Whose rule of law?

The rule of law is to protect anyone from having life turned upside down and mud sticking to them because of a claim from the past that has no chance of being proved right or wrong, especially one which could have been raised and tested a long time ago, when a defendant would have been just another pleb. Porter is only one example. Another is Brett Kavanagh. Or an octogenarian alleged to have been a concentration camp guard. If an historical claim can be raised in a court of law, as with Bill Cosby, Rolf Harris, Harvey Weinstein, etc., or those ex-camp guards deported from the US, fine. Turn those lives upside down. If the claim is beyond testing, follow the wedding dictum: ‘Speak now or forever hold your peace.’ The dictum draws its logical viability from religious sensibility. The arcs of the created machinery of the universe do bend towards justice, justice being the consequence of free will as the machinery plays out, but many of those arcs pass through a veil that obscures the consequences from human sight. McCarthyism is not justice but an idolatry of it.

Another challenging article by you, Dr Clark, as I should respectfully address you and there are real reasons I should address you with respect. If I read you correctly, I would say I think equality of outcomes for all in the economical and social spheres are hard to achieve and you do have to look at a model like the Scandinavian countries. I am not sure whether our society is similar enough for us to translate the model across. Regarding the horrific issue of women's sexual assault and rape that L' affaire Porter has raised, I think we are looking at a national moral cesspit. Porter himself is dead man walking politically. He may well be contemplating suicide. These are separate issues. It is terrifying that strong, intelligent, feisty women are in danger of rape, let alone their disempowered indigenous sisters. You are not someone's caricature of a mad Marxist with a megaphone screaming that we need to destroy our society, but totally sane and coming from the best of our enlightened, liberal Western, now multicultural, heritage. Women politicians, like Penny Wong, Sarah Henderson and Sarah Hanson-Young, are in the vanguard of facilitating change, real change here. This is one of your best articles in Eureka Street ever. You really hit the bullseye with it.

The closing questioning paragraph is possibly the most powerful indicator of this article; get your pitchforks and torches, we've got some justice to do. Sorry, I'm going to sit this one out for a bit... While I'd normally be progressive when it comes to law reform perhaps a sentimental journey is in order. Cristy's "rigged" settler observation is a bit of an insult to a democratic nation where her allegation of disenfranchisement is not well supported, particularly today. Within the context of this article, women have been voting and stand for election since 1902. Unless I'm grossly misinformed, all Australian citizens can (must) vote at local, state and federal elections to elect/appoint their representatives (remember, we have a House fùll of them); they propose Bills and law reform and vote accordingly. They're just people ("just" being the operative word) but thats the system. Once the Senate was comprised of old, "experienced" people but now its a race to find the youngest one. Re-examining that last "knowing" paragraph (beyond a shadow of a doubt), if Cristy will kindly demonstrate what element of the rules are rigged and more specifically how it is rigged I'll light my torch.

Why is it that written testimony of the woman counts for nothing, and she suffered for 30 years until it all got too much and took her own life as she could not endure it any longer; yet the male could verbally claim innocence, yet remember nothing of the incident, as it was 30 years ago. Is this not something of a parody of justice? Not only must justice be done, but it must be seen to be done. If Scott Morrison is protecting a guilty Porter, then is he not complicit in the crime?

What am I going to do about it? Sincerely hope this sort of material is not being taught to students at Canberra University or we are in real trouble.

I'm sorry Cristy, but I don't quite understand what you are saying. When you say that the rules of the game are rigged and that we need to do something about it, the question arises, What is it we need to do? Is there a better system than the one we have? Are there better laws than the ones we have, particularly in the proof of guilt beyond a reasonable doubt? Am I innocent until proven guilty or am I guilty unless I can prove my innocence? Does the nature of my guilt/ innocence depend on the nature of the crime I am accused of committing, whether or not I am likable or my political affiliations? Most importantly, who has the authority to judge and who grants that authority? We are human and humans are not perfect. While we must do the best we can to ensure justice, can we expect it to be perfect and who defines what is perfect? How do you suggest we fix this "rigged" system?

