
Government dropped the charges against Mohamed but he's still banged up at Guantanamo.
There is a kind of transfixing symmetry to these sorts of cases. A man tortured (the US word is "coerced")
to give information is charged on the strength of the evidence of another tortured prisoner. The evidence is
so unreliable and farcical that the case craters. All part of the war on terrorism.
Even so, Mohamed has not been idle, and nor have his lawyers. He has engaged in a hunger strike and
earlier this month his US military lawyer, Lieutenant Colonel Yvonne Bradley, said he was close to death
and that conditions at Guantanamo were dire.
After receiving information about his torture, another legal team in London has gone to the High Court
with a summons asking that the British Government be ordered to hand over evidence it has of Mohamed's
abuse.
What fun that has been. The judges hummed and hahed, saying they wanted to release the CIA file
detailing the prisoner's treatment, but they held back seven vital paragraphs on grounds of national
security.
The Foreign Secretary, David Milibrand, had begged the court not to go there. To do so, he claimed, would
endanger security arrangements with the US and in turn that would endanger the security of the British
people.
It has emerged that it was not so much the initiative of the Bush administration that things be kept hushhush, but that Milibrand's people in London had urged the Americans to help in keeping crucial evidence
suppressed. The judges said they responded to a US "threat" to Britain. Now it seems the British invited
the Americans to threaten.
The whole thing has become such a fiasco that the court has said it will reopen the case and the AttorneyGeneral is seeking advice on launching criminal prosecutions against MI5 agents who might have been
complicit in the torture.
This has resonance for us. There have been, so far, successful attempts by the Australian authorities to
sweep from view claims of torture made by Mamdouh Habib and David Hicks. Both sets of allegations
involve the complicity of Australian authorities.
Page | 10
Habib says he was detained in Egypt for seven months before being sent to Guantanamo Bay. He was
beaten, drugged and tortured regularly. In Habib's 2007 defamation case against The Daily Telegraph in
the Supreme Court, which dealt with the torture allegations, Ramzi Jabbour, a federal police agent who
interviewed Habib at Guantanamo, said that the prisoner's hands and feet were shackled and he was
chained to the floor, but that he didn't believe that position was degrading.
In other evidence, ASIO admitted "adding" to reports after they had been created, but rejected the idea the
documents were "doctored". Jabbour was the officer who was given a bit of a tickle-up by John Clarke,
QC, in the report on his inquiry into the detention and visa cancellation of Dr Mohamed Haneef in 2008.
David Hicks had sworn in earlier US proceedings (Rasul v Bush) that he had been beaten, menaced, had
his head rammed into asphalt, been forced to run in leg shackles, and subjected to a wide variety of other
abuses. As part of his plea bargain in 2007 he was required to sign a statement that he had not been
mistreated by US authorities.
Increasingly there are applications for courts to be closed on grounds of national security. Bit by bit open
justice is giving way to secret hearings.
Now the freedom of information amendments have been revealed. The ministerial conclusive certificate,
which killed requests for information, has been replaced by a security ban. Any document that originated
with or was received from a concatenation of security agencies (seven of them) is off limits. Full stop. This
means that any government minister or department simply has to process a document through, say, the
Office of National Assessments or the Defence Imagery and Geospatial Organisation and it is forever off
limits.
Still the tentacles spread further. The Foreign Evidence Amendment Bill, currently before Parliament, says
any document generated overseas can be introduced into evidence in Australia if the prosecutor thinks that
to a "reasonable person" it has probative value.
In the same way that coerced evidence was admissible before a military commission, coerced foreign
documents will soon be admissible into criminal proceedings. It is up to the accused to prove otherwise.
Lawyers are calling it the Guantanamo Amendment.
The DNA of "national security" has snuck into every possible cranny.
justinian@lawpress.com.au
http://www.smh.com.au/opinion/national-security-means-thumbsup-for-torture-200902198cju.html?page=-1 (accessed 15 June, 2009)
Page | 11
Ruddslide: debt, distortion, denial
Paul Sheehan
February 9, 2009
SMH
Illustration: Michael Mucci

The Awakening
Kevin Rudd's credibility as an honest politician, as a man who does not engage in evasions and
distortions on a grand scale, finally began to seriously erode last Tuesday, when he rose in the
House of Representatives at 2.34pm to elaborate on his latest proposal to save the nation.
His opening words painted an epic portrait of danger, with himself as the man for such an hour:
"The Government today announces, with an unfolding national and international economic
emergency, a $42 billion Nation Building and Jobs Plan to support jobs in the near term and invest
in the future generators of economic growth in the long term."
Note the use of the term "emergency". Despite the scale, complexity and thrown-together nature of
the stimulus package, everything was of the utmost urgency. To delay was to invite danger.
As a former Labor leader, Mark Latham, observed last week: "They have jumped all over the
financial crisis, not with a clear economic strategy in mind, but with an urgent sense of the political
opportunity it presents."
Rudd's office has received advice about the triggers required for an early poll. Not next year, but
this year. An ambush election. This provides logic to the otherwise pointless and stage-managed
urgency to rush this enormous, slapped-together set of six spending bills through the Parliament
without even a semblance of due consideration by the Parliament.
An ambush election in 2009 has several advantages. The worst of the recession has yet to hit
Australia, and it could get much worse (which is why the Opposition wants the Government to give
itself more room to respond by restraining its response).
Rudd is way ahead of Turnbull in the polls, but his numbers could be dragged down along with the
economy. An ambush would also pre-empt the Opposition from turning to Peter Costello, whose
Page | 12
presence casts a long shadow over the House. It would keep Julia Gillard quiet for another three
years.
Above all, an early election would buy Rudd time to deal with the disconnect between his rhetoric
and his performance, such as this lightning bolt delivered last Tuesday: "Australia is in a stronger
position than these countries because the Government built a strong surplus last year as a buffer
for tough times."
This is blandly recorded in Hansard without a hint of what was going on in the chamber. It was
noisy. Not from interjections, but from laughter. The opposition was laughing at the Prime Minister's
gall.
His government had not "built" a $20 billion budget surplus; it had inherited one, part of a massive
$90 billion financial firewall left behind by the Coalition government. Within the Rudd Government's
first full fiscal year, that budget surplus would be gone.
