• Hannah Ferguson

What the F is: the rule of law? How is Christian Porter wielding it?

On Wednesday, Attorney-General Christian Porter announced that he was at the centre of the historic rape allegation involving a Federal Cabinet Minister. Christian Porter also denied the allegation and stated that an inquiry into the credible claim would be inappropriate. Perhaps most notably though, was Porter's statement that, "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."

Let's make this absolutely clear. The First Law Officer of the Commonwealth of Australia, the current custodian of justice in our country, believes that his resignation following an allegation of rape would dismantle a legal principle that pre-dates the Magna Carta.

In order to understand the gravity of Porter's statement, let's look at What the F is: the rule of law.

The rule of law, at its crux, is the concept that every person is subject to the law, regardless of their status.

It encompasses some more expansive principles including:

  • Independence of the judiciary

  • The presumption of innocence

  • Access to justice

  • The right to assemble

  • Checks and balances on the use of power

  • Freedom of political communication

However, in its purest form and in consideration of this particular context, the rule means equality before the law. It means that no individual or group is above the institutions of justice that we have built.

It means that (with proper function) the highest lawyer in our country, Christian Porter, will be subject to the same processes that any other citizen faces.

Where is this bad boy in our Constitution?

Covering clause 5 states that the Constitution ‘and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth’.

So, what is Porter saying?

Porter is attempting to argue that the existence and undertaking of an inquiry would distinguish him, it would see him treated differently to the average Australian because of his position.

It is my belief that this inquiry would enhance the rule of law in Australia.

If this allegation was pursued and investigated through an independent inquiry, would that not reflect true functionality of the rule of law?

The rights of victims and of the accused are paramount to our criminal justice system, but as one of the most powerful men in the country, is the consideration and further assessment of this historic allegation not an opportunity to solidify the notion that within our democracy, the most powerful people at the table are subject to a level of accountability that parallels that of our most vulnerable?

The rule of law is not an excuse to do nothing. It is not a justification of inaction or neutrality.

The rule of law is not a tangible direction or statement. It is a lofty, well-meaning idea that promises much more than our legal system offers the victim or the accused.

The rule of law has failed victims exponentially more times than it has failed the Christian Porter's of this world.

Here, both sides are attempting to invoke the rule of law as a means of stating why an inquiry should or should not occur.

If the rule of law operates as a mechanism to ensure those in power do not rise above justice, allowing Porter to sidestep an independent inquiry is a chink in the armour of our democracy.