The ALP and Coalition parties have many former barristers and solicitors serving as MPs. The current PM is a former solicitor, as was the last conservative PM. His deputy was a former barrister. The ranks of both are rife with lawyers.
Lawyers who know perfectly well that one of the fundamental precepts of our system of justice is that barristers are not entitled to refuse a brief just because they don’t like the person or company involved. The principle is that all people, regardless of how likeable or popular they are, are entitled to representation before the courts. There might be some limits now to that via successive governments slashing legal aid – apparently, poor people are not necessarily entitled to representation – but it has long been recognised that it’s a basic requirement of justice that people accused of bad things should be properly represented, and that representation should not be limited to the non-existent group of legal professionals who agree with them personally.
Hence when I represent someone accused of a crime, I’m not saying I approve of that crime. When I represent a company, I’m not endorsing its business. I am simply doing my job and representing their legal interests in court. We have an adversarial system that finds justice by having both sides’ cases tested properly. The barrister is not the judge; it’s not my role to decide who’s right and wrong, much less who’s nice and who’s repulsive.
And, as I said, of course the members of both big parties and the national media are well aware of this fundamental principle.
Which is why this shameless smear on Greens candidate Brian Walters SC by the Herald Sun and the ALP is so contemptible:
Brian Walters is running as the Greens’ star candidate for the marginal inner city seat at next month’s state election and has publicly condemned the production of brown coal.
But a Sunday Herald Sun investigation has revealed the prominent Melbourne barrister is acting for a brown coalmine accused of negligently causing the death of a worker.
It’s aimed straight at potential Greens voters who don’t understand the principle, and, of course, who aren’t given any explanation of why it exists. A journalist seeking to present a fair and balanced story, who wanted to inform his readers rather than mislead them, would have noted what I’ve put above. Instead, this is all the “balance” they get:
Asked if [Walters] saw it as a conflict of interest, he said: “I’ve got a duty as a barrister to accept briefs in an area in which I can practice. It would be an ethical breach for me to turn it down.”
That makes it sound like a self-interested little excuse, rather than the long-standing principle of justice that the journalist presumably knows it to be.
(I suppose if I ever ran for parliament, having done a lot of criminal law work, the Herald Sun would suggest that I love the most demonisable of my clients and want to have their babies.)
The ALP’s endorsement of this misleading News Ltd smear demonstrates just how shameless they are prepared to be in an effort to discourage progressive voters from voting for an actual progressive party:
ALP state secretary and campaign director Nick Reece said Greens voters would be surprised to hear that Mr Walters had such a client. “In life, it is not what you say, it is what you do,” he said. “The Greens party always talks about dirty coal, but it is obviously not dirty enough to stop Mr Walters seeking to profit from it.”
That’s Nick “sneaky leaflets” Reece, “seeking to profit” from a News Ltd smear he knows is thoroughly misleading.
And Bronwyn Pike, who is supposed to be from the ALP’s “progressive” wing, demonstrates the empty, dirty politics which former ALP voters are now rejecting:
Melbourne MP and Education Minister Bronwyn Pike also branded Mr Walters a hypocrite. “It’s no wonder the voters of Melbourne can’t pick the difference between the Liberals and Greens,” she said.
More like no wonder they can’t pick the difference between the ALP and the Liberals – big parties who play politics via dirt units and misleading News Ltd smears rather than advocating for progressive policies.
This incident should be seen as very embarrassing – for what it further reveals about Mr Reece and Ms Pike’s lack of principle, and what it further reveals about a news organisation that cares more about attacking its perceived enemies than informing its customers.
UPDATE: An ironic introduction from Mr Bolt on his link to the story:
Next they’ll tell me he uses airplanes and lights his house with power from coal-fired power stations, too
I’d be willing to bet he does, Andrew. As do the rest of us living in 21st century Australia. But that means we cannot advocate for change to the existing system (in which we’re limited to those options) why precisely?
And on this, Bolt is flat wrong:
Let’s leave aside the fact that a barrister can in fact pick and choose his cases
That’s not a “fact” at all. A barrister can’t refuse a brief just because he or she doesn’t like the client. That is not one of the permissible grounds for refusal.
UPDATE #2: I hadn’t realised that the Hun actually editorialised on this fatuous “expose”. You can’t tell me the editorial board of the Herald Sun is unaware of the “cab rank principle” under which barristers operate:
Mr Walters is right that everyone deserves a legal defence and the right to a fair trial. After all, barristers can represent murderers and rapists without condoning the crimes.
But the Greens profess to inhabit the moral and ethical high ground and therefore must be held accountable.
