I rather enjoyed Paul Keating’s speech in Parliament last week getting stuck into the Marks royal commission.
Before his speech it was not possible to write in this paper certain things without being cited for contempt. (The Canberra Times has a slight circulation in Western Australia.)
Now, as part of a commentary and reportage of parliamentary proceedings … which are protected … I can write that I agree with Keating’s summary that the commission is just a political witchhunt devised by a politician to destroy the career of another politician. But last week I could not write what Keating had said off my own bat. Silly isn’t it. It gets sillier.
People at dinner parties in Western Australia technically are not allowed to discuss the commission to the extent of impugning the integrity of the commissioner or pre-judging his findings. Of course, people do. It has presumably been a major topic of dinner-party conversations. But the state would not dare to prosecute people for discussions around a dinner table because it would reveal our law for the repressive weapon it is.
Fortunately, it may be that the freedom of political communication that the High Court implied in the Constitution would override state and federal laws that imposed penalties on discussion about royal commissions. After all, royal commissions are exactly that … commissions by the king or queen, the executive government. They are not courts.
The High Court held that the sweeping contempt provisions penalising discussion that poked contempt against the Industrial Relations Commission offended the freedom.
With any luck the combination of the High Court ruling and Keating’s denunciation of the Marks commission will open to the sunlight of criticism the conduct of the numerous commissions of inquiry held in Australia at the time it really matters … when they are being conducted.
A lot of these inquiries are either witchhunts to embarrass other politicians (even if deservedly) or policy inquiries to oil decisions that politicians are too gutless to make one their own. There should be complete freedom to discuss them while they are running. They are part of the political process. It is of little use in the democratic process that informs voting, to wait for historians’ verdicts. Do we go a step further?
In Canberra, many people discuss the Eastman trial around the dinner table. They give opinions about it to each other and try to persuade other people of their opinion. Yet if you did the same thing in a newspaper column the judge would jail you.
True, there is a difference between this and a royal commission. The jury, witnesses, lawyers and judge might read it. But of these, the judge and lawyers are perhaps most likely to be influenced. Judges and lawyers come from the professional classes who are great media consumers … especially quality broadsheets and the ABC … and their world view is more likely to be influenced by the media. Most of the professional and business classes get themselves out of jury duty, leaving on the jury people who do not consume much media or if they do only the shallow media where today’s prejudice is easily replaced by tomorrow’s and so is ultimately of little influence.
There may be a case for preventing media discussion of running trials, but only because it might influence the judges and lawyers; not because it might influence jurors.
Judges and lawyers might find offensive and inaccurate the suggestion that they might be influenced by mere media. If so, so would jurors. In view of that, there is no reason to prohibit the repetition of dinner-party opinions in the public domain.
The trite opinion is that, while present rules are too restrictive, Australia should not go the way of O. J. Simpson. Rubbish. Media coverage is not the reason for any unfairness in that trial. The unfairness stems from Simpson’s ability to spend millions on his defence while the trial of the faeces-kicker in the next cell is all over in a couple of days.
Keating’s opinion and the hundreds of aired opinions in the Simpson case do not hinder justice; they help it. Better a circus in the open freely commented upon than a circus that people can watch and report but not express their opinion on.