Australia’s legal profession is ignoring its golden principles in favour of progressive radicalism
It is surpassingly rare for an entire profession to lose its way. The Australian legal profession has done exactly that. A profession once devoted to the defence of individual rights against collective oppression, the protection of the unpopular against the baying crowd, and fierce resistance to those who would politicise the institutions of justice, has surrendered to a grim, grey orthodoxy.
From top to bottom, with some rare and honourable exceptions, the profession enforces a stultifying and brutal progressivism.
In doing so, it has abandoned, to differing degrees, the presumption of innocence, the right to a fair trial, the principle that justice takes no account of colour, creed or sex, and the democratic contract that parliaments, not judges, make laws.
Like so many projects of the utopian left, the road to this dire outcome was initially strewn with good intentions. The #MeToo movement induced some much-needed attitudinal change and improvements in court processes for sexual assault complainants. Then, however, it went woefully overboard with ludicrous claims that fly in the face of human experience, such as “believe all women”. We even had judges openly wondering why juries found it so hard to believe female complainants. This has led to a zeal for prosecution of even very dubious cases.
A number of judges in NSW have complained about the prosecution of meritless claims. We are entitled to be concerned about whether in this atmosphere defendants in sexual assault trials are given all relevant evidence.
At least one prosecutor, former ACT DPP Shane Drumgold, even admitted that evidence was withheld from a defendant based on incorrect claims of legal professional privilege.
It was perhaps inevitable that the #MeToo movement would become politicised. But the public flaying of demonstrably innocent people has gone too far. Senator Linda Reynolds and her chief of staff, Fiona Brown, were, we now know, wickedly and baselessly accused of covering up a rape.
Looking back, where was the legal profession when all this was happening?
While claims of sexual assault and sexual harassment need to be treated seriously and investigated carefully, we cannot allow them to become a separate area of the law in which none of the usual principles apply. So-called zero tolerance of sexual harassment is at risk of doing just that.
Complaints of sexual harassment at work are often judged by standards and procedures much lower than those applicable to criminal law. That is only sensible – workplaces are not, and cannot become, courtrooms. But complaints still must be proven, not just assumed true. And no matter what the zealots say, findings of wrongdoing at work cannot result in punishment much harsher than the criminal justice system would deal out. “Zero tolerance” cannot become, in effect, the ultimate in mandatory sentencing where every offence attracts the maximum punishment. Nor can zero tolerance mean punishment is eternal with no hope of parole, let alone redemption.
The legal profession is missing in action on these topics, as on so many others where it might once have been expected to be heard.
The silence of the legal profession on matters where it would once have been vocal stems from a rigidly enforced progressive orthodoxy that starts at university.
And it looks set to get only worse. The indigenisation of law courses has led to students being forced to give acknowledgments of country and marked down for any lack of enthusiasm.
In defiance of decades-old Australian law on sovereignty clearly pronounced by the High Court, we have corners of law schools that believe in the kind of separatism for Indigenous peoples advocated by the Yoorrook Justice Commission.
We even have judges who parrot the “sovereignty never ceded” justification for a separatist state. There are some courts where every serious occasion is delayed by endless recitations of acknowledgment of country.
Is it any wonder this demand for ideological conformity was so prominent in the voice debate? This was true not only at universities, where public divergence from the accepted progressive view was regarded as a career-limiting move, but also at our great law firms, the Bar and the law societies.
Although towards the end of the debate more lawyers were prepared to question the wisdom of this cockamamie idea, when it was first proposed I regularly came across senior barristers who thought the voice was a seriously bad plan but were not prepared to say so publicly for fear of retribution in the form of lost briefs or bad publicity.
When even legal doyens of the Bar accused those they disagreed with about the constitutional implications of the voice, accusing them of making racist arguments, you know the famed, fearless independence of the Bar is at risk. If you had any doubt, simply investigate the compulsory re-education camps sponsored by various Bar councils and law societies under the guise of compulsory legal education. Ideology is not merely rampant but compulsory.
The judiciary is no safe haven either. Our High Court was traditionally guided by the “strict and complete legalism” demanded by perhaps our greatest judge, Sir Owen Dixon, but in recent times has wandered on to adventurous grounds in cases such as Love v Commonwealth when it appeared to find a special status for non-citizens of Indigenous descent.
The problem with judge-made law, apart from its democratic illegitimacy, is that it is a quicksand bog that, once judges get trapped in it, becomes impossible to escape. A classic example is the “implied right of political communication” that was invented out of whole cloth by the High Court led by Sir Anthony Mason in 1992.
Since then it has become a complete and utter mess full of reinterpretations and new variations so incomprehensible no mortal man can predict its application. But it does allow judges to come up with whatever result they want. That’s fun for judges, but not so much fun for citizens who want to know, with some degree of reasonable certainty, what the law is.
High Court Justice Simon Steward pointed all this out in a recent case, only to be metaphorically caned for his candour by Chief Justice Stephen Gageler (whom some credit for convincing the High Court to invent this doctrine in the first place).
Probably the worst example of the legal profession ignoring its golden principles in favour of progressive radicalism can be found in the sentencing principles now advocated by various state judicial commissions. These principles embody what UK commentators call “two-tier justice” – namely, that sentencing and the laws of evidence can vary depending on whether you are a member of an oppressed minority.
Even the Starmer Labour government has realised this is anathema to equality of justice and has banned the practice.
Not so these Australian judicial commissions whose only rivals for radical activism seem to be the Australian Human Rights Commission and the Law Reform Commission.
Charles Dickens wrote in Bleak House that “the one great principle of the English law is to make business for itself”. Politics has now overtaken business.
The great aim of the Australian legal profession is now too often to use the law to win political victories it could never win at an election.
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