The chasm between those paragraphs is frankly one of the most bizarre things I’ve seen in that paper. That “but”, as if the last sentence somehow justifies the attack that the first two demonstrate to be outrageous – it’s just an extraordinary piece of writing.
Because of course the Greens should be held accountable. But suggesting there’s some “moral” or “ethical” problem with a barrister doing precisely what the rules that protect justice in our system demand (and which you acknowledge are there for a very good reason) – that’s absurd. It simply doesn’t make sense.
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Bit of backtracking going on?
Quoth the Bolta: “I have a whack on the disgraceful Labor smear campaign against Greens candidate Brian Walters. Painting him as an anti-Semite for defending alleged Nazi war criminal Konrads Kalejs is disgusting. But Bob Brown is a hypocrite. And John Brumby should attack the Greens on their disastrous policies. Until Labor gets serious about the Greens threat, they’ll be eaten alive. “
my emphasis added.
The Bolta’s having a bad day or two; must be very dizzy with the reversals he’s had to pull on this and the Tele’s “unsubstantiated rumour”.
There are times when people hand their actions over to something they feel is bigger than them. It’s not new and it’s not necessarily wrong in their eyes. Ask Penny Wong or Peter Garrett.
Credit where it’s due – that was a good line.
I have to say I agree with Upya that a double standard is being imposed. “I have to follow the rules” is a defence that applies to a whole raft of people other than just barristers – and soldiers are definitely included in that list. The actions may be different but the principle is the same.
Mind you, this hypocricy is being expressed by both sides in equal measures. Upya passionately defended the soldiers’ obligation to follow orders but seems less committed to that principle now it’s being applied to a Green barrister.
zoomster – ignoring your appeal to authority in the form of your own vast experience, the comments may be responses to unprovoked questions, but this doesn’t sound like that to me (from the ABC):
So even though the notion is wrongheaded and apparently provoked by the media not the ALP, Mr Lenders appears to have a pre-prepared statement and Mr Brumby has considered the issue and thinks it’s “fair”.
With your vast experience presumably you are also familiar with pollies getting journos to ask them about particular issues…
Mondo, I don’t believe I’ve made any statement one way or another relating to Walters’ position.
Zoomster –
“I suppose my overall point here, Jeremy, is that you’re defending conduct in a lawyer (arguing for something they don’t believe in) which is seen as reprehensible in politicians.”
It hasn’t at all been shown that he was arguing for something they don’t believe in, just that he was arguing for someONE he doesn’t believe in.
I’d bet dollars to doughnuts that he’ll be arguing the law in this case, under the entirely principled belief that it applies equally to all people, regardless of who they are.
“Brian Walters shouldn’t be attacked for representing his clients. It’s part of his job.
Therefore, politicians shouldn’t be attacked for representing their constituents. It’s part of their job.”
I’m not attacking politicians for who they’re representing – I’m criticising them for the arguments they’re putting.
Which, of course, is precisely what would happen in court when Walters makes his submissions and there’s a barrister on the other side.
In any case, there’s a huge difference between politics, when you can pick your side, and the Bar, where there’s a very important principle of justice in preventing counsel from picking and choosing clients on personal preference.
A politician, in contrast, is free to represent whatever view or belief they like, and that freedom is a fundamental part of our democracy.
Sancho -
“If it were a Labor member with a history of defending in court wealthy interests that he or she opposes when in government, I’d be shouting ‘hypocrite!’ too.”
Why? I don’t see the alleged hypocrisy.
It might conceivably be hypocrisy if he was arguing that his clients deserved not to be represented in court and represented them anyway, but of course he isn’t.
Upya –
“Rather than defend the soldier with a detailed description of the legal requirements that man was under to pull the trigger, the personal consequences he would face in not doing so; not to mention the effort required to put his conscience to the side in carrying out his duty, Jeremy insinuated he was a murderer and a party to war crimes. And all because he didn’t put conscience before professional duty.”
You are correct that I don’t consider “it’s his job” to be a complete get-out. For example, if you unnecessarily and avoidably shoot civilians in war, whether or not you’ve been given permission by your superiors.
“Jeremy felt comfortable opening a discussion and questioning Rules of Engagement and the morality of an entrenched system that eliminates personal choice for a greater good then, but seems to have a problem with it being discussed now.”
Are you seriously suggesting that the Bar rules should be changed so that barristers can refuse briefs from people they just don’t really like?
Because I was seriously arguing that the rules of engagement should not permit soldiers to shoot civilians except to save life, as an absolute last resort.