It had taken 11 years for the Howard-Costello government to unwind the $96 billion federal debt left
behind by Labor in 1996. It had taken 11 months for the Rudd Government to commit to debt on the
same scale.
I was sitting in the public gallery during question time on Tuesday and noted that not just the
Opposition were laughing at the Prime Minister's comment, but many in the gallery. They got the
joke. Perhaps they also saw the growing disconnect between Rudd's rhetoric and reality - on
immigration, the environment, job creation and economic caution.
In the parliamentary debate that followed, Rudd and his ministers claimed the Opposition, by
opposing the stimulus package, was voting in favour of higher unemployment and against the
welfare of children. It was Orwellian. No one in the Opposition had suggested the Government
should not embark on a major stimulus package. Nor that it should run a temporary budget deficit.
They simply wanted a smaller, more productive package.
Malcolm Turnbull was more impressive in this debate than Rudd and his rank and file did not need
to be rallied. The party room that night was a hotbed of concern.
About 30 minutes later, the chamber was distracted by an altogether different kind of disruption.
About 10 demonstrators in the public gallery began chanting: "Stop the intervention! Human rights
for all!"
Members sat in silence as security staff bundled the protesters out of the gallery. It was a rough
reminder that the Howard government's intervention in remote indigenous communities is still
largely in place.
It was also an ironic reminder of another grand distortion Rudd had uttered in the same chamber a
year before, on February 13, 2008, when, in issuing a apology to the indigenous peoples, he
repeated what I regard as the most reckless accusation ever told about Australia: "Between 1910
and 1970, between 10 and 30 per cent of indigenous children were forcibly taken from their mothers
and fathers; as a result, up to 50,000 children were forcibly taken from their families; that this was
the product of the deliberate, calculated policies of the state."
This was lifted straight from the Bringing Them Home report, even though it had been challenged
by scholars and in the courts. But in keeping with the spirit of the occasion, nothing was said.
It was only Kevin Rudd's second day in Parliament as Prime Minister. Ever since, grandiose
distortions have flowed from the lips of Rudd. Finally, last Tuesday, there was a spontaneous
combustion of revolt.
Page | 13
'It was clear what the party rank and file wanted to do. They wanted to fight. And they wanted to
speak.'
C:\Users\Home\AppData\Local\Temp\Ruddslide debt, distortion, denial - Paul Sheehan - Opinion smh_com_au.mht (accessed 15 June, 2009)
Page | 14
Trail of lies ends in judgment


Paul Sheehan
February 23, 2009
Illustration: Michael Mucci
At last. On Wednesday the former Federal Court judge and National Living Treasure Marcus Einfeld is
scheduled to be sentenced for perjury and perverting the course of justice. Einfeld has been subverting the
justice system for years.
It may seem punitive that he could be sent to jail for seeking to avoid a $77 speeding fine in 2006, but the
prosecution could note that numerous ethical questions have arisen over the behaviour of Einfeld that
extend well beyond the fine he sought to avoid.
This former judge has been telling lies for a long time. There is also the matter that even judges must be
treated equally before the law.Einfeld's transgression go well beyond this case, as do the implications of
his actions. He strayed from the path of ethical rigour numerous times. In his entry in Who's Who, a
publication which operates on a system of trust, Einfeld listed his academic credentials as BA, LLB, PhD
and LLD. In so doing, he listed two doctorates that were not conferred by reputable accredited universities.
On the roads, Einfeld broke the law repeatedly, incurring nine traffic fines in four years. He went to great
lengths to avoid some of these fines. On two occasions, in 1999 and 2000, he invoked the name of Dr
Nadine Levick, an Australian pediatrician living in New York, saying she was driving at the time. Both
times the ploy worked.
In 2003 Einfeld was subject to a formal complaint of plagiarism by Professor John Carter of Sydney
University after reproducing Carter's work without attribution. Einfeld's explanation was that the footnotes
had been left out in the printing process. In retrospect, his explanation fits a pattern of deceit.In 2006, to
avoid a speeding fine, Einfeld filled out a false statutory declaration. Had he not contested the $77 fine, he
would have been one demerit from having his licence suspended. When the matter went to court, Einfeld
said he was not driving at the time but had lent his car to a friend visiting from Florida.
When a journalist checked his excuse and found he had referred to a dead person, Einfeld lied again: "This
was not the same person. This was a totally different person … another Professor Brennan."Einfeld later
issued a written statement saying contact had been made with a person in the US and it was hoped it would
be possible "in the next few days to reveal who was the driver". However, when journalists sought access
to the full record of his traffic offences, this was contested by his lawyers.
In September 2007, Einfeld, or someone acting on his behalf, made several phone calls to the Manhattan
home of Dr Levick, the same woman he had used to avoid speeding fines in 1999 and 2000. Last week,
Page | 15
another woman, Angela Liati, was found guilty of attempting to pervert the course of justice by making a
false statement to the court to help Einfeld avoid a speeding fine incurred in 2006. Ms Liati has said she
will appeal.
By my count, these are 10 instances of known or apparent deceit.Then there is his conduct on the bench.
Marcus Einfeld was a highly political judge. He was the son of a Labor politician. He was also a Labor
appointment to the bench. He developed a reputation for partisanship that extended to some of his work on
the bench, especially in immigration cases.
When I checked the legal record of immigration cases to see if there was any statistical discrepancy that
would support this view, I found a glaring statistic.During the time Einfeld was on the Federal Court, the
court heard 1856 appeals involving migration matters. Of these, 170, or 9 per cent, were lodged by the
Department of Immigration. In the case of Einfeld, however, there was a dramatic difference. Of the 21
appeals lodged against his judgments, 14 were by the Department of Immigration.
In other words, on average, just 9 per cent of appeals against Federal Court decisions in migration cases
were made by the government, but this soared to 67 per cent in cases heard by Justice Einfeld. I was able
to access 10 of these appeal court judgments. In four cases, Einfeld's decisions were thrown out and, in the
process, there were some scorching rebuttals given the judicious language used by the bench.