When the rule of law does not listen to the voice of conscience, it turns against humanity and society. Entrapping primarily those who obstinately uphold it, as if it were the ultimate tool for truth, mercy and justice. https://www.youtube.com/watch?v=Pk1ue1tolFc

As I read the comments on this fine article I noticed all the correspondents are men. That's good. Even as I don't agree with a number of the viewpoints, at least expression is being given thoughtfully. Like a number of other women, I admit that I am angry about this particular case, and angry about the emotional and psychological scars which can plague victims of sexual assault not only for years but for decades. What are you going to do about it, prime minister? Listen. Listen to the stories of women, read the story of the South Australian woman alleging the rape by Christian Porter all those decades ago. Listen to the former Solicitor-General of Australia, Justin Gleeson, who is putting well-reasoned arguments for an independent inquiry. And stop putting your political ambitions first.

I don't normally comment, but your article begs an answer. I also read your words to suggest that you believe the set of laws we have are so defunct that the lot needs to be thrown out and redrawn. That's a bit much. Nothing's been tried in court. Apparently, allegations are enough to convict. Whose controlling the mob that decides? Could things have been handled differently, better, more humanely and reasonably, especially with regard to Ms Dhu, for example? Yes! Resoundingly, yes! How about we work on that? Which has more to do with decisions individuals make rather than laws. And just on the concept of "rule of law" doesn't that exist irrespective of political system? Doesn't it have to do with a set of laws that define and by which a nation is run? So, in theory, if a monarch governed according to the laws of the land, that monarch would be upholding the rule of law. In every case, where the laws are subverted, obverted or transgressed therein is the cessation of the rule of law. Whether or not the laws serve the people is another issue.

I am amazed at the bulk of the all male commentary on your article, Dr Clark. You were not suggesting anything other than following the due process of the Law. You were also talking about a very specific area: the sexual assault and rape of women, which is indeed horrifying. Some of your previous articles I have disagreed with. That was my prerogative. It was also your prerogative to disagree with my disagreement. This is how civilised society communicates. I came here with my parents when I was young. I have no Australian ancestry of any sort, so my family were not involved in any of the history of settler/indigenous interaction, violent or otherwise. My family were involved in the great colonial enterprise in India, some of the episodes of which were horrific. The whole British Empire and its expansion are highly contentious. In Britain, ordinary white British people, such as Professor Alice Roberts are looking at it pretty sanely and reassessing both the good and the bad. That is happening here. Meanwhile, indigenous women here do have a horrific history of sexual violence against them, both from members of their own community and those outside it. Rapists can be any colour. This is not a race, but a sexual violence issue. It is not about history, it is about now.

Thank you for a very thought provoking article Cristy. I think the following quotation in your article lays out very important underlying principles that are needed for the enactment of fair and just laws: "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." it would be good to see the introduction of laws now that would help those adversely affected by the economic downturn created by the current Covid-19 pandemic. However, the Morrison Government lacks the compassion to enact such laws and seems to prefer to punish those who are struggling. For some time, I have heard many conservative politicians making statements about how they observe the principle of the rule of law and I thought it rather amazing that Christian Porter tried to invoke this in his defence when admitting that he was the federal cabinet minister being accused of rape. .I find it interesting that conservative politicians often rattle on about this concept of the rule of law and yet their track record in passing just laws and upholding them is rather poor This is bad enough on laws that affect Australians, but we also need to look at Australia's actions that involve the rule of international law Australian governments (LNP and ALP) aided and abetted the Indonesian military (TNI) while it committed genocide and gross human rights violations - not only in East Timor - but also in West Papua, Acheh and Indonesia itself. Then despite the great suffering of the East Timorese people, the Howard government attempted to defraud them out of their resources in their half of the Timor Sea. Both actions were crimes against international law. Since this article was posted, I see that the Australian government has stopped all military cooperation with the Myanmar military - an action that all Australians who value the ideals of democracy and human rights would support. Surely, we have to ask why this was not done in the case of the TNI since the TNI/CIA coup in 1965 until now. The TNI is still committing crimes against human rights and freedom - especially in West Papua. It goes without saying that the conservative politicians who prattle on about the rule of law do not take human rights, social justice, democracy into their equation of what this concept means.

