In 1984, international human rights lawyer Geoffrey Robertson shot the first episode of his critically acclaimed Hypotheticals TV series on the Australian Broadcasting Corporation (‘the ABC’).[1]
The show was a landmark of its time.
In each episode, Robertson posed a series of hypothetical questions to a panel of high-profile public officials: politicians, police chiefs, community leaders, judges and professors. Interrogating them using the Socratic Method, he tested their logic, reason and resolve. The way each guest answered the hypothetical revealed a distinctly Australian view of law and justice, guilt and innocence, right and wrong. By questioning top officials, Hypotheticals went a long way to establishing an active legal culture in Australia, where lawyers were viewed as an essential part of public policy discussions.
Since the last airing of Hypotheticals in the 1990s (and despite a few one-off episodes since), the role of the lawyer has substantially changed in Australia’s media landscape. Today, a culture of silence and restraint dominates the legal industry, with lawyers either outright banned or discouraged from talking on television, to the media, on social media, on radio and on other mediums. Junior lawyers now sign standardized employment contracts that restrict their right to speak to the press unless given written permission from their supervisors to do so. New social media contracts likewise limit lawyers’ free speech online even after working hours. Finally, judges continue to limit the ability of lawyers to talk about ongoing cases, restricting the use of cameras, phones and video cameras in the courtroom. With all of these rules and restrictions in place, it is easy to understand why Australia’s public legal culture has so rapidly declined.
By limiting the free speech of lawyers, Australia risks losing the open, public debate and discussion about the law that it had in the past, when shows like Hypotheticals were more common. The risk is so stark that it can be said to be a risk to democracy itself. As the former High Court Justice Michael Kirby puts it: ‘the rule of law will not prevail without assuring… practicing lawyers … a very high measure of independence of mind and action’.[2] Lawyers need to be empowered to be free and independent, to speak their mind and to speak publicly about issues of justice and law reform. Without lawyers in the media, society risks being uninformed about problems with the law as it currently stands, politicians are free to create laws without accountability and crucial measures of law reform are not mentioned in the public sphere. A modern, secular democracy therefore requires active, public lawyers.
In contrast to the current Australian media market, the American media market is brimming with lawyers and judges on television, arguing over whether the law is just and what the law should be. In America, lawyers and judges have their own TV shows which go beyond the enforcement of law into debates about whether the law should change. Popular examples include Judge Judy, The People’s Court and Justice with Judge Jeanine, but more generally, lawyers can be seen on daily televised panel shows. Americans do not leave discussions of the law to social commentators, but instead allow public advocates to in fact become advocates for the public. By giving lawyers space in the media, they encourage public discussion on law and law reform, legal rights and legal duties.[3]
This is most visible in the role of the U.S. Attorney General. Unlike their Australian counterparts, U.S. Attorney Generals play a very public role in discussing law in the media. [4] Many of them campaign for laws that they believe are in the public interest, taking the fight to the press, to social media and to other avenues of public comment.[5] Furthermore, they maintain a public role by giving speeches at regular intervals on current issues with the law. The U.S. Attorney General fulfils the role of ‘public lawyer’ in a way that is increasingly rare in Australia, by representing the public interest across multiple media platforms.
This chapter will explore how and why Australia has lost its public legal culture, including an exploration of Geoffrey Robertson’s Hypotheticals, arguably Australia’s last ‘public’ lawyer television show. It will also consider the active legal culture in the U.S. and whether there is anything to be gained from the American media market.
- Geoffrey Robertson’s Hypotheticals:
Geoffrey Robertson is instantly recognizable with his trademark silver hair, Armani suit and his infamous ‘vowel transplant’: he is an Australian with a British accent fit for the Queen.[6] Born in Sydney, Australia, Robertson studied law at Sydney Law School before receiving a Rhodes Scholarship to attend the University of Oxford. Upon graduation, he rose in the ranks of the legal profession, distinguishing himself as a formidable barrister and international human rights lawyer bar none. His clients have included the likes of Salmon Rushdie, Princess Diana and Julian Assange.[7] His friends have included the likes of Mick Jagger, Tony Blair and Tom Cruise.[8] In the 1980s he dated the celebrity British chef Nigella Lawson. Today he works with Amal Clooney.[9] To put it simply, Robertson is as close to a celebrity as an Australian lawyer can get. He is also Australia’s last public lawyer.
For the purposes of this chapter, I define a ‘public lawyer’ as a lawyer who frequently engages with the public using multiple media platforms. This usually (but does not have to) include hosting one’s own television show. This definition appears to be narrow at first until one considers how many American lawyers have their own television shows. By contrast, Australia’s media market is distinctly lacking in public-facing lawyers, with the rare, notable if-outdated exception of Geoffrey Robertson himself. In the 1980s, Robertson was famous in Australia for his televised discussions of the law and his speeches and commentary, which were broadcast across television, radio, film and theatre. In every medium he sought to clarify, question and interrogate the law on behalf of the general public. In this way he both served and led the public in discussions about new legal norms.
