Australian High Court Justice reflects on how legal systems deal with alternative facts

Australian High Court Justice reflects on how legal systems deal with alternative facts

Credit: Tracy Tolf Justice Stephen Gageler AC, LL.M. ’87

On March 27 and 28, Stephen Gageler AC, LL.M. ’87, a justice of the High Court of Australia, returned to Harvard Law School to meet with faculty members, participate in classes, and speak on “Alternative Facts in the Courts.”

Gageler studied law and economics at the Australian National University before earning an LL.M. at Harvard Law School. After serving as a lawyer in Australia’s federal Attorney-General’s Department, he practiced at the private bar in Sydney, where he specialized in constitutional, administrative, and commercial law. In 2008, he became Solicitor-General of Australia, the nation’s second highest law officer. He was appointed as a justice in 2012, joining six other judges on the highest court in Australia’s judicial system.

During his visit, the justice visited the Comparative Constitutional Law classes taught by HLS professors Mark Tushnet and Vicki Jackson. In Tushnet’s class, he described how, as a junior lawyer, he used ideas he had developed in his LL.M. paper (entitled “Foundations of Australian federalism”) to craft arguments presented to the High Court in Australian Capital Television v. Commonwealth. In this significant 1992 case, the High Court, using reasoning similar to that presented by Gageler, held that the Australian Constitution’s commitment to representative government supported constitutional protection for political communications, despite the fact that the Constitution does not contain a specific constitutional guarantee of free expression. He also discussed the role of the Solicitor General in Australia’s system of government, and the distinction (in that role) between representing the Commonwealth and representing the government of the day.

Gageler’s talk for the broader HLS community was a wide-ranging reflection on the how legal systems deal with the assertion of different versions of a fact. “What do we, as lawyers, mean by truth? How does our conception of truth relate to our conception of justice?” He began by recounting how the term “alternative facts,” as used by U.S. presidential adviser Kellyanne Conway, “went viral and went global” in the days after President Trump’s inauguration. Her defenders, he noted, argued that instead of denoting a falsehood, “alternative facts” is a “harmless” term in common legal usage. “Despite being legally trained in Australia and the United States, I confess to having previously been ignorant of the term,” he added.

Gageler explored several factors that inform — and impede — the process of fact-finding in a judicial context. For example, rules of admissibility come into play. Also, with the emergence of the adversarial system, judges and juries are “tasked not with the independent pursuit of some ultimate truth but with arbitration of a contest between parties who assert different versions of the truth,” he observed. “The question for the tribunal of fact is not the abstract question of whether the fact exists but the more concrete question of whether the tribunal is satisfied at the conclusion of the contest that the fact has been proved to the requisite standard.” In Australia, the requisite standard in a civil proceeding is expressed as proof “on the balance of probabilities.” The concept of probabilities raises its own issues, Gageler explained, citing work by HLS professors Laurence Tribe and Charles Nesson to illustrate his point. Neuroscience even comes into play; researchers have suggested that the feeling of persuasion can be connected to the part of the brain associated with emotion, “not simply the region that is more classically associated with reason, deliberation, and judgment,” he noted.

In closing, Gageler cited the “overriding importance” of one factor. “Our legal system’s discernment of the existence of a fact [ultimately depends] on the honesty and integrity of the person or persons who constitute the tribunal of fact. The notion of a judge or jury needing to feel an actual persuasion of the occurrence or existence of a fact before that fact can be found is meaningful and workable only if the judge or each member of the jury brings to the fact-finding function a mind genuinely open to persuasion.”