SECTION 1. UNPACKING THE RULE OF LAW, ACCOUNTABILITY AND THE PUBLIC TRUST
6. REQUIREMENTS FOR PROCEDURAL FAIRNESS
When calls were made for an independent inquiry into various allegations relating to a Member of Parliament’s alleged questionably illegal behaviour, (the former Attorney-General, Hon. Christian Porter claimed that if this happened there would be no Rule of Law left to defend.[i] In concentrating on criminal procedures he was making a fundamental mistake, proclaiming it as if all law were criminal law.[ii]
The protections for an accused person are very substantial because of the formal opprobrium associated with criminal conviction along with potential loss of liberty, employment, status and property. This does not mean that every such loss must be preceded by a full criminal trial with the protections that go with it. An individual may lose property in a civil case (including defamation) on the balance of probabilities. They may lose their job because of an internal investigation into a breach of their duties under an employment contract. They may not be retained when an existing contract ends. They may lose their professional accreditation for bringing the profession into disrepute. In all of these cases, the individual enjoys safeguards to provide procedural fairness. The nature and extent of those safeguards vary, generally in proportion to the potential damage to relevant individuals. This is far from perfect and needs to be considered – as courts and legislators occasionally do. This is all right and good. There have been improvements to prevent discrimination and unfair dismissals that have been opposed by quite a few Attorneys General.
Procedural fairness provides the foundation for the protection of individuals whose rights or interests may be affected adversely by decisions taken by ministers or governmental officials. Procedural Fairness includes the two fundamental rules of natural justice: the hearing rule and the bias rule. The hearing rule requires that any person whose rights or interests may be adversely affected as a consequence of a governmental decision has the right to be heard with respect to that decision and must be given the opportunity to make their case. The bias rule is straightforward. It means that the decision maker should come to the decision with an open mind as to how their powers should be exercised. The test is whether a fair-minded and informed observer might apprehend that the decision-maker might not be impartial or have an actual or perceived conflict of interest. If either of these rules is transgressed, the Rule of Law is undermined.
However, political accountability sets up a different test. No politician has a right to his or her job even if they are doing it well. Before the crystallisation of responsible government following directly from the loss of 13 of its American colonies, UK Parliament could remove a minister by impeachment when they did not like the King’s choice for that ministry. The USA retained impeachment, the UK largely discarded it. While there were some ‘safeguards’ to protect the rights of the accused under impeachment procedures, responsible government meant that ministers lost office if they (or their PM) failed to retain confidence of the parliament. Whether or not they were doing a good job, the only question was whether another were preferred. When responsible government was introduced to the Australian colonies, ministers were referred to as ‘Officers liable to retire from Office on political grounds’. As long as a PM has the confidence of the parliament, they can dismiss other ministers. There is no presumption of innocence but the presumption of convenience. If the PM does not have the confidence of parliament, the PM and all’s other ministers are ‘liable to retire on political grounds.’ Again, there is no presumption of innocence but a presumption of preference. ‘Innocence’ is irrelevant because no breach of law is alleged and no breach has to be proven. If a minister loses the confidence of the House or PM, no guilt has been found – merely a preferred replacement.
[i] “If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print. If that happens, anyone in public life is able to be removed simply by the printing of an allegation”. See ‘Read the full press conference transcript, Christian Porter denies historical rape allegation’ ABC News (3 March 2021) https://www.abc.net.au/news/2021-03-03/christian-porter-press-conference-transcript/13212054
[ii] This is a common error among the legal laity as most try to avoid breaching the criminal law and are faced with media the report and dramatize criminal law.