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.
Comments
18 responses to “Scott Morrison’s rule of law”
Great demolition job Ian. Can I buy you another bottle of ink?
The big swinging dicks and their boss have mates who ask to be the Don’s envoy to sort out Pamela’s business with Julian so the Don Big Swinging Dick says.
I am mindful that this ‘happy clapper’ has scored at least one ‘miracle’ – and, I think, another. How he was not more publicly impugned over his tenure and subsequent sacking as Head of Tourism Australia is appalling – and miraculous. Perhaps thanks (at least in part) to the political incompetence of the Opposition (whose Leader doesn’t even accept the title).
The only ‘law’ that Morrison is capable of accepting as ‘legitimate’ is the ‘law’ that his police officer father prosecuted – and it shows now. This man is so narcissistic as to be infantile; the Opposition (such as it woefully is) is itself incapable of prosecuting this deep argument.
Just imagine how Whitlam would have excoriated this gross, self-serving “Prime Ministerial” (really?) incompetence. Or Hawke. Or Keating. Or the Hon. Rose Jackson, [NSW] MLC – a politician so devoid of mention and needed encouragement on this otherwise estimable blog.
P & I contributors such as me can publicly writhe in political agony. As indeed we do. But surely the pragmatic point is that we should be helping persuade the electorate at large that this Prime Minister, this Government, is so devoid of any “moral compass” that it is utterly unable to merit their trust.
I don’t think we contributors are doing nearly enough. This blog attracts contributions from Australia’s most outstanding political intellectuals and administrators – who wring their regretful hands. We can do much better than this. We, more than most, can describe complex matters simply. Simply enough to ultimately sloganise.
Yes, this matter is big and it is complex. We have enough time and we easily have enough talent to frame it, to analyse its dynamics and dependencies, to present an inarguable case to lazy Labor and to goad the Parliament appropriately.
If we don’t, what do we say to our grandchildren?
Good analysis and thanks, Ian.
The rule of law is a construct in a democracy. Note I use the term democracy. In Western democracies, the rule of law is manifested through what we call the separation of powers – the executive, the legislature and the judiciary.
It does not presuppose and accord members of the executive a free pass if the law is infracted. Parliament can and indeed, should raise an inquiry into the ‘fit and proper’ test as it applies to the AG. Similarly, civil cases can be acted upon by the deceased’s estate, and clearly, the AH has got a case to answer for.
What I find abhorrent is the fact that politicians invoke the ‘rule of law’ when it suits them to give them a free pass. Indeed, one of the more bizarre thing s about the press conference was Christian Porter saying he knew the person and apologised for the distress caused to her parents. One wonders how he could in the next breath, claims he does not know what the allegations were and who made them. It does not compute.
That quote comes from the following article: “Why Christian Porter and Scott Morrison are utterly wrong about the ‘rule of law’.
Written by Geoffrey Watson. New Daily. March 6, 2021.
To our Prime Marketeer, “Rule of Law” is but a catchy marketing phrase. So handy being just three words, too!
My politically savvy Scottish relative, recently arrived in Australia, observed of ‘our’ PM; “I’ve not seen a shallower, more empty vessel than Morrison in all my years working abroad”. An observation to which other ‘foreign’ expats in our group immediately concurred. The man lives in a bubble, devoid of empathy, policy and vision.
Morrison is not capable of leadership, especially not at Prime Ministerial level. He cannot raise himself above politics and cheap point scoring. His headline announcements on spending never become fact. It’s all about the headline, the news cycle and appeasing the puppet master who pulls his strings.
Thanks for an excellent explanation to a non-lawyer. We are well aware, however, that the Coroner in SA makes his/her own decisions. Coroners do not need Julie Bishop et al’s “support”, and she’s a lawyer. I see the idea of an independent inquiry as essential not because it can ever declare Porter’s innocence/guilt from an unsigned allegation. It cannot do that. Rather, it should surely be asking whether the A-G is a fit and proper person to be A-G. On the Collaery/Witness K matter, that may be dubious. On his supervision of Robotdebt, it seems more unlikely he is fit and proper. And other evidence may surface. Porter is wrong the Dyson Hayden case has no bearing on him. Parliament is a very weird workplace but he runs a lot of it.
I agree. Thanks, Jocelyn.
How many pink batts enquiries were there? These were expensive ways of satisfying some idle curiosity on the part of Abbott’s government.
Given the differences of opinion at the several bars, it is curious that 4 Corners only offered one legal opinion on the scope for an inquiry in the Porter matter. Since then, the former Solicitor General has crystallised the case for more in his very careful and detailed opinion https://cutt.ly/dzYcJNU which even reaches back into the Constitution, rarely a bad place to start.
An inquiry is beyond desirable. No doubt this opinion will be added to unread material on the floor beside the PM’s bed. How can the PM claim to be running the country while he is so selective in the matters he chooses to know about? His concern about being unaware of the Britany Higgins matter for two years was as theatrical as his reaction to Christine Holgate’s unpardonably rewarding executives who have done an excellent job for Australia Post franchisees.
