Sir Garfield Barwick Oration
I would like to acknowledge the members of Sir Garfield Barwick’s family who are here tonight and other distinguished guests. I would also like to thank those of you who have come tonight including many of my friends and supporters without whom it would be impossible for me to participate in public life.
It is a great honour to be asked to give this year’s Sir Garfield Barwick Address. Being a member of Parliament provides surprising and unique opportunities. To be included in the list of the persons that have previously given this oration is one of them.
The previous speeches have been delivered by former High Court Chief Justices Murray Gleeson and Sir Anthony Mason, and former High Court Justice Ian Callinan, Former Federal Court Justice Roger Gyles, Former Prime Minister John Howard, Former Attorneys-General Tom Hughes, Bob Ellicott and George Brandis and Former Solicitor General David Bennett – it is a group to which I can claim no right of admission but I will do my best to justify the opportunity.
Can I commend those who have created the Foundation to perpetuate this oration which includes the former Commonwealth Attorney-General, the Hon Phillip Ruddock. I hope by delivering the first address after the covid interregnum that the Foundation and this oration will continue to enjoy ruddy good health into the future.
When I selected the topic for this evening of Barwick and the Rule of Law, I wanted first to take the opportunity to discover more about Barwick’s attitude to the rule of law and secondly to deal with the modern erosion of the principle of the rule of law, which I believe diminishes our society and its freedoms.
There is a chapter in Barwick’s autobiography A Radical Tory on the Rule of Law and Barwick made statements about a line of High Court authority on the implied right to the freedom of political expression which I have long wished to say something publicly about.
My thesis tonight is that the rule of law is under unprecedented attack in our postmodern society, not because of any uprising by Karl Marx’s revolutionary proletariat, but by powerful modern-day leaders in various different institutions who either don’t understand the rule of law or otherwise see themselves as above the rules that they would have the rest of society conform to.
These unelected elites in large corporations, trade unions and powerful institutions of government are illegitimately substituting their views for those of the people that Sir Robert Menzies called the forgotten people. These leaders should be responsible to their employees, members, shareholders, stakeholders or, in the case of government matters, the citizens of this country in whom resides the ultimate authority under our constitution and our democratic system of government.
It is not an accident that figures of historical significance to our nation like Sir Garfield Barwick and Sir Robert Menzies understood the importance of the rule of law and the social contract that underpins it, because they came from very humble backgrounds and as a consequence always associated themselves with the people.
Why do I care so much about the rule of law? The rule of law, or indeed its absence, has some personal history with my family which I shall explain. In 1944 when the Netherlands was occupied by the Nazis, my father’s favourite brother Gerard Henskens was on a train returning from work. It was like any other day except earlier that day an unsuccessful attempt had just been made upon the life of Adolf Hitler and everyone was talking about it.
A discussion took place on the train between strangers. My uncle Gerard made some comments which were derogatory of Hitler. He said of the failed attempt on the life of the dictator that “you can never kill weeds” which is an old Dutch expression.
When my uncle left the train, he was immediately arrested by a Gestapo agent who was on the train and heard the conversation. During his interrogation and probably torture Gerard denied the legitimacy of the occupying German force to detain him and said that Queen Wilhelmina was head of the Sovereign government of the Netherlands. He was not charged with the expression of these challenges to their authority but instead was charged with the more serious crime of “Insulting the Fuhrer.”
Within days he was prosecuted by a non-independent prosecutor and tried before a non-independent member of the judiciary who were both puppets of the Nazi State. He was found guilty of the crime and sentenced to indefinite imprisonment in a concentration camp. Within a year of his arrest my uncle, aged only in his mid-twenties, would lose his life due to the deprivations of his punishment in German incarceration.
Australian-born citizens of this country are largely without any personal history of what it is like to live in a society without the rule of law and without the freedoms of a democratic society. Could you imagine how many gaols we would need in Australia if we had a serious criminal offence of insulting the Prime Minister, Premier or other politicians?
Many of our multicultural groups do know what it is like to live without the rule of law. And because of the absence of any meaningful education in politics or history within our school curricula, we have a young generation where surprisingly large numbers believe that totalitarian systems of government are superior to democracy. According to a recent survey conducted by the Centre for Independent Studies, 58% of Australians under the age of 40 view socialism favourably.
It is important to tell stories of people like my uncle Gerard to remind us of how brutal non-democratic systems of government are, that democracy and our freedoms are tenuous and how quickly they can be eroded. My uncle Gerard was a world apart from the life lived by Sir Garfield Barwick but, principles like the rule of law were relevant to them both.
