Lawyers around the country are shaking their heads in trying to understand just what the Prime Minister means by the ‘Rule of Law’.
The crux of the Rule of Law is that decisions in the courts are determined according to an objective set of laws, by independent judges, after trials that are fair, and that everyone is equally subject to the law. Scott Morrison is correct that the Rule of Law is a fundamentally important foundation stone of our liberty and democracy. But the proposal for an inquiry into the allegations that Attorney-General Christian Porter raped and sodomised a 16-year-old in 1988 bears on the Rule of Law.
Morrison’s logic is puzzling. He says that an “extrajudicial processes” would be:
“eroding the very principles of the rule of law in this country. There are not two laws in this country and I won’t allow that to be eroded. There are not two processes. I believe in the presumption of innocence and the rule of law, and [Porter] is entitled to that. The competent and authorised agencies through (sic.) the police and the court system, that’s what determines (sic.) these matters at the end of the day. Every Australian is entitled to that, whether they’re a minister of the Government or anyone else in this country. There are not two rules. There are not two laws in this country. There are not two processes. There is one. And we’re all subject to it.”
According to The New Daily, Morrison’s logic is that, since NSW Police declined to pursue an investigation due to a lack of admissible evidence given that the alleged victim is dead and there are no other direct witnesses, it would be unfair to enforce an extra process on Mr Porter.
Morrison’s logic is frankly breathtaking. There are so many examples of inquiries into allegations of improper conduct which are conducted outside the processes of criminal investigation and criminal prosecution that it is literally unbelievable that Morrison could be unaware just how commonplace they are.
Morrison was a member of the Cabinet that in 2014 appointed former High Court Justice and darling of the right, Dyson Heydon to investigate allegations against Julia Gillard and Bill Shorten and many others on the left of politics in the Trade Unions Royal Commission.
The Royal Commission followed a previous extra-judicial inquiry into alleged improper conduct by trade unionists – by the Fair Work Commission. There were no howls about the Rule of Law. There was certainly a widespread belief that the new Coalition Government was gunning for Gillard and Shorten and other enemies on the left, but the misuse of power by governments against their political opponents is an issue with a very long history and is a separate issue to the Rule of Law. Certainly when the Royal Commission was established nobody objected that only police should inquire into alleged criminal conduct. That is a quite ridiculous proposition.
Is Morrison sensitive that as chief executive of Tourism Australia he himself was the subject of an inquiry before his contract was terminated in July 2006 by the Liberal Tourism Minister, Fran Bailey? According to Morrison’s Wikipedia entry, a 2019 investigation by The Saturday Paper suggested Morrison was sacked due to concerns that Tourism Australia was not following government procurement guidelines for three contracts with a total value of $184 million relating to the “So where the bloody hell are you?” campaign.
Wikipedia adds that a 2008 report from the Auditor-General found that “information had been kept from the board, procurement guidelines breached and private companies engaged before paperwork was signed and without appropriate value-for-money assessments”. Wikipedia says it was suggested that M&C Saatchi, which had previously worked with Morrison on the “100% Pure” campaign in New Zealand, received favourable treatment in the tendering process. Does Morrison contend that the Auditor-General’s inquiry breached the Rule of Law?
And do such findings by the Auditor-General mean that Morrison has lost the presumption of innocence in relation to his conduct as CEO of Tourism Australia? To suggest so – as Morrison seems to be doing over the 1988 allegations – indicates a fundamental confusion between what happens in the criminal courts and what happens outside them. If, for example, Morrison were to be charged with a crime relating to the “So where the bloody hell are you?” campaign, at his trial Morrison would be presumed to be innocent. He would not be convicted unless a court found him guilty. Whatever conclusions the Auditor-General had or had not come to about the facts, the prosecution would have to prove its case to the criminal court beyond reasonable doubt and on the basis of admissible evidence.
There is one caveat: proof to a criminal court on the basis of admissible evidence would be required unless the Attorney-General interfered in the case by making binding, conclusive certificates on crucial issues. That is precisely what Porter is doing against Bernard Collaery and Witness K in the prosecutions Porter is pursuing against them over allegations that they improperly revealed that the Australian Government had bugged the Cabinet Room of Timor Leste to get a commercial advantage during the negotiations over ownership of oil and other valuable resources in the Timor Sea back in 2004. The prosecution of Collaery probably exceeds $4 million in expenditure by the taxpayer to this point, with a very long way to go. 2004 is a long time ago, not as long ago as 1988, but still a long time. Criminal law has a long memory.
