Content warning: This article contains references to sexual violence.
Last week, during a press conference in Perth, the Australian Attorney-General refused to stand down in the face of a serious allegation of sexual assault. To support his right to continue to serve as Australia’s first law officer, the Attorney-General said: ‘My guess is 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.’
In response to this bold claim, there have been a raft of articles defending both the concept and resilience of the rule of law in Australia, including its capacity to withstand an independent inquiry into allegations of sexual assault against the Attorney-General. I am not planning to add further to that particular conversation. Instead, I want to dig a little further and consider the quality of this rule of law that we are all so keen to protect.
The rule of law is an elusive concept that we legal academics teach to law students as a fundamental principle of our system of law and government. At its core, it means that a country should be governed by a system of laws rather than the whims of an authoritarian government (or monarch). What this means in practice isn’t always clear, but most theorists agree that it means that government can only act when authorised by law; that the law applies equally to everyone (even to those in power); that the law is transparent and certain (meaning, for example, that retrospective laws are generally not okay); and the separation of powers is respected.
This shallow, or formal, concept of the rule of law is obviously preferable to an unaccountable authoritarian government that wields power arbitrarily against its population. But it still only gets us so far. A more substantive approach to the rule of law makes further demands in relation to both the quality of law and the process by which it is developed.
This substantive approach requires that we go beyond universal access to justice in order to provide just outcomes — including the social, economic and cultural conditions conducive to human dignity. It also demands that everyone is able to participate in the process of developing the law — that the legitimacy of both the government and law is grounded in the consent of the governed.
The events of the last few weeks have provided a devastatingly clear illustration of how far we are from upholding a substantive version of the rule of law in Australia. And before I’m misunderstood, let me be clear: the last few weeks have been instructive, not because the women who have been so thoroughly let down by the system are in any way representative of the people who are the most structurally disadvantaged. It is precisely because these white, middle-class, well-connected women were not protected (let alone allowed a seat at the table) that we can conclude, without a shadow of a doubt, that the rules of this game are rigged.
'It is no wonder that the Attorney-General calls on the rule of law to protect him. He, and people who look just like him, have written the law to do just this.'
There’s a reason, for example, that such a tiny percentage of victims report sexual assault to police, and it’s related to the fact that so few of these reports result in prosecution and even fewer in a conviction. There’s also a reason that recent ‘tough on crime’ laws have resulted in a dramatic increase in the number of women and girls being incarcerated, and it’s related to the fact that 33 per cent of them are Aboriginal and Torres Strait Islander. These statistics are not an aberration — they are a direct result of our current settler, carceral system.
As just one illustration of how this currently plays out in Australia, let’s recall the story of Ms Dhu who was arrested in 2014. The police were actually responding to a report that Ms Dhu’s partner had violated an apprehended violence order. Instead of providing her with support or protection, the system imprisoned Ms Dhu for outstanding fines. While in custody, Ms Dhu became ill and subsequently died as a result of ‘unprofessional and inhumane’ handling by police and ‘deficient’ treatment from hospital staff — all motivated by racism (consciously or otherwise).
A formal approach to the rule of law makes sense, if the law is designed to protect you. What’s more, if you have a guaranteed seat at the table when the law is being written, then it’s highly likely to protect you, to privilege you even. Given this, it is no wonder that the Attorney-General calls on the rule of law to protect him. He, and people who look just like him, have written the law to do just this.
The question is, now that the rest of us know, beyond a shadow of a doubt, that the rules of this game are rigged, what are we going to do about it?
Dr Cristy Clark is a senior lecturer with the Faculty of Business, Government and Law at the University of Canberra. Her work focuses on the intersection of human rights, neoliberalism, activism and the environment, and particularly on the human right to water.
Main image: Parliament House (Getty Images)
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