During the Salem Witch Trials, an accuser only had to lodge a “credible” complaint to have the “witch” arrested. Today’s “I believe” mantra virtually assumes guilt once an accusation is made. Harvard law professor, Alan Dershowitz, even wrote a book, “Guilt by Accusation” and pleaded for due process, whatever the allegation. Last year the Andrew’s government paid lip service to due process when its proposed Covid-19 Bill allowed arrest without charge and imprisonment without trial overturning the 800-year-old Magna Carta right of Habeas Corpus. The shallowness of those endlessly promoting human rights was evident when they largely remained silent. When the High Court acquitted Cardinal Pell, Daniel Andrews tweeted to alleged victims, “I believe you”. #MeToo leader Alyssa Milano was quick to write “Believe Women” after Brett Kavanaugh was accused of rape but endorsed Joe Biden who had been accused of sexual assault by staffer Tara Reade. Accused of hypocrisy she suddenly discovered due process, for Biden. Biden demands due process for himself but campaigned on undoing due process protections for students put in place by Trump’s Title IX regulations. Australian universities don’t even endorse free speech. Only 9 of 42 signed up for a free speech code of conduct.

A very good copy of Eureka Street this time, with much material for thought. Cristy Clark's article on the rule of law not only sets out how it SHOULD work, but the ways in which it doesn't, that is when there is interference from powerful sources which over-rule the law. How does one insure against this ? Be watchful and responsive !! Gillian Bouras's article on the history of tattoos was, as always, interesting -- fortunately without illustrations which can be appalling. Thank you Eureka for bringing all this great material to such a wide audience.

Brian Leeming, the system is ridged, if friends and family of a deceased women who claimed to them to have been physically violented by a man, come forward and want justice and mercy to be served, are silenced as women around the world are made to be by men in powerful positions, who mask falsities as truths when declaring Only the rule of law reigns. If a man is accused of committing such a monstress crime. He must bravely come forward. If Christian Porter, indeed is innocent, as he claims to be. He will welcome any form of enquiry to establish this, 'his innocence'. He will welcome and embrace this opportunity. Bishop Pell said he looked forward to clearing his name in court, and so he did. Enduring court trails and imprisonment. He had morale strength and patience, as he knew he was innocent. Truth is stronger than falsehood. And triumphs where no man-made law can.

‘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).’ The Rule of Law is to protect one individual from everybody else: another individual, the State, the Mob, the State captured by the Mob (Jim Crow), the Mob excited by the State (Kristallnacht). The argument here is whether any enquiry outside a police or coronial enquiry would constitute the State being captured by the Mob. Can influential private bodies be captured by the Mob? The case of Annette Kimmitt from Minter Ellison says yes, because a sort of legal Hippocratic Oath is that a lawyer should be prepared to advocate for anyone without fear or favour. If Minter Ellison could have been compromised, so can a law society, medical association, psychological association or any group seemingly with a public profile for impartial authoritativeness. Then, there are commercial platforms captured by the Mob for fear of advertising boycotts or whatever, which play moral policeman....

When I made and first viewed my comment of 12 March 2021 on this article, the previous commentators were all male. A couple of female commentators have since been interposed before me. The events in the UK with Sarah Everard's recent abduction from the well lit and frequented Clapham Common at 9.00 pm one night, the chief suspect being a serving Metropolitan Police officer and the appalling manner in which the Met, under a female Commissioner, dealt with a peaceful protest and vigil, the latter attended by the Duchess of Cambridge, who apparently walked across alone from Buckingham Palace, brings this whole female safety/sexual assault/rape issue more into the glaring light of public attention. The local branch of the Silly Old Buggers Club should take note. I am emphatically not 'one of them' and dissociate myself from their inane, utterly tasteless comments here.