Never was this more evident than in his television series Hypotheticals. Broadcast on the ABC from 1985 – 1990, with a few one-off episodes since (2006, 2009, and most recently, 2013), Hypotheticals was a landmark of its time. On each episode Robertson, an established QC, posed hypothetical questions to those in power, interrogating their answers and pointing out flaws in their logic. He took on the role of moderator. [10] The guests in turn, were some of the most well-known names in Australian households at the time.[11] As an advert on the ABC put it:
Guest panellists throughout the series include politicians, doctors, members of the legal profession and such well-known personalities as Dick Smith, actress Robyn Archer, environmentalists Norm Sanders and Bob Brown, Ita Buttrose, radio personality Alan Jones, singer Neil Finn and Aboriginal activist Michael Mansell.[12]
By asking interrogative questions to high profile guests, Robertson created a powerful public legal culture; a culture of the lawyer as inquisitor and truth-seeker. Instead of the typical stereotypes of lawyers being greedy, ‘cunning’ and unethical, Hypotheticals showcased the lawyer as a critical thinker, a thorn in the side of authority and a pursuer of justice.[13] The show was not only premised on the idea that the law ought to be questioned, but that the role of the lawyer was to question the law.
Robertson questioned the law and his guests by using the Socratic method. As Robertson puts it, he aimed ‘to tease out the rationale behind a decision, and then examine whether that rationale can serve as a general principle by applying it to other, similar cases. If not, the original decision is exposed as opportunistic or wrong’.[14]
Here is an example of Robertson’s Socratic Method at work in a 1987 episode of Hypotheticals (‘What’s Your Poison?’) regarding the death penalty:
Robertson: So you approve of the execution. Will you go and see it?[15]
Peacocke:[16] Absolutely. If you believe in the death penalty, I don’t think you ought to be afraid to see it.
Robertson: It will be a fairly harrowing occasion. You might need a stiff drink or two before you go.
Peacocke: Before and after, probably.
Robertson: That’s a pity. Xanadu is a Muslim country. The penalty for drinking is being stoned to death.
Notice how Robertson takes the general principle (is the death penalty just?) and applies it to a similar case (is the death penalty just when applied to you personally for drinking alcohol in a Muslim country?). If the answer to the second question is no then, Robertson reasons, there is a problem with the answer to the first question being yes. Logic must remain consistent between various hypothetical situations, he suggests, or else it is not logic at all.
The idea he pursues here is very similar to Kant’s categorical imperative to: ‘act only on that maxim through which you can at the same time will that it should become a universal law’.[17] By interrogating guests on the universality of their logic – Robertson can reveal that they are in some way illogical or inconsistent. This also matches the general principle of the rule of law itself: the idea that the law should be applied equally to all people.[18] Naturally, we can ask: can a law be applied to one person justly and to another unjustly? Is it okay for the death penalty to apply in our own country but not in Muslim countries? What is fairness and equality?
It is these complicated questions of law, justice and ethics that made Hypotheticals such a crucial part of Australia’s active legal culture. Not only did it provide a platform to question political leaders, but it promoted debate about legal norms and principles such as the death penalty, drug reform, multiculturalism, journalism ethics and sentencing procedures.
The aim of the show, as Robertson puts it, was to get viewers to ‘sit up and think, and distinguish in their own minds between good arguments and bad arguments’ about the law, society and justice.[19]This is similar to Socrates’ own conception of the Socratic method. In testing his students, for example, Socrates would apply ‘every conceivable test to see whether the young man’s mental offspring is illusory and false or viable and true’.[20] He would then pose hypothetical scenarios as a further test, ‘to detect errors in conventional views about knowledge and truth’.[21] It was this intense style of questioning that made Socrates famous, and to which Robertson owes a debt of gratitude.[22]
Of course, we must consider that the Socratic method itself has adapted and changed over the years. Since the late 1800s, a modern version of the Socratic method has been used in law schools around the world.[23] First used by Christopher Columbus Langdell at Harvard, the method involves asking students various questions to test their logic.[24] The teacher ‘asks probing questions in an effort to expose the values and beliefs which frame and support the thoughts and statements of the participants in the inquiry’.[25] This reveals ‘the motivations and assumptions upon which students lead their lives’.[26]
This newer version of the Socratic method is similar to that used by Robertson in Hypotheticals. In the show, he does not merely ask interrogative questions, but aims to reveal motivations and assumptions behind how our leaders act, and why they make particular decisions one way or another. This contributes to the public’s understanding of how legal norms are created, enforced and perpetuated. It also contributes to an active legal culture, where lawyers are in the driving seat in terms of questioning legal norms.
Here is another example from a 1984 episode of Hypotheticals, filmed for Channel 9 but never broadcast, regarding ethics in the media:
Robertson: Would panellists expose Justice Benchmark, of the High Court of Australia, if they learnt he was an occasional cocaine sniffer?[27]
Answer: Yes.
Robertson: What about if it were the journalists’ boss that was caught with cocaine?
Answer: A more difficult question.
Again, notice how Robertson takes the general principle (is it okay to report on a person’s drug use?) and applies it to a similar case (is it okay to report on your boss’ drug use?). If the answer to the second question is no then, Robertson reasons, there is a problem with the answer to the first question being yes. Again, he suggests by implication, that logic must remain consistent between various hypothetical situations or else it is not logical at all.
Through his use of interrogative, Socratic questioning, Robertson created a show in Hypotheticals that set the benchmark for critically engaging television. The show cemented the role of the lawyer as a truth-seeker and inquisitor, someone who assisted the public in understanding the law, its faults and virtues. Robertson himself was established as Australia’s last public lawyer. Unfortunately, this unique legal culture in Australia was not to last.
