A crowd has gathered in black and white… The Language of Law #auslaw #auspol

For those of you who complain about the state of scientific journalism, spare a thought for those of us who crave good legal journalism.

There appears to be some rule in journalism that you don’t report cases as two sides of a discussion engaging with each other to work out what the law should (or ought) to be.  Perhaps it’s because it’s too difficult to communicate nuance, subtlety, and thoughtfulness to the mass audience who crave blood sports.  Perhaps it’s because explaining complex legal arguments about Executive Power, about the Rule of Law, about the nexus of domestic and international law, and about legislative instruments won’t sell newspapers.  Perhaps it’s because the same guy who files the stories about High Court cases is the same guy who also has to write and file stories about federal politics, state politics, higher education, sport, and travel.

Whatever the reason, the media has let us know that Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 was about a stupid and evil/incompetent (strike out as appropriate given your political persuasion) government and the right-thinking, just and pure moral crusaders.  The High Court, in its magnificent wisdom, chose the winning argument which any person in the street could have told you was obviously the correct answer.

Except this isn’t how our legal system works at all.  The High Court was answering a question of law: what is the proper construction of a piece of legislation?  There were at least two credible readings of the legislation, one of which the majority of the High Court found more persuasive.  There was at least one other reading which the Government and one of our finest legal thinkers, a High Court judge, found more persuasive.  To say, as many appear to say, that the Government had rubbish legal advice, that the Government knew what it was doing was illegal, &c., &c., is to also say that one of the people on the High Court does not belong.

Further, the decision was meaty and intricate.  While the media portrayed it as a morality play, the decisions were all based on very technical, amoral reasons.  What is the proper construction? What power was the Minister using?  Instead, we got ‘The judges agreed with the good refugee advocates and destroyed the evil Government’s plans.’  Remember, the Court did not say that moving people to Malaysia was unlawful.  They said it was unlawful to do it in this particular way.  But there’s no time for meaty and intricate when there are a hundred other stories about scandals/breasts/celebrities which might distract the reader.

I don’t have a hat in the ring.  I would have been happy with either decision.  Following the case closely, I was awestruck by the awesomocity of our legal system.  This was a case where a statutory body (the Human Rights Commissioner) was able to intervene in a case against the Government.  This was a case where the Government helped the people suing it to more precisely state its case (check out the transcripts from the first day; understandably, the plaintiffs seem a bit all over the place: it was even unclear who precisely the plaintiffs were).  This isn’t mere democracy at work.  We have a political system where the parties are genuinely interested in just and lawful outcomes.  This should inspire pride.

Instead, we’re down in the muck with braying gloating on both sides of politics.  It was a fight the Government lost.  Stupid Government.  When are we going to get a better one?

Edit: After writing this, I watched tonight’s episode of The Drum.  Steven Cannane summed up the problem perfectly: ‘So, Cassandra, was the Government incompetent or did it just get bad legal advice?’

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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