The result of SA v Totani, the High Court appeal brought by the SA government over the ‘bikie laws’, was handed down yesterday.
Put simply, it involves a consideration of nothing less than the separation of powers guaranteed by the Australian Constitution — specifically, the independence of the judiciary. This is an issue of considerable importance to the legal system, with ramifications and reverberations for the rule of law. It could easily be said to have significance for the liberty of every Australian, as the latest development in an ongoing dialogue that happens so they can have faith in the courts.
But heaven forfend that the media should deign to delve into what the judgment actually means.
ABC journalists keep insisting, over and over, that Chief Justice French said the legislation was ‘repugnant’. This sounds like he’s expressing personal disgust, and is totally misleading!
Without putting too fine a point on it, when ‘repugnant’ is used in this context, it means repugnant to Chapter III of the Constitution, which is concerned with the judicature.
As French CJ actually says at [31], ‘The effect of the SOCC Act on personal freedoms was a matter for consideration by the South Australian Parliament which enacted it. Its merit as a legislative measure is not a matter for this Court to judge.’ (Emphasis added. See also [248].)
Reading legal decisions and extracting information from them, separating the ratio from the obiter from the filler, is hard. I don’t dispute that. But that’s precisely why you’d expect the media to take care to inform the public at large with absolute accuracy.
This sort of thing creates misconceptions that judges are just doing whatever they bloody well please, misconceptions which can be and have been pounced upon by the likes of such pundits as Janet Albrechtsen (and all her woodland pals at News Corp) in preying on the public opinion.
Hours of programming a week are devoted to politics and sport. Detailed analysis is undertaken by experts, commentators, insiders. To the ABC’s credit, they did speak to Julian Burnside QC over another High Court decision of the day. So why not consult an expert on Totani, too?
The drama Rake made a tongue-in-cheek reference to this inaccuracy in legal reporting — again, just yesterday. When he learns from the news bulletin that his conduct has been referred to the ‘bar counsel’, the titular protagonist snaps at the TV, ‘Bar association!’
The question is, then, when will the media finally undertake to educate the public on the law as it develops, as they do for politics, rather than giving an airy hand-wave and cutting straight to a few choice sound bites from strangely supercilious, celebrating bikies?
