Melbourne University Publishing's decision to produce Justice Lee's Lehrmann judgment as a commercial product is not without its problems ... The omnishambles continues ... Melbourne lawyer Nilay B. Patel explains
In a move that should outrage anyone who values judicial integrity Melbourne University Publishing (MUP) has commercially published the entirety of Justice Michael Lee's judgment in Lehrmann v Network Ten Pty Limited (Trial Judgment), together with a foreword by an Australian sexual consent activist, in book form - called He Went Back For His Hat.
The unprecedented practice of repackaging of a free, and publicly- available judgment into a commercial product, and for that to be exchanged for a price creates numerous issues.
MUP has risked exploiting the parties involved in or related to Lehrmann. This case involved allegations of sexual assault by Bruce Lehrmann against Brittany Higgins in Parliament House. A book of this type will likely result in ongoing scrutiny for the parties involved, for 'Mr Lehrmann' appears 697 times and 'Ms Higgins' appears 1,242 times in the judgment.
The human effects can be re-enlivened through these parallel commercial activities. The purpose of the Lehrmann judgment was to resolve the specific claim before the court, which must inherently focus on the parties involved. In contrast, Melbourne University Publishing promoted the book as offering 'valuable insights' but this could have been achieved through a scholarly work that explored the broader issues without revolving around the identities of Mr Lehrmann and Ms Higgins, thereby avoiding additional personal exposure.
The Federal Court promptly stated that the Court and Lee J "did not authorise or approve the publication of the judgment in this format, nor was Lee J directly engaged in the content of the introduction".
Having been shown the book cover and Foreword, Lee J remained silent. However, this can be misconstrued as approval, yet Justice Lee was under no obligation to express approval or disapproval of the content.
It is neither a duty that can be imposed on a judge nor one that ought to be expected of a judge. Judicial office does not extend to assuming editorial oversight or endorsement responsibilities in these circumstances.
Further, the Guide to Judicial Conduct states that "a judge does not comment publicly once reasons for judgment have been published' and, more generally, "[c]onsiderable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred".
Judges are also to bear in mind that "the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause".
Then there's the book's cover. The mention of His Honour "With a forward by Chanel Contos" creates the potential for misinterpretation, conflating the judicial decision with external policy advocacy.
The publication risks distorting public perceptions of the judgment's neutrality and the judiciary's independence.
It might be inferred that Lee J enlisted Chanel Contos to write the foreword or, alternatively, that he endorsed her perspective and sought to contextualise his judgment within her framework.
Similarly, the juxtaposition of the foreword and the judgment might suggest to some that the judgment itself should be read through the lens provided by the foreword.
The only context that should govern the interpretation of Lee J's judgment is the judgment itself, independent of any external perspectives or frameworks.
On May 31, 2024, Bruce Lehrmann lodged a notice to appeal, seeking to have the Lehrmann judgment set aside. In the event that the appellate court allows an appeal, in whole or in part, He Went Back For His Hat would no longer represent the final determination of the issues in controversy.
This will raise concerns about the status and credibility of the book, which would then contain a judgment either partially or wholly overturned on appeal.
Certainly, MUP prematurely published the book, if it should have been published at all, in circumstances where it knew, or should have known, that Lehrmann had lodged a notice to appeal.
Then there are relevant consumer law principles, whereby the role of MUP moves from publisher to supplier.
For example, Section 18 of the Australian Consumer Law prohibits a person from engaging in conduct that is misleading or deceptive. It could plausibly be argued that MUP has an obligation to ensure that consumers are fully informed about the freely available alternative prior to purchase.
It has failed to do so, which could mislead a person into thinking that payment is required to access the Lehrmann judgment. Moreover, the book is also available as an e-book for $23.99, which further triggers a Section 18 argument because the original judgment is already available in digital format at no cost.
Section 21 prohibits unconscionable conduct. Admittedly, the threshold for unconscionable conduct is high and is unlikely to be met with the publication of He Went Back For His Hat.
However, considering the factors courts may assess - such as any unfair tactics used and, more relevantly, the availability and cost-free alternative goods - MUP's actions come uncomfortably close to conduct that could be characterised as unconscionable.
The only element of the book that is not freely available is a short foreword. The inclusion of a foreword does not, in itself, justify or legitimise the commercial publication of the judgment in book form.
The question of copyright in Australian judgments adds a layer of complexity. It remains unclear under Australian law whether judgments are protected by copyright and, if so, who owns that copyright, unlike in some other jurisdictions where they are not the subject of copyright.
The Federal Court of Australia states that the Commonwealth of Australia does not own the copyright in judgments created by the judges of the court and that judgments can be reproduced or published in unaltered form.
Although technically permissible, repackaging a judgment for non-scholarly purposes and without any or substantive intellectual contribution, risks crossing ethical boundaries. MUP's reliance on legal permissibility, rather than value addition, should serve as the pallbearer for its audacity, not the standard-bearer.
A secondary copyright issue is a copyright statement on the imprint page in the book that reads "Text © Justice Michael Lee, 2024". Justice Lee does not hold copyright in the Lehrmann judgment.
Unrelated to copyright, purchasers and readers must be aware that a commercial book that publishes the entirety of a judgment does not constitute the official and authorised version of the judgment.
It lacks the formal endorsement of the court and may diverge from the official presentation or contain material not present in the original judgment, both of which holds true in the case of this book - even if in non-material aspects.
A book publication may risk altering the perception or emphasis of the legal reasoning. The only official and authorised version of the Lehrmann judgment can be accessed freely on the Federal Court website.
While judgments can be commercially published as books, this is extremely rare if not unprecedented. Legal texts, for example, are accompanied by analysis and commentary. They typically contextualise the decisions within broader legal principles, offering insights that deepen understanding or advance legal scholarship.
MUP's move, however, represents a new form of intellectual overreach by commercialising a judgment without any analysis, commentary or scholarly augmentation.
MUP has not proffered any reason as to what its audience will gain from this product, other than hard copy format, that is not available from the original judgment.
There is a line between engaging with the law for the public good and exploiting it for promotion, prestige, and reward. Academic publishers should devote themselves to scholarly analysis and leave the publication of court judgments to the judicial branch of government or, more generally, the legal system.
One hopes the Rubicon has not been crossed.
Nilay B. Patel