Thanks Dr Clark, an outstanding article. I think we have one of the better legal systems, whose qualities should be built on rather than demolished for a rebuild, but I agree much of it is still rigged towards the powerful. 'Rule of law', like perhaps democracy, is an ideal oft honoured in the breach, and it is the work of those who've peered deep into the system, to try to carry it forward to higher ground.

AO seems to be saying that I am denying that the system is rigged. I suppose I am. I don't think the system is rigged, I think it is flawed. I'm now in my late seventies but, as a young child between the ages of five to eleven, I was abused. Over the years I've had to deal with the shame and the depression caused by that abuse, so I know what it feels like to have no avenue for justice. The system is flawed and the flaws show in abuse cases. I acknowledge that. But there seems to be a push to replace the law with the lynch mob. George Pell was cleared by the rule of law. The lynch mob would still have him behind bars. If you know of specific sections of the law that need to be changed, than push your politicians to change them. But, be careful you don't go from the frying pan to the fire.

It seems to me that some of the male respondents to this article still don’t get it. Are they really as tone-deaf as the PM ? Instead of leaping to conclusions and lashing back at the female author of the article, take the time to read it properly. Begin with the heading - it’s not ‘The Rule of Law’ but ‘Whose Rule of Law?’ It is surely self-evident that the laws that we have , and those that we don’t have, reflect the opinions, values, and self interests of the lawmakers themselves. That’s why, in the past, ‘poaching’ by the poor for sustenance was illegal but 'game hunting' by the rich for entertainment was not; why today ‘welfare fraud’ by the poor is punished (and by unlawful means) but ‘pork barrelling’ by politicians is ‘something everybody does’. Do you really believe that our male-dominated government is really as interested in protecting women from abuse by men as it is in maintaining it’s seats on the treasury benches ? According to a recent Essential poll two in three respondents said the government is more interested in protecting its own political interests than the interests of women who have made rape and sexual assault allegations, and only one in three said they have trust in political offices to guarantee a safe workplace for women. Think again guys and address the real challenge, not your straw men !

It seems pretty obvious to me that Dr Clark is not trying to lead a lynch party anywhere. Law change is a complicated process and needs to increase, not reduce, fundamental human rights as exemplified by and in Magna Carta. Cardinal Pell, quite rightly a free man, is not at issue here. Rape and rape culture are real issues. The Silly Old Buggers Club need to realise just how important this issue is. Their attitude is very reminiscent of the plantation owners in the Old South, who thought the so called 'darkies'( dreadfully politically incorrect term) were gay (in the old sense). Women are not happy. Neither are many men.

Edward Fido: ‘Law change is a complicated process and needs to increase, not reduce, fundamental human rights….’ In the Porter case, the issue is very simple: The principle should be that if you can’t stick rape on him in court, you can’t wrap the smell of rape around him everywhere else because that would be calumny which, in scriptural terms, is murder. The Higgins case is about two different matters, one of which should be relatively uncontroversial -- a sympathetic reporting process – and the other the more problematic one of people putting themselves in near occasions of sin because of occupational concerns and/or ambitions.

All the lawyers, and the court procedures, all man made law cannot verify the 'conscience' of a man. And, you can easily judge the character of a man by how he treats those who can do nothing for him. Were Mr Porter judged by those who can do nothing for him. What would he say? You don't have to be a champion debater to simply say, ''I am completely innocent of this accusation - my conscience is clear.'' When you are. As did Cardinal Pell. What MUST change, Brian Leeming? It is the antediluvian mind, words, thoughts and violent actions of men that secretly hate women, that must. A man who respects, and honours all women, would never desire to humiliate and abuse her in ANY way. And he would rather undergo such forms of 'disgraceful and loathsome behaviours' from his male mates, than in any way, ever harm a woman.

