Who’s afraid of the rule of law?

Updated: Apr 7

In the shameless spin of the Porter fiasco, abject politicisation and dubious legal ethics reach a crescendo.

“Out, damned spot! Out, I say!”

— Lady Macbeth [1]


“I am considering that advice with my department secretary in terms of the application against the ministerial guidelines. When I have concluded that assessment, I will make a determination and I will make an announcement at that time.”

— Scott Morrison [2]


I.

The historic rape allegation against Christian Porter, made public last month, has thrust the Attorney-General, and his portfolio, to the forefront of national discourse. Suffice to say, this particular news cycle will prove less than flattering to a man long enamoured with media attention, and its potency as fuel for his own political ascension.[3] One has to wonder what good Prime Minister Scott Morrison’s rumoured Cabinet shake-up will do — for the reputation of Porter (who will likely stay on as Minister for Industrial Relations), and for the government as a whole (which, when it came down to what he said and what she said, rallied rather-swiftly behind the accused male). The only obvious winner here would be Michaelia Cash, at present the odds-on favourite to take Porter’s role. Given her own history of scandals and mishaps, the Minister for Employment, Skills, Small and Family Business might benefit from a fresh start at the Attorney-General’s Department. Still, Cash would inherit a poisoned chalice; has the dye not already been cast?


If nothing else, then, Morrison’s latest conduction of musical chairs in the Cabinet room is a sobering reminder that the Attorney-General does not rest comfortably above the partisan fray. Quite the opposite: as much as any other Cabinet post, like a tail perpetually wagged by the dog, it is an innately political role, vulnerable to the whims — and vices — of the government of the day. Christian Porter’s tenure as the First Law Officer of the Crown will be forever tarnished by the statement sent to the Prime Minister and other members of Parliament in February 2021. However, the Attorney-General’s Department was a profound source of shame long before Porter assumed office. Without substantive reforms, the position will remain a perennial thorn in Australia’s side for many a Cabinet to come.


II.

The position of Attorney-General has existed since Federation; its origins date back to thirteenth century England.[4] It is a role with equivalents in almost three-dozen common law jurisdictions;[5] there are twenty or so other comparable positions or departments elsewhere (for example, the Chancellor of Justice in Finland, or Japan’s Public Prosecutors Office). Such deep roots and fine company suggest the Attorney General’s supremacy in facilitating the rule of law and enriching liberal democracy, both in Australia and worldwide.


The Attorney-General’s chief obligations are to provide legal advice to the Commonwealth Government and to oversee any legal actions brought by the Government. In addition to their executive leadership of the Attorney-General’s Department, they are — as a member of the legislature — the minister in control of the Office of Parliamentary Counsel, the bill and amendment-drafting authority.[6] (The Attorney-General’s Department also currently claims a responsibility within its portfolio to “facilitate jobs growth”,[7] although perhaps this is merely Porter’s personal penchant for Industrial Relations rearing its head.) Through it all, the Attorney-General’s premier concern must be “what is just”; their conduct should evince a ‘separate[ness]… from any political considerations’.[8]


That is the job description, at least. As with many a job, the reality is markedly different.


The Attorney-General, like all Cabinet members, serves at the Prime Minister’s sole pleasure.[9] This is not a unique method of selection; internationally, Attorneys-General are generally appointed by the head of the executive, albeit with varying degrees of discretion.[10] However, in a Westminster system such as Australia’s, the executive is composed of members of the legislature; thus, the Attorney-General is always a party politician, plucked from Parliament. This is not prima facie problematic — a Cabinet will naturally consist of persons whose views generally compliment one another — but in practice, the particular intersection of law and politics is often accompanied by an unbecoming blurring of lines.


If a week is a long time in politics, then the forty-plus years since the resignation of Attorney-General Bob Ellicott are an eternity. Ellicott stood down in 1977 over a disagreement with Prime Minister Malcolm Fraser over the Commonwealth’s legal aid obligations, following the High Court decision in Sankey v Whitlam.[11] Ellicott reasoned that the Executive’s “attempt to direct or control the exercise by [him] as Attorney-General” was an encroachment on his Department’s independence, without which “our system of government” could not appropriately function.[12] (The former Attorney-General stayed on in the Whitlam Cabinet as Minister for Home Affairs and the Environment.)


It boggles the mind to imagine this happening today.