The 1980s and 90s saw the last of Australia’s critically engaging legal television, with shows like Hypotheticals (1985 – 1990), Sea Change (1998 – 2000) and films like The Castle (1997) showcasing a unique Australian ideal of justice.[28] Many Australian legal dramas and crime shows have been created since the 1990s, but the vast majority of these have been fictional, and often with a focus on criminal law rather than political and/or social/legal issues.[29] Today’s ABC specials showcase the lawyer as a rule-bound expert (On Trial) or as a cliched, greedy farce (Rake and Crownies).[30]
Finally, it is worth noting that there is a new show created by Annabel Crabb and Charlie Pickering, based on Robertson’s hypothetical’s format, first aired in 2018.[31] The show exemplifies much of what has been said already above. The hosts are a political commentator and comedian, respectively, rather than practicing lawyers.[32] Charlie Pickering is a former lawyer, however, it is notable that any current lawyer probably would not be able to do the job, as I explain below.[33] Instead, serious discussion about the law have been left to comedians, people who are there literally to not take themselves seriously.
- The Culture of Silence and Restraint on Australian Lawyers Today:
Since the late 1990s, lawyers, judges and legal academics in Australia have been discouraged from engaging in public television outside of carefully controlled news and current affairs programs. At the top law firms, new lawyers sign media confidentiality contracts, barring them from appearing on television without written permission from their superiors.[34] New lawyers likewise sign social media contracts, barring them from speaking freely online.[35] Finally, Australian courts maintain a strict control over what lawyers can say regarding ongoing cases, whilst limiting the use of film and audio recording equipment in court.[36] The preponderance of these restrictions on lawyers’ is preventing Australia from having an active legal culture that it had in the past, in the days of Hypotheticals. In the midst of so many restrictions, it is difficult for modern lawyers to act as ‘public lawyers,’ engaging with the press across multiple media channels. As a result, the public are less informed about the law, its faults and virtues and efforts of law reform.
Most Australia law firms restrict what lawyers can say to the media without authorization. In some cases, there is a strict policy ‘against media or public comment’.[37] In other cases, there is a ‘more strategic or liberal approach’.[38] The trend, however, is towards standardized contracts that prevent junior lawyers from speaking freely, without permission from their supervisors. This includes the rule of not talking about ongoing cases a lawyer is involved in.[39] But it can also include further restrictions on talking about the law in general, in the media altogether. To put it simply, lawyers must now ask their superiors before they talk about the law in public, a situation which on the face of it seems absurd.
Restrictions on lawyers speaking freely to the press are often justified by reference to the right to a fair trial. Speaking to the press could ‘prejudice’ ongoing proceedings.[40] This rule applies even when considering the ‘public interest in free discussion’ on the case.[41] It can be admitted that this is an important rule, however, the rule does not justify media bans on lawyers talking to the press about the law in general, their law firms or for that matter, areas of law reform. Indeed, as codified by the United Nations:
Lawyers like other citizens are entitled to freedom of expression… in particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights… without suffering professional restrictions by reason of their lawful action.[42]
It has been noted that ‘a lawyer has a moral, civic and professional duty to speak out when he sees an injustice’.[43] To the extent that media bans by law firms prevent such a discussion, they are an undue restriction on free speech. It must also be stated that lawyers play an important role in the media and in democracy by speaking in public about changing legal standards. They help to ‘teach the public about the legal system’ and to explain ‘the rule of law in our democratic society’.[44] Restrictions on the free speech of lawyers should therefore only be enacted with extreme caution and trepidation. The consequences are significant.
In more recent years, law firms have gone beyond television media bans to social media bans. A study by Thomson Reuters found that 76% of Australian law firms have a ‘social media strategy’ in place.[45] Corrs Chambers Westgarth, a leading Australian law firm, suggests that law firms ‘ban the use of social media’ for junior lawyers or ‘introduce contractual provisions governing the use of social media’ for all new employees.[46] This kind of social media provision is already standard practice. The Law Institute of Victoria, for instance, recommends that ‘all individuals in [a law] firm should be instructed not to say anything on their personal social media channels which may… impact adversely on the firm’.[47] This is directed at personal social media accounts. A law firm’s social media contract will apply to everything lawyers say outside of work, even during their own time, in their private lives. The Law Society of New South Wales puts it even more starkly by saying: ‘it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences’.[48] In this case, the law society is making something of a threat to lawyers to keep them in line.
In Australia, saying something untoward about one’s employer can result in serious “consequences”.[49] This can result in termination if it causes harm to an employers’ interests, the employment relationship or if it is incompatible with the employee’s duties.[50] This can include posting negative comments on Facebook or other social media sites.[51] Lawyers working in a government department might be able to criticize their department online due to the implied freedom of political communication, but they are a rare exception.[52] Most lawyers are now heavily restricted on what they can say online about their law firm, about the law and about ongoing cases.[53] It is difficult to see how a ‘public lawyer’ of the likes of Geoffrey Robertson can emerge in this new environment, filled with potholes and perils.
It is important to concede here that there are many risks associated with the use of social media by lawyers. These risks include bringing the profession ‘into general disrepute’ by posting racist or sexist pictures or comments, engaging in cyber bullying, breaching confidentiality agreements or harassing a witness, juror or client.[54] Some of these risks are a breach of Australian law. Others are merely unethical. All of these risks are legitimate. However, there is a greater risk in banning lawyers from engaging in social media use altogether: the risk of limiting the public’s access to justice. The fact is that ‘increased use of social media by the legal profession [improves] public access to legal information and access to justice’.[55] Lawyers need to be publicly available in order to serve the public. An outright ban on social media use is therefore not in the public’s best interest.
