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Mar 17, 2017

Do pearl-clutching journalists understand what the law really is?

The reaction of journalists to innocuous comments by the new ACTU secretary reflect a poor understanding of what the law actually is.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Occasionally an issue throws up an interesting insight into the mindset of media practitioners; the reaction to comments by incoming ACTU secretary Sally McManus about breaking laws — “…when it’s unjust, I don’t think there’s a problem with breaking it” — did just that.

The ensuing pearl-clutching from politicians, political journalists and commentators at a variety of outlets — the exchange originated on 7.30, Fairfax journalists tut-tutted, News Corp led the charge against McManus, Malcolm Turnbull attacked McManus, the Business Council issued a rebuke of McManus and professed itself terrified — was both amusing and revelatory.

The amusement comes from the quite colossal hypocrisy of those criticising McManus. Malcolm Turnbull’s own party branch, the NSW Liberal Party, broke that state’s political donations laws, to the tune of millions of dollars in illegal donations via the Free Enterprise Foundation and others. News Corp papers broke UK laws on an industrial scale in the most disgusting fashion, and many of its employees were sent to jail. Many of the Business Council’s members — including News Corp — engage in vast. systematic tax avoidance and, in some cases, outright evasion to escape paying anything like a fair share of tax; some of the biggest names in Australian business have been exposed for systematically underpaying staff or not paying their superannuation entitlements.

And journalists — well, it’s worrying that 7.30, Sky News, News Corp and Fairfax newspapers will never again listen to a whistleblower exposing wrongdoing by breaching confidentiality or accept leaked documents, or publish anything from WikiLeaks, or material from Edward Snowden. And, as many have pointed out on social media, presumably Fairfax journalists won’t ever engage in wildcat strikes again. After all, you can’t pick and choose which laws to obey, right?

While the posturing from The Australian et al is the usual partisan drivel, the reaction of journalists is illuminating for the attitude to the law it shows: that the law is a kind of holy writ, unconnected to ordinary human interactions, and thus inviolable. The rule of law is a crucial feature of democracy, but that doesn’t mean the law, and its application, isn’t also an expression of power balances within society. The law has long been used by elites as a weapon against those deemed dangerous or demonised as Other — we had a White Australia Policy, we had worker-hostile industrial relations laws, we criminalised homosexuality, we legalised discrimination against women, we banned protests. Many of these “unjust laws” were removed through illegal actions by individuals and civil groups like unions, people prepared to break the law and accept the consequences to remove unjust laws or mitigate their effects.

But “Sally McManus is not Rosa Parks”, thundered The Australian’s David Crowe yesterday. But that’s the problem — Rosa Parks wasn’t Rosa Parks when she refused to go down the back of the bus. She was just another criminal flouting the law. It’s only in retrospect we understand her action as one of drawing attention to an unjust law imposed by a racist elite.

Nor is this some sort of historical footnote, as if we’ve somehow purged the law of all flaws and emerged into the sunlit uplands of legislative perfection. Laws are used to hide evidence of the rape and abuse of women and children in our detention camps, and used to justify attacking government critics using personal information; laws are used to justify going after the sources of journalists by the Australian Federal Police and ASIO. The law remains, and will always be, a tool of the powerful as well as a crucial framework of civilised society — that’s why we have a legal system that continues to systematically devalue the basic rights of women and children.

It’s the job of journalists to understand that the law is a tool of elites, and to report on, and analyse, how it is used in that way, to the benefit of those elites and to the detriment of the rest of us. In their task of speaking truth to power — if they see that as their task, given many of them work for powerful corporations like News Corp — they must see the law not as holy writ but a product of clashes between competing interests. Without that understanding, no journalist can do their job properly.

Most media practitioners instinctively understand this. They don’t turn away whistleblowers or leakers, even though they are thereby facilitating a crime. They do publish material that is the result of serious breaches of national security laws, because it is in the public interest. And they do commit to protect their sources even if it means they themselves break the law — and News Corp has commendably been willing to stand by its journalists on that in the past.

Perhaps journalists think they’re special, that they themselves can be trusted to know when it’s OK to break the law, but no one else — certainly not some unionist — can. Or maybe they don’t quite understand what their job is.

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32 thoughts on “Do pearl-clutching journalists understand what the law really is?

  1. Frank Brank

    What an entirely apt description; pearl clutchers nails it Bernard!

    1. Dog's Breakfast

      I thought so too, Frank.

  2. Darren

    Thanks Bernard for a well thought out explaination and discussion.

  3. Kevin_T

    Our laws are constantly evolving – and should. Protest actions of various types have assisted that evolution, for the benefit of society as a whole.

  4. Noel Turnbull

    A pearler of an article.

  5. Tony Foot

    If people did not break the law South Africa would still have apartheid.

  6. Ian Roberts

    To quote Jay, ‘It’s a bit galling’ when the media cry crocodile tears about public figures perennially sticking to talking points but then weighing into the all-to-predictable partisan biffo after someone doesn’t.

  7. JMNO

    Very well said, Bernard. Women didn’t get the vote by being nice and doing as they were told

  8. Phen

    The Australian makes me feel guilty for not always waiting for the green man before crossing the road.

  9. Vincent Matthews

    Bernard’s analysis is the truth, the whole truth and nothing but the truth. There’s no justice in this world. Only bad judges and good lawyers. Public protests and defiance have forced changes in bad laws for centuries. Those protests and changes will go on, despite the complaints of the powerful and privileged who own and control the media and the naive journos who work for them.

  10. maureen

    It is a pity that we have a community who immediately give no thought to comments that are made by people who are asked questions about civil liberties. Without the breaking of some laws that were considered at the time to be against the rights of a large percentage of people. Without these people who did break laws that were considered to be against civil liberties we would still be living in the ages where children were working in mines at the age of 8 and other reasons for law breaking. This article should be read by all people and all politicians and every journalist. Congratulations for you article.

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