Why Christian Porter and Scott Morrison are utterly wrong about the ‘rule of law’

Mr Porter may lose more of his ministerial responsibilities while his defamation case against the ABC runs.

Mr Porter may lose more of his ministerial responsibilities while his defamation case against the ABC runs.

The appeal for protection under the “rule of law” made recently by Scott Morrison and Christian Porter is not only a bad argument, it tends to undermine the rule of law.

At its heart the rule of law is a simple concept. It reflects the idea that in a society like ours there is a presumption that we live and co-exist under a system of identifiable laws – hence John Adams’ famous aphorism that we live under “a government of laws and not men”.

Now it may well be that you do not agree with all of the laws – that is what a democracy is all about. But like them or not, you are bound by them. And this comes back to the key issue in relation to the rule of law – our laws apply equally to all of us.

It is often said that no one is above the law, but it is just as important to understand that under the rule of law, no one is below the law.

The most important component of the rule of law is that it operates to protect the most vulnerable and underprivileged in our community.

The law applies with equal force to the most powerful legal officer in the land – the Attorney-General – as it does to the powerless. That is the rule of law.

So what are Morrison and Porter talking about when they refer to the “rule of law” preventing further investigation into the recent turmoil? What do they mean when they suggest that a further inquiry would be contrary to the “rule of law”?

Well, I have no idea.

There is nothing incompatible with the rule of law in conducting an inquiry of this kind.

A properly-designed inquiry could be held concurrently without compromising or trespassing upon anyone’s rights, including Porter’s.

If it could have that effect then the judges of the High Court would never have permitted an inquiry into the allegations surrounding Justice Dyson Heydon.

Contrary to Porter’s claim, there is nothing in the rule of law which prevents him from standing aside while proper inquiry is undertaken.

I make a recommendation: A deep sense of cynicism should arise in you as soon as a politician uses the words “rule of law” to justify preventing an examination of the facts. It happens too often.

If I was to propose a general rule in how to react to an appeal to the “rule of law” it would be this: The first side to refer to the “rule of law” is admitting that it has lost the argument on the merits.

This practice of avoiding transparency and deliberately concealing information seems endemic in the current government.

The long-promised national integrity commission has failed to appear.

Freedom of Information Act applications are routinely resisted, only to be overturned following great delay and great expense.

When the Prime Minister blurted “rule of law” he might as well have added that it was an “on-water matter”. So much for accountability.

Finally, I was especially surprised at the Attorney-General’s claim that if he stood aside the rule of law would be destroyed.

Sorry to be the one to tell you Mr Porter, but the rule of law was functioning pretty well before you ever came along, and I am confident that it will be able to survive your departure.

Geoffrey Watson SC is a former counsel assisting ICAC and Police Integrity Commissioner, Adjunct Professor of Law at University of Notre Dame, and a director at the Centre for Public Integrity.

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