BY LISA BURTON CRAWFORD

Murray Gleeson once said that ‘the rule of law is such a powerful rhetorical weapon, both in legal and political argument, that care should be taken in its deployment’. This is because the rule of law is at once so cherished, and so complex. The belief that everyone, including the government, should be subject to the law is one of the most important features of our legal tradition. It is meant to distinguish a healthy legal system such as ours, which treats its subjects with some basic degree of dignity and respect, from perverse legal orders in which the people are forever vulnerable to the arbitrary will of those who happen to hold power. The rule of law is jealously guarded. If someone claims that something would undermine the rule of law, we take that claim seriously. But this can make it very difficult to critically analyse such claims. That is all the more so because, apart from the basic definition offered above, the rule of law is complex and contested. People disagree about what exactly it means and how exactly it should be pursued, and every account of the rule of law is internally complex. There is therefore a not insignificant risk that, when people talk about the rule of law, they talk past each other: they use the same phrase but they are not talking about the same thing. A skilled orator can rely upon its imprecision to find some version of the concept that supports his or her case.

The rule of law re-entered public discourse last week, in media coverage relating to the federal Attorney-General, Christian Porter. As is now well known, an allegation of rape has been made against the Attorney-General by a woman who is now deceased — having taken her own life in 2020. The allegation was presented to the New South Wales Police, but not by way of formal statement. The NSW Police have recently announced that they have closed their investigation into the matter, as there is “insufficient admissible evidence” to proceed. They have since clarified that the complainant advised them that she did not wish to proceed with the complaint, for personal and medical reasons. It therefore seems that the allegation will never form the subject of a full police investigation or be adjudicated by a court.

On Wednesday last week, the Attorney-General held a media conference in which he denied the allegation. He also explained that he will not be stepping down or resigning from his ministerial position because of it. He explained:

If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print. If that happens, anyone in public life is able to be removed simply by the printing of an allegation. Every child we raise can have their lives destroyed by online reporting of accusations alone.

My guess is that if I were to resign and that set a new standard, there wouldn’t be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country (emphasis added).

Some journalists have also invoked the rule of law, in warning against punishing the Attorney-General on the basis of an allegation alone and the broader dangers of a “trial by media”. In recent days, debate has turned to focus on whether some form of extra-judicial inquiry should be set up to investigate the allegation. On Thursday last week The Prime Minister again used the rule of law to explain why that would be inappropriate:

In this country, there is a lot at stake. If you don’t go too far from here, you will find countries where the rule of law does not apply. And you will be aware of the terrible things that can happen in a country where the rule of law is not upheld and is not supported, in whatever the circumstances. The rule of law is essential for liberal democracies. And we weaken it at our great peril. And it can be hard at times. And I understand, particularly under these circumstances, it can be hard to understand just how important that principle is in how we deal with these, the most sensitive and the most traumatic and the most personal of issues. But we must reflect on that principle, because it is that principle that undergirds our democracy itself. The presumption of innocence. The investigation of allegations involving criminal activity by competent and authorised bodies. That is, the police. And to act in accordance with the decision of those bodies and, indeed, the courts that deal with any allegations that are taken forward for prosecution. That is our rule of law. It is something that every single citizen of this country depends upon – and that is the principle upon which I seek to support, to ensure the good governance of our country. And so, as traumatic as these events are, that principle must continue to guide us, and it will certainly continue to guide me and my government as we deal with these very sensitive issues.

The allegation made against the Attorney-General, and the political and legal response thereto, raise very difficult questions. This post deals with only one. It aims to problematise the claim that it would be contrary to the rule of law to convene some form of non-judicial inquiry into the allegation, by examining the way in which the rule of law is understood in the Australian legal system and its relationship with more specific legal rules. Many other scholars have already responded to this issue in social and traditional media, with many of them advocating for an inquiry (see, for example, these pieces by or citing Kim Rubenstein, Ben Saul, Rosalind Dixon, Fleur Johns and Martin Krygier, and the others I refer to below). I do not take a position on the desirability of an inquiry here, but I do aim to show that the way in which the rule of law has been relied upon in this context is mistaken. It rests upon two related and mistaken assumptions: first, that if an allegation cannot be assessed via the usual processes of the criminal law then we cannot investigate it in any other way without eroding the rule of law; secondly, that if police have closed an investigation into allegations made against a person in public office then there are no further questions to be answered about whether that person remains fit to hold it. But that is not the way the rule of law, or our system of government, works.