The experience of Australian lawyers differs markedly from the experience of lawyers in America. In America, it is employers who have restricted access ‘to private social media sites used by employees,’ without first gaining permission from those employees.[56] The Stored Communications Act ‘prohibits employers from monitoring employees’ online without authorization’.[57] Consequently, it is very difficult in America to fire a lawyer for comments made on a private Facebook page. Indeed, in a significant case, company restrictions on ‘employee blogging and social media communications’ were viewed as a violation of section 7 of the National Labor Relations Act, (covering the right to self-organization and collective bargaining).[58] The American legal system has better protections in place for a lawyers’ free speech online.
In Australia, courts have frequently restricted the rights of lawyers to speak out in the media about ongoing cases.[59] Most judges are afraid that the media will distort a trial and present a biased point of view.[60] They are equally concerned about the risk of a ‘trial by the media,’ where a jury is affected by public opinion. Finally, they want to maintain a professional distance from the media, so as to remain objective in a case.
This has, historically, resulted in television cameras being banned in Australian courtrooms.[61] The banning of cameras from court and gag orders on speaking about specific cases, has had various negative impacts on Australia’s legal culture. Geoffrey Robertson himself has argued that it is vitally important for courts to allow the filming of all trials to be shown on television, to allow the public to view and understand the justice system.[62] Quoting Freeborn John Lilburne, he suggests that ‘justice must be seen to be done’.[63] In a democracy, secret trials are out of line with the general principle that the law is enforced by the will of the people. Of course, any recording of proceedings should be carefully controlled. Geoffrey Robertson argues for a proviso that jury members not be shown on television, nor ‘vulnerable witnesses,’ nor defendants unless protesting or appearing as a witness.[64] Over in the UK, cameras have been allowed into the British court of appeal with these limitations since 2013.[65] Former high court Justice Michael Kirby has gone one step further to suggest that there be a ‘dedicated High Court television channel’ because ‘the public has a right to see the court in action’.[66]
In this case, we can praise the ABC’s On Trial series (2015), which took the public inside the courtroom and featured ‘unprecedented access to major criminal trials in Australian courts’.[67] Whilst positive, the show was a one-off, filmed over a single year. There are arguments in favor of granting longer-term access. Firstly, there is an argument that courts and lawyers play an active role in educating the public about the law. It has been said that ‘Australian images of their legal system and proceedings are distorted by the plethora of United States media portrayals.[68] To put it simply, there are too many American legal dramas that distort what we see as ‘Australian’ law. More than one third of Australians do not know that Australia has a constitution, whilst even more quote the American constitution when explaining what is in it.[69]
In a democratic society like Australia, open courtrooms are an essential aspect of the rule of law.[70] The common saying that ‘no one is above the law’ requires public observation of the judicial process, in order to make sure that the principle holds true. As noted in Vancouver Sun (Re), judges must be seen to be applying the law evenly to all cases, so as to ensure “that justice is administered in a non-arbitrary manner”.[71] Jeremy Bentham puts it another way by suggesting that open courts keep “the judge himself, while trying, under trial”.[72] Allowing cameras into the courtroom thereby allows the public play a role in maintaining the rule of law in their society – thereby allowing rule by the people. Lord Atkinson suggests in a similar vein that “the hearing of a case in public may be… humiliating”, but a public trial is the “best security for the pure, impartial, and efficient administration of justice”.[73]
The rule of law also requires that the public know what crimes attract which punishments in court.[74] At a basic level, the public need to be informed about how the law is enforced, so as to avoid breaking it.[75] On this point, Lord Hope argues that the right to a fair trial includes the right to knowledge of “the reasons for the outcome” of the trial too.[76] This includes the ability to see, review and understand past cases, via an open court system.[77] Open justice, or open access courtrooms, are therefore animportant aspect of the rule of law. They serve to inform the public of the punishments of crime, whilst also holding judges accountable for enforcing those punishments evenly. Hence, it can be said that ‘the media and the courts are vital to a free, questioning and just society’.[78]
- The US Attorney as public advocate:
In contrast with the Australian media market, the American media market is brimming with lawyers and judges on television. Popular examples include Judge Judy, The People’s Court, Justice with Judge Jeanine, but more generally, lawyers can be seen on cable news television shows; Justice Napolitano on Fox News, Leonard Samuels on MSNBC and so on.[79] The public role of U.S. lawyers is best exemplified by the role of the U.S. Attorney General, the president’s legal advisor and public spokesperson. A post that involves very close relations with the media, and helps establish America’s active legal culture.
The original Judiciary Act of 1789 created the office of the Attorney General, which ‘evolved over the years into the head of the Department of Justice’.[80] What began as a professional post is now much more political, with Attorney Generals having to maintain close relations with the press as a core part of their job.[81] Today, Attorney Generals have to head the department, advise the president on legal matters, occasionally represent the government in court and represent the public interest in the media and by proposing new legislation.[82] It is this last role, the representation of the public interest, that make modern Attorney Generals ‘public lawyers’ in the manner I discussed above. It also helps cement their role in promoting an active legal culture, where the law is discussed, criticized and reformed.
