Peter A Clarke

Surely John “Don Quixote” Riordan knew the Bar Council wouldn’t budge on his proposals to turn a light into the darkness that is the silk appointment process.  Riordan sent on 20 February the Chief Justice and to just about everybody in legal community Australia.  It has been released to just about every barrister in Victoria.  It reads:

The Hon Justice Warren< ?xml:namespace prefix ="" o ns ="" "urn:schemas-microsoft-com:office:office" />

Chief Justice

Supreme Court of Victoria

 

 

Dear Chief Justice

 

I write regarding last week’s extraordinary and secret intervention by the Court in the ongoing debate regarding the process of ‘Silk’ selection.

 

The debate has taken place over the last two years.  It has been a public and open one.  It has extended to the entire profession.  It has been the subject of considerable press coverage.  Not surprisingly, the general reaction has almost universally been in favour of changes to the system, and, in particular, for the provision of transparency.

 

There has been an ominous quiet from the Court.  It has not participated in the debate.  It has not sought to defend the system.  It has not condescended to reasons.  All correspondence has been forwarded to the Court without response.  The only reaction has been a letter advising that the Court would await the Bar Council’s determination.  It has not.

 

The Bar Council has resolved to consider the proposed changes to the selection process at its meeting next Thursday, 22 February 2007.  It had been anticipated that the Council would adopt contemporary standards and resolve to implement the changes sought.

 

However, the Court has now moved.  Not to give reasons.  Not to justify the system.  Not to join the debate.  Rather, it has acted to impose pressure on the Bar Council to reject change, irrespective of the merits.  Last week, it secretly summonsed the Bar Council executive to the Court.  There, they were told that the Court would not tolerate change;  the Court got the selections right; the Council would show loyalty to the Chief Justice and reject the proposed changes.

 

This extraordinary interference cannot be justified.  It smacks of the approach which might have been expected in the 17^th century when the system was born.  However, it is consistent.  The Court’s secrecy in the selection process is now demonstrated in its defence of the system. 

 

It might be considered that the Court is not suited to this role.  There is a real risk that its approach, so out of contemporary kilter, will bring the Court into disrepute.  It is not necessary or desirable for the Court to determine selection.  It is not part of its judicial role.  This debate relates to an administrative function in respect of which it is amenable to criticism and judicial review.  The selection process is an inappropriate and impossible one for a Chief Justice.  The United Kingdom and New South Wales models indicate this is so and have removed the Court from the selection.  It is difficult to comprehend objection to change in the light of the comprehensive enquiry in the United Kingdom which has embraced change well beyond that sought here.  South Australia is reviewing its position.

 

For the moment, the immediate concern is for the integrity of the deliberations of the Bar Council which meets on Thursday.  There is enormous allegiance to the Chief Justice, irrespective of the capacity in which she speaks.  The members must be allowed to decide these matters independently and by reference to contemporary standards.  It may be too late.  However, the Court should take immediate steps to relieve the Council of the pressures which have been brought to bear upon it.

Brave words, perhaps even foolish.  Putting accusations to the Chief is a great way of putting yourself in the advocacy dog box.  There is one positive.  A reasonable apprehension of bias application before the Chief has got to have a running start. 

What is so disappointing is the inept way in which the Bar has handled an issue which surely requires a proper review. At week’s ended with the Bar Council did their best Easter Island thing in “unanimously endorsed” this byzantine process.  The chair posted the following pithy statement on the Vicbar web site:

• Review of the Process of Appointment of Senior Counsel On 22 February 2007, the Bar Council unanimously resolved to confirm its support for the current process of appointment of senior counsel by the Chief Justice.  

Put aside the pros and cons of the issue, of which there are many. Look at the politics of it all.  Why doesn’t the Bar set up a review, consultation maybe and actually talk to the media about the pros of the process.  Its not like the 4th estate doesn’t take an interest.  The Australian goes nuts over the issue  and almost hopes it will collapse under its own weight (see Merrits article about the South Australian silks).  Merritt has a thing about barristers and what advocates do (see Media Watch’s analysis of his ridiculous piece on the release of Jihad Jack Thomas).  The Law Report had a run past the issue in October.

Next Friday’s Prejudice section will have Merritt ruminating and raging in equal parts.  Why not the Bar is such an easy target.

Waleed Aly, ex of Victorian Islamic Council, has an opinion piece in today’s Age . I have no problems with him having a red hot go at Professor Raphael Israeli whose comments about Muslims and the threats they pose is fair enough. Generalisers who go on about societal problems being explained away by this or that ethnic group are sloppy thinkers and often of fascist tendencies. The article is a bit stodgy and earnest but he doesn’t call for a ban on Israeli. He chooses to take on Israeli because “they are not as marginal as they are mad” (whatever that means) and he can’t ignore the challenge. So it is a matter of education.

