Equally, reading Fake Law, it is hard to imagine an Australian newspaper running a front-page story labelling three eminent judges as ‘ENEMIES OF THE PEOPLE’ (as the Daily Mail did over a Brexit-related decision). Following that furore, the Lord Chief Justice sought police protection for several members of the judiciary – an unprecedented development. The Secret Barrister complains, of the Daily Mail and other commentary, ‘that merely listing the errors strewn throughout reporting [on that case] could by itself comfortably fill a 300-page hardback’.

Australians would nonetheless be short-sighted to think that the politicisation evident in the United States judiciary (which long predates Trump) is impossible on these shores. Equally it would be ignorant to believe that none of the maladies recounted by the Secret Barrister afflicts Australian public discourse. As the author writes, ‘If we lose judicial independence, we lose the rule of law.’ Subsequent comparisons made to Poland, Turkey, and Hungary might seem far-fetched in Australia, if somewhat less so in Trump’s divided United States or in the Brexit-riven United Kingdom. But the Secret Barrister’s concluding words are no less applicable here: ‘Let us never be so naïve as to suppose that we are immune.’

For much of 2020, the Australian legal community has been feverishly speculating about the potential replacements for two retiring High Court judges. Commentary around these vacancies indicates that Australia is not as far removed from Fake Law or polarised America as we might hope.

In February 2020, the High Court delivered judgment in Love and Thoms v Commonwealth. The Court determined, by a slender margin, that non-citizens with Indigenous heritage could not be deported from Australia. As Justice Virginia Bell observed, the relevant constitutional provision ‘does not extend to treating an Aboriginal Australian as an alien because, despite the circumstance of birth in another country, an Aboriginal Australian cannot be said to belong to another place’.

The decision outraged a number of conservative commentators, and The Australian readily provided them with a megaphone. Liberal Senator Amanda Stoker raised the spectre of a local equivalent to the Federalist Society, which lobbies for conservative judicial appointments in the United States. The Institute of Public Affairs was quick to jump on the bandwagon: ‘We need judges to say what the law is, not what left-leaning judges would like it to be based on their own subjective policy preferences.’

As speculation around the latest High Court appointments intensified, The Australian editorialised that ‘Mr Porter should seek a legal conservative with strong adherence to the original intention of the Constitution and the black letter of statute’. The irony of suggesting that such appointments should be ‘free of political distraction’, while campaigning for just that, was apparently lost on the paper’s editors.

Fortunately, neither of the ultimate appointments announced in late October by federal Attorney-General Christian Porter, Simon Steward and Jacqueline Gleeson, is an ideological warrior; both are well-respected judges currently serving on the Federal Court. But The Australian’s commentary suggests a shift in the Overton Window next time, there is no guarantee we will be so fortunate.

All of which makes Fake Law a timely read for Australian audiences. The second book from the Secret Barrister, an unidentified British criminal barrister with a large Twitter following, Fake Law is a well-written, digestible account of how media and special interests have distorted public discourse about the law and the legal system. The author is methodical in his or her dissection of public (mis)understanding – the endnotes run to almost eighty pages – but never dry or legalistic.

Fake Law begins with a sketch of what ails the British legal system. ‘Unelected’ judges ordering ‘that a baby be put to death’, an ‘out-of-touch judge’ being soft on ‘illegal’ immigrants, ‘jackpot figures being paid to litigious employees aboard the gravy train of the discrimination industry’: the author has taken these various allegations from British newspapers; there are twenty-four footnotes in just two pages. The only problem: ‘every legal detail in those stories is untrue’. And hence the premise for the book: ‘They are examples of what a marketing mogul with a keen eye for neologisms might term Fake Law: distortions of legal cases and judgments, spun and reformed for mass consumption.’

The following nine chapters range widely: from the rights of homeowners to use self-defence against burglars to employment protections; from personal injury claims to European human rights law. The key thread is a tendency in the media (particularly tabloids) to distort and misrepresent the law to suit ideological campaigns, often spurred on by politicians or interest groups (ranging from Catholic pro-life organisations to insurers). Firing an opposing salvo in the Fake Law wars, the Secret Barrister does not miss.

Fake Law is possible because the ordinary citizen has little legal expertise, and community understanding of the law is modest at best. The author writes: ‘Law is inherently – and often unnecessarily – complex and alienating to a non-legal audience.’ Notwithstanding the broader prevalence of misinformation, media outlets are still held to basic standards on most subjects. ‘There is a reason that newspapers don’t run front-page stories about alien abductions,’ the writer quips. When it comes to opaque legal issues, such self-regulation disappears.

The Secret Barrister is careful to confine their criticism. ‘Please don’t mistake this for an apologia for the legal system,’ they write in the introduction. ‘There is much wrong with the way we do justice.’ But one of the many negative consequences of the perpetration of Fake Law is that legitimate critiques are overlooked. They observe: ‘Amid the smoke and klaxons accompanying the Fake Law stories, we miss the plaintive cries of those truly betrayed or failed by the law.’ They also offer a caveat that their condemnation of Fake Law should not be misinterpreted as an attack on press freedom.

While Fake Law is focused on Britain, many of its criticisms ring true in the Australian context. Although Australian tabloids are less brazen than their English counterparts, we have plenty of Fake Law here too. To take just one example, recall the reporting of litigation around NDIS funding for specialised sex-worker services – which the Courier Mail described as an ‘NDIS sex bomb’. The Secret Barrister’s (admittedly cursory) prescriptions are equally applicable on our shores: more specialist legal reporters in the media and greater community education about the law would be very much in the public interest.

Fake Law and Trump’s ongoing politicisation of the US judiciary reveal two sides of the same coin: efforts to undermine and distort the rule of law. In the penultimate chapter, the Secret Barrister compares the rule of law to a game of Jenga. Removing one or two blocks will not send the tower tumbling. But as any Jenga player knows, every absent block weakens the tower’s structural integrity. Keep removing blocks and, eventually, it will fall: ‘And you don’t want to be the one standing underneath it when it tumbles.’ Australia’s judicial Jenga might be studier than overseas counterparts, but blocks can be removed from it, too.