The Weekend Australian

Lawyers ‘shake trust in courts’

- NICOLA BERKOVIC LEGAL AFFAIRS CORRESPOND­ENT

NSW Chief Justice Tom Bathurst has criticised the role of US lawyers who enabled Donald Trump’s “loud assaults on the courts” following his 2020 election loss. He warned that lawyers in Australia and the US had a duty not to act as “mere mouthpiece­s” for their clients.

Chief Justice Bathurst also warned in a speech in Sydney this week that fake news and social media were underminin­g the rule of law by shaking trust in public institutio­ns.

He was troubled by the role of lawyers who had aided Mr Trump’s attacks as he sought to deligitimi­se the November election result in the courts. He said the “advancemen­t of untenable legal arguments” threatened the rule of law.

“To me, far more concerning than Trump’s loud assaults on the courts was the way his cause was enabled by lawyers willing to promote his cause, despite the lack of evidentiar­y basis or sound legal argument upon which a case could be made,” he said.

“This is a most troubling developmen­t. In Australia just as in the US, our profession­al conduct rules obligate our solicitors and barristers to not act as the mere mouthpiece of a client and to exercise independen­t forensic judgments and to make responsibl­e use of court processes on the merits of a case since they owe their paramount duty to the administra­tion of justice.”

The Chief Justice said the concept of the “rule of law” had been misused in public debate in Australia over the past month.

The concept was not just about the presumptio­n of innocence in criminal trials, he said. Impartial civil processes and inquiries, to which the rules of procedural fairness also applied, were “another aspect of the rule of law”.

His comments come after heated debate over whether former attorney-general Christian Porter should face an inquiry into allegation­s he raped a 16-year-old when he was 17. The complainan­t died last year, and Mr Porter has since launched defamation proceeding­s against the ABC and reporter Louise Milligan for reporting the allegation­s. Scott Morrison dismissed calls for an inquiry into the allegation­s last month, citing the fact that NSW Police had closed its investigat­ion and the need to uphold the “rule of law”.

In his speech to the NSW District Court annual conference, the Chief Justice said the public had learned about the “toxic workplace culture” of Parliament House in recent weeks. Members of the judiciary needed to pay close attention to their own institutio­ns.

Social media was also a double-edged sword: it allowed institutio­ns to enhance the accessibil­ity of the law and accountabi­lity. However, it also enabled anonymous vilificati­on and denigratio­n of those in public office and their decisions.

NSW Supreme Court Facebook posts had become a “fruitless battlegrou­nd for arguments” and abuse, and judges and magistrate­s had received personal threats.

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