I believe the dynamics that cause a man to think he can get away with ( 'his' pathetic frill of) sexually harassing, verbally demeaning and abusing, and going as far as raping a woman has to do with his extreme subconscious feeling of total inadequacy and fear of failure of his 'performance' in his private , and social life. By such demeaning actions he is trying desperately to prove to himself, his mob and the men in the opposing mob, his mates (other men) his superior virility, (joke) dominance, leadership skills and worth. Within the pack,( pack: a group of wild animals, especially wolves, living and hunting together) and society. A woman abused, and ridiculed by such a very weak man, becomes in his eyes and those of his mates a 'trophy'. A 'delusional proof' of his male superiority. Being totally delusional and criminal. His behaviour stems from his very deep feeling of absolute total inferiority. That is, while, at the very same time such a man, feels pure contempt for the woman he is abusing, he also feels impowered (and aroused) by his delusion of 'his male superiority'. He is delirious and subconsciously feels he is competing 'against' and for the 'Approval' of the other 'men' in his 'pack'. Or the men in the opposing pack. Although Freud theorised the concept of Penis Envy for women. I believe such behaviours of male aggression, denote a man's subconscious 'Penis Envy'. That is, his envy of other men's penises and the 'Power' they hold in the pack and in the wider society.

Edward and AO are on the money. This article is not just about the 'Porter case' and the 'Higgins case'. In fact, it's not about them at all. The problem that Cristy is writing about (go read the article again) is much bigger than that. It's about the the quality of our laws, the processes by which they is developed, the bias with which they are implemented, and the generally, dishonest, deceptive, immoral, and abusive behaviour of so many of our politicians especially, but not exclusively, the male 'big swinging dick' variety.

Roy, I am afraid I see this issue more in legal terms than theological ones. Christian Porter is now instigating a defamation case, very similar to the case Geoffrey Rush did and won. Winning the case does not appear to have kickstarted Rush's career. It appears the seat Porter holds may be abolished. I will be surprised if he finds another to be endorsed for. Bear in mind his accuser was a seriously mentally ill woman who took her own life. We will never know the truth. Brittany Higgins is asking, due to the very serious nature of the subject, that the details of any enquiry made, including the names of witnesses, be redacted. I can understand why.

How about an experiment? The 'A Clockwork Orange', movie to be shown in All Boys private schools, as part of the Consent Education Program being considered. After viewing. The boys could then write an essay about the emotions they felt watching it. And how they wish to prove, now and during their lifetime, they respect all girls and women in their lives.

"Bear in mind his accuser was a seriously mentally ill woman who took her own life." The way you say this, Edward Fido, you make it sound like it was her mental illness that made her take her own life. Maybe it was the fact she felt she didn't have a chance against Mr Porter, as he would have the most expensive lawyers to defend him (yes, money helps) The Rule of Law, Blah, blah, blah, and oh.. perhaps even a mate or two like Mr Morrison at Parliament to hold his hand. Completely healthy minded people around the world, where it is legal, have been choosing Euthanasia to end their problems. It is a choice they make, non necessary the result of a confused mind, on the contrary, possibly the choice of a very lucid mind that sees no other alternative.

Maybe 'A Clockwork Orange" could also be shown at the pub all 'parliament work mates' meet at after a hard day in Parliament: i.e. Declaring how lucky women are ( in this country) not to be shoot while protesting TO BE HEARD. For example. A couple of free beers and some munchies could also be on offer, to those, who having already seen the movie, learnt nothing. And less than nothing.

Edward Fido: ‘more in legal terms than theological ones.’ If you’re a theist, theology is the apex philosophy from which other philosophies (strictly speaking, other philosophical applications) flow. There’s no point being a Muslim if you don’t start each problem to be solved by looking at it in the way you think Allah would look at it. Practical philosophies such as burden of proof standards in legal philosophy take their cue from theological ideas as to, say, whether women and men are equal. If not, a man’s evidence always overrules a woman’s, or something like that. Even atheists have ‘theologies’ in the form of first principles from which other propositions are derived. There’s no point blathering about the Judeo-Christian roots of Western culture if you don’t ask how Judeo-Christianity might treat a particular issue. Law can’t tell you who gets preference, foetus or mother. Only values. But, values from where? Artificial separation of practical philosophy from theology produces Laodiceans. What are the values that say Porter is, as you seem to imply, being treated unfairly while Higgins' demands are, as you seem to imply, legit, when, according to the calumny idea, she is asking for a Star Chamber?