In Department of Immigration v Della Cruz (1992), the court found Einfeld had been in fundamental error,
noting dryly: "The oral evidence may have distracted His Honour from the crucial question."The crucial
question, in this case, was that you can't lie when filling out immigration forms. Einfeld tried to bypass this
requirement.
In Department of Immigration v Buksh (1992), Einfeld's interpretations of the law were demolished by the
higher court in terms such as "it cannot be said" and "such an assumption by the court [Einfeld] is
erroneous".In Department of Immigration v Petrovski (1997), the higher court gave Einfeld a thrashing:
"This appeal must be allowed because the whole proceedings have proceeded on a false base … the
relevant legislative provisions which apply are so clear and specific that I do not consider that it is open to
the court [Einfeld] to rely on acts or omissions which 'amount to' or should be 'deemed' …"There is more.
These are just the immigration cases. In the end it was not the legal profession but the media, with its
digging and its caustic reference to "Marcus Minefield" and "Justice Seinfeld" and "Marcus Einfled" which
finally brought a stop to this trail of mischief.
http://www.smh.com.au/opinion/trail-of-lies-ends-in-judgment-20090222-8eoc.html?page=-1 (accessed 12
June, 2009)
Page | 16
War crimes: talk but not much action
Richard Ackland
January 23, 2009 SMH
Since July 1, 2002, the International Criminal Court in The Hague has been responsible for prosecuting
war crimes. War crimes committed before that year are dealt with by ad hoc tribunals set by the United
Nations Security Council - for instance, the International Criminal Tribunal for the Former Yugoslavia, the
ICT for Rwanda and the Special Court for Sierra Leone.
To get anything before the ICC is a tortuous process.The hilarious television drama The Trial Of Tony
Blair, about the prosecution of Blair for war crimes, may have given a slightly rosy impression about how
easy it is to get a politician into one of those bullet-proof glass cages in The Hague.
It's not easy. The case has to have "sufficient gravity", and you can argue forever about that. The United
States is not a party to the Rome Statute, which created the ICC, nor is Israel. They don't accept its
jurisdiction to try their citizens for war crimes. A state or country has to accept the jurisdiction of the
tribunal before the court can start the machinery of justice.
In Gaza, there are more than 1200 Palestinians dead, of whom more than 400 were children, and thousands
more injured. According to Human Rights Watch, the Israelis exploded white phosphorous shells over
Gaza which left victims horribly burnt. UN relief supplies were destroyed and last weekend an Israeli tank
killed two boys in a UN school.
About 30 members of the one Palestinian clan were killed by shells or missiles in the Zeitun area after they
were all gathered together by Israeli forces. Palestinian paramedics were prevented from attending to the
wounded for two days. About 40 people were also killed on January 6 at a UN school compound housing
refugees.
The International Committee of the Red Cross, the United Nations and Amnesty International all had
people in the Gaza strip, and all condemned Israel's disproportionate aggression.The Western media is only
now being allowed into Gaza to report on the devastation. The Haaretz newspaper said that Israel was
acting like a steamroller.
In the beginning, Israel said it was defending itself against "terror attacks". By the time of the ceasefire it
certainly didn't look that way and quite soon the words "war crimes" started to appear.The UN High
Commissioner for Human Rights, Navi Pillay, said in relation to the January 6 attack on the UN school
compound that independent investigations should be carried out into possible war crimes.
And after last weekend's school attack the head of the UN relief and works agency in Gaza, John Ging,
asked: "Is this [the killing of two small boys] and the killing of other innocent civilians in Gaza a war
crime?"Yigal Palmor, a spokesman for the Israeli Foreign Ministry, was asked whether there was any
chance of a case being brought against Israel in the International Criminal Court. He thought there was not
"the slightest piece of evidence". Further, he said, the army had a legal department that "advises it and
gives its opinions on measures that are taken".
Like all legal departments, it rather depends on the sort of lawyers who are dishing out the advice.Gaza has
long been a tragedy, and no more so in the latest bombings and invasion. Does that make what happened a
war crime? The answer is more bound up with politics than law.
The UN Security Council could, if it felt like it, dispense with that state-based acquiescence and just refer
relevant Israeli ministers and military commanders for investigation by the ICC. How likely do you think
Page | 17
that would be with Israel's great and powerful ally the United States holding a veto vote at the Security
Council?
Even before a determination can be made about whether to have a formal investigation, the Office of the
Prosecutor has to carry out years of analysis and overcome resistance from the people being
investigated.More than a year after a referral to prosecute was made in the Dafur situation, there were still
no arrest warrants. While that is no longer the situation, the Dafur defendants have not progressed beyond
the pre-trial chamber.
Apart from the Dafur case, the ICC has on its books alleged war crimes in the Democratic Republic of the
Congo, Uganda, and the Central African Republic. As The Economist recently pointed out, all these
atrocities involved "low-tech mass killings at close quarters", and these are the sort of war crimes where
the ICC seems most at home.
It is pointed out that civilians are frequently hit by NATO aircraft in Afghanistan and never is it suggested
that whoever is responsible should wind up in The Hague.When it comes to high-tech Western-style air
campaigns, the rights and wrongs become far too difficult for the International Criminal Court.
justinian@lawpress.com.au
http://www.smh.com.au/opinion/war-crimes-talk-but-not-much-action-20090122-7ntl.html?page=-1 (
accessed 12 June 2009)
Page | 18
Lapsed judgment: thieves among Their Honours


Richard Ackland
December 26, 2008 SMH
Judges, supposedly, are a cut above politicians. Judicial duties require learning, wisdom, fairness, balance
and restraint. Almost the exact opposite to what we expect from pollies. Each day perfectly good trees are
terminated in the cause of news about the political struggle. We despair at the antics, inadequacies and
downright stupidity of politicians, but we are inured to the horrors.
What, then, of the judicial arm of government? Throughout 2008 there was no shortage of distressing
fodder. Sex and self-interest were to the fore. Here's our selection.
Judge Roy Pearson, who was a Washington judge, lost his infamous $US54 million case against a drycleaning business over his missing pants. He said that each member of the Chung laundry family owed him
$US18,000 a day for the four years his pants could not be found. The US Court of Appeals threw his case
out, saying the judge's pants were not worth that amount. Pearson is now suing the District of Columbia
Government for not reappointing him to the bench.