I see no inconsistency. The Bar rules are there for a very good reason, and I’m yet to see a good reason they should be abandoned. (Feel free to offer one, if that is what you’re arguing.) In contrast, there are very good and obvious reasons for changing the Rules of Engagement in Iraq that supposedly permit (or require) soldiers to open fire on civilians first and ask questions later. Because Iraqi lives are just as valuable as Coalition ones.
Do you see? I’m not arguing that Walters should follow the Bar rules solely because they’re there: he should follow them because it’s very important for the carriage of justice in this State that he does. If they were unjust, I would agree with him if he sought to oppose them. But he undoubtedly (as I do) agrees with the REASON for them, and it would be hypocritical if he sought to get around them for political gain. And, of course, he hasn’t.
“‘I was just following orders’ is not dangerously close but exactly what I was saying in defence of the gunner ..and the journalist. It’s exactly what Jeremy was saying in defence of the lawyer.”
No, it isn’t.
To all those suggesting that a barrister should refuse a brief if it involves something he opposes, who is going to defend murderers, drug dealers and rapists. Or are you saying that those who defend terrorists are in favour of terrorist attacks?
Your arguments are silly and show a complete ignorance of the Law. If we ran the law based on your stupid principles we would have people facing court with no proper defence, thank christ we have the legal system we do and people like Jeremy who understand their responsibilities.
Pray Iain that if you have to face court there are still people like Jeremy and Brian ready to defend you, the alternative is too horrible to contemplate. Remember this is the system of justice that has been in operation in England for over 400 years, so it’s not like it hasn’t stood the test of time.
Jeremy – Brian must be a very lucky barrister.
You would think that, given he can’t knock back cases, that (just occasionally) he would find himself defending one where he knew his client was in the wrong.
I agree with you about the Bar rules – they are there for excellent reasons. I have no problem with anything that Brian Walter did.
I’m just pointing out, however, that the same reasoning (I’m not going to use ‘excuse’) could be applied to other circumstances, and it isn’t.
I’ve simply chosen politicians because they’re the most obvious ones – people whose professional circumstances sometimes require them to argue cases that they don’t necessarily believe in personally.
I’m very glad that, according to you, Brian has never ever been in that position.
(In which case, maybe he shouldn’t be in politics after all).
I do like the way you ignore my more serioius point, one which one would have thought would be more relevant to the purpose of this blog, about the way this story has been put together – and why.
Mondo, I don’t believe I’ve made any statement one way or another relating to Walters’ position.
Ergo my comment that you “seem less committed to that principle now it’s being applied to a Green barrister”.
Simon
My point is simply that should a barrister really wants to get out of a brief then it is possible that they may do so if they can find an adequate excuse within the rules. I think that Jeremy is being rather disingenuous to suggest otherwise. Looking at the actual reasons that a barrister may decline a brief supports my argument. (as I say at mine).
twobob: Context, eh? I don’t recall you being interested in context during the Campbell thing, in particular that Ch7 used a falsehood to justify the airing of the story, and the prying into his private life in the first place. As I remember you chose to ignore the context on that occasion, and the media didn’t “suck” back then.
Peter Rolfe and James Campbell – they’ll talk to anyone to get a story. Hypocrites.
Iain
The whole point is that as a responsible member of the bar a Barrister would not try to get out of a brief simply because they disagree with what the client is or does. This is the central tenant of what I and others have said here. Just because you believe it is possible doesn’t mean that it is either right or that a Barrister would do it.
Again please explain why should anyone defend a murderer or rapist if they could get out of it? The rules of the bar have been explained to you but you think you know better how a Barrister should act.
So tell us, does a Barrister who defends a rapist therefor support rape? In defending a drug dealer is a Barrister condoning the drug trade?
You and others here are just trying to keep this smear going in the face of the evidence. Your arrogance leads me to believe that you would try to defend your self and we know what is said of someone who defends themselves.
Brian Walters has shown that he understands the responsibilities of a Barrister and is prepared to carry them out without fear or favour. Under you we would have a system rife with inequity, but that shouldn’t surprise because the Right isn’t much concerned with fairness or equality.
Christ didn’t any of you lot watch Rumpole!
Good grief…Ian just wants to MAKE A POINT.
As goofy and ignorant as he can manage.
This ‘story’ has received national attention on at least 2 networks that I’ve watched tonight: Sky and ABC – Lateline ran with it tonight.
LOL at the Herald Sun, which has unintentionally given Walters the best campaign publicity he could hope for.
Iain
If a barrister _really_ wants to get rid of a brief, tough. He or she should take the brief unless there is a legitimate reason to decline the brief.
