And lawyers both earn a living searching for the truth, but they do it in different ways.
Lawyers do it in a rigidly controlled environment of rules, regulations and conventions. They have special privileges bestowed upon them by society. They are granted a special monopoly by law and the courts enable them to collect their fees more easily because they become part of the judgment debt.
Moreover, the lawyer-client relationship is granted special status by law. The courts will not prise open the confidentiality of that relationship. Further, a lawyer’s utterances in court (no matter how untrue or malicious) are protected from defamation actions.
In return, however, lawyers are subjected to rules of professional discipline both immediately in court and more generally by the professional body.
Journalists, on the other hand, have no special professional status granted by the law of the land. They stand as any member of the public stands. The journalist-source relationship is not granted any special immunity by law. The courts will prise it open when they see fit. Further, journalists’ publications are subjected to the law of defamation. Nor is there a statutory monopoly for journalists. Anyone can practise journalism either by contributing to an existing newspaper or starting your own.
Because there is no special status, there are few controls. The Press Council admonishes recalcitrant media organisations, not recalcitrant journalists. The journalists’ union has an ethics committee, but it cannot bar people from practising journalism. Moreover, it is made up solely of journalists and is under the umbrella of what is essentially an industrial union, rather than a professional association. The ethics committee does not reach all journalists because most executive journalists, most contributors and some other journalists are not members. Hearings are fairly rare and little publicised.
So journalists practise their calling with great freedom, unlike lawyers.
I draw these comparisons because in the past week or so, two inquiries have produced comment about the status of the two professions. The Trade Practices Commission has brought down a report calling for the taking away of part of the lawyers’ monopoly and some of their special status. And an inquiry set up by the journalists’ union is to look at the union’s code of ethics.
The TPC inquiry called for an end to the lawyers’ monopoly over conveyancing, wills, uncontested divorces, setting up companies and welfare advocacy. It also wanted an end to government-appointed QCs and special treatment of fees.
The journalism inquiry, judging from its make up, is likely to call for some sort of protection for journalists refusing to divulge confidential sources.
A result of the journalism inquiry might well be that any move for special status would be met with a call for greater control. The result of the TPC inquiry, on the other hand, might well be that if you take away special status then controls are slackened. Those who move in to areas previously the subject of lawyer monopoly will not be subject to the same controls.
Both these developments might be worthwhile because they will look at the matter that the public is most interested in: professional control and discipline. At present the public does not seem very satisfied with controls in either profession. The lawyers look after their own and the journalists are a law unto themselves.
Both callings would be better off with a majority of lay people on their disciplinary and controlling bodies. With more lay involvement, the public might be more convinced of the merit of special protection for journalists’ sources and more receptive to lawyers’ arguments that their statutory monopoly protects the public against the incompetent and the dishonest.
However, while the legal profession in nearly all states has control over its own profession and while control over journalists’ standards is left in the hands of the journalists’ industrial union, the public has a right to be sceptical. But new controls have to account for the fact that law and journalism are different from other professions. The public interest in the administration of justice demands a greater degree of control over lawyers than other professions and the public interest in freedom of speech would demand a lesser degree of control over journalists. And the status and privileges should be correspondingly greater or less.