A senior British judge, Frank Chapman, resigned last week after it emerged that he privately rang a
prosecution barrister in a rape case and offered him advice on how to conduct the trial. In Pennsylvania,
the judicial disciplinary body banned Judge Ann Lokuta from office, finding that she was bullying, had
terrorised courthouse workers and had lied under oath.
Actually, Lokuta was a real pussy compared to Judge Elizabeth Halverson from Nevada. In a much finer
display of the English language the discipline authorities found her to be paranoid, mercurial, boorish,
quixotic, combative, disrespectful, dismal and a deliberate liar. She repeatedly referred to court staff as
"bitches" and "dumb f---s" and got the bailiff to massage "her feet, neck and shoulders, or some
combination of those body parts". Halverson's lawyer said: "She's not perfect."
A judicial panel decided that Derek Schofield, the Chief Justice of Gibraltar, "repeatedly fell short of what
befitted the dignity of his office". Among other things, he heard an application in a defamation case
brought by his wife against the Gibraltar Bar Council. Schofield's case now goes to the Privy Council.
The name of a senior South Australian magistrate, Richard Brown, was subject to a no-publication order
for two years because he is the accused in a child-sex case. A full bench of the South Australian Supreme
Court this week decided that the community should know the identity of the defendant.
Ralph Mecham, the man who used to head the administrative office in charge of US federal courts, filed a
complaint against Alex Kozinski, the chief judge of the Ninth Circuit. Mecham said that the judge disabled
the porn filter on the court's computer system. Kozinski had already been in hot water for having sexually
explicit images posted on a private web site. Mecham claimed that former US chief justice William
Rehnquist said: "Tell Kozinski to watch pornography at home and not in his own court."
The Texas judge Elizabeth Berry got into trouble for driving her sports utility way over the speed limit and
having alcohol on her breath and cans of beer in the vehicle. The head of the family law division in
England, Sir Mark Potter, has been subjected to an investigation because he wrote a character reference on
official court stationery for an accused barrister. Bruce Hyman was the first barrister in 800 years to go to
jail for perverting the course of justice after he faked a Court of Appeal judgment used in family court
proceedings.
A former Pennsylvania judge apologised after sending an email to Jewish voters saying to vote for Barack
Obama would be like ignoring the warning signals that led to the Holocaust.
Page | 19
Meanwhile, in Pittsburgh the Superior Court judge Michael Joyce was sent to trial for fraud. He was
accused of "bilking" $US440,000 from his insurers for neck and back injuries, yet he was still fit enough to
play golf, fly and scuba-dive. He spent the insurance money on a Harley-Davidson, a new hot tub and
plastic surgery for his girlfriend.
The retired English High Court judge Sir Richard Tucker arrived home to his estate to find his flower beds
and lawn had turned orange. He and his third wife, Lady Tucker, said the gardener had sprayed weed killer
in revenge for being sacked. Lady Tucker told her husband "it's either him or me". Edward Hancock, the
gardener, was cleared by magistrates of any wrongdoing.
A judge who presided over a double murder trial, which resulted in the accused going to death row, had a
long, undisclosed affair with the prosecutor. The former New York judge Ron Tills pleaded guilty to
transporting prostitutes across state lines. He recruited the hookers to service members of a fraternal club,
the Royal Order of Jesters. And in England, a man was jailed for three years because he stole a set of
judges' robes from a London court.
justinian@lawpress.com.au
http://www.smh.com.au/opinion/lapsed-judgment-thieves-among-their-honours-20081225751h.html?page=-1 (accessed 12 June, 2009)
Page | 20
Law, theatre and shrewd judgment
Richard Ackland
December 19, 2008 SMH
On her 50th birthday Virginia Bell, the most recent appointment to the High Court of Australia, was
carried aloft on a sedan chair by four Nubian slaves. The chair was gingerly placed at the corner of a stage,
quite close to the proscenium arch, where Her Honour watched, spellbound, as a theatrical fantasy
unfolded in celebration of her half-century.
The Nubians were exhausted by their exertions, being a bit out of condition by lifetimes of indulgence.
They retired, with everyone agreeing it is hard to get reliable slaves these days.
It was an unusual event, even by the standards of this Supreme Court judge. For nigh on 35 years she had
been the creative director of the Glebe Supper Club, a performance troupe of unparalleled virtuosity.
Now here she was in the curious position of being the star of the show without creative control.
It was an anxious moment as the lithe but - it has to be said - ageing Soubrettes did a routine dressed as
cans of Sirena tuna signing "I'm in the mornay" in homage to the judge's culinary tastes.
Law and theatre are intimately fused in Virginia Bell's life. She was trained by Doris Fitton at the
Independent Theatre and the legacy lingers. She engages the full array of theatrical devices and
expressions necessary for judging at its most compelling.
Of course, there was her earlier training ground as Ginger de Winter, a barrel girl on The Golden Years Of
Television, a weekly event with David Lyle, on Channel Ten and later Channel Nine. There again it was
difficult to discern what was real and what was artifice.
Very little was known about Ms de Winter's past. She'd had a traumatic engagement to a member of the
Horrie Dargie Quintet. Apparently, there was evidence that she had been one of the survivors of the bomb
blast on Number 96.
Lyle claims she showed him the scars. He also recalls that Arnold Feather lost a leg in the explosion but, in
a first for television, the scriptwriters were instructed to assume that after a while it had grown back.
Bell, at the same time, was masquerading as a lawyer, working for impoverished people. One day she
visited a client in Long Bay, who said that everything had gone wrong in his life and he was having
shocking hallucinations. He even thought he saw his lawyer dancing around on television. Bell told him to
get a grip on himself.
On the judicial speaking circuit she has been a diverting presence. She takes the issues right up to the
audience, including the difficulties that elderly male judges have in dealing with evidence about female
genitalia and how the arrival of a woman at the bar ruined the ancient protocols about entering and leaving
lifts in Phillip Street on the basis of barristerial seniority.
It's not all been plain sailing. Here was a former leading light in the prison reform movement and Women
Behind Bars, who is now in the job of sending people to jail. It's fair to say that even though the firebrands
on the left were disappointed in what they hoped would be the outcome, their respect for her did not
waiver in the moment of truth.