Sir Garfield Barwick was a barrister, a politician and a judge.
Bradman was to cricket what Barwick was to the art of advocacy.
Nobody compares a current cricketer to Bradman, nor do they compare any current barrister to Barwick.
I never saw Bradman play cricket, nor have I seen Barwick in action, so I have had regard to some primary records about Barwick which I shall identify.
I shall try to make this year’s oration intelligible to the non-lawyer while I hope it will still be of interest to lawyers.
Stories about Barwick
It is customary in this Address to start by saying a few things about Barwick that may add insight into the man.
I have had access to the ABC archives of the Liz Jackson Dateline story and interview with Barwick which occurred at the time that A Radical Tory was released in 1995.
Former Federal Attorney-General and also former giver of this oration, the late Bob Ellicott AC KC, said the following about Barwick in the introduction to the interview that Jackson had with Barwick.
Ellicott was not a barrister known for understatement. He said:
“Barwick in a sense is the greatest lawyer of this century. In a large number of respects because he performed as an advocate, as an attorney general and as a Chief Justice to a point of great excellence.”
Prof Tony Blackshield said Barwick:
“… was probably the best advocate Australia has ever had. Absolutely brilliant in a court room”
Barwick as a barrister appeared in so many famous cases it would be impossible to name them all.
But Barwick didn’t just do famous cases. He respected the cab rank rule - which is a rule that everyone is entitled to good legal representation and barristers will accept the first person to brief them in a matter rather than pick and choose the side that is more attractive to them.
George Bilbie, now deceased, was a Newcastle solicitor who represented three generations of my family. Mr Bilbie, who was the son of an underground coal miner from West Wallsend, told me in the 1990’s about how he had briefed Barwick in the early 1960’s, or “Gar” as he said people called Barwick.
In the early 1960’s Bilbie was asked by his client the Lamb Family to seek the first television licence in Newcastle. Bilbie briefed Sir Garfield Barwick to appear before the hearing into his client’s fitness to hold a licence before the Australian Broadcasting Control Board.
This says much of Barwick’s respect for the cab rank rule.
Bilbie was a humble sole practitioner solicitor from Newcastle who sent a brief through the mail in pink ribbon to the greatest barrister in the common law world at the time.
By the early 1960’s Barwick was a Knight of the Realm, it was a full 12 years after Barwick’s appearance in the Privy Council in the Bank Nationalisation case where he was the toast of the English legal establishment. Barwick accepted Bilbie’s brief.
The application was a success. The licence was granted and NBN channel 3 in Newcastle, now a part of the 9 Network, has been continuously broadcasting since Barwick helped the Lamb family obtain its original broadcasting licence in 1961.
Liz Jackson Interview
Barwick’s interview with Liz Jackson in April of 1995 was at a time when Barwick was 91 years of age and virtually blind. Barwick was obviously very politically astute. Barwick expressed the view in 1995, the year before John Howard became Prime Minister, that John Howard had the potential to be a very good leader of the Federal Liberal Party. History has confirmed that assessment about our second-longest-serving Prime Minister and former Barwick oration giver.
Barwick was unflappable under sustained attack from Jackson and had some great turns of phrase in the interview.
In relation to her questioning as to the dismissal advice Barwick gave to Kerr in 1975, Sir Garfield said very calmly “You’ve built up a very clever argument, but that’s all it is. I was not conscious of any embarrassment.”
Barwick said in the interview that he was persuaded by Menzies to come into politics and did not regret it. He was very happy to exercise the power of a Minister for six years and did not regret leaving politics and leaving the possibly of being Prime Minister to be the Chief Justice of the High Court. He laughed and told her that he would have been a terrible Prime Minister.
What is meant by the rule of law?
I now wish to turn to the rule of law, Barwick’s contribution to it and why the rule of law matters. I hope to explain this in a manner that will not cause nonlawyers’ eyes to glaze over.
Throughout time, civilisations have wrestled with the problem of whether nations should be ruled by good people or whether they should instead be ruled by good laws.
Despite many attempts over the years, benevolent dictators have shown themselves to be thin on the ground. Absolute power corrupts absolutely as Lord Acton once said and so the rule of law has proven to be the best way to arrange constitutional affairs.
Whether a law is good or bad requires a value judgement where opinions will differ. But, in a democracy, laws derive their legitimacy from the fact that they have been made in accordance with the agreed constitutional processes.
