Yesterday was especially bittersweet. It was the 38th anniversary of my first vote in a Federal election in 1983, which saw the election of the Hawke government. I remember the excitement and anticipation of one of my first truly adult acts as if it were actually yesterday. Voting in a democracy should be a constant source of excitement, for it is the most important proof of the will of the people determining their representatives and rulers. The democratic of right of all the governed to choose their governors has only been a feature of the last eyeblink of history: for most centuries Imperial rule, Feudalism, tribalism, dictatorships, rule by the Divine Right of Kings and other forms of autocracy have held sway.
Democratic elections underwrite the principles of our legal system. All citizens have equal voting rights based on age and citizenship, irrespective of gender, wealth, religion, and personal preferences. Our laws and legal system seek to achieve justice through laws that apply equally to all citizens and laws that promote equality. We live in a society based on the rule of law in which all citizens accept the operation of the law, recognising that the law is changed through peaceful and democratic processes. Abraham Lincoln ironically observed that the “ballot is stronger than the bullet.”
In societies blessed to be governed by the rule of law, democratic cultures also emerge: the respectful art of politely listening to others, the necessary tolerance and respect that allows for a diversity of views to be held, the protection of the rights of minorities and the rejection of vengeance and vituperation as methods of resolving differences in opinion. These cultures also overflow into the legal system which upholds the cardinal principle of the presumption of innocence. We have a legal system that protects freedom of expression, but sanctions vilifying or defamatory remarks. Everyone is entitled to their day in court, everyone is entitled to seek legal representation and to receive natural justice by knowing the allegations made against them and to have those allegations heard before an impartial judge and/or jury.
This week, these treasured benefits of our democracy and legal system have been seriously corroded and eroded. On a day when I should have been celebrating the gifts of our democracy, I found myself struggling to believe how many of its gifts and principles are besieged.
There has been no physical storming of the hill in Canberra on which Parliament sits; however, from within and without withering assaults have been made on our democratic foundations.
Democratic discourse and principles have been set aside in the controversy surrounding the Federal Attorney-General, Christian Porter.
The allegations made against him have been investigated by police who decided not to pursue the matter when no formal complaint was made.
In our legal system, those complaining of a wrong have the burden to bring it before a court. This responsibility exists for a very good reason. It requires a person alleging a wrong to not “sit on their hands” and either prevents summary judgement by the public based on an accusation and/or malicious prosecutions. An independent court will decide the matter.
Those accused of criminal and civil offences are entitled to the presumption of innocence.
In a criminal matter, the State must provide evidence that establishes the guilt of an accused to the justly famous standard of “beyond a reasonable doubt.”
Witness what has happened to the Attorney-General. A letter written by the alleged victim of a rape by Mr. Porter in 1988 was sent to various political figures. In the febrile atmosphere that followed the disclosure of these allegations, the Attorney-General had to publicly declare that he was the target of these accusations.
At his press conference, the necessity of which demonstrated again how media influences can destroy an individual’s right to silence, the behaviour of the media was appalling. The flashlights of cameras never stopped as journalists yelled over each other to interrogate Mr. Porter. Despite the Attorney’s adamant denials, the press conducted an inquisitorial investigation of their own. Why wait for a court when you conclude that the allegations are true and, therefore, someone must swing?
The BLM movement has been based on the need to respect the legal rights of all citizens. In Australia, it appears such respect is selectively applied. One has become tired of references made to the fact that Mr. Porter went to the “elite Hale boys’ school in Perth.” It is as if perceived privilege justifies excoriation. In tall poppy Australia, the rancour of envy is never far away. The same media that bemoan the effect of stereotyping ethnic groups within Australia, are only too happy to cast Mr. Porter as a paradigm member of an offensive elite.
The issue of alleged sexual misconduct has become poisonous in our public life. Whilst the Attorney was defending himself in Perth, Australian of the Year, Grace Tame, was addressing the National Press Club in Canberra. Ms. Tame, who is anything but in her observations, was granted her award for her work to promote the rights of survivors of sexual violence. Regrettably, it appears that she now believes she is the self-appointed arbiter of public comment on these matters.
Recently, the Prime Minister, when responding to concerns about the lack of support given to Brittany Higgins who alleges she was raped in Parliament House two years ago, commented that he had spoken to his wife about this matter. Mrs. Morrison’s advice was to consider how he would feel as a father of daughters to what was alleged to have occurred.
