Opinion: Coalition’s concern for rule of law a ‘convenient fig leaf’

Sydney Morning Herald [Sydney, New South Wales, Australia]

March 9, 2021

By Josh Bornstein

There are so many answers to refute the claim that the rule of law prevents an inquiry into rape allegations against Attorney-General Christian Porter that it’s difficult to know where to start.

Last night on ABC’s Four Corners, eminent Sydney silk, Arthur Moses QC, sounded a warning that “the floodgates” would open if an inquiry into rape allegations against Christian Porter were to be held after the NSW police had declared that it would not proceed with a criminal investigation. Moses argued that such an approach would be “unprecedented”.

In fact, royal commissions, including the Royal Commission into Child Sexual Abuse, can and do make adverse findings of criminal conduct against an individual after police have decided not to proceed with an investigation or prosecution. Indeed, a 1997 report prepared for the Catholic Church after an investigation by its commissioner into sexual abuse, Peter O’Calloghan QC, found that Catholic priest Peter Searson had engaged in sexual abuse, notwithstanding earlier decisions not to pursue charges against him by Victorian police.

As various legal experts can attest, allegations of criminal conduct are routinely examined in royal commissions, coronial inquests, anti-corruption bodies, sporting disciplinary tribunals, and workplace investigations. Under the rule of law, the courts do not have a monopoly on dealing with alleged crimes

Attorney-General Christian Porter has vigorously denied the rape allegations.CREDIT:TREVOR COLLENS
Attorney-General Christian Porter has vigorously denied the rape allegations. CREDIT:TREVOR COLLENS

When in March 2019, I wrote to Susan Kiefel, Chief Justice of the High Court, requesting that the court procure an independent investigation into allegations of sexual harassment against Dyson Heydon, this was not the conventional approach to sexual harassment. Most claims are pursued in the courts and tribunals under anti-discrimination laws, including the Sex Discrimination Act.

Dyson Heydon had left the court some years earlier. The allegations dated back a decade.

The court agreed to the request and then provided all parties the opportunity to have input into the terms of reference.Advertisement

The investigation was conducted by Dr Vivienne Thom, a highly credentialled former public servant and intelligence expert. When Dr Thom sought to interview Heydon, he refused. That did not stop the investigation proceeding and concluding.

The investigation ultimately upheld allegations of sexual harassment against Heydon by six women. The High Court accepted all findings and issued a public apology. The issue of compensation for the enormous impact of Heydon’s misconduct on the women involved is yet to be finalised.

Prime Minister Scott Morrison and the Attorney-General welcomed the findings of the investigation with Morrison describing them as “very disturbing”. Christian Porter promptly announced a further investigation by the Attorney-General’s department into further allegations of sexual harassment against Heydon during his tenure at the Royal Commission into Trade Union Governance.

The rule of law seeks to ensure that no one is punished without a fair process, including the opportunity to be heard. It also means no one is above the law, including a High Court judge, prime minister or attorney-general.

The Morrison government’s recently stated concern for the rule of law runs thimble deep. It’s a convenient fig leaf designed to protect Christian Porter from any further scrutiny and accountability. Until the events of last week engulfed the government, Scott Morrison’s passion for the rule of law had repeatedly gone missing in action. Indeed at the same time as invoking the rule of law to defend Porter, Morrison appointed Michaelia Cash as acting Attorney-General. In 2018, Cash repeatedly refused to cooperate with a criminal investigation by the AFP, rejecting two requests to submit to a police interview.

In June 2017, three ministers, Alan Tudge, Michael Sukkar and Greg Hunt were forced to apologise to the Supreme Court of Victoria to avoid contempt of court charges. Chief Justice Warren observed that “there was a prima-facie case” of contempt of court and that the ministers “failed to respect the doctrine of the separation of powers, breach the principle of sub judice and reflect a lack of proper understanding of the importance to our democracy of the independence of the judiciary from the political arms of government”.

Last year, Justice Flick of the Federal Court scolded Home Affairs Minister Peter Dutton and acting Immigration Minister Alan Tudge for ignoring a court order in an immigration case. The judge stated that the two ministers “were unlawfully and repeatedly persisting in pursuing a course of decision-making contrary” to the law. He later described the conduct of Tudge as “criminal”.

Once again, the Morrison government’s commitment to the rule of law was conspicuous by its absence.

Just as Dyson Heydon’s behaviour struck at the heart of the administration of justice, the allegations against Christian Porter of a serious criminal offence will continue to haunt Porter and undermine confidence in the government unless a fair and proper investigation is conducted.

There are many others who have been made accountable in comparatively trivial circumstances. In 2012, the then speaker of the House of Representatives, Peter Slipper, was forced to resign because he had sent a private text message crudely comparing women’s genitals to shellfish. Then opposition leader, Tony Abbott was joined by the entire Canberra press gallery in condemning Slipper’s “misogyny” and demanding his resignation.

The conventional legal path for dealing with rape allegations is to pursue a criminal prosecution. That path is stacked against the victim. In any event, it is not an option in this case. It is not the only option. I have represented women alleging rape at work and have pursued civil claims under the Sex Discrimination Act. In each case the claim has been resolved on confidential terms.

The next best option is an independent investigation conducted along the same lines as the Heydon investigation. It could consider the rape allegations and whether Christian Porter’s emphatic statements during his recent press conference were accurate.

It is undoubtedly the case that such an investigation will be difficult and complex in seeking to ensure fairness to the alleged victim (and her family) and Porter. And no one should be in any doubt. There is a significant prospect that the investigation will not be able to make a conclusive finding on the allegations of rape.

Nevertheless, the seriousness of an allegation of rape means that we cannot move forward without inquiring into the truth of this matter.

The rule of law demands that a process of inquiry is fair and is seen to be fair even if the circumstances are difficult and the outcome is far from perfect.

Josh Bornstein is an employment and industrial relations lawyer. Twitter @joshbbornstein