The Weekend Australian
Lawyers ‘shake trust in courts’
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.