U.S. Attorney Generals speak out in the press on issues of law, justice and law reform, campaigning on certain legal issues that are at once personal and in the public interest. Beginning in the 1940s, we can track the development of this role over time, starting with Attorney General Tom Clark (1945 – 1949). Tom Clark was known for being ‘familiar and engaging with the press. He understood what the media could do for him and his agenda and… he could be quite effective with them’.[83] Clark used what the Americans call the ‘bully pulpit’ (the ability to use one’s power base to advocate for an agenda), to emphasize the ‘importance of rehabilitation and education’ for young criminal offenders.[84] He hosted a golf tournament in D.C. to raise awareness of this issue, with ‘top golf and movie stars of the day’. [85] The media were, of course, in attendance.[86] Clark also gave speeches promoting civil rights.[87] This was not unique to Clark, however. Clark’s son, Ramsey Clark, was also an Attorney General (between 1967 – 1969). Ramsey Clark similarly used the bully pulpit to push for opposition to the death penalty, defend the bill of rights and promote civil rights laws.[88] Ramsey also used his advisory role with the President to push his own agenda. At one point, he advised President Johnson against laws that could have inflamed racial tensions, due to his personal commitment to civil rights.[89]
There are no restrictions on what an Attorney General can say to the media.[90] This makes them very capable as public lawyers, to represent the public interest. Along with campaigning for certain causes, Attorney Generals can publicly attack what they see as errors in judicial decision-making. In a series of speeches Attorney General Edwin Meese (1985 – 1988) ‘attacked specific rulings of the Supreme Court’ which he viewed as errors in the law.[91] He did so ‘by appealing to the public and the legal profession in speeches [and the] written word’.[92] Remarks by Attorney Generals on these kinds of controversial legal issues ‘receive extensive media coverage’ and can therefore start a public conversation on the law and potential law reform.[93] This can lead to the Attorney General proposing legislation in the public interest, as in the case of Attorney General Herbert Brownell responding to business demands with anti-trust legislation.[94]
Frequently, Attorney Generals defend existing legal norms for the sake of the public interest. Attorney General Jeff Sessions (2017 – 2018) for example, regularly appeared in the media to defend freedom of religion and the First Amendment.[95] He also defended what he called ‘the primacy of law,’ saying that ‘courts and advocates and politicians’ had lost their respect for the legal system, ignoring legal norms and traditions.[96] In defending the ‘primacy of law,’ Attorney Generals can go one step further and appear alongside a plaintiff in court.[97] This is called appearing as ‘amicus curiae’ or a ‘friend of the court,’ as an advisor to proceedings on behalf of the public.[98] This occurred in various civil rights cases, where Attorney Generals lent the resources of the government to particular plaintiffs to assist their cause.[99]
Finally, there have been cases where Attorney Generals have stood up to Presidents for the sake of the public interest and the constitution. In 2017, acting Attorney General Sally Yates famously stood up to President Donald Trump and refused to implement his travel ban on people travelling to the United States from Muslim-majority nations.[100] She did so on the basis that she believed the so-called Muslim travel ban violated the constitution.[101] (Namely, the Establishment Clause of the First Amendment on freedom of religion.) She decided that the Department of Justice would not enforce the order, as it was both unconstitutional and not in the public interest to do so.
Attorney Generals in the U.S. play a part in the broader American legal culture, where lawyers and judges frequently appear on television. Many have their own TV shows, whilst others negotiate ‘a personal media deal’ to talk about their clients with the press.[102] There is an old American adage: ‘let’s try this lawsuit the old-fashioned way: in the newspapers’.[103] This view of law can be criticized for becoming a spectacle or theatre, but at the same time, we must remember that the public love spectacles and theatre.
To engage the public, the law has to be open and available in this way, easily accessible and in some cases, entertaining. An active legal culture requires lawyers to engage in this process, rather than retreat from it. Australia has a lot that it can learn from America’s media culture, the free speech rights it gives its lawyers and the freedom the public have to critically engage with the law. Rather than restricting the rights of lawyers to speak freely, we should be empowering them to inform the public, educate and entertain.
Geoffrey Robertson’s Hypotheticals are a good model from which to base our public legal culture. Not only should lawyers form part of our media culture, but lawyers should be at the heart of critiquing and questioning the law. Australia can create a public legal culture by empowering lawyers to speak out on issues of injustice in the media. Instead of silencing lawyers through employment contracts, social media bans, court gag orders and so on, lawyers should be empowered to become ‘public’ commentators on changes to the law, issues of law reform and questions of justice. There is a lot that can be taken here from the position of the U.S. Attorney General.
A lawyer need not abandon their professionalism by talking to the media, but instead, the media can be viewed as an essential aspect of their job. Indeed, the job of any lawyer in a functioning democracy is to hold the government accountable for injustices in the legal system. The rule of law requires lawyers to hold a close eye to the court system, to the government and to new laws.
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Robertson, G. (24 April, 2018) ‘Put Cameras in British courtrooms, and make justice truly transparent’, The Guardian.
Robson, P and Schulz, J.L. (eds) (2016) A Transnational Study of Law and Justice on TV, Bloomsbury.
Sessions, J. (2017) ‘AG Jeff Sessions Talks Faith and Religious Freedom on Faith Nation,’ CBN News.
Spencer, R. ‘It’s the Vibe: The Impact of Lawyer’s Image on Access to Justice’ (2009) Law Society of South Australia.
‘The Hon. Gerald Beresford Ponsonby Peacocke (1931 – ),’ Parliament of New South Wales < https://web.archive.org/web/20110604101401/http://www.parliament.nsw.gov.au/prod/parlment/members.nsf/1fb6ebed995667c2ca256ea100825164/397315c3f4e938664a2567450001658d>.
The Law Society of New South Wales, (2016) Guidelines on Social Media Policies < https://www.lawsociety.com.au/resources/resources/my-practice-area/legal-technology/guidelines-social-media >.
‘Trial by media: Where should lawyers draw the line,’ Lawyers Weekly (14 Sept, 2011)
Wohl, A. (2013) Father, Son, and Constitution, University Press of Kansas.
Wolfram, C.W. (1996) ‘Lights, Camera, Litigate: Lawyers and the Media in Canada and the United States’ Cornell Law Faculty Publications.
