The End of Law in Australia?
This article was first published in Australian Presbyterian.
One of the fundamentals of Western Liberal democracies is the rule of law, and equality of all before the law. This is not just some academic debate, but at the very heart of what it is to be a civilised society. I speak a great deal to groups of lawyers, and it is clear that whilst some appreciate the Christian foundations of the Australian (and Western) legal system, others seem unaware of the great threat that that system is now under. Equality before the law and justice is under threat as never before.
This is happening because of a number of factors, including the politicisation of the judiciary and the removal of investigations from independent judiciaries to dependent academic ones. If the judiciary is weak then we will find ourselves in a situation where a citizen’s fundamental rights and freedoms are threatened – as numerous other countries have shown. For example, in Stalin’s Russia it was known as ‘telephone justice’, where all Stalin had to do was pick up a phone to ensure that the ‘right’ result was achieved. In other words, the king is the law, not the law is king. Samuel Rutherford, the Scottish Covenanter, wrote a highly influential book entitled, “Lex Rex”, where he argued against the divine right of kings and the idea of Louis XIV “L’Etat, c’est moi’ (the State – that’s me).
As we move away from our Christian roots, we are also in danger of losing the fruits – not least the idea of justice for all. Take for example the recent case of Christian Porter, the Attorney General. The basic facts are now well known. He has been accused by the ABC and various other media of having committed a serious sexual offence when he was a teenage boy. This has been done on the basis of a letter sent from friends of the alleged victim, who has since died. The woman had advised NSW police that she no longer wished to continue with the allegations and the police decided that there was not sufficient evidence. But this has not stopped the media witch-hunt or the mob and excitable politicians looking for a political scalp, from demanding an ‘independent’ inquiry into the allegations. Mr Porter has since taken his own recourse to law and is suing the ABC for defamation.
What is wrong with all this? And why should we be concerned? Surely the issue of sexual abuse and rape is serious and should be taken seriously – even when historical? Of course. Our confused society may glorify in 50 shades type pornography, speaking of consent whilst glorifying sexual perversity, but we as Christians, should of all people be opposed to sexual violence. We have a higher, not a lower, standard. But that is not the primary issue here. The issue is not whether rape is serious, but rather whether the allegations of rape are true.
Trial by Media
There are two aspects that should concern us. First of all is trial by media. Listening to the ABC it was clear that the impression it wanted to give was that there was a case to answer – despite what the police said. It could only be described as ‘trial by media’ through partisan reporting on ABC news, ABC National and the Four Corners programme. I was shocked to discover from other sources that the letter itself questioned the reliability of the accusations and pointed out that the woman’s parents “worried that she may have confected or embellished the allegations due to her mental illness”. Why would the journalists not report this? Were they acting as not just the prosecution but also judge and jury?
Trial by the Mob
Secondly there is trial by the mob. I witnessed people online and on demonstrations bearing signs stating that Porter was guilty and should be removed. None of the people who bore those signs could justify or prove that – they just felt it. It was what they believed. Just as no one can say with absolute certainty that he was innocent. But that is the point. Our legal system operates under the basis of presumption of innocence, not presumption of guilt.
It appears that the media and the mob now operate on a different basis – you are guilty until proven innocent (and even then, like good conspiracy theorists, they would regard any declaration of innocence just as part of the conspiracy). The presumption of innocence requires a high standard of proof to find someone guilty. That means that sometimes those who are guilty will ‘get away with it’, because the proof is not there. That is a horrendous fact, only mitigated by the fact that ultimately no one gets away with it, because one day we will all have to stand before the Supreme Judge, to answer for the deeds done in the body.
Whilst the presumption of innocence means that there are some who will, at least temporarily, get away with their crimes, the alternative is worse. The presumption of guilt, trial by media and trial by mob, the replacement of facts with feelings (I just feel he is guilty), will result in many innocent people being declared guilty and suffering unjust punishment. It will mean one law for the powerful and rich, and another for those who fall foul of the elites. If anyone’s career can be brought down by an allegation without proof, then, as in Stalinist Russia, no one is safe.
In Scotland this week we have seen where this leads. On the one hand an ‘independent’ inquiry set up by the Scottish government has declared that the First Minister, Nicola Sturgeon, is not guilty of misleading parliament. On the other a committee of the Scottish parliament has declared that she was. How can both be right? The trouble is that the reports have been so limited by the limitation of evidence, and redactions, that the whole picture has not come out – leaving the politicians and media free to make their own choice, according to their own political biases. This is not justice. This is not the rule of law.
Scotland is moving towards a system where political control of, and influence over, the judiciary will result in a legal system which favours only those in power. Equality before the law will disappear. Australia is in enormous danger of following the same route. A senior Scottish judge once told me that it was the job of the judiciary to keep up with public opinion. That is a horrendous notion of law. Judgment by whatever the media or politicians tell you ‘the people’ want becomes the end of justice. But the law should be without fear or favour.
The Basis of Law
The justice system that has evolved in the West has been based upon the presumption of innocence, the necessity of proof (including witnesses), equality before the law, and the belief that justice in this world will sometimes be flawed and is at best only temporary, but that there is a judgement day – when all our judgements ‘will be judged with justice by the man God has appointed” (Acts 17:31) and the books opened. Remove these and you remove justice. Ironically our ‘social justice warriors’ are ensuring the destruction of the justice they say they are seeking.
As Christians let us avoid trial by media or mob (especially when they agree with our own prejudgements) and let us learn instead to uphold the rule of law, seek justice for all, and entrust ourselves to the law and judgement of God. We need also to remember that at a personal level we all fall short, and are all guilty of breaking that Law, and we are all in need of the mercy seat, not the judgement. Our righteousness cannot be our own, it can only be Christ’s.
I enjoyed this article. It summarizes what I have seen particularly the politicizing of the judiciary and where feelings and emotions are replacing facts and knowledge. I would suggest that a definition of “Rule of Law” at the beginning would have helped. I think that many people and governments, based on their comments, confuse this with “Rule by Law” There are many excellent websites that provide better definitions of the two than I can give here and recommend doing a search.