March 9, 2021

Law and order

Power of attorney

By Fleur Johns and Martin Krygier

Attorney-General Christian Porter. Image via ABC News

The rule of law is not a shield for the powerful

Attorney-General Christian Porter has suggested publicly that to ask him to stand aside while allegations of sexual assault against him were investigated, now that the police have in tragic circumstances closed their case, would spell the demise of the rule of law. The prime minister agrees: “That would say that our rule of law and our police are not competent to deal with these issues.” So it’s all about the “rule of law”. Apart from being mighty important and apparently in no need of explanation, what are we to make of this three-word conversation stopper?

The rule of law is a venerable and precious legal and political ideal. It is also notoriously unclear and controversial. It is precious because its core concern is to limit arbitrariness in the exercise of power, and that’s a hugely important thing to do. It is unclear because, having become a hurrah term, lots of people want to use it to praise whatever they like the law to do, and to condemn whatever they dislike. It is controversial because different people attach it to different things, and it gets pointed in many different directions.

If you keep the ideal in mind, rather than this or that mechanism spruiked as the only way to serve it, the rule of law can help in this tortured case, but not in the way the term has so far been thrown around.

The ideal of the rule of law is that people and institutions are not able to wield, and other people not be victims of, power that can be exercised arbitrarily: that is, on the whim, bigotry or uncut self-interest of the power-holder. One of many ways to ensure that is to develop laws and legal institutions that can temper, constrain and channel the exercise of power. Another is to insist that senior public officials be “fit and proper persons”. Yet another, to require accountability from those who wield significant power. Any one of the litany of rules designed to ensure an independent judiciary (governing everything from remuneration to recusal) could be explained and defended in these terms. So too could many technical and tedious rules of criminal or civil procedure, or the text of Centrelink’s “Review of a decision” form, and the fact that such a form – and the associated right of review – exists at all.

What, then, does the rule of law require or prohibit in this fraught context? Does it, for instance, preclude the establishment of an independent investigation into untested allegations of sexual assault levelled at the Commonwealth’s senior legal officer, as he and the prime minister have suggested? If so, how might these claims be squared with concerns raised – also by reference to the rule of law – about the federal government–initiated Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020, restricting the ability of a person facing visa cancellation or citizenship withdrawal to understand and respond to information relied upon to reach a decision against them?

According to the attorney-general and the prime minister, nothing short of charges laid by the police could satisfy the sacred demands of the rule of law. Conversely, any other sort of investigation would violate those demands. Here they are mobilising a popular sense of what the law is and does. Rape is a crime. Allegations that a crime has been committed are dealt with by the police, the Director of Public Prosecutions, and in some instances by the criminal courts. It’s all very familiar. We’ve all read the books, seen the movies. Channelling the testing of these allegations through any other route would be arbitrary, they are suggesting. It would be so arbitrary, in fact, that the untrammelled power of accusation and interrogation so unleashed could attach to anyone, anywhere, at any time.

However, as the attorney-general and prime minister well know, disputed claims – including those of the most serious kind – are routinely handled through a range of procedural avenues. Allegations that could, in certain circumstances, found criminal charges are dealt with all the time through other routes: civil proceedings, workplace health and safety investigations, licensing board hearings, Australian Human Rights Commission conciliation, and so on. There aren’t many books or movies about these, but they are at work all the time. And, in Australia, each of these mechanisms is governed by procedures designed to promote the rule of law. These are not beyond reproach any more than the mechanisms of criminal law are perfect. Yet they are not infected with some hideous arbitrariness by which the criminal justice system is untainted.

What would be arbitrary would be for a person invested with great power over others, by virtue of the office that they hold, to be able to pick and choose among these investigatory processes, and insulate themselves from some, solely on the basis of the vehemence of their denial. To shield the attorney-general from questioning concerning an alleged abuse of power of the most serious kind on his part, merely because one avenue (the criminal justice system) is practically inoperative for tragic reasons beyond anyone’s control: that would constitute an arbitrary exercise of power on the part of the federal government – exactly the kind of arbitrary exercise of power that the rule of law seeks to counter.

When our colleagues raise concerns about the proposed changes to migration law, they worry about the capacity of people at the opposite end of the power spectrum to the attorney-general. They worry about such people having access to information about decisions affecting their lives in the most profound ways imaginable. The attorney-general has far greater resources at his disposal, but he too should enjoy that right in relation to any independent investigation charged with assessing whether he remains a fit and proper person to occupy the office of First Law Officer of the Commonwealth. That’s the thing with the rule of law: it cuts both ways. But it can’t be cut from whatever cloth those in power decide that they would prefer to wear, or not.

Fleur Johns and Martin Krygier

Fleur Johns is a professor of law and ARC Future Fellow at UNSW Sydney. Her books include Non-Legality in International Law: Unruly Law. She has published widely on contemporary governance practices, including on rule of law and development programs in South-East Asia.

Martin Krygier is a professor of law and social theory at the University of New South Wales. He is the author of Civil Passions: Selected Writings, a collection of essays. He also writes extensively on issues of political and legal theory and morality, particularly the rule of law, and eastern European politics and law.

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