Personally she's a radical person. Professionally she's conventional. That is the product of a disciplined and
compartmentalised life. Some of her intimates say that despite appearances, she's always trod a careful
Page | 21
path, that she's behaved with impeccable care. That suggests that she's long had an eye on the future while
the rest of the troupe didn't mind being hotheads.
When the Government did its soundings on the likely contenders for Justice Michael Kirby's replacement
on the High Court, it received a heartening response about the NSW judge from justices Bill Gummow and
Dyson Heydon, among others. Those insiders thought she was an excellent choice.
With the Prime Minister, Kevin Rudd, supporting the appointment of Queensland appeal judge Pat Keane,
it was the support from within the High Court that most likely swung the day for Virginia Bell. It's both an
audacious and excellent appointment.
justinian@lawpress.com.au
http://www.smh.com.au/opinion/law-theatre-and-shrewd-judgment-20081218-71g6.html?page=-1
(accessed 12 June 2009)
Page | 22
Charter foes tilting at scary straw monsters


Richard Ackland
December 5, 2008
Human rights are about to have a great big birthday party next Wednesday. It's the 60th anniversary of the
UN's Universal Declaration of Human Rights and the occasion will be marked here by the federal
Attorney-General, Robert McClelland, announcing a nationwide consultation on the formulation of an
Australian charter of rights.
Not everyone will be happy.
Already various savants have been hurling grenades at the idea with the aim of blowing it up before it
takes shape.
When we face a coalition comprising the former premier of NSW, Bob Carr, the NSW Attorney-General,
John Hatzistergos, various authorities from the Murdoch press, most Liberals (including John Howard,
who momentarily broke ranks by supporting a bill of rights for Iraq) and the odd academic in the Quadrant
orbit, instinctively I want to reach for a bigger grenade.
Indeed, most of the time they have been firing away at something that is not remotely likely to emerge in
Australia, namely an entrenched constitutional bill of rights, a la the United States of America. We're far
too frightened and insecure a country for anything as heroic as that.
No - all that is likely to happen after lengthy jawboning is a charter lite. It will enshrine all the motherhood
stuff that is in the Universal Declaration but it will be just another act of Parliament, subject to political
will.
Among the rights most likely to be included would be things such as equality before the law; protection
from torture, cruel or degrading treatment; freedom of movement; freedom of expression; privacy;
freedom of association and assembly; protection of families and children; and property rights.
These are the traditional smorgasbord of rights. The new battleground is actually about economic rights
and rights to things such as education and health, but let's not get ahead ourselves.
There are lite versions already in existence in Australia - in Victoria and the ACT.
Nothing terrible has happened in those places. The judges have not usurped the power of Parliament,
litigation has not exploded, confusion does not reign, the jails have not been emptied of criminals.
In Victoria, courts may find a provision in an act or regulation incompatible with a charter right. That's it.
There is an obligation then on the relevant minister to prepare for Parliament a written response to the
court's declaration. The responsibility rests with the politicians, who can repeal, amend or leave untouched
the provision found to be incompatible.
I see in the paper the other day that Hatzistergos responded to Justice Michael Kirby's support for a charter
of rights. "His Honour is profoundly wrong," said the state Attorney General, and then this, a truly
remarkable sentence coming from a member of the NSW Government: "We have democratically elected
politicians with the capacity, the mandate, the authority, the skill and the experience to be able to reflect
the values of the community and distil those into legislation."
The Victorian model, which is the most favoured minimal version of a charter, simply does not give power
to "unelected judges to institute social change". Hatzistergos is not the only one knocking down scary
Page | 23
straw monsters. Carr, under a headline in The Australian newspaper "Lawyers are already drunk with
power", whistled up a flawed example to bolster his case.
In Canada, the province of British Columbia came up with a system to encourage doctors to practise in
rural areas. Carr said the Supreme Court struck it down, citing the Canadian Charter of Rights and
Responsibilities, which provides for right to mobility and right to life, liberty and security.
As a result, the Macquarie Banker declared: "Canada's rural population is still under-served by doctors,
thanks to judges who want to write society's rules."
A nice try, but not the full picture. Academic Nicola McGarrity from the University of NSW's Gilbert +
Tobin Centre of Public Law has been toiling away on a paper detailing the errors in the anti-charter
campaign. She says that a later case focused on billing restrictions imposed on doctors by the British
Columbia Medical Services Commission. In that case (Waldman) the appeal court overturned part of the
decision on which Carr focused. The result is that the courts have not removed most of the restraints or
conditions that can be imposed on doctors.
Another case cited by vehement anti-charterist James Allan, an academic from Queensland via Canada and
New Zealand, is drawn from the Quebec Superior Court.It concerned a decision that ruled that a father's
punishment of his daughter was too harsh by not allowing her to go to an end of year school camp.
However, as McGarrity points out, the court did not deal with the Canadian charter. The basis of the
decision turned on something else, the Quebec Civil Code's concept of "joint parental authority".
Yet here we are in Australia, a country where the High Court has said it is perfectly all right to lock up
refugees indefinitely without charge, where one side of politics demands mandatory detention for "illegal
non-citizens", where people can be wrongly accused of terrorist acts, illegally imprisoned and have their
visas cancelled for political purposes, where prisoners can be mistreated and where the security agencies
think they are a law unto themselves.
Month by month in this sun-blessed land the case for a charter, even a charter lite, grows more compelling.
justinian@lawpress.com.au
http://www.smh.com.au/opinion/charter-foes-tilting-at-scary-straw-monsters-20081204-6rge.html?page=-1
(accessed 15 June, 2009)
Page | 24
Media are tough on crime and rough on justice
Richard Ackland
October 24, 2008 SMH
On June 16 the NSW Bureau of Crime Statistics and Research issued a report that showed there was no
link between the shortage of heroin and the rise in the use of amphetamines.
The headline in the next day's Daily Telegraph announced: "Users switch to ice. Heroin blitz forces drug
change."
On June 18 the bureau issued data to the effect that there was no upward or downward trend in knife
attacks in NSW.
The Tele knew better and reported the story under the headline, "Stabbings skyrocket as knives plague
city". There is one more favourite.
