Extract from ABC News
The "rule of law" is a fine thing. It is, at its simplest, the principle that laws be applied equally, that an accused is innocent until proven guilty, that proper checks and balances exist upon the exercise of power, that access to justice be available for all.
Christian Porter — the Attorney-General, the custodian of Australian laws — this week appeared drawn and pale as he confronted the disorienting prospect of a world in which the rule of law did not apply.
Anyone who has witnessed the frightening power of online mobs or the ability of demagogues to inflame real-world violence with lies cannot help but feel sympathy for his shaken plea that order be restored, that due process govern the dispensing of justice amid the most "wild, intense and unrestrained series of accusations I can remember in modern Australian politics".
For the first law officer, this was a development of existential import.
"My guess is 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, so I will not be part of letting that happen while I am Attorney-General."
For the Attorney-General, whose life to date has been a relatively orderly progression from talented schoolboy to Chevening scholarship to a distinguished prosecutorial stint to state parliament to federal parliament and thence to Cabinet, this is possibly the first time the system has let him down.
His shock and grief were raw and apparent. He spoke of such "trial by media" being "the new normal".
Media is the message
The media — it's uncomfortably true — is the forum in which the allegations against the Attorney General are at present being thrashed out. Why is this?
The friends of the late complainant believe her story, and ask Australians through selected MPs and through the media to believe it too.
Mr Porter — who says he has not personally read the complainant's account of the allegations levelled against him — has now ventilated his side of the story, a flat denial of wrongdoing. Also through the media.
Mr Porter has not spoken to the NSW Police, who closed their investigation without contacting him. The Prime Minister, by his own account, has not read the allegations either, having received them and passed them to the Australian Federal Police.
So in effect, the only institution with current access to both sides of the story is the media.
Mr Porter is correct that this is an extremely unsatisfactory state of affairs.
Both outcomes are terrible
A central aspiration of our criminal law system is that allegations should be gathered and heard by a neutral authority with access to and ability to question both accused and accuser.
This will never happen, as the NSW Police predictably concluded. The complainant is dead.
Historic rape allegations are hard enough to substantiate even with the presence of a living complainant; in her absence, the criminal justice system cannot make a finding, no matter how deeply her friends loved and respected her.
In death, the woman is forever denied her day in court. In life, Mr Porter will never get his either. Both outcomes are terrible, for different reasons.
In the much-cited Shorten case, there was a broad acceptance of Victoria Police's decision not to pursue a prosecution, because there was the sense that an investigation had been conducted, evidence sought, accounts weighed one against the other.
The absence of a comprehensive process is what makes this instance so unsettling. And the person with the most obvious degree of authority here, given the incapacity of the criminal law to deal with the allegation — that is to say, the Prime Minister — has made it clear he will not sit in judgment.
Through a combination of dreadful misadventure and system failure, these claims are now bumping around in the media. And it is highly traumatic for many directly involved, and many more that aren't who — hearing about it — have their own old wounds reopened.
Is it the "new normal", though? Is it the end of the rule of law?
It's hard to think of anything less normal than the chain of events which has led to these allegations being levelled against the Attorney-General in such unsatisfactory circumstances. Harder still to imagine a floodgate of such claims opening.
Look at the examples
As for the rule of law: The truth is that our legal systems fail people all the time. Even in Parliament House. Especially in Parliament House, actually. They just don't usually fail powerful men.
The past few months have supplied some examples:
- A young woman who was allegedly raped four weeks into her dream job, metres from the PM's office, an attack about which others knew at the time and on which they did not act. Nor did the alleged victim, owing to her very reasonable apprehensions about the consequences for her career. Did she, too, feel shaken to the core that the rule of law would not protect her from other rogue political factors in her workplace? Quite possibly, she felt that way. Ms Higgins later chose to pursue the matter through the media because she wanted daylight on her side. It seems to have worked.