How things have changed for Waleed. His earlier tendency was to go for the big ban. He of the Islamic Council of Victoria was an enthusiastic supporter of the cumbersome blunt instrument of censorship otherwise known as the Victoria’s racial vilification legislation. In an article on 21 December 2004 in online opinion (copy of articles published in the Courier Mail) titled “There is free speech, and then there is hate-inducing vilification” showed way less tendencies understanding and tolerance of alternate, even vile opinions. In his 2004 persona he gloated, after the Council had a win in the Victorian Civil and Administrative Tribunal. Have a squizz at the less liberal Aly:

Expect to read a lot of obituaries to free speech over the coming weeks.

On Friday, the Victorian Civil and Administrative Tribunal ruled (pdf file 324kb) that an evangelical Christian group and two pastors had incited hatred, ridicule and contempt for Muslims in contravention of religious vilification laws.

………..

Democracy only functions meaningfully in a well informed society. And this is only possible where competing ideas are allowed to contend in the public domain, and public debate is allowed to flourish. Without this, there is little difference between democracy and dictatorship.

• So far so good.

No doubt then, free speech is a cornerstone of any genuine democracy. But it is never, and can never be, absolute. Australia has only very limited constitutional protection of free speech, and has some of the tougher defamation laws in the common law world. We accept these restrictions because we recognise that free speech is a means to a democratic end, rather than a goal in itself. It is a wonderful servant, but a dangerous master.

• Ah the traditional, free speech can never be absolute. Natural born censors are always starting any defence of curbing free speech with that trite drivel. Frankly speech, the exchange of ideas, should be absolutely free. Or at least that should be the aim. But the censore is delighted with the status quo. Because in Australia there is plenty of controls and no revolution about it. Therefore it must be OK.

Friday’s ruling concerned more than mere disagreement between religious groups. It even went beyond the contemptuous mocking of another religious group. Though there was plenty of that, it was more serious. One defendant argued that Muslims have a plan to take over Western democracy through violence and terror, and to replace it with repressive regimes; another argued that Muslims would rape, torture and kill Christians in Australia.

• So we have a group of ratbags arguing conspiracy. Ever read the John Birch society nonsense. They’ve been doing it for nearly 50 years (and maybe longer) and yet society has not collapsed.

Of course, people have the right to advance such ridiculous arguments, and the religious vilification laws do not change that. All the legislation requires is that such arguments are put reasonably and in good faith. It does not limit the scope of debate. But there was nothing reasonable about the arguments put forth in Friday’s case. Not a scrap of proof was given for such rancid claims.

• Here is where Waleed of 2004 is just being duplicitous. On his arguement put ridiculous arguments but put them reasonably and good faith. Palleeeeease. He sets up a straw man.

Judge Higgins was stating the obvious when he said the comments in question served no genuine religious purpose or any other purpose in the public interest.

• How stupid is the law when a Judge has to trawl through religious rants. Bad policy.

This was not a serious discussion of religious beliefs. It was nothing more than pure hate speech. Can we honestly maintain that this is what free speech in Australia is about? Is this really necessary for our democracy? Does it really enhance our public debate? Surely not.

Surely it is in everyone’s interests to prevent our public conversation from being hijacked by this vitriol. After all, we’ve prevented it in the past. If such things were said of an individual, it would be undoubtedly defamatory. If said of a racial group, it would have long been illegal under racial vilification laws (just as Holocaust denial has been).

• What nonsense for Waleed to now say what is in everyone’s interest. Patronising nonsense. And because we have banned it in the past we can ban it now. Sounds like a great argument.

If anything, the idea that such statements cannot be made of religious groups is actually consistent with the traditional Australian approach to free speech. It therefore seems a little hysterical to say, as one letter in yesterday’s Herald Sun did, that “freedom of speech is now officially and legally dead… No more can pastors critique other religions”.

Surely we can tell the difference between a sincere critique of another faith, and a baseless assertion that Muslims will embark on a spree of rape, torture and killing of Australians.

• The problem is always putting a judge, politician or censor to determine the differences, to draw the line.

This case illustrates how religious debate in Victoria should proceed. By all means, let us engage in passionate, robust debate. But let us do so reasonably and sincerely so that our speech can create a well-informed society that is so vital to democracy. If instead we allow misleading, hate-inducing vilification to masquerade as debate, we are actually undermining the very democracy that is so dear to all of us.

• The opening line is a classic. Having VCAT finding against a fringe church group with possible sanctions is an illustration of how religous debate should proceed. Crypto fascist nonsense.

But perhaps Waleed has lost his enthusiasm for having the court system telling what is reasonable and not with the Court of Appeals decision in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284