At first, the idea that requiring a government Minister to answer an allegation of sexual assault could somehow undermine the rule of law seems puzzling. After all, if the rule of law is all about ensuring that people (including those in power) obey the law, then ensuring that this allegation is properly investigated and assessed would only seem to further that goal. The comments of the Attorney-General and Prime Minister appear to rely upon a more specific strand of rule of law thinking usually traced to Albert Venn Dicey. In Dicey’s view, the rule of law meant: 

in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. …We mean in the second place, … not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals (emphasis added).

On this view, everyone is bound by law. But more specifically, the courts have the exclusive jurisdiction to determine when the law has been breached and to hand out punishment.

As many readers of this blog will know, Dicey’s particular target in this passage appeared to be the system of specialised administrative tribunals which existed in Europe, which he saw as vastly inferior to the English method of enforcing the legal limits of government power via the ordinary courts. That is a contentious claim, both normatively and empirically: normatively, as certain bodies other than courts proper may be better suited to deciding certain kinds of matters; empirically, because there have always been administrative tribunals in England that operate alongside the ordinary courts.

But the underlying claim — that no one should be punished unless they have been found to have broken the law by a court — has far more merit. It is designed to mitigate two grave risks. First, that the government will fabricate claims of wrongdoing in order to disarm their political opponents or harm unpopular minorities: the “show trial”, alluded to in other public commentary on recent events. Secondly, that people may be subjected to unjustified or disproportionate punishments if the claims against them are not soberly assessed by an independent arbiter in accordance with established rules of procedure: the risk of “witch hunts” and “trials by media” to which other commentators have referred. To that, we might now add “trials by internet”: the risk that people will be caused unjustified harm by the trading of unverified information on the internet, often under the cloak of anonymity.

The belief that people should only be punished if they have been found to have broken the law by a court is reflected in the design of the Australian Constitution, at least as it has been interpreted by the courts. Chapter III is understood to place strict limits on the powers of the courts. At the federal level, the power to adjudicate criminal guilt and impose punishment is regarded as an exclusively judicial function that can only be performed by a court established under Chapter III. These courts must possess certain characteristics, which are intended to ensure their independence and the fairness of their procedures: their members have secured tenure; they cannot engage in executive or legislative decision-making except in limited circumstances; they must follow rules of evidence, which include numerous principles designed to safeguard the rights of the accused and attempt to redress the gross imbalance of power between the individual and the State. At the state level, the position is somewhat different, but Chapter III is still understood to protect the integrity of the courts. Amongst other things, the Constitution has been interpreted to demand the ongoing existence of institutions that satisfy the true description of a ‘court’, and this precludes Parliament from taking certain functions away from them.

The importance of these principles should not be doubted. As public lawyers, we routinely defend the principles enshrined in Chapter III of the Constitution as central pillars of the rule of law. We criticise the government when it circumvents them — for example, by attempting to impose restrictions on liberty via civil processes as opposed to those of the criminal law (as in the case of control orders against suspected terrorists), or by depriving certain people of their liberty in a way that looks very much like punishment but which, for some reason, the government argues is not (as in the case of asylum seekers). We should acknowledge this. But neither the legal rules described above, nor the broader rule of law values they support, necessarily forbids the kind of investigation that is being called for here, provided that it is carefully designed.

First, the reality is that courts do not have exclusive jurisdiction over wrongdoing and punishment. I use those terms — wrongdoing and punishment — in their ordinary sense, as opposed to the more technical way in which they have come to be understood in the Chapter III jurisprudence. Courts have exclusive jurisdiction to decide whether someone is guilty of a criminal offence, and to authorise the executive to exercise its powers to impose punishment in the form of imprisonment, fine or other mechanisms recognised by Australian law. But — as many other commentators have highlighted — Australian law recognises many alternative forms of investigating wrongdoing. The recent independent inquiry set up into the complaints (ultimately, upheld) of sexual assault made against former High Court Justice Dyson Heydon are a pertinent example.

