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We’re on firm ground: The rule of law allows non-judicial inquiries
In categorising the presumption of innocence as immunity from non-judicial investigation, our legal and political leaders show a basic misunderstanding of the rule of law, writes “Harry Conway”.
'Harry Conway'
The allegations against the Attorney-General, and the tragic death of his accuser, have triggered anguish for all involved, and a largely mature response from the Australian press and public. Those calling for an inquiry have mostly been careful to avoid prejudging Christian Porter, and expressed sympathy for his situation. Those defending him have mostly been careful to avoid any comment about his accuser that might sharpen the grief of her family and friends.
The presumption of innocence is a principle of criminal law that applies at trial and to sanctions that should only follow a fair trial. In our personal lives, when we judge a person’s character, the law does not prevent us from drawing inferences that would be prohibited to a jury. On the other hand, more formal domains of life, particularly the workplace, do adopt principles that resemble the presumption of innocence. In Australia, for instance, our unfair dismissal laws prohibit summary dismissal, requiring employers to investigate and inform employees of allegations before firing them. They do not, however, require an employee suspected of an offence to be found guilty by a court before the employer can act.
For better or worse, at this point it does not look like Mr Porter will stand trial. If there is no trial, and no arbitrary criminal sanction, there will be no denial of his presumption of innocence, at least as far as that principle is concerned. If an independent inquiry into the allegations revealed fresh and compelling evidence, this might prompt the police to reopen their case. This would be appropriate. But it is hardwired into our legal system that any such inquiry would be separate from any criminal investigation. If an inquiry found, on the balance of probabilities, that the allegations were true, it would not affect the integrity of any subsequent trial any more than would a workplace investigation or a royal commission. Though an independent inquiry would, by design, be structurally incapable of interfering with Mr Porter’s presumption of innocence, a finding in his favour would support it in the public sphere.
The rule of law, more broadly, is a principle of accountability, both of government and citizen. It requires that laws be publicly promulgated, equally enforced, and independently adjudicated. It describes a system in which citizens and their leaders are subject to laws that are known and principled, without exception or arbitrary enforcement.
The call for an independent inquiry or investigation into the allegations against Mr Porter is coherent with that principle. An independent inquiry would allow due process and result in a finding upon which the Prime Minister would be free to act as he deemed fit – presumably, allowing Mr Porter to continue in his position or requiring him to stand down, as appropriate to the findings.
This would in fact afford Mr Porter a far higher standard of procedural fairness than typically enjoyed by ministers demoted during a cabinet reshuffle. As MPs should be allowed to act as ministers only if they enjoy the support of the government, members of cabinet are not subject to Fair Work legislation or equivalent protections. Prime ministers have appropriate flexibility to form and reshuffle cabinet in accordance with their view of the public interest. They exercise this flexibility regularly, and rarely for reasons as damaging to public confidence as rape allegations.
Similarly, an independent inquiry would do no harm to the separation of powers. Far from it. From the Administrative Appeals Tribunal to the parliamentary inquiries that regularly keep our MPs busy, our non-judicial branches of government are perfectly capable of holding investigations and quasi-judicial processes that strengthen the integrity of our system of government.
With this understanding, the case for an independent inquiry, subject to rules of procedural fairness and findings based on the balance of probabilities, becomes strong. Nobody, including the Attorney-General, should lose his or her job on the strength of an untested allegation. This is not so much about the rule of law as it is about fairness. For the Attorney-General, it offers the best opportunity to clear his name. For those who fear that our system favours the powerful, it offers reassurance that a country governed by the rule of law is capable of providing justice to victims.
“Harry Conway”, writing under a pseudonym, is an Australian lawyer.