The nature of erosion is that it is gradual. In the absence of seismic shifts, denigration goes unnoticed until it is too late to intervene. Can one pinpoint the moment that the Attorney General’s Department, this imperfect but invaluable political arm, crossed the line? Was it when then-Immigration and Multicultural and Indigenous Affairs Minister Phillip Ruddock called into question the Federal Court’s efficacy in refugee cases — or was it when his party room colleagues responded to this attack on judicial independence with “a round of applause”?[13] What of Prime Minister John Howard’s practically-Faustian promotion of Ruddock to Attorney-General in the aftermath of said attack?[14] Should we hold responsible the bad actors leading the Attorney-General’s Department, or does the blame more-appropriately lie at the feet of their enablers?


Perhaps George Brandis’ cutting of corners on cultural grants as Arts Minister did not merit outright disqualification from future Cabinet consideration. Still, he broke the rules and got away with it; no one could have expected anything different when Brandis was given free reign again at the Attorney-General’s Department. His lofty defence of the "right to be bigots", following conservative commentator Andrew Bolt’s failed appeal to the Federal Court against claims of racial vilification,[15] was disturbing not just for its reckless inflaming of racial divisions. That the First Law Officer of the Crown would lead the charge in seeking legislative change to discrimination laws, in order to coddle his government’s head cheerleaders in the press,[16] seriously calls into question the true source of power in twenty-first century Australia. Was Brandis a fool — merely unaware of the well-established philosophical and legal exceptions to freedom of speech that operate to protect pluralistic societies from assaultive vitriol [17] — or was he a knowing accomplice in this misinformation campaign? Which is a worse sin for an Attorney-General? (Brandis did occasionally muster up some virtue while in office: his rebuke of Peter Dutton’s obscene attacks on supposedly “un-Australian” Medevac lawyers, his warning against “belligerent, intolerant populism” in his farewell address to Parliament was apt. It is a shame that Brandis was so sparing, and belated, in his advocacy.)


There are two competing implications of this collapse in the role’s integrity. The first is that an unprincipled Attorney-General offers a veneer of legality to illiberal Executive decisions, their acquiescence suggesting all is above board. Perhaps more worryingly, the second is that an Attorney-General who tolerates or participates in lawlessness sends a message to the entire community that legality itself does not matter. Christian Porter’s silence in the face of Immigration Minister Alex Hawke’s open willingness to violate international law, pertaining to the non-refoulement of refugees, indicates the gaining momentum of the latter implication.


III.

Reform is always possible, if not probable.


One would think a simple Code of Conduct is the natural place to start. Alas, despite long-gestating concerns regarding the lack of accountability in Canberra,[18] the Government remains at a stalemate in its improbably long march towards holding itself to the same standard as any other workplace. Thus, fettering the discretion of the Executive, to enhance the quality of appointments to the Attorney-General’s Department before they arrive and wreak havoc, is imperative. Shifting the power entirely to an independent body, akin to that used in the UK for judicial appointments, would likely prove too radical for most (although it would certainly depoliticise the process). In lieu of that, however, Australia should consider involving the legislature, either through representative members from each chamber advising the Executive on the appointment process, or alternately by requiring nominees to secure the approval of a Parliamentary majority. The presence of a non-Member of Parliament in the Cabinet would be unprecedented in Australian history; overseas, it is more common.[19] The appointment of judges and other nonpartisan legal professionals to the Attorney-General’s Department would be a safeguard against political allegiances — and aspirations — superseding legal obligations.


One cannot overstate the trauma inflicted on Australians these past few weeks. Porter’s March 4th press conference, and all that surrounded it, will be litigated and processed for decades to come. It is the #MeToo generation’s equivalent of the Whitlam dismissal.


But it has been just as shameful — just as corrosive to our collective civic character — to have so many Attorneys-General treat the law as if it were a Choose Your Own Adventure book, wherein the separation of powers is circumventable and pathways to illiberalism are myriad. Christian Porter was a contemptuous Attorney-General, egregiously ill-suited to such a powerful post, long before the afternoon he outed himself as the Cabinet Minister accused of committing a violent sexual offence against a now-deceased teenage girl. That Porter enjoyed such influence and prestige for so long — despite his assault on whistleblowers, his abuse of welfare recipients, his fear mongering and lies about refugees, his pathological and well-documented contempt for women— is an embarrassment. That he and the Prime Minister have now baselessly dragged the rule of law into this, cravenly lying about the impropriety of an inquiry into the allegation,[20] is a fundamental betrayal of their duty to the Australian public.


If the Canberra rumour mill is to believed, and the stars align for Michaelia Cash, then it is only a matter of days before Morrison, with a belated flick of his Prime Ministerial wand, attempts to wash away all this grime. Not so fast, damned spot: the stain at the Attorney-General’s Department will linger.