Your argument is that the barrister should shoehorn an ulterior improper motive into a reason that the ethical framework recognises. Congratulations. That’s hilariously unethical and misses the point entirely. No barrister worth his or her salt would do that. Instead, they’d read the bar rules with a solid knowledge of the legal principles on which they are based. Then, they’d suck it up and deal with a client that they might not entirely like, because they respect those legal principles.
I can’t believe that we’ve had to go over this so many times. It’s kind of pathetic. How do you guys not get this.
“Frankly I would hope that if I ever needed legal representation that I would have someone who is actually better than Jeremy at putting an argument.”
Hmmm…. You can always tell when someone is losing an argument. They start making personal attacks.
Anyway there is no argument. This was an inept smear built on the hope that voters who were thinking of voting Green didn’t understand our legal system. As anyone who has read Rumpole will tell you, barristers are obliged to represent anyone regardless of their opinion of the client. That’s it. End of story.
“Jeremy – Brian must be a very lucky barrister.
You would think that, given he can’t knock back cases, that (just occasionally) he would find himself defending one where he knew his client was in the wrong.”
Not really. If your client tells you “I did it” and then wants to run a defence saying he didn’t, you can’t run that defence. You cannot run a defence you know to be untrue. You cannot mislead the court.
Now, if a client is saying he didn’t do it, then it’s entirely appropriate to put their case. I may suspect they’ve done it – but I’m not the judge or jury, and it’s not up to me to arrogantly make that call. My suspicion may well be wrong anyway.
At its core, I cannot put forward material I know to be wrong.
The Herald Sun has done nothing unintentional here, and that’s the real story.
The H-S came up with an attack on Walters. They ran it past some Labor MPs for comment. The Labor MPs were silly enough to comment.
Hey presto, an ALP – Greens war is created where none really existed.
If all you little bunnies fall for it, that’s your get out.
“Hey presto, an ALP – Greens war is created where none really existed.”
Uh, those quotes from the ALP MPs seem to suggest otherwise. As do the quotes from others in the Labor government including Brumby.
Both News Ltd and the ALP Right hate the Greens with a passion. It doesn’t really matter which of them began this smear (although given the taxpayer-funded ALP “dirt unit” I wouldn’t rule out it being the latter), the point is that they both ran with it, and neither have resiled from it. They’re both worthy of condemnation for it.
Confessions
All I ask for is a story in context and let me make up my own mind about what I do with it. It is always the spin put upon a story that makes the press suck. I notice that yet again you are keen to revisit an argument about the Campbell gay club story. Lets just agree to disagree, I believe that I and other members of the public have a right to know about things that could influence the way that I or they vote, in context. To me any many others having a wife and visiting gay clubs are opposing signals that influence the way that I think of a person. That might change whether I vote for them or not. I don’t ask that you agree with me all I ask is that the story I get is not censored or spun in a way that deceives. That you don’t agree is your prerogative. That is fine, I long ago realised that I cannot force people to agree with my point of view I can only give my reasons for thinking as I do. I am also open to change my mind when thoughtful well made arguments of an opposing view are presented. You have not done this on the Campbell case and it appears to me at least that you are again simply abandoning reason in order to cheer on your own political team. Have a nice day.
zoomster:
The intention was to create doubt about the Green candidate in the minds of voters. The unintentional effect is that the story went national, boosting the man’s profile and giving him much needed publicity at the start of the election campaign.
twobob:
I suspected during the Campbell thing that your reasoning for wanting open slather on candidates’ lives was a front for homophobia. I suspected then (and have it confirmed now) that should the media lob claims of hypocracy at a straight candidate, and much better, a Greens candidate that you would feel very different about the behaviour of the media.
As for me, my views are consistent, regardless of who is involved.
confessions explain then why I admire Bob Brown so much?
Actually confessions don’t bother, your position upon this and the campbell story are consistent. It is quite obvious to me that your hurting because your team is hurting.
There is a good story about this by Andrew Crook at Crikey. The posts there pretty much sum up why Labor finds itself in the position it does. I especially like the one by venice who points out the hypocrisy of Labor attacking a party that has picked up on leftish issues that Labor itself has abandoned to become more right wing.
I do feel sorry for dinosaurs like yourself who still think that labor represents the workers.
And as evidence that I am not merely a cheer leader I would bring up the point that Bolt had a story about a Greens candidate who drives a V8 for camping. I did not comment on that issue because I was in agreement with Bolt that she was a hypocrite who was talking the talk not walking the walk.
I have no idea why you admire Bob Brown. All I can do is judge you on what you write here. During the Campbell case you were adamant you wouldn’t vote for a gay candidate, one of the reasons you wanted to know everything about candidates’ sex lives. I also recall other previous comments from you about gay people and how immoral it all is.