Primary Sources:
Film
The Castle (Miramax, 1997).
Television
Crownies (Australian Broadcasting Corporation, 2011 – 2012).
On Trial (Australian Broadcasting Corporation, 2015).
Rake (Australian Broadcasting Corporation, 2010 – 2016), ABC.
‘What’s Your Poison?’ Hypotheticals (Australian Broadcasting Corporation, 30 September, 1987).
Sea Change (Australian Broadcasting Corporation, 1998 – 2000).
Hypotheticals (Australian Broadcasting Corporation, 1985 – 1990).
Books
Plato (380 BC), Meno, (Benjamin Jowett Trans.), Internet Archive.
Robertson, G. and the ABC (1987) Does Dracula Have AIDS? & Other Geoffrey Robertson Hypotheticals, Angus & Robertson.
Socrates, ‘Maieutics’ in Plato, Plato: Four Dialogues, R. Waterfield Trans. (1987), Penguin.
Primary Legal Sources:
Legislation
Legal Profession Uniform Law, Australian Solicitors Conduct Rules (2015), s. 28.1.
Cases
Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38, [81]
Comcare v. Banerji (2018) C12 < http://www.hcourt.gov.au/cases/case_c12-2018>
Fitzgerald v Dianna Smith t/as Escape Hair Design (2010) FWA 7358
Hinch v Attorney General (1987) VR 721
Klein v. Law Society of Upper Canada (1985) 16 DLR (4th) 489
Physicians and Surgeons Ambulance Service, Inc. dba American Medical Response, NLRB, 08-RC-017008 (2010)
Scott v Scott [1913] AC 417.
International
‘Basic Principles on the Role of Lawyers,’ United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
[1] The Australian Broadcasting Corporation, Hypotheticals (1985 – 1990).
[2] Michael Kirby, ‘Independence of the Legal Profession: Global and Regional Challenges,’ Presidents of Law Associations in Asia Conference (Queensland, 20 March 2005).
[3] Jason Bainbridge, ‘Lawyers, Justice and the State: The Sliding Signifier of Law in Popular Culture’ (2006) 15 Griffith Law Review, 155.
[4] Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (M.E. Sharpe, 1992, 51-55.
[5] Luther A Huston, Arthur Selwyn Miller, Samuel Krislov and Robert G. Dixon Jr, The Roles of the Attorney General of the United States (American Enterprise Institute, 1968) 100 – 106.
[6] Geoffrey Robertson, Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers (Biteback Publishing, 2018) [Kindle Edition]
[7] Tim Blair, ‘Geoffrey Robertson’s Own Book, By His Own Self, About His Own Greatness,’ The Daily Telegraph (2018).
[8] Tim Blair, ‘Geoffrey Robertson’s Own Book, By His Own Self, About His Own Greatness,’ The Daily Telegraph (2018).
[9] Tim Blair, ‘Geoffrey Robertson’s Own Book, By His Own Self, About His Own Greatness,’ The Daily Telegraph (2018).
[10] Geoffrey Robertson, Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers (Biteback Publishing, 2018) [Kindle Edition] 3681.
[11] Geoffrey Robertson’s Hypotheticals, ABC Library Sales <https://www.abccommercial.com/librarysales/program/geoffrey-robertsons-hypotheticals>.
[12] Geoffrey Robertson’s Hypotheticals, ABC Library Sales <https://www.abccommercial.com/librarysales/program/geoffrey-robertsons-hypotheticals>.
[13] Rachel Spencer, ‘It’s The Vibe: The Impact of Lawyer’s Image on Access to Justice’ (2009) Law Society of South Australia 24-26.
[14] Geoffrey Robertson, Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers (Biteback Publishing, 2018) [Kindle Edition] 3688.
[15] Geoffrey Robertson, ‘What’s Your Poison?’ The ABC, Hypotheticals (30 September, 1987); Geoffrey Robertson and the ABC, Does Dracula Have AIDS? & Other Geoffrey Robertson Hypotheticals (Angus & Robertson, 1987) 72.
[16] Gerald Beresford Ponsonby Peacocke was the Member for Dubbo during this particular episode. ‘The Hon. Gerald Beresford Ponsonby Peacocke (1931 – ),’ Parliament of New South Wales < https://web.archive.org/web/20110604101401/http://www.parliament.nsw.gov.au/prod/parlment/members.nsf/1fb6ebed995667c2ca256ea100825164/397315c3f4e938664a2567450001658d>.
[17] Immanuel Kant, Groundwork for the Metaphysics of Morals (Jonathan Bennett Trans.) (2008) 24 < https://www.earlymoderntexts.com/assets/pdfs/kant1785.pdf>.
[18] Nicholas Cowdery, ‘The Rule of Law – A General Introduction,’ Infringing the Rule of Law – FIJI Conference (2008) 2-4.
[19] Geoffrey Robertson, Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers (Biteback Publishing, 2018) [Kindle Edition] 3731.
[20] Socrates, ‘Maieutics’ in Plato, Plato: Four Dialogues (R. Waterfield Trans.) (Penguin, 1987) 25, [2].
[21] Michael Berry, ‘The Hypothetical: A New Intervention Strategy for Organization Communication’ (2003) ANZCA03 Conference 2.
[22] Socrates, quoted in Plato, Meno (380 BCE), (Benjamin Jowett Trans.), Internet Archive, 85d.
[23] Bruce A. Kimball, ‘Christopher Langdell: The Case of an ‘Abomination’ in Teaching Practice,’ The NEA Higher Education Journal (2004) 30.
