Unelected judges the least of our worries

JUSTICE Lex Lasry, of the Victorian Supreme Court, had a great big slash at the media this week in the Blackburn Memorial Lecture in Canberra.

It was an informed and instructive slash at the media, well backed-up with examples and analysis. He homed in on the shock-jock journalists who described judges as ”out of touch” for giving hopelessly lenient sentences. The shock jocks had only one use for keys, he said, that was ”to throw them away”.

Notice I did not say ”tabloid” journalists, because the main target of Lasry’s attack was The Australian. He cited some typical headlines: ”Fury at lenience on child molester” and ”Judge is out of touch, out of line”. He cited opinion pieces in the same paper lambasting judges for being unelected. So maybe we should refer to Murdoch or News Ltd shock jocks, not tabloid ones.

Lasry complained that, in a tirade against a man being given a bond, the journalist failed to mention that the man had spent a long time in custody leading up to and during the trial.

Lasry’s complaint, however, is more serious than even he imagines. Lasry thought that the media’s role was to provide information and informed comment.

”Primarily the media exist to inform the public,” he said. He acknowledged there was a need to make a profit, but information was the media’s role, he thought.

Alas, this is desperately misguided. It shows he misunderstands the media as much as the media misunderstands the judges. The primary role of the media is not to deliver information, but to deliver news. There is some overlap, but they are two different things with two different values.

Information is largely verifiable fact and reported facts and opinions delivered by others. It is selected according to importance. News, on the other hand, is not selected merely by importance but by a number of other factors which excite attention and readership.

Sure, impact (financial and otherwise) and importance are news values. That is why the budget gets such big coverage, for example. But they are joined with values such as emotional reaction, conflict, novelty, celebrity, proximity, pictorial impact, exclusivity, own journalist’s work and timeliness. With news, the particular gets more coverage than the general. So a cute puppy ill-treated in Canberra now with picture has more news value than a million people dying of malaria last year, or even a national survey on trends in animal cruelty.

It gets worse on the internet. So some weird event happening to a celebrity three minutes ago is likely to feature as highly as a significant event such as the details of a new maternity scheme.

For the media, the need to stay in existence requires profit, which requires readers and viewers, which requires attractive (not necessarily important) material.

Journalists get inculcated with these values, even serious journalists cannot escape them.

Judges, on the other hand, are inculcated with the judicial method. They apply only admissible evidence using inductive and deductive logic plus something they call common sense to draw conclusions. It is much like the scientific method except the experiments cannot be repeated for verification, particularly in criminal law.

Lasry pointed out that sentencing attracted more public and media attention than any other area of the law. Well, of course. Sentencing bestirs the human emotion of vengeance. It is very powerful and therefore very newsworthy. When the immediate visceral emotions are not satisfied, someone must be blamed and ”out of touch”, ”unelected” judges are in the firing line.

Usually, the media is the first to be blamed for all the ills of society, but sentencing seems to be an exception.

The ”out-of-touch” label particularly infuriated Lasry. He mentioned the cross-section of life with whom barristers and judges rub shoulders and their insight into the violent, desperate and struggling side of society.

Indeed, the shock jocks might have a better argument saying that the judges are too much in touch. They see shocking and ugly things so often that they get inured to them.

Lasry says judges should do more to help educate the public on what judges do and is happy to do his part. But, like other judges, he does not want to either lead or follow public opinion because he is no expert in it. And that is why his complaint is more serious than he imagines.

Most of the media are experts in public opinion. Their livelihoods depend on it. And what an ill-informed, emotion-charged opinion it mostly is. Thoughtful, diligent journalism is often ignored, by public and authorities alike. Sometimes the media’s best efforts to expose malfeasance is laughed off.

Small wonder, then, proprietors are becoming more reluctant to invest in it. It is no good appealing to the media to educate and inform as its primary function. It is like asking a cake factory to produce bread. There are some similarities, but contrary to experiences in the French Revolution the masses prefer cake.

And now that we have democracy the masses are more powerful. Their prurience, ill-based fears, selfish lusts and base emotion drive policymakers. I remain pessimistic on how much the masses can be educated to make informed decisions. It has taken fully 500 years to get them to understand that the Earth is round and that it circles the sun, for example. And even after more than 150 years probably less than half understand and accept the basic principles of evolution. And so on.

This brings us the full circle. It is for this very reason that we need unelected judges people without fear or favour to temper the intemperate passions of the mob and to curb the increasing tendency of the people they elect to follow and appease them, rather than lead.

Lasry is completely right. We need unelected judges precisely because elected politicians and the media pander to the masses.

In a democracy, you are far less likely to educate the masses or change the methods of politicians and media who pander to the masses than you are to temper their excesses with the rule of law.

And I have no difficulty giving unelected judges the task of interpreting a bill of rights or sentencing criminals with broad discretion, precisely because they are unelected and pander to no one. In any event, a bill of rights is not directed at giving more power to unelected judges and less to elected politicians. Rather it is directed at reducing the power of the almost unaccountable executive and the power of unelected bureaucrats who do their bidding to affect the lives of people who have little of the wherewithal to fight back.

It is precisely because the cause of changing the media is hopeless that we need the ”unelected” and ”out-of-touch” judges.

To prove the point — I’m a journalist and no one elected me.