On August 20 the bureau released figures that said the rate at which property crime was cleared up was
low, had always been low, and that applied not only in NSW but across the country. Further, the bureau
said that property crime rates were the lowest they had been for 17 years.
Three weeks later the Sydney tabloid gave the story a slightly more jaunty angle, with a headline that
screamed: "Streets police cannot defend. Exclusive: Criminals get free run as justice fails."So sections of
the media are providing the public with a message that is at variance with the facts, as reported by the
independent monitor of crime trends.
Little wonder, then, that a weighty report from the bureau released last week dealing with public
confidence in the NSW criminal justice system concluded that when it came to sentencing of criminals,
confidence was low.Sixty-six per cent of more than 2000 respondents to a survey felt that sentences
imposed on convicted offenders were either a "little too lenient" or "much too lenient".
In fact, the proportion of people being sent to jail in the major serious crime groups has been rising for
seven years. Just take a few examples. In sexual assault and related cases, 16 per cent of those convicted
went to prison in 2000. Last year it was more than 24 per cent. In robbery cases 25.8 per cent of offenders
were imprisoned, and last year that had risen to 45.3 per cent.
Most respondents were not confident that the criminal justice system dealt with cases efficiently (52 per
cent), promptly (66 per cent) or met the needs of victims (62 per cent). Unsurprisingly, confidence in
criminal justice was higher among younger, better educated people who drew their information from
broadsheets or educational institutions.
The bureau sources this lack of confidence in sentencing and the efficiency of the system to the message
delivered by the media - in particular TV and radio news and tabloid newspapers. "All too often, media
reporting of crime and justice is distorted, selective and sensationalist." The net effect of this "is a set of
misconceptions that tends to undermine public confidence in the criminal justice system".
That's a serious matter. After all, the legitimacy of judges to issue orders and send people to jail is
dependent on public trust. Without it, judges would be laughed or booed off the stage. So the disconnect
between public perception and what is really happening should be smartly addressed.
Of course, none of this prevents politicians feeding off the misconceptions and beat-ups. You can see this
in the area of bail, where tough laws have produced a doubling of the rate at which bail is refused in the
past 10 years. There is now a huge remand population in the prisons, and Silverwater is filled to the rafters.
Page | 25
You would not necessarily think so if you listened to commercial radio, where the demand to be ever
tougher is relentless.
When the bureau's report was released last Friday, with its censure of the media, how did the coverage
fare? As David Hume said when his Treatise on Human Nature was published in about 1740, "it fell
stillborn from the press".
There was a story in this newspaper from Jennifer Cooke, the legal affairs reporter, there was an AAP
report run in various regional newspapers, but I couldn't find anything in the Telegraph. Frankly, the beast
is never going to be tamed. Crime is a form of public entertainment, hence the findings that large sections
of the public believe property crime is going up, when it has been going down since 2000. They
overestimate the proportion of crime that involves violence, and underestimate the percentage of arrested
offenders who are convicted and imprisoned.
Maybe this is the moment for one more for the road: On June 18 the bureau released data to the effect that
the number of eight- and nine-year-olds coming to the attention of the police had fallen from 130 a month
to 94 a month over two years. The headline in the Tele: "Kid crime rampage".
justinian@lawpress.com.au http://www.smh.com.au/opinion/media-are-tough-on-crime-and-rough-onjustice-20081023-57cr.html?page=-1 (accessed 12 June, 2009)
Page | 26
World Bank Seminar on Legal and Judicial Development
How does the Media Support the Reform Process?
The assumption behind this conference is that justice matters. It matters to rich and poor and to high
and low alike; all and sundry must be guaranteed access to a court system for settlement of disputes
quickly and fairly. In a functional, work-a-day sense, the law is the mechanism for reducing the level of
grievance in any society. Unless there is confidence in the system itself, both in its rules and in the
officials who apply them, then anxiety and bitterness will breed discontent and resort to bullying and
intimidation - a situation where the weak have no protection against the powerful. Justice, in any
society, must arm the weak with the possibility of winning against the strong, even against the State
itself.
Although justice is for most of the time a work-a-day matter of finding the appropriate rules for settling
disputes and resolving grievances and trying accused persons with basic fairness, no justice system
can be worthy of that name unless it provides for judges who are independent of the State which
appoints them, operating without any pressure to decide cases in favour of Government. For such
'David and Goliath' contests, there must be safeguards for judicial independence - bearing in mind the
need for openness, the need for accountability in the exercise of power and expenditure of public
money, and the need for informed public confidence in judicial officers.
The fundamental principles which must guide legal and judicial reforms in every country are to be
found in the Universal Declaration of Human Rights, 1948, notably Article 7 (protection against
discrimination), Article 8 (the right to an effective legal remedy), Article 9 (the rule against
arbitrariness), Article 10 (the right to a fair and public hearing by an independent tribunal) and Article
11 (the presumption of innocence, expanded in terms of defence rights by Article 14 of the UN
Covenant on Civil and Political Rights). These principles have become, in the view of most scholars,
binding rules (or 'norms') of international law, with what is termed a 'jus cogens' force - i.e. 'a rule
accepted and recognised by the international community of states as a whole from which no
derogation is permitted' (see Article 53 of the Vienna Convention on the Law of Treaties).
The task for all states is to erect and maintain justice systems according to these principles - not an
easy matter even for the wealthiest and most advanced democracies, as recent decisions of the
European Court of Human Rights against Britain, France, Denmark etc. attest. For under-developed
countries, or those lacking (or transiting to) democracy, legal systems often fall abjectly short of these
fundamental requirements. Progress depends in part on resources and in part on government
resolve, but the role of the media is important too, both in spotlighting defects in the system and in
raising critical consciousness of the need for reform. To this end, the media's role is supported in
international law by Article 19 of the Universal Declaration (supplemented by Article 19 of the
Covenant, and equivalent articles in regional human rights treaties and in many national constitutions)
promising that
'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers'.
This right is not absolute, as (absent of malice) is the free speech right in the first amendment to the
US Constitution. However, it may be said that international law provides a presumption in favour of
free speech, which may be overridden only on clear proof that it is outweighed by a countervailing
public interest - e.g. in national security or protecting individual reputation from unjust attack or in
maintaining the authority of the judiciary. I shall argue in the course of this paper that the media in
many countries, and especially those with common law traditions, is unnecessarily constrained by
these exceptions, owing to the failure of national courts to interpret free speech guarantees liberally
enough to open themselves up to public criticism.