Mr Ure: excellent comment
Although I would not agree to an inquiry into the letter based allegations whilever the authors – who were apparently not the person making the claim – remain anonymous, and the material is unpublished.
once the relevant facts are in the open, if there is to be an inquiry into the allegations the authors – and the journalists spreading the story – should be called to e.g explain proofs, motivations, links etc.
the matter has purposefully been put into the highest political stakes and then into the open – unlike most other similar allegations, say for example against the former judge.
therefore any such inquiry should be also conducted in the open.
i am not sure whether evidence should be compelled, or whether immunity from eg. defamation should be offered.
but in any event, i think the particular allegations are a sideshow.
There is an urgent need for inquiry into his conduct as AG, including in that matter.
in the interim he should be stood down.
There also is an urgent need for a thorough inquiry into abusive behaviour in/by Parlt House, not limited to gender/sex claims or crimes.
But again, a great comment.
Go well
I expect the carrier of Kate’s dossier strove to remain anonymous to avoid any possible defamation attack. Hence its restricted distribution since then. That person and presumably his/her friends would be prepared to go on the record if immunity were assured. As they would be if Kate had survived and the matter had gone to trial. Why shouldn’t that be the starting point when it comes to how the matter should be dealt with now? A trial would have been in open court for established reasons. While the material, including the information given to police (and rarely mentioned in the debate) is not sworn, a possible criminal penalty is not in play either. so allowances for publishing it are justified given Porter’s position as attorney general.
I agree.
Mr Ure:
A short version: you may be right about intention to avoid defamation action, and that points to what concerns me.
I do not think absence of criminal trial makes any difference here. The public claims and the consequences for the AG are most serious. The civil standard of proof is less?
I am uneasy about what has been reported – anonymous letter/dossier to opposing political leaders relating to a most serious crime of 33 years ago without (?) support of the alleged victim. Unsighted by the public but sufficiently detailed for people to correctly guess the identity of the person who is alleged to have committed rape. The ‘who read’ of which is subject of a slippery story. Turned into a media uproar via the ABC against which there are claims of less than full disclosure of involvement. And a newsworthy scoop is: someone who knew the person in question would testify at an inquiry. Under a misleading headline.
In those circumstances an available inference of anonymity and failure to publish is lack of sufficient belief in the truthfulness of the claims.
That is well short of what would convince me an inquiry is useful. That could change if the authors identified themselves, if the letter/dossier was first published and if the ABC addressed the claims made against it.
A defamation action, such as appears to be contemplated, may resolve most of the issues. It would address my other issue: any inquiry should be in public and call the authors and the ABC.
NB: doesn’t change my view Mr Porter should not remain as AG due to his performance in the portfolio.
Regards
On another forum I read earlier to-day concerning Goebbels’ secretary (Robin Nevin currently playing her in a stage performance) it would appear that many readers doubt that ordinary Germans could have lived through the era 1933-1945 without knowing what was going on. Especially about the deportations and death camps. Though US Milton Mayer’s 1955 book (rep. 2017) U of Chicago Press seems to show how pre and post-war ordinary Germans did not really know – living in a kind of wilful ignorance at the very least – protecting selves, jobs and families – not unlike the wilfulness of the PM – Nothing to see here – I didn’t read the letter – no one told me – to the extent that I almost (but not wholly) believe him. This PM must resign now! I bet Jen would tell him to get out – certainly before the girls are old enough to get a job in the house – working for a Porter of a Craig Kelly/Frank Zumbo kind of office!
This fine
article shows how devastatingly true are Mr Morrison’s claims about current
danger to the “Rule of Law” – it is the Parliament that is the main
danger, led by him, with not enough intervention by the Opposition. New
National Security laws are now the cover-all for great miscarriages of justice.
The momentum for calls an inquiry or coronial inquest must increase, so that
the 24-hour news cycle, the “look over there!” tactics, the high-vis
photo op machinery does not succeed in denying the people the right to be
assured of the fitness of the first law officer to hold his position.
Morrison’s Office has a good half-dozen lobbyists out of Big Coal/Big Mining interests/industries working for him – vetting legislation, writing policy – holding his hand to make the right decisions on behalf of their masters – not FOR the people of Australia but AGAINST our interests. He is a fraud – from whose mouth a stream of bullshit issues as if of sense – but actually a verbal meaningless sludge – and he’s the PM don’tyer know – so shut up and let’s move on!
Porter and Morrison totally deserve each other. But, women and men, right and left, lawyers and others, we must come together, to defeat their divisive “rule of law” bullshit.
The only “logic” that Morrison employs is the “logic” of how to retain his failing government. If he spouts “rule of law” often enough, he can then blame labor for flouting the “rule of law”. Next week in Parliament, no doubt Labor will move a motion of no confidence in a) the government and/or b) the Attorney General as not fit to hold the position. It is all about his politics, and it is blatantly obvious. Blame Labor who are stopping the really good job we are doing……..
As always, he is playing to the crowd who form their opinions from the Murdoch media, and those who are seduced by endless stream of self promoting advertising and photo opportunities, and the myriad of financial announcables cluttering up the news cycle. No wonder nothing happens – there is no plan, no strategy, merely self-preservation.