Roy and AO: I have the greatest respect for Christian Porter's late accuser. Just because she was severely mentally ill and took her own life, does not mean that her accusations were untrue. It is now just very hard to establish what really happened. As I said, if Porter wins his current defamation case, many will remain unconvinced of his innocence. Your comparison of the inquiry Brittany Higgins is requesting, with the redactions of witness details, to the Star Chamber is inaccurate, Roy. The Star Chamber was a court with the ability to exact severe penalties. The proposed inquiry will not be a court. All accusations of sexual assault and rape will have to be tried in the courts.

Edward Fido: ‘The proposed inquiry will not be a court.’ All inquiries are courts because all can inflict reputational damage. Fines and imprisonment (formal penalties) are not the only penalties there are. Informal penalties like a lingering cloak of opprobrium are just as serious. The inquisitor has no appeals system to contradict his opinion and witnesses cannot cross-examine other testimonies. The inquiry is being called because there is an allegation of crime, not a lovers’ tiff. The legal injured party in a crime is the State. The priority is for the State to ascertain how its peace has been impugned because the State needs to punish the crime in order to protect everybody else. The police report tells the prosecutor whether, two years on, from the evidence trail, witness memories, etc., the State can reliably ascertain whether the offence happened. To avoid after-the-event rehearsal and coaching of memories, no witness tampering, which the inquiry will actually be doing, should be allowed. No inquiry should occur until the trial is completed. Meanwhile, there’s nothing to stop the adoption of an office rule that all claims of sexual assault and harassment must be treated seriously.

That whole sordid Pell affair, where his conviction was, quite rightly in my opinion, overturned, Roy, is to me proof our legal system does work. Cardinal Pell, despite his suffering, and he does have a cardiac problem, which would not be helped by the long series of legal proceedings and a year's imprisonment in maximum security, bore it all like the Christian he is. He bears no grudges. I would say his reputation is pretty intact. His accuser was, I believe, someone with a former serious drug problem and long term mental health problems. Pell did not denigrate his accuser and wishes him well. Christian Porter is, as far as I am aware, not a man of religious belief and a politician. He has not denigrated the deceased young woman. His defamation case is both to attempt to salvage his reputation and his political career. Jesus often said words to the effect that real justice does often not obtain in this fallen world. I am afraid there are many instances where God alone knows the truth.

Our legal system may 'work' Edward but only to the extent that it’s meant to work. It works in favour of accused against whom little evidence can be presented and for those with access to resources, and it works to punish those actions that the legislators seek to criminalise. Historically, poaching and petty theft by the poor were punished but slave-trading and the expulsion of indigenous people from their lands was not. In present times minuscule welfare fraud is punished but massive pork-barrelling for party-political purposes is not. MPs use parliamentary privilege to allege wrong-doing by mere mortals but are quick to sue for defamation when the own alleged actions are the subjects of media reports. And this is surely the thrust of this article which asks ‘WHOSE rule of law?’. A consequence of this bias in the law is that the truth may not always be discovered and justice may not always be served.

It used to be said, Ginger, that English Law was there to protect the squire's property. There was an element of truth in that. Our sort of Law was not revealed by the Almighty, but developed by Man, as there were no women legislators or judges till very recent times. The legal iniquities you refer to, both historic and contemporary, were and are able to be addressed. We do need to be very careful about preserving certain elements of the legal system, such as the presumption of innocence and the burden of proof. Without these we are sunk. The late Lord Denning once said "In England we have trial by jury, in America they have trial by newspapers". We need to be careful in Australia we do not have trial by mass hysteria out of social media.