These bodies do not adjudicate criminal charges, and they do not typically result in the imposition of criminal punishment, in the strict sense of those terms. True, the forms of wrongdoing that they assess can overlap considerably with those proscribed by criminal law. And we should frankly concede that for many, there may seem little difference between a court concluding (beyond reasonable doubt) that a person has committed the crime of rape contrary to s 61I of the Crimes Act 1900 (NSW), and a publicly appointed investigator concluding that there is (on the balance of probabilities) substance to an allegation of rape in the ordinary sense of that term. And while non-judicial investigations may not “punish”, they can take actions which have a significant adverse effect on the person accused of wrongdoing, including dismissing someone from employment or public office. As Luke Beck has highlighted, numerous Ministers have been dismissed the basis of mere allegations, and this has never been found to be unlawful.

I do not think we should downplay the significance of depriving someone of their employment, nor of public office. But it is clearly a deprivation of a different nature and degree from a criminal conviction for rape and the kind of criminal penalties that would likely follow. Distinctions of this kind are accepted in our law. Moreover, the kind of investigation being called for need not focus on whether the allegation is true. Instead, as Greg Barns suggested, it could focus on whether this allegation is too damaging to public trust and confidence in the office of the Attorney-General for Porter to remain in it — a point I return to below.

The non-judicial investigations referred to above do not always follow the same, very stringent rules and procedures as the criminal justice system. For example, they do not typically require wrongdoing to be proven beyond a reasonable doubt. But contrary to suggestions made by the Attorney-General, they do not necessarily require a person to disprove the allegations made against them. Most appear to adopt some version of the balance of probabilities articulated by the High Court in 1938, in the case of Briginshaw v Briginshaw, which entails that the strength of evidence required to tip that balance depends on the seriousness of the allegations made. They may also not follow the same rules of evidence as a criminal court.

What is the significance of these non-judicial inquiries? It is not that there are legal loopholes to be exploited in order to investigate and punish the Attorney-General via a different method than the law would usually demand. The fact that allegations of wrongdoing are regularly investigated by non-judicial bodies does not mean we should simply give up on the belief that this kind of thing should usually be done by courts. Nor should the rules of the criminal justice system be lightly abandoned. They have been developed over centuries as tools for ensuring not only fairness to the accused, but that the material relied upon by the decision-maker is sound.

But the prevalence of non-judicial inquiries demonstrates that the standards and procedures adopted in the criminal law — as important as they are — are not the only tools we have for making fair and reasonable assessments of allegations of wrongdoing. We use other tools in other contexts. That reflects an understanding that the use of State power to impose a criminal conviction and deprive a person of their liberty as an act of State-sanctioned punishment is special in nature and degree, and must be subject to the strictest of scrutiny. In other circumstances, different procedures may suffice. Furthermore, the prevalence of these non-judicial inquiries demonstrates that the question of whether someone has done wrong is surrounded by related but broader questions about whether they remain fit to hold certain positions (particularly, public office), which have never been the exclusive province of the courts.

This highlights a point that is often lost in political discourse in this country. That is, that the norms embodied in positive law are only one sub-set of those which we expect public officers, and “ordinary people” to abide by, and we cannot rely upon the courts to enforce them all. In the context of the criminal law, the dividing line between moral and legal wrongs is more blurred than elsewhere. Rape is wrong because it is an egregious violation of another’s dignity and agency, and because it is proscribed by positive law. But the fact that a person has been found not guilty of rape means only that: a court has not concluded, beyond reasonable doubt, that a charge of rape has been proven by the State. It does not mean that they did not do the things alleged. And it does not mean that there are no reasons to question whether they remain fit for office. It is particularly illogical to argue that a lack of prosecution or conviction means there is nothing more to investigate, when the allegation in question has not been the subject of a full police investigation nor a criminal charge adjudicated by the courts.

The function of the courts — vitally important as it is — is always limited. They must wait for a party to come to them with a case; they have no proactive jurisdiction. In the criminal context, this means they have no authority to act until the police complete an investigation and approach them with a formal charge. The incompleteness of the judicial process is particularly pertinent in the case of historical allegations of sexual assault, given growing awareness of the reasons why victims may not come forward for many years after the events took place and the difficulties of proving offences after the passing of so much time.

For all these reasons, we need to fashion new tools for responding to allegations of wrongdoing — and in particular, sexual assault — against people in positions of power. Yes, we must be wary of the real dangers of show trials and trials by media (or internet). But the fact that a person has not been found guilty of a crime cannot be translated into any reliable finding that they are fit for office. That misunderstands the legal tradition of this country, according to which forms of political accountability have always sat alongside the legal accountability offered by the courts. And it paints the misleading picture that a criminal conviction is the only basis on which a person might be found unfit for public office. The most effective tool of all would arguably be to remedy the dynamics that prevent allegations of sexual assault from being promptly reported to the police and fairly adjudicated by the courts. But that would not assist in responding to the current controversy.

