The Ashes has moved on from Lords, but the actions of both cricketing sides still hold gifts and lessons, writes Greg Barns.
The response by English establishment to the dismissal by Australian wicket keeper Alex Carey in the second Ashes test is manna from heaven in bolstering the case for an Australian head of state.
But as a lawyer I can see the Australian team’s conduct in insisting on applying a black letter law approach to gain an important tactical advantage as being more complex and controversial.
The republic issue first
The harassment by MCC members of Australian players and the tone of the sneering by some English commentators are just the sort of atmospherics that tell us what we already know: for Australia to have a connection through its head of state to the class ridden value system of the UK is not only anachronistic but intolerable.
Australia is treated with contempt by some in the UK.
If we were running a republic referendum campaign today the footage of Australian cricketers being jeered and manhandled in the Long Room at Lords would be played over and again on social and conventional media to boost the case for an Australian head of state.
I write this as the former chair of the Australian Republican Movement and the campaign director of the Yes case in the 1999 republic referendum.
What about enforcement of the laws?
But let’s look at the more complex issue of enforcement of rules and when and how it is done.
While the laws of cricket of course have no application off the field they, like the laws that apply to all of us in society, are rules which are subject to interpretation by those who have to use them.
In that sense the laws or cricket are like, for example, road laws.
Neither is optional for those governed by them and the issue in relation to both is how they are enforced. In other words, the issue of discretion.
For example, a police officer who pulls over a driver who is breaking the road law by speeding can give that driver a warning or fine the driver.
Similarly a cricket player can insist on an umpire upholding the law about a batter not handling the ball, or the captain of the team could warn the batter not to do it again.
In the case of Johnny Bairstow we see something similar in play. The laws of cricket are clear it seems. Bairstow was out of his crease before the ball was dead which allowed Carey to stump him.
A black letter approach
But Bairstow was getting no advantage by his action in moving out of his crease after the ball had sailed past the stumps. So yes, technically the Australians were within their rights to ask the umpires to take a black letter approach to what seems a clear rule.
But an alternative perhaps more consistent with seeing law through the lens of its application according with fairness, would have been for Carey and his captain Pat Cummins to have done what law enforcement officers sometimes do when a person is breaking the law.
They either offer what is called a diversion or in the parlance of being caught speeding, a warning notice. Both are designed to encourage compliance but both also meet the fairness test.
Remember the myriad of laws and rules which governments sought to enforce during the Covid pandemic. The black letter approach riled many because it was patently unfair, particularly when people were not seeking to gain an advantage by non-compliance.
What Cummins could have done
To return to Bairstow, what Cummins and Carey could have done was to warn Bairstow that what he did left him open to being dismissed and that if he did it again that is what would happen.
Many might say too bad. The law is the law and the Australian team is there to win, therefore it is entitled to insist on strict compliance with the law.
Very true, as it is when lawyers and law enforcement officials insist on taking such an approach.
Most lawyers have been in cases where an opponent takes such an approach, particularly to rules about procedure and process.
We also see it with clients who find themselves charged with an offence even though it is clear a fairer approach would have been to issue a warning (this is particularly the case with medical cannabis cases where police charge people with drug driving despite the fact the person is using cannabis purely for medicinal purposes).
But is it fair?
The broader issue is one of the virtue of fairness.
What damage is done by insisting on a strict black letter approach to infringements of rules or laws?
Sometimes not very much but on other occasions, such as the Bairstow incident, the decision to play hard on the part of the Australians has broken what seemed to be a refreshingly relatively friendly relationship between two teams – a rarity in the obsessive win at all costs mentality of elite sport today.
The law is one thing, how it is applied is another.
Greg Barns is the author of Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant Publishing 2019).
Greg graduated BA LLB from Monash University in 1984. He has been a member of the Tasmanian Bar since 2003. He is the former National Chair of the Australian Republican Movement and a director of human rights group, Rights Australia. He has written three books on Australian politics, is a Director of the Australian Lawyers Alliance, and a member of the Australian Defence Lawyers Alliance.