Ms. Tame was asked at the National Press Club to express her reactions to these comments. She tartly responded that “it should not take having children to have a conscience.” Rapturous applause from a fawning audience erupted. One is now to be publicly castigated if one’s choice of words does not meet the expectations of a self-appointed umpire of appropriate discourse. Ms. Tame’s insinuation that the Prime Minister lacks a conscience in relation to all matters of sexual assault was ignorant and unfair.
In these matters no-one seems prepared to offer the benefit of the doubt, which is the corollary of the presumption of innocence, to comments made by public figures. Eddie McGuire was summarily executed for his ill-advised description of the adverse findings of a report indicating systemic racism within the Collingwood Football Club as a “proud and historic day for the Club.” Does anyone really think that Eddie was endorsing racism or even close to it? Similarly, does anyone think that the Prime Minister is devoid of conscience because he spoke of his wife’s perspective on alleged events? Ms. Tame also asserted that a " 'cover-up culture' is everywhere”. Castigating everyone is rarely a successful path to effecting improved attitudes.
Note to Ms. Tame: you should remember that Yeats warned us that the “worst are full of passionate intensity”. Having criticised a toxic culture within Canberra, there is great risk of you engendering a toxic lack of tolerance. Ms. Tame and Senator Wong, who believe that Australia is reaching a day of reckoning about these matters, would be also wise to remember that history tells us that those who shout loudest from the rooftops about how they can change the world for the better often bring the whole house tumbling down with them. Beware Newton’s third law of equal and opposite reaction.
Most ghastly of all is that on a day when I wished to celebrate my opening contribution to selecting my parliamentary representatives, I realised that recent days have only further discouraged people from entering the political fray, for it has become an affray. In a rush to prove their virtue, too many people are stampeding over cherished values of our society. Now it seems if one’s collection of words do not evoke the required zeitgeist that one is guilty of a sackable offence. No nuance or reflection is allowed for. Forget being ostracised by a false allegation. That is the least of our current worries. Just offend the high priests and priestesses of public opinion and you are an outcast. J ’accuse, indeed!
Who would have thought that having lived through an extended social and economic lockdown in Melbourne one would see so many wishing to lockdown some of our most important legal and political values? The CEO of the law firm, Minter Ellison, that Mr. Porter has sought advice from has outraged the partners of the firm by sending an e-mail to staff on Wednesday to apologise for any “pain” they might be experiencing due to the firm’s representation of Mr Porter. “The nature of this matter is clearly causing hurt to some of you, and it has certainly triggered hurt for me,” she wrote. Wow!
Let’s list the three major heresies made by the CEO:
1. The conceit that she can know what 2500 employees believe on the matter;
2. That she can implicitly convict Mr. Porter based on her emotional reaction to the matter. Wouldn’t you love to have her on a jury?
3. That as a CEO of a law firm she is suggesting that people under suspicion of certain allegations are not entitled to legal representation.
Whilst not a lawyer, she should have known better. People charged with the most horrific crimes are entitled to legal representation. The right to a fair trial has been championed since the Magna Carta in 1215. The CEO’s e-mail suggests that based on her emotional pain, there are questions about whether Mr. Porter should be provided with legal assistance. Wow! Sadly, as expected, Minter Ellison has received a torrent of hate social media echoing the Greta Thunberg refrain ‘How dare you?’
Hysteria is encouraging people to rush to judgement based on a series of emotional responses. It is a short step to demanding people not say certain things, not read certain books, not mention certain events, not study certain items of art, not gaze upon a particular statue because of “the hurt they may trigger.” Oh, I forgot! Dr. Seuss’ opus has been selectively edited and the statues have already started coming down. How dare you, indeed!
The Golden Globes awards have come and gone, and the Oscars await, but a far more important contest is now taking place in Australia. It is not so much a contest between competing ideas as a need to vigorously defend important personal and legal freedoms.
Does it need to be stated again? The ends do not justify the means.
No-one argues with the need to create appropriate and respectful attitudes and cultures in and out of workplaces. Similarly, would anyone argue against preserving fundamental legal and political rights that are central to Western enlightenment? We must resist the call of shrill, vengeful voices to obliterate cardinal concepts of democracy and justice. Grinding too many axes bloodies everybody.
And the winner is? None of us.