- What about this week's final resolution of Hanson Young v Leyonhjelm? This case was initiated in 2019, owing to the Australian Senate's inability to stop one of its members calling a female colleague a slut in her place of work. This woman for months and months had men's names hissed at her, and sexually charged double entendres aimed her way across the chamber. Ironically, this was the room in which 36 years earlier her predecessors pioneered the legal concept of sexual harassment as an offence in the Sex Discrimination Act. But for some reason is one of the few workplaces in Australia without a system to deal with sexual harassment. So Senator Hanson Young instead hired a lawyer and initiated private legal action. Did she feel horrified, stricken or betrayed that the "rule of law" — one of whose precepts is that promulgated laws be enforced broadly and fairly — had got tangled up somehow in her place of work? Quite possibly.
- What happens when our legal system fails someone, or indeed a whole class of people? Sometimes, nothing at all. Sometimes, we find another way. This might be through changing laws to address an inadequacy, like the late Susan Ryan did in 1984 when she wrote and powered the Sex Discrimination Act through a suspicious parliament. Ryan was the only woman in the first Hawke cabinet, and the only woman in the second Hawke cabinet, and the only woman in the third Hawke cabinet. She died last year, but when she had carriage of that legislation, she was pilloried as the face of demonic feminism, communism and worse. A torrent of confected complaints was predicted, inaccurately. She copped that opprobrium, and her reward was that within her lifetime people forgot to thank her for the Sex Discrimination Act, so unremarkable did its central tenet — that it is unlawful to discriminate or harass another person on the basis of their sex — become, and remarkably quickly at that.
- Sometimes, legal change will come about because of a person's tenacity and courage to keep going even in the face of a system that has failed her. Grace Tame, the Australian of The Year, is living proof of the way legal systems evolve under pressure, when it becomes clear they do not serve the people they should serve. Listen to the speech she delivered at the National Press Club on Wednesday, just hours before the Attorney General's statement.
- The #MeToo movement is a powerful example, too, of how massed voices can overcome a legal system failure. It was derided as mob justice, or "trial by media", but with hindsight we can clearly see that #MeToo brought to light many offenders who had used their power and status to hide within the justice system, either because they could afford to bind their victims to non-disclosure agreements or because they had sufficient industry power to bring contempt and disgrace upon their accusers. (A grotesque breach of the rule of law, of course.)
Change is coming
What's the point of all this? Systems change. Often to account for the new audibility of a group or person hitherto silenced by circumstance or powerlessness.
Watch the private single-sex schools of Sydney, scrambling to evolve to answer a ragged cry from countless schoolgirls for whom sexual assault was so common they hadn't even really given it a name. Change comes fast, sometimes.
Make no mistake, the Parliament is changing. It's a process that's been unspeakably painful, but also marked by courage and tenacity, sometimes passed from one woman to another.
The Four Corners "Canberra Bubble" report which aired last year made allegations about politicians including separate and much less grave ones about Mr Porter, but also generally described a toxic culture in which female staffers were used and discarded.
There was a marked difference — in my view — between male and female responses to the story in Parliament at the time. I heard it dismissed as "not a yarn" and Rachelle Miller (a Liberal staffer who gave an interview) as a "whinger who shagged her boss then regretted it".
Brittany Higgins heard those responses too, and they angered her.
Grace Tame told the Press Club on Wednesday: "I found my voice out of anger. A necessary anger born of fear." Perhaps Ms Higgins felt the same way, as the fear which had kept her silent was gradually overtaken by rage. When she told her story, the sheer dreadfulness of what allegedly happened to her shocked the place into listening.
It is no coincidence that the most powerful journalism around these issues has been done by women, who by virtue of working around Parliament know from experience that the place is not historically geared to hear women. Not at first, anyway.
As for the way forward… Mr Porter, in his lengthy press conference on Wednesday, argued that the investigation conducted by the High Court into former justice Dyson Heydon was not a useful analogy because it was a workplace matter.
But this is a workplace matter, too, isn't it? No other executive in Australia answers to a workplace set of character criteria as solemn and demanding as those of the Attorney-General.
The ugliness of the present predicament cannot be deployed as an argument against the identification of a better way.
Disclaimer: The author knew the complainant through debating in South Australia in the 1980s and 1990s, but was not a recipient of any relevant disclosures from her.
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