Footnotes:

[1] William Shakespeare, Macbeth (c. 1606), Act V, Scene I.

[2] Commonwealth, Parliamentary Debates, House of Representatives, 24 March 2021, 51 (Scott Morrison, Prime Minister).

[3] David Crowe, ‘Why Canberra is suddenly looking at Christian Porter’, The Sydney Morning Herald (online at 26 July 2019) <https://www.smh.com.au/politics/federal/why-canberra-is-suddenly-looking-at-christian-porter-20190726-p52b1t.html>.

[4] D R Elder (ed), House of Representatives Practice (Department of the House of Representatives, 7th ed, 2018) 64, 64.

[5] There are, to be exact, thirty-three attorneys-general worldwide, in a mix of common law and common law-hybrid jurisdictions: Australia, Bangladesh, Barbados, the British Virgin Islands, Canada, Fiji, Grenada, Hong Kong, India, Ireland, the Isle of Man, Israel, Jamaica, Kenya, Kiribati, the Leeward Islands, Malaysia, Maldives, Mauritius, Myanmar, Nepal, New Zealand, Pakistan, the Philippines, Samoa, Singapore, Sri Lanka, Sudan, Tonga, Trinidad & Tobago, the United Kingdom, the United States, and Zimbabwe.

[6] Elder (n 4) 64. See further: Parliamentary Counsel Act 1970 (Cth).

[7] Australian Government Attorney-General’s Department, ‘What We Do’, Attorney-General’s Department (Web Page, online at 27 March 2021) <https://www.ag.gov.au/about-us/what-we-do>.

[8] Elder (n 4) 64.

[9] s 61 of the Constitution formally vests ‘executive power of the Commonwealth… in the Queen’ and renders it ‘exercisable by the Governor-General’. Thus, technically it is the Governor-General who appoints the Attorney-General; however, in practice, the Governor-General acts on the advice of the Prime Minister.

[10] For example, in the United States, while a President has unfettered discretion over Cabinet appointments, nominees must be approved by a majority vote in the Senate before assuming office. No comparable requirement exists for Australian Cabinet appointments.

[11] Andrew Leigh, ‘The successful Attorney General — an oxymoron?’ (1999) 73(2) Australian Law Journal 91, 94.

[12] Commonwealth, Parliamentary Debates, House of Representatives, 6 September 1977, 721 (Bob Ellicott, Attorney-General).

[13] Helen Irving, ‘A True Conservative?’ in Robert Manne (ed), The Howard Years (Black Inc Agenda, 2004) 94, 106.

[14] Ibid.

[15] Eatock v Bolt [2011] FCA 1103.

[16] The convergence of the Liberal National Party agenda with Rupert Murdoch’s personal interests, as well as the use of Murdoch’s media apparatus to support conservative politicians, is too extensive to adequately discuss here. A useful starting point is the documentary series The Rise of the Murdoch Dynasty (BBC Two, 2020).

[17] Stanley Fish, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too (Oxford University Press, 1994) 102-119; Caroline West, ‘Words That Silence? Freedom of Expression and Racist Hate Speech’ in Ishani Maitra and Mary Kate McGowan (ed), Speech and Harm: Controversies Over Free Speech (Oxford Scholarship Online, 2012) 223-248.

[18] Andrew Brian, ‘A Code of Conduct for Parliamentarians?’ (Research Paper, Parliamentary Library, Parliament of Australia, 14 September 1998).

[19] For example, President Joseph R. Biden’s appointment of Judge Merrick Garland to Attorney-General in February 2021 was considered an attempt to “to bolster the [US] Justice Department’s independence from politics”: Michael S. Schmidt, Adam Liptak and Katie Benner, ‘Biden Is Said to Pick Merrick Garland as Attorney General’, The New York Times (online at 21 February 2021) <https://www.nytimes.com/2021/01/06/us/politics/merrick-garland-attorney-general.html>.

[20] Naaman Zhou, ‘Christian Porter allegations: independent inquiry no threat to rule of law, legal experts say’, The Guardian (online at 7 March 2021) <https://www.theguardian.com/australia-news/2021/mar/07/christian-porter-allegations-independent-inquiry-no-threat-to-rule-of-law-legal-experts-say>.

Thomas Ponissi is a third year Bachelor of Laws/Global Studies student. He has a deep passion for asylum seeker advocacy, LGBT rights and climate policy. He hopes to continue exploring government accountability in democratic institutions and progressive public policy.

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