It’s also worth noting that Tony Abbott probably admires Bob Brown too, but based on what he’s said about gay people I’d call that homophobia as well. And now the thread is well OT it’s probably best if I just shut it for now.
Jeremy, No, I’m not saying the bar rules should be changed. I’m not sure how you got that. What I am saying is that two men were put in very similar positions where they (possibly) had to choose between the system they believe in and an action that seemed counter to their values.
In one case you claimed that the guy copped out, and the other is stellar feller. I’m not arguing that one or both are wrong or right, merely pointing out that it’s interesting that you can strongly defend the man that belongs to the party you’re involved with, shares your occupation, and helps you build content for your blog. Also, I find it interesting that you reckon Walters had very little choice but didn’t extend that same level of empathy to a man that could face the noose for not following the rules of his chosen profession. Instead, you insinuated he was a murderer. And still do.
Furthermore, you claimed that the hole in the Herald Sun story was that they only mentioned in passing that Walters was required to take the case, but you completely failed to mention the possibly fatal consequences the gunner would face should he start choosing to make his own calls.
In short, your argument is about defending your job, your political party and your blog site, nothing more. That’s all fine, but I just want the Brains Trust here to know that it’s lopsided and built on self-interest.
And one for RobJ, You and I both heard Guthrie tell all and sundry that Murdoch had never told him how or what to write. I notice the same levels of editorial independence don’t exist on this site. Just try writing anything about a certain News Ltd NSW blogger. Time to come up with something better.
For the record – the Campbell disagreement was about whether information about his private life should have been aired by the media at all. The current issue is not one of whether the information should be made public (everybody agrees that it should) but of whether the media/ALP deserve criticism for their misleading commentary around it.
The two issues are fundamentally different.
You are confused confessions, I never said that I would not vote for a gay politician.
That is a blatant case of you attributing to me something that I never said. As such I find it contemptible and invite you to either provide evidence of such a statement or apologise.
My point at the time and now is that everyone should have ALL the information available to them that might influence the way that they vote. That someone might change their vote because of homophobia is their call to make. Not one that you or some other censor has the right to decide upon.
{Snip – take it outside – Dave}
I like the fact that for Iain and some others here for a man to be principled he must first act in an unprincipled way, nice one chaps.
By the way if an emergency Doctor, who is a green candidate is asked to treat a coal miner, who was injured at work, is it hypocritical of him to do so?
Not relevent.
There were those who argued that Campbell was a hypocrite for the actions he took.
Same same with Walters. The line seems to be drawn by twobob around the political party the individuals represent.
Hypocracy. Pure and simple.
You make shit up confessions.
Then you move the goalposts.
And you are too small to admit that you are wrong.
Have you any evidence ?
No none at all.
That belittles you in everyone’s eyes.
Your unverifiable assertion is blown to smithereens when you consider what I have said here about the Greens pollie who uses a V8 for recreational purposes.
But hey don’t let something verifiable get in the way of your twisted narrative of what I have done.
I am tempted to brand you a liar however I am not certain that that is true as I have a suspicion that you simply don’t remember clearly and instead live in a fantasy world of your own.
Pathetic. Obvious verifiable and contemptible.
There were those who argued that Campbell was a hypocrite for the actions he took.
Perhaps there were, but that was only incidental to the primary argument of whether the media has any right to pursue a politician’s sex-life and then publish it. You argued that they do not. Come on confessions – you know this to be the truth. We were all part of that discussion.
The current Walters discussion is around how public information has been misrepresented by Labor and the media – no one has argued that the media had no right to publish it (as you did with Campbell).
mondo:
Yes, i do acknowledge the differences in the two instances. However, my issue is that twobob is able to criticise the media for its accusations when it comes to Walters, yet was unable to do so when it was Campbell. I suspected at the time of Campbell there would come a time when twobob’s defence of the media would be tested, and I was right.
Confessions
The irony of the post title and you then critisizing me for stuff that you have made up should be pointed out to you when indeed what you are doing is
“An easy, but misleading, smear”.
As I have already said and has been eloquently put to you by mondo I am happy to have this issue reported upon but am not happy about the misrepresentation or spin that is applied to it.
In your case, however, you keep digging your own hole all that you like because the only person that you have smeared here is yourself.
Jeremy,
Sorry for the lateness but I suspect that as the issue involves prinipals dear old Ian is struggling with the concept.
My understanding is the rules certainly provide an out but these should only be used in in extreme circumstances.
Faced with a conflict between his professional ethics & green politics Walters SC quite chose correctly. The fact it would cause him embarrassment is too his credit & an indicator of quality. The easy way would have been to fail in his duty
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