By Paul Gregoire and Ugur Nedim
The last fortnight has seen the most senior Morrison government ministers waving about the rule of law as if this principle, underpinning our nation’s legal system, is a kind of cure-all that instantly counters any suggestions of illegal or corrupt behaviour on their part.
Queensland University professor Geoffrey Walker outlined in a 2011 paper that the rule of law requires the people – which includes government – be ruled by the laws of which they obey, and these well-established and clearly defined laws should adequately guide them.
Then NSW Director of Public Prosecutions Nicholas Cowdery set out in 2008 that there are 12 requirements that ensure rule of law. These include preventing lawlessness, that the government be bound by the same rules as individuals and that there’s informed public consent to the law.
As attorney general Christian Porter stood before the press on 3 March to deny an historical rape allegation, he also posited that if he stood down or aside during any independent inquiry into the matter, it would undermine the rule of law for all. So, obviously, his hands were tied.
But while Porter’s stated aim of preserving the authority of law would be honourable if the public could believe it, after he and his colleagues have been wilfully and repeatedly undermining the laws of the land for many years, his words now fail to ring true in the political climate of the day.
The chief underminer
Porter, the nation’s chief lawmaker, is a prime example of a politician who has been wantonly weakening the authority the law holds for the Australians in order to achieve short-term political gains, which will undoubtedly have detrimental consequences for the nation’s future.
Defence contractor Thales Australia in 2018 refused to sign off on an Australian National Audit Office report into a $2 billion contract it had with the Defence Department, which related to the purchase of Hawkei vehicles.
Thales asked for a part of the report to be removed as it could prejudice its commercial interests. And when the ANAO said it wouldn’t remove the section, Thales took the matter to the AG, as he has the power to suppress audit information not in the public interest.
Porter agreed to intervene, and not only did he cite that the section should be withdrawn due to commercial interests, but he threw in national security concerns just for good measure.
Right before the May 2019 federal election – which the Coalition was widely expected to lose – Porter stacked the Administrative Appeals Tribunal with favoured members. The 34 new AAT appointees included six former Liberal and Nationals MPs, as well as eight ex-Coalition staffers.
Former senator Nick Xenophon also pointed out on national television last year that the AG had failed to publish the details of multiple National Security Information orders that he’d issue, which have permitted the secret trialling of whistleblowers David McBride, Witness K and Bernard Collaery.
For the world to watch
The long-established rule of law might be able to sustain a bit of convenient tinkering on the part of chief lawmaker. However, the wholesale disregard for the law that’s become commonplace under successive Coalition governments has the potential to substantially destabilise it.
Federal Court Justice Geoffrey Flick admonished home affairs minister Peter Dutton a fortnight ago, stating that the treatment his government has been dishing out towards Medevac transferees is not only disturbing, but likely unlawful.
A legal loophole revealed last year that the government may be illegally detaining these former offshore detainees. But rather than address this determination, the Department of Home Affairs has been quietly releasing these individuals into the community after years of insisting it never would.
Indeed, the system of detaining refugees offshore has been internationally condemned as unlawful, with multiple human rights abuses involved in the operation uncovered, which has all been overseen by the Abbott-Turnbull-Morrison government, coupled by the opposition’s complicit silence.
Human rights lawyer Julian Burnside told Sydney Criminal Lawyers in 2018 that every PM and “immigration minister since October 2002 – with the possible exception of Chris Evans” – could be persecuted for crimes against humanity over offshore detention, under section 268.12 of the Criminal Code (Cth).
The decay is spreading
The rule of law promotes a predictable and ordered society. This arrangement is readily adhered to as it provides the same rules and protections for all, including the same set of restrictions for government.
While a sizable undermining of the law’s authority has the potential to create societal breakdown.
The loss of trust in the fairness of the law is a similar creature to the ever-broadening loss of trust in public institutions, which has become so widespread that NSW Chief Justice Tom Bathurst felt it necessary to address this issue in relation to our state’s judiciary last month.
In terms of the state government, the NSW premier Gladys Berejikilian has been brushing off multiple incidents, where she’s asserted through her actions that there’s one set of rules for her and another set applying to the constituency.
So, Berejiklian will partake in pork barrelling as much as she determines is necessary.
A NSW State Archives and Records inquiry found that Berejiklian’s office had broken the law in regard to the shredding of documents, however the matter wouldn’t be prosecuted. While the ICAC is yet to release its determination of the premier’s actions in relation to the Daryl Maguire scandal.
Meanwhile, those charged with enforcing the law on the ground – the various Australian police forces – are renowned for not abiding by the same laws as civilians. And state police don’t even bother citing the undermining of the rule law argument, as a justification for their corrupt actions.
NSW Greens MLC David Shoebridge released figures last year that revealed that NSW police paid out more than $24 million in relation to misconduct civil actions over the 12 months of 2019/20. However, NSW police doesn’t appear to be making a concerted effort to eradicate these behaviours.
The consequences of erosion
The real threat posed by an undermining of the authority of law is that the majority no longer abides by the social contract. And the multiple examples above, coupled with numerous other incidences, are reasons why citizens would be likely to consider disregarding the nation’s laws.
Scott Morrison’s handling of multiple sexual assault scandals over recent weeks has smacked of a head of state indirectly reaffirming the concept that those in power are somehow immune to the regular law, as well as to being held accountable.
During a press conference following Porter’s public denial of the accusations, the Pentecostal PM flagged the rule of law a dozen times as the reason why the government won’t be permitting an independent inquiry into the rape claims, even though such an investigation would be lawful.
Yet to simply keep the nation’s top lawyer in the position that represents the rule of law, while allegations of a serious crime hover over his head, is likely to cause more harm to the authority of law, than if an independent inquiry provided some form of official resolution.