The right to freedom of expression is fundamental to democratic society. It is an essential human right
which must be guaranteed to every citizen, and even to non-citizens, in respect of opinions however
shocking or unattractive. That is why it must be protected by laws which are up-to-date, workable and
Page | 27
comprehensive, and which contain only such exceptions as are necessary to protect other values in a
free and fair society. That there must be some exceptions admits of no doubt: there can be no
freedom (as a great American judge once pointed out) falsely to shout 'fire' in a crowded theatre:
people may be killed in the panic to escape. Since the free speech principle is grounded in the public
interest, it must give way on occasions when the public interest points the other way - to secure a fair
trial, to protect citizens against damaging falsehoods or unwarranted invasion of their privacy, to
prevent incitement to racial violence or breaches of vital national security. The exceptions should be
embodied in laws which are narrowly and carefully defined.
So far as the government and the judiciary are concerned, the media's job is faithfully to report their
decisions, and to analyse them and criticise them for any perceived mistakes. Law should hold the
balance, and enable both the media and the government to do their jobs, permitting that 'creative
tension' between them which is an incident of every healthy democracy. The law should provide the
media with machinery to access official information and encourage it to expose malfeasance and
corruption, while at the same time providing the authorities with power to punish or stop media
behaviour which imperils national security or undermines the democratic fabric or propagates 'news'
which is false or inaccurate. Media organisations and the journalists in their employ sometimes forget
that they themselves exercise a form of power when they use their right to free speech to criticise
others, in print or on television, so they too cannot be immune from criticism e.g. for dishonesty or
bias on unethical behaviour. The law in a progressive society should therefore conduce to healthy and
informed and responsible criticisms of journalists and editors, especially since the right to free speech
permits them, necessarily, a certain amount of unhealthy, ill-informed and irresponsible criticism of
politicians and judges and other wielders of power.
It must be accepted that defects in a justice system are often not as apparent, and certainly not as
emotionally moving, as the results of genocide and torture and other familiar human rights violations.
While there are blatant examples, such as secret or 'kangaroo' courts, matters such as judicial
corruption or susceptibility to political pressure require sophisticated 'behind the scenes' investigation.
This calls for reporters who are knowledgeable about the law itself as well as its systems and
personnel, and for editors and proprietors who will not buckle under Government threats to put them
in jeopardy before the very judges they have criticised. It also requires a degree of transparency in the
justice system, including a willingness by its professional denizens to open their rituals and practices
to public scrutiny and complaint. It also calls for media practitioners who are skilled not merely in
reporting the courts, but in presenting legal cases in comprehensible and interesting ways.
It has to be acknowledged that this range of media expertise is lacking, to a greater or lesser extent,
in every country other than the United States. There, the commitment to democratic transparency at
every level of the justice system and the reporting freedom provided by the first amendment has
produced a reasonable level of media interest in and exposure of systemic defects and the need for
reforms. Whether seen in examples of widespread public discussion of court cases and
appointments, or in legal magazines and the Court TV channel, the media is able to provide the public
with the evidence it needs to assess the workings of the legal system. This does not of course mean
that the legal system is above reproach - far from it, as the state of many US prisons and the barbaric
implementation of the death penalty attest. But this results from popular choices made by those
elected to public office - the media is able to inform that choice, and does so in a reasonably insightful
and accurate way. The problem in other countries is to equip the local media (and the international
media, in some respects) both with the expertise to report on the legal system and with the right to
publish reports on it which are adverse.
Training journalists to a familiarity with law and legal procedures is not undertaken by many media
groups, and although 'media law' is a module in many communications courses it generally covers
only the laws which impact on professional writing. In some countries the more serious media employ
legal commentators and carry contributions from practising lawyers arguing for specific reforms, but it
is rare to find articles or television programmes which investigate the legal system or expose judicial
corruption. Those which do run a very high risk of litigation, since lawyers are prone to sue to protect
their reputation and judges in many countries have power to punish their critics for contempt of court.
One notable example was an article in an international legal journal a few years ago which alleged
improper behaviour in a number of commercial cases decided by a group of judges in Malaysia. The
publishers received a flurry of suits from both the lawyers it named and their clients, while the
Page | 28
concerned individuals who were quoted in the article were also sued for libel. Very heavy damages
were awarded against one (the secretary of the Malaysian Bar Association) while another (Param
Cumeraswamy, the UN Rapporteur on the judiciary) had to have the libel action against him removed
to the International Court of Justice to establish his immunity from suit. This case provides a good
example of the difficulty even for international publishers of conducting a thorough investigation of
allegations of corruption within a national legal system.
It might be expected that support for such investigations would come from professional associations
and especially from the International Bar Association. Regrettably, these tend to be supportive of
lawyers: the IBA is quick to protest where the human rights of any of its members are threatened, but
has done nothing to encourage critical examination of the way certain of its members operate in ways
which are contrary to the public interest. It has not supported examinations, for example, of the
judicial corruption which in some countries is institutionalised, although this is partly the result of low
judicial salaries. Given that the legal profession in any given country will have a vested interest in
maintaining the status quo, this is further proof of the need for an active and informed media which
can operate without unnecessary constraints in its coverage of the legal system.
If the media is to play its proper role as a watchdog over the justice system, it is vital that national
laws should give it protection from reprisals. Although some constraints are necessary to secure the
fairness of trials, and to safeguard individuals from invasions of their privacy or reckless attacks on
their reputations, these should always be proportionate and must not have a chilling effect on public
interest journalism. Regrettably, many if not most countries have in place laws and punishments
which do exert such a chilling effect. Examples include:
1. Laws which provide for the jailing of journalists.
Progressive societies no longer send people to prison for what they write or publish. But many legal
systems still threaten - and sometimes impose - imprisonment for crimes of sedition, insulting officials,
contempt of court, criminal defamation, inciting disobedience and spreading false news. Such
punishments are usually unnecessary and disproportionate, except in cases (the broadcasting of
Radio Mille Collines in Rwanda, for example) where incitements to serious crime or race hatred are
concerned. Penal laws against the press are otherwise unnecessary and undemocratic.
