Power of lawyer | The month
Attorney General Christian Porter has publicly proposed that he be put aside while allegations of sexual assault against him were investigated after police tragically closed their case that would mean the demise of the rule of law. The Prime Minister agrees: “That would mean that our rule of law and our police are not empowered to deal with these issues.” So it’s all about the “rule of law”. What should we make of this three word conversation stopper besides the fact that it is powerfully important and does not seem to need any explanation?
The rule of law is a venerable and precious legal and political ideal. It’s also notoriously obscure and controversial. It is valuable because its main concern is to limit the arbitrariness in the exercise of power, and that is an extremely important thing. It is unclear because many people who have become a hooray term want to use it to praise whatever they want of the law and to condemn what they dislike. It’s controversial because different people attach it to different things and it points in many different directions.
If you keep the ideal in mind, and not this or that mechanism 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 been tossed around.
The ideal of the rule of law is that people and institutions are incapable of wielding arbitrary power and that other people are not victims of power that can be wielded arbitrarily: that is, on a whim, bigotry, or uncut self-interest of power . Holder. One of many ways to ensure this is to develop laws and legal institutions that can mitigate, restrict, and channel the exercise of power. Another is to insist that high-ranking officials are “fit and right people”. Yet another to demand accountability from those in considerable power. Any of the litany of rules designed to ensure an independent judiciary (which governs everything from remuneration to disapproval) could be explained and defended in these terms. This also applies to many technical and lengthy criminal or civil procedural rules or the text of the Centrelink form “Review of a decision” and the fact that such a form – and the associated right of review – even exists.
What does the rule of law require or prohibit in this difficult context? For example, does this prevent an independent investigation into untested sexual assault allegations against the Commonwealth’s Chief Legal Officer as he and the Prime Minister have proposed? If so, how could these allegations be reconciled with concerns – including with reference to the rule of law – regarding the 2020 Federal Government Act to Change Legislation on Migration and Citizenship (Strengthening Information Regulations), which affects a person’s ability who is faced with visa cancellation? or disenfranchisement to understand and respond to information that is relied on to make a decision against it?
According to the Attorney General and Prime Minister, only the charges brought by the police could meet the sacred demands of the rule of law. Conversely, any other type of investigation would violate these requirements. Here they mobilize a general 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 the prosecution and, in some cases, the criminal courts. It’s all very familiar. We’ve all read the books and seen the movies. It would be arbitrary to channel the examination of these allegations in a different way. It would be so arbitrary, in fact, that the unimpeded power of prosecution and interrogation thus unleashed could be tied anywhere, anytime.
However, as the Attorney General and Prime Minister know, controversial claims – including the most serious – are routinely handled through a number of procedural channels. Allegations that could lead to criminal charges in certain circumstances are constantly dealt with through other avenues: civil proceedings, investigations into health and safety at work, approvals committee hearings, arbitration by the Australian Human Rights Commission, etc. There aren’t many books or movies about it, but they are at work all the time. In Australia, each of these mechanisms is subject to rule of law practices. These are no more than unprovoked as the mechanisms of criminal law are perfect. However, they are not infected with any hideous arbitrariness that does not affect the criminal justice system.
What would be arbitrary would be for a person invested with great power over others by virtue of their office to be able to choose between these investigative processes and to isolate themselves from some simply because of the vehemence of their opposition. To protect the Attorney General from questions about alleged abuse of power of the most serious kind just because one option (the criminal justice system) is practically ineffective for tragic reasons beyond the control of a person: It would be an arbitrary exercise of federal government power – just that Type of arbitrary exercise of power that seeks to counter the rule of law.
When our colleagues raise concerns about the proposed changes to migration law, they worry about the capacity of people on the other end of the power spectrum than the Attorney General. They worry that such people will have access to information about decisions that will affect their lives in the most profound way imaginable. The Attorney General has far greater resources at his disposal, but he, too, should enjoy that right in relation to an independent investigation into whether he remains in a position to serve as Chief Justice of the Commonwealth. That’s the thing about the rule of law: it cuts both ways. But it cannot be cut from any fabric that those in power decide whether they would prefer or not.
Fleur Johns and Martin Krygier
Fleur Johns is Professor of Law and ARC Future Fellow at UNSW Sydney. Her books include Non-Legality in International Law: Unruly Law. She has published numerous publications on current governance practices, including the rule of law and development programs in Southeast Asia.
Martin Krygier is 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, especially the rule of law, as well as Eastern European politics and law.