[24] Christopher Columbus Langdell, ‘Preface’ in A Selection of Cases on the Law of Contracts (Brown & Little, 1879, 2nd ed) x.
[25] Rob Reich, ‘The Socratic Method: What it is and How to use it in the Classroom’ (2003) 13 Speaking of Teaching 1.
[26] Rob Reich, ‘The Socratic Method: What it is and How to use it in the Classroom’ (2003) 13 Speaking of Teaching 1.
[27] Geoffrey Robertson, Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers (Biteback Publishing, 2018) [Kindle Edition] [3746 – 3783]
[28] Hypotheticals (ABC, 1985 – 1990); Sea Change (ABC, 1998 – 2000); The Castle (Miramax, 1997).
[29] Cassandra Sharp, ‘Australia’ in Peter Robson, Jennifer L Schulz (eds), A Transnational Study of Law and Justice on TV (Bloomsbury, 2016).
[30] On Trial (ABC, 2015); Rake (ABC, 2010 – 2016); Crownies (ABC, 2011 – 2012).
[31] Annabel Crab, ‘Announcement’, Twitter <https://twitter.com/annabelcrabb/status/1053065040767545344?lang=en>
[32] David Knox, ‘Rumour: Charlie Pickering for Hypotheticals Revival’ (2018) <https://tvtonight.com.au/2018/07/rumour-charlie-pickering-for-hypotheticals-revival.html>
[33] David Knox, ‘Rumour: Charlie Pickering for Hypotheticals Revival’ (2018) <https://tvtonight.com.au/2018/07/rumour-charlie-pickering-for-hypotheticals-revival.html>
[34] ‘Trial by media: Where should lawyers draw the line,’ Lawyers Weekly (14 Sept, 2011)
[35] Carl Olson, ‘Social Media in Law: Take Ownership or Risk the Consequences,’ Thomson Reuters < https://legal.thomsonreuters.com.au/about-us/news/social-media-in-law.aspx>.
[36] Michael Kirby, ‘Improving the Discourse Between Courts and the Media,’ (8 May 2008) Law Institute of Victoria Journal 3.
[37] ‘Trial by media: Where should lawyers draw the line,’ Lawyers Weekly (14 Sept, 2011)
[38] ‘Trial by media: Where should lawyers draw the line,’ Lawyers Weekly (14 Sept, 2011)
[39] Legal Profession Uniform Law, Australian Solicitors Conduct Rules (2015), s. 28.1.
[40] Legal Profession Uniform Law, Australian Solicitors Conduct Rules (2015), s. 28.1.
[41] Hinch v Attorney General [1987]
[42] ‘Basic Principles on the Role of Lawyers,’ United Nations Congress on the Prevention of Crime and Treatment of Offenders (Havana, Cuba, 27 August to 7 September 1990).
[43] Klein v. Law Society of Upper Canada (1985)
[44] Brian Foster and Jared Craig, ‘The Lawyer and the Media: What can a lawyer say to the media?’ (2014) The Advocates Quarterly, 43, 60.
[45] Carl Olson, ‘Social Media in Law: Take Ownership or Risk the Consequences,’ Thomson Reuters < https://legal.thomsonreuters.com.au/about-us/news/social-media-in-law.aspx>.
[46] Corrs Chambers Westgarth, cited in Duncan Abate, The Use of Social Media in the Workplace (Mayer Brown, 2011) 2.
[47] ‘Guidelines on the Ethical Use of Social Media,’ Law Institute of Victoria (2016) 2.
[48] The Law Society of New South Wales, Guidelines on Social Media Policies (2016) < https://www.lawsociety.com.au/resources/resources/my-practice-area/legal-technology/guidelines-social-media >.
[49] Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358
[50] Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358
[51] Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358
[52] Comcare v. Banerji (2018) C12 < http://www.hcourt.gov.au/cases/case_c12-2018?fbclid=IwAR1JDTjnno2eTkcgipGb0Nc6tVuPYKFpe6RzQYBt1dRnqjR11_sgRHkiVuM>
[53] Carl Olson, ‘Social Media in Law: Take Ownership or Risk the Consequences,’ Thomson Reuters < https://legal.thomsonreuters.com.au/about-us/news/social-media-in-law.aspx>.
[54] Kylie Burns and Lillian Corbin, ‘E-Professionalism: The Global Reach of the Lawyer’s Duty to Use Social Media Ethically, Journal of the Professional Lawyer (2016) 161.
[55] Kylie Burns and Lillian Corbin, ‘E-Professionalism: The Global Reach of the Lawyer’s Duty to Use Social Media Ethically, Journal of the Professional Lawyer (2016) 154.
[56] Duncan Abate, The Use of Social Media in the Workplace (Mayer Brown, 2011) 18.
[57] Duncan Abate, The Use of Social Media in the Workplace (Mayer Brown, 2011) 18.
[58] Physicians and Surgeons Ambulance Service , Inc. dba American Medical Response, NLRB, 08-RC-017008 (2010); National Labor Relations Board (2010), cited in The Law Society of New South Wales, Guidelines on Social Media Policies (2016) < https://www.lawsociety.com.au/resources/resources/my-practice-area/legal-technology/guidelines-social-media >.
[59] Michael Kirby, ‘Improving the Discourse Between Courts and the Media,’ (8 May 2008) Law Institute of Victoria Journal 3.
[60] Michael Kirby, ‘Improving the Discourse Between Courts and the Media,’ (8 May 2008) Law Institute of Victoria Journal 3.