Morrison’s words about the Rule of Law should probably be read as spin rather than precise legal analysis: “the police and the court system … determines (sic.) these matters at the end of the day”, says Morrison. That is pretty much the case in relation to criminal conviction, although many other agencies supplement the role of the police in law enforcement – for example the Australian Building and Construction Commission, ASIO and ASIC.
More from Morrison: “There are not two rules. There are not two laws in this country. There are not two processes. There is one. And we’re all subject to it.” That seems to be pure spin. There are many rules, many laws, many processes. For example, Gillard and Shorten were rigorously examined on oath in the public spotlight by Dyson Heydon’s Trade Unions Royal Commission. So were many bankers by the Banking Royal Commission established when Morrison was Treasurer and Porter a Minister. There are hundreds and hundreds of further examples – even if we only go back to 1988.
Some inquiries are conducted without the glare of publicity. The High Court’s inquiry into allegations of sexual harassment by its former Justice, Dyson Heydon is an example. So too is the subsequent inquiry which Porter himself commissioned into Dyson Heydon’s conduct, from a sexual harassment perspective, while Heydon was conducting that Trade Unions Royal Commission. That inquiry commissioned by Porter has just reported to Porter.
Some inquiries have the power to compel witnesses and the production of documents. Again, Royal Commissions are examples. Others do not have such powers. The inquiries into allegations against Dyson Heydon’s are cases in point.
Different rules apply from inquiry to inquiry as to the extent to which evidence adduced by the inquiry can be used in subsequent criminal prosecutions – generally, witnesses, including prime suspects, are protected from being required to give evidence which incriminates them to an inquiry.
Morrison seems to be confusing the criminal courts and “the court of public opinion”. The court of public opinion takes notice of much more than guilty verdicts in a criminal trial. The interested public paid close attention when Kerry Packer appeared before a House of Representatives Committee in 1991 and denied being “Goanna”, who had been implicated by leaks ostensibly from the Costigan Royal Commission. The leaks suggested that Packer was involved in tax evasion, drug trafficking, pornography, and murder. So too the court of public opinion was in session when Gillard and Shorten were grilled by Dyson Heydon and his counsel assisting. Those events were front-page news.
And what of former Attorney-General and High Court Justice Lionel Murphy who was found not guilty of corrupt conduct in the criminal courts after two extensive trials and a successful appeal against an initial conviction? But Murphy was still the subject of a subsequent inquiry established by Federal Parliament in 1986 to examine whether his conduct had amounted to “proved misbehaviour” for which a High Court judge may be removed. The terms of the inquiry specifically excluded the issues for which Murphy had already been tried and acquitted.
That exclusion nicely exemplifies that, to use Morrison’s language, there are (at least) two rules, two laws, two processes. In Murphy’s cases, one involved the criminal courts. The other involved the inquiry established by the Parliament. Bob Hawke’s Labor Government was in power and the Liberal Party supported the establishment of the inquiry. The Liberals did not condemn it as an assault on the Rule of Law or the presumption of innocence. Indeed former Attorney-General, West Australian Peter Durack said of the establishment of the inquiry:
“it became obvious and necessary that this was the only path which would lead to these very grave, serious and disturbing questions being resolved. We on this side of the House resent suggestions that have been made that this has been a political witch hunt or indeed that there was a political trial, because that is far from the truth. We have, at all times, wanted this matter to be investigated and advice given to us by completely independent persons so that we could in a calm, sober and rational way exercise our responsibilities in relation to it.”
Durack was at that time the Deputy Leader of the Opposition in the Senate.
The case for an objective inquiry into the allegations against Porter rests on a similar basis.
Porter argued expansively last week that, if his career were to be destroyed by the 1988 allegations, nobody would be safe. Bob Hawke and other successful politicians have paid tribute to the good sense of the general public. The interested public will certainly have regard to factors in relation to the 1988 allegations which make them less credible as well as countervailing factors.
Those allegations are certainly live in the court of public opinion – just as the allegations of misconduct against Murphy were even after he was found not guilty in the criminal courts. Porter is presumed to be innocent in the eyes of the criminal law, and he will continue to be unless he is convicted by a criminal court. Because the alleged victim is dead, it is almost certain that the allegations will never even be tested in a criminal court or even a civil court.
Porter’s invocation of the Rule of Law as being imperilled may be dismissed as a debater’s extravagant flourish; Morrison’s invocation as just more spin from Scotty from Marketing.