For these reasons, it seems wrong for the Attorney-General and Prime Minister to suggest that, because the police have not proceeded with their investigation, there is no way in which we could safely inquire further, and no reason to do so. That makes the error that Martin Krygier has so persuasively warned against in his writings on the rule of law. The rule of law cannot be equated with the particular legal rules or institutions that exist at any point in time. It is a goal, a pursuit: the aim is to temper government power to ensure that it is not used arbitrarily. Thus the fact that allegations of wrongdoing are usually decided by the courts does not mean a non-judicial inquiry would be contrary to the rule of law, if that inquiry would not pose the dangers that those arrangements are intended to guard against.

Instead, we must ask ourselves three questions. First, can we design an investigation that is fair to all involved, and which is likely to lead to a meaningful conclusion, necessarily accepting that it will not satisfy the very strict standards nor follow the very strict procedures that we require in the criminal context? Very clear terms of reference would be required. For example, if the aim of the inquiry is to determine whether the allegation is too damaging for Christian Porter to remain in office, and not to assess the substance of the allegation itself, then every attempt should be made to clearly communicate that to the public.

Secondly, would holding a non-judicial inquiry in these circumstances set an undesirable precedent, eroding the authority of the courts and the protection of individuals against the state that they are hoped to provide? The answer to that second question may well be yes, if the police had fully investigated the matter and decided that there was insufficient evidence to proceed with a prosecution — but that is not the case here. The answer may well be yes, if there was some basis on which it could be said that the allegation was manifestly without substance (apart, of course, from the Attorney-General’s denial) — but that is not the case here either. And if a formal charge had been laid and dismissed by a court, then other equally difficult questions would arise, of when it is appropriate for a non-court to take a second look at misconduct that has already been adjudicated by a court. But that is not the case here, either.

Thirdly, what harms might be caused, if the allegations are not investigated further? Here, it is necessary to consider the interests of the accuser, as well as the broader institutional harms that could be caused to the office of the Attorney-General and the government of which he forms a part. The Attorney-General is not just an executive Minister, but the Minister responsible for the portfolio of law and justice. He is responsible for overseeing the system of criminal justice, and appointing judges to the federal courts, amongst other things. As far as I am aware, there is no reported basis for believing that the allegation is frivolous, vexatious, or manifestly false. Yet, it cannot be investigated and adjudicated via the usual processes of the law. Contrary to the claims made by the Attorney-General and Prime Minister, that would seem to weigh in favour of a non-judicial inquiry, rather than against it.

This harm can be understood in rule of law terms. For whatever else it might require, one of the most essential components of the rule of law is the maintenance of trust in public institutions and the people who wield public power. A legal system may possess all the norms, institutions and processes that rule of law experts tell us will ensure law’s rule, but none of them will matter, if people do not believe that the law is being obeyed by others or worth obeying themselves. It is difficult (to say the least) to guess what “the people” might be thinking. But given this allegation has now so glaringly entered the public eye, there is surely a risk that the people will perceive a person in a position of great power to have escaped proper scrutiny. Some will believe that the Attorney-General did what was alleged; others will believe his denial; many more may simply harbour doubt. A proper police investigation and if appropriate, criminal trial may have been the best way of resolving the uncertainty. But the circumstances may require us to find the next best solution.

We also cannot ignore the context in which this allegation has emerged. It was made public soon after federal government staffer Brittany Higgins alleged that she had been raped by another staffer within Parliament House in 2019, and that this assault was not taken seriously by people in power. Other allegations against the same staffer have since been made. This is not to suggest that the Attorney-General should be made a scapegoat. A sense, right or wrong, that others have escaped proper punishment for sexual assault in the past should not mean that we respond to this allegation in a way that is unreasonable or unfair. But if there is a public perception that wrongdoing of this kind is never taken seriously, or worse, that the current government condones it, then that is a factor to take into account in determining whether a non-judicial inquiry is justified in this case.

Lisa Burton Crawford is a Senior Lecturer and Deputy Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales

Suggested citation: Lisa Burton Crawford, ‘Would a non-judicial inquiry into the allegation made against the Attorney-General undermine the rule of law?’ on AUSPUBLAW (10 March 2021) <https://auspublaw.org/2021/03/would-a-non-judicial-inquiry>