The cant from our “can do” Prime Minister concerning the necessity for “due process” in considering serious allegations affecting our Attorney-General is breathtaking in its hypocrisy. 

The principal premise on which he relies is our much vaunted common-law system – which for hundreds of years did absolutely nothing to protect the most fundamental rights of the homeless, the mentally ill, indigenous peoples and millions of others.

Three decades ago I had the privilege, as Australia’s first Human Rights Commissioner, of conducting extra-judicial national inquiries to address and redress grievous and systemic violations of human rights. The evidence available to me was not available to our courts – for many reasons – including 700 years of rules relating to evidence and procedure. The fact that I was not bound by anything except the rules relating to  “natural justice” did not preclude me from reaching conclusions and making recommendations —findings which  the Australian Parliament accepted as compelling – and which led to many essential reforms. The principles on which I proceeded had been well-established (and have since been followed) by many different types of inquiries – including numerous Royal Commissions which have found it essential to go beyond what our criminal courts, still bound by very restrictive rules of evidence and procedure, could achieve.

Accountability

It is fundamental to democracy that power must be accompanied by accountability. The Prime Minister’s claim that the Attorney-General’s accountability rests only with our criminal courts is unsustainable – and dangerous. It is also completely inconsistent with past practice. (In Australia and virtually every other Westminster style democracy it has been common practice to stand a minister down pending the outcome of an appropriate inquiry.)

 The position of the Attorney-General in our democracy is unique. He is the minister responsible for the administration of justice (not only in our courts but in our tribunals, commissions, and other agencies with quasi-judicial powers). The political and moral implications of his actions have serious consequences for public confidence in the integrity of our most senior political leaders. Because of his position – as the minister responsible for the entire administration of justice (requiring him, if necessary, to put this responsibility above those related to cabinet solidarity) – public confidence in his role is critical.

The Prime Minister has, wilfully or in ignorance, attempted to define “the rule of law” as being confined to the presumption of innocence. That is completely wrong. The rule of law embraces our entire legal system (with various standards applicable in judicial, quasi-judicial and other bodies). It has evolved and is specifically intended to place limits on the power of those we elect. And the claim by Mr. Porter that if he stepped down there would be “no rule of law left in this country” is simply disingenuous nonsense.

There is, clearly, an existing body of evidence that could be relevant to determining whether the AG’s behaviour met the high standards required (including an extensive statement the deceased herself had prepared). Messrs Morrison and Porter have both declined to read that statement — which is now circulating. So, in the absence of an appropriate inquiry, this corrosive controversy will continue — in the public arena. 

Inquiry Needed

A properly constituted inquiry by an eminent judicial figure would be entirely appropriate to ensure that fairness to the AG and the rule of law are duly observed. The former Prime Minister, Malcolm Turnbull, and the former President of the Law Council of Australia, along with other eminent lawyers, have all supported an independent investigation. 

In his emotional press conference Mr. Porter expressed his concern for the family of the deceased; they also believe an inquiry is necessary.

In this government, one minister after another has been accused of serious malfeasance – accusations always initially met by the Prime Minister with obfuscation or denial. He has been fond of referring to the necessity for “due process”.  A fundamental requirement of due process is equal protection of the  law. But our Prime Minister presides over a government which routinely denies these rights to hundreds of refugees and asylum seekers, including small children, some of whom have been in detention for years – in circumstances so inhumane several have died. 

The Prime Minister’s hypocrisy in relying on “due process” is graphically compounded, when juxtaposed with the current case being pursued by his government – with the active intervention of this Attorney-General —against Bernard Collaery and Witness K. 

“Due process”? To our shame, this government makes a mockery of it!

Prof. Brian Burdekin AO

Hallidays Point