2. Laws or courts which impose massive fines or damages on the media.
There is a tendency for libel damages in many systems to be 'at large' - i.e. at the discretion of the
judge or the jury. The result can be bankruptcy for the journalist or liquidation for a publishing
company, as the result of a single error. Media operations are such that some errors are inevitable:
there are means of correcting them and compensating for them that do not have a chilling effect on
future investigations. The European Court of Human Rights has ruled (in Tolstoy v. UK) that damages
(in that case, of over US$2 million) should be moderate in media cases.
3. Licensing or restricting publication
This is the most common form of censorship. Although licensing can be justified in some
circumstances - e.g. for radio and television stations - it should always be conducted according to fair
and rational rules, and never be used as a means of silencing critics of official conduct. There can be
no justification for limiting licenses to government channels, or to publications which support the
government. The behaviour of the Singapore government in punishing international newspapers for
criticising Singapore courts or politicians by limiting their circulation to a small number of copies is
objectionable on this score.
An unattractive consequence of wide variations in press laws across the globe is that wealthy and
powerful 'public figures' seek out the forum which has the most plaintiff-friendly law for their actions
against newspapers, books and magazines which are distributed for worldwide sale, as well as
against satellite television and the Internet. (The favorite forum at present is the UK, which places a
heavy burden on the media to prove the truth of the stories and permits libel actions if only a few
copies of the offending publication are circulated within the country). This ability to forum-shop for the
jurisdiction which is least tolerant to free speech should be curtailed: in a global village it makes no
sense for the new breed of 'international' public figures to enjoy different reputations in different parts
of town.
Page | 29
Article 19 of the Universal Declaration bestows a right to 'seek' information as well as to receive and
impart it. This must imply more than a right to ask questions, and may be used to support three
implications of the Article 19 right:
(1) to impose duties on governments to divulge information;
(2) to protect whistleblowers who breach secrecy laws and employment contracts in order to speak
out, in conscience, from within a government agency; and
(3) to permit journalists to refuse to divulge their confidential sources for stories, no matter how much
the identity may be of interest to police or security services, or to government or courts or big
business.
In this last respect, in 1996 the European Court held in Goodwin v. UK that the right to freedom of
information carries the implication that journalists must be permitted to protect their sources,
otherwise there would be no information to be free with - sources of news would 'dry up'. It has yet to
consider the case of the whistleblower (who might enjoy additional support from the 'freedom of
conscience' guarantee in Article 18). Freedom of information legislation is common enough in
advanced political systems, where it is seen as a part of the definition of democratic culture, bolstered
by reference to the 'democracy rights' in Article 21 of the Universal Declaration of Human Rights,
including the right to participate in government and to have 'equal access' to the public service.
Many states are at present trying to restrict access to the Internet, either by criminal laws which
prohibit it entirely (in Libya, Iraq, North Korea, Burma and Syria) or by controlling a sole service
provider (in Saudi Arabia, all traffic goes through a ministry which disallows access to sites offering
'information contrary to Islamic values'). A similar 'firewall' has been erected by China, not only to stop
information coming in other than through the official gateway, but to stop 'official secrets' (i.e.
criticisms of the regime) being e-mailed abroad. China's surf wars are fascinating to watch, given
popular expertise with the technology: the Falun Gong cult was banned more for its ability to organise
demonstrations by e-mail than for its meditation techniques.
To enable the media to give greater support to the process of law reform it will be necessary to
remove or mitigate some of the deterrents to investigate coverage of the extant system. This will
mean reforming laws which provide for prison, heavy damages and licensing and also narrowing
somewhat the exceptions to the free speech principle. In countries (there are 50 or so) which base
themselves on English common law, that will mean reforming the law of libel so that the burden of
proof is placed on the plaintiff and unfair presumptions - that a plaintiff is of good character, that every
defamation causes damage - are removed. The advent of a Bill of Rights in Britain, with a free-speech
guarantee, had already produced (by judicial creation) a new public interest defence.
But where coverage of the courts is concerned, local laws must rigorously uphold the 'open justice'
principle, which is based on the notion that justice is not done unless it is seen to be done (as Jeremy
Bentham put it, public access to courts 'keeps the judge, while trying, under trial'). This transparency
must extend to the court file - all pleadings and evidence submitted should be open to public scrutiny.
There should be obligations upon Chief Judges to present annual reports of court performance.
The challenge is two-fold: to the media itself, in equipping its practitioners with the skills to understand
and explain to the public the importance of having an advanced justice system, and to governments
and legislatures and courts in appreciating the importance of giving the media more freedom to
investigate and expose, however uncomfortable (and, sometimes, erroneous) the conclusions of its
investigations may be. Legal systems must themselves be more transparent, and more welcoming of
media scrutiny on the principle that justice must be compatible with fair trial rights as well as the right
to freedom of expression. It is a power which is necessary for 'maintaining the authority of the
judiciary' - that authority is not maintained by a power to jail critics.
The performance of the media in supporting judicial and legal reform varies from country to country:
the only generalisation that can be made is that it is uneven and underwhelming.
The time has come also to give attention to the scope of the power of courts to punish their own
critics. The English common-law offence of 'scandalising the courts' remains a crime in many
Page | 30
Commonwealth countries (in Scotland it is known as 'murmuring judges') and the punishment of
journalists who allege corrupt behaviour by judicial officers. It has been invoked recently in Kenya,
Ghana, Mauritius, Singapore and Malaysia (where it was used last year to jail a Far East Economic
Review reporter, Murray Hiebert, and against several of the barristers defending Anwar Ibrahim). It
permits judges, in effect, to act in their own cause, and is thus seen in order to be done.
http://www.geoffreyrobertson.com/index.html (accessed 12 June, 2009)
Page | 31
Saturday, 6 June, 2009. Illustration: Alan Moir
Tuesday, 9 June, 2009. Illustration: Alan Moir
Page | 32
May 30Illustration: Tandberg The Age
June 3 Leunig The Age
Page | 33
June 16
Illustration: Tandberg The Age
Page | 34