[61] James M. Linton, ‘Camera Access to Courtrooms: Canadian, U.S, and Australian Experiences (1993) 18 Canadian Journal of Communication 1.
[62] Geoffrey Robertson, ‘Put Cameras in British courtrooms, and make justice truly transparent’ (24 April, 2018, The Guardian).
[63] Freeborn John Lilburne, Trial for Treason (1649), quoted in Geoffrey Robertson, ‘In the Balance,’ Index on Censorship (Sage, 2009).
[64] Geoffrey Robertson, ‘Put Cameras in British courtrooms, and make justice truly transparent’ (24 April, 2018, The Guardian).
[65] Owen Bowcott, ‘Televising of court of appeal proceedings start this week’ (30 Oct, 2013, The Guardian).
[66] Karen Barlow, ‘Kirby: Bring Cameras into Court,’ ABC AM Radio (14 November, 2008).
[67] ‘On Trial, ABC (23 June, 2015) <https://www.abc.net.au/tv/programs/on-trial/>.
[68] ‘Courts and Electronic Media,’ Access to Justice Advisory Committee (1994), in Kathy Laster (ed.) Law as Culture (Federation Press, 2001) 323.
[69] Nick Miller, ‘More than one third of Australians have not heard of the Constitution, survey finds’ Sydney Morning Herald (21 February 2015).
[70] Tom Binhgam, ‘Chapter 3,’ The Rule of Law (Penguin, 2011); Canadian Broadcasting Corp. v. New Brunswick [1991] 3 S.C.R. 459; Vancouver Sun (Re) [2004] S.C.R. 332.
[71] Tom Binhgam, ‘Chapter 3,’ The Rule of Law (Penguin, 2011); Canadian Broadcasting Corp. v. New Brunswick [1991] 3 S.C.R. 459; Vancouver Sun (Re) [2004] S.C.R. 332.
[72] Jeremy Bentham, The Works of Jeremy Bentham: Now First Collected (William Tait ed.) (1843).
[73] Scott v Scott [1913] AC 417.
[74] Tom Binhgam, ‘Chapter 3,’ The Rule of Law (Penguin, 2011); Canadian Broadcasting Corp. v. New Brunswick [1991] 3 S.C.R. 459; Vancouver Sun (Re) [2004] S.C.R. 332.
[75] Tom Binhgam, ‘Chapter 3,’ The Rule of Law (Penguin, 2011); Canadian Broadcasting Corp. v. New Brunswick [1991] 3 S.C.R. 459; Vancouver Sun (Re) [2004] S.C.R. 332.
[76] Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38, [81]
[77] Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38, [81]
[78] Michael Kirby, ‘Improving the Discourse Between Courts and the Media,’ (8 May 2008) Law Institute of Victoria Journal 7.
[79] Napolitano, A. P. (2018) ‘Judge Andrew Napolitano: The Chief Justice Takes on the President,’ Fox News; Samuels, L. (2018) ‘Lawyers in pitched battle over thorough counting of Florida votes,’ MSNBC.
[80] ‘Office of the Attorney General: About the Office,’ The United States Department of Justice (17 July 2018)
[81] Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (M.E. Sharpe, 1992, 51-55)
[82] Luther A Huston, Arthur Selwyn Miller, Samuel Krislov and Robert G. Dixon Jr, The Roles of the Attorney General of the United States (American Enterprise Institute, 1968) 100 – 106.
[83] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 68.
[84] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 79.
[85] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 80.
[86] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 80.
[87] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 123.
[88] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 321.
[89] Alexander Wohl, Father, Son, and Constitution (University Press of Kansas, 2013) 323.
[90] Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (M.E. Sharpe, 1992) 71.
[91] Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (M.E. Sharpe, 1992) 71.
[92] Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (M.E. Sharpe, 1992) 71.
[93] Cornell W. Clayton, The Politics of Justice: The Attorney General and the Making of Legal Policy (M.E. Sharpe, 1992) 71.
[94] Herbert Brownell and John P. Burke, Advising Ike: The Memoirs of Attorney General Herbert Brownell (University Press of Kansas, 1993) 153.
[95] Jeff Sessions, ‘AG Jeff Sessions Talks Faith and Religious Freedom on Faith Nation,’ CBN News (10, November 2017)
[96] Jeff Sessions, ‘AG Jeff Sessions Talks Faith and Religious Freedom on Faith Nation,’ CBN News (10, November 2017)
[97] Luther A Huston, Arthur Selwyn Miller, Samuel Krislov and Robert G. Dixon Jr, The Roles of the Attorney General of the United States (American Enterprise Institute, 1968) 114.
[98] Luther A Huston, Arthur Selwyn Miller, Samuel Krislov and Robert G. Dixon Jr, The Roles of the Attorney General of the United States (American Enterprise Institute, 1968) 114.
[99] Luther A Huston, Arthur Selwyn Miller, Samuel Krislov and Robert G. Dixon Jr, The Roles of the Attorney General of the United States (American Enterprise Institute, 1968) 114.
[100] Ryan Lizza, ‘Why Sally Yates Stood Up to Trump,’ The New Yorker (May 29, 2017).
[101] Ryan Lizza, ‘Why Sally Yates Stood Up to Trump,’ The New Yorker (May 29, 2017).
[102] Peter A. Joy and Kevin C. McMunigal, ‘Clients, Lawyers and the Media’ (2004) Criminal Justice 19, 78.
[103] Charles W. Wolfram, ‘Lights, Camera, Litigate: Lawyers and the Media in Canada and the United States’ (1996) Cornell Law Faculty Publications, 374.
New Intrigue 