Barwick in his autobiography spoke of the rule of law including the three arms of government as well as all citizens. He said:
“The rule of law involves and carries with it the separation of powers, legislative, executive and judicial, each respectively reposing in a separate authority: the Parliament, the executive government and the judiciary. The law binds everybody: the Crown, the Parliament the executive government and its public servants of every description, all persons exercising authority, the judiciary and all citizens.”
He said, “This is the opposite of people exercising authority with an absolute and uncontrolled discretion. That sort of discretion is tyranny and inconsistent with the rule of law.”
The Parliament is bound by the law as it exists but has the exclusive power and authority to change the law other than the Constitution.
When matter is reposed in our Commonwealth Constitution, the judiciary becomes the sole source of interpretation and therefore political power rather than Parliament. This is because to change a Constitutional decision of the judiciary requires the difficult process that we are currently going through of a referendum under section 128 of the Constitution if a government and society wants to change the decisions and interpretation of the meaning of our constitution by our Courts.
In the late 1950’s Barwick received a joint parliamentary report on the constitution as Attorney General which recommended several constitutional changes. He said this about the proposal:
“It is evident that any proposed constitutional change is unlikely to succeed unless there is a complete consensus between the political parties on both the principle and the detail of the proposed change. Such a consensus is in general highly unlikely.”
Written around 1995 about his state of mind many decades before, those words of Barwick have a particular resonance today.
Barwick also said in his memoir that freedom of the citizen is secured by the rule of law and its observance.
Barwick used this example of the operation of the rule of law. He said:
“The use of the public highway epitomises this restraint and forbearance. That the rules of the road must be observed does not reduce the road user’s freedom to use it. By observing them the freedom of other citizens is secured. Licence to go as you please must result in chaos and diminish the freedom of all. So it is throughout our life’s activities.”
If the rule of law at its heart has the concept of constitutionally legitimate decision making, what does that look like in Australia?
The structure of the Commonwealth Constitution makes it clear that Parliament is separate from the Executive and the Judiciary and so judges do not make law in a manner which constitutes ordinary legislation within the power of the parliament to pass – that is, a judge does not ignore the words of Parliament’s legislation and substitute a judge’s views for the views of parliament.
Section 128 of the constitution specifies that changes to the Constitution may be made only if the proposed constitutional change passes at least one house of Parliament and then is approved at a referendum where the change is passed by a majority of Australians entitled to vote in the House of Representatives and achieves a majority of voters in a majority of states.
The manner and form specified to change the Australian Constitution does not permit of judicial changes to ignore the text of the Constitution or to read into the Constitution words which are not there.
This form of judicial activism is troubling to many and was particularly troubling to Barwick as I shall later demonstrate.
Why do I say that the rule of law is under attack today?
I would like to give you some very tangible examples of why I say the rule of law is under unprecedented challenges in our country by politicians, unions, corporations, the judiciary, public servants and the media.
Whilst average everyday citizens have little scope to do other than observe the rule of law, elites in powerful institutions seem to more and more feel that they are entitled to make decisions regardless of the rules – to swim outside of their lane so to speak – in the belief that they are excused from abiding by the rule of law.
From 2016 to 2022 a single union, the CFMEU, through a large number of breaches of the law incurred a whopping $16.1m in fines as a consequence of the prosecution of the union’s illegal activities by the Australian Building and Construction Commission. These fines were imposed through proper due process of law by judicial officers in the Federal Court system.
The cases against the union have included findings that CFMEU officials physically and verbally threatened workers, intimidated people and made homophobic and sexist slurs.
Rather than deregister the union or increase the fines, this level of unlawful behaviour has been rewarded by the Albanese Government abolishing the Commission that was established to stamp out unlawful behaviour in our construction industry.
In 2017 the ACTU Secretary, Sally McManus, was asked by ABC journalist Leigh Sales on the 7.30 Report whether she believed in the rule of law. Her initial answer was yes but then it was drawn to her attention that the CFMEU’s criminal history suggested it did not observe the rule of law so McManus’ support for the rule of law means she must not be supportive of the CFMEU’s behaviour.
McManus immediately backtracked on her support of the rule of law. In lock step with the CFMEU, McManus asserted incorrectly that the fines directed to the CFMEU were incurred due to the union’s advocacy for worker safety and then said:
“I believe in the rule of law, where the law is fair and the law is right. But when it’s unjust, I don’t think there is a problem with breaking it.”
Unfortunately, a disrespect for the rule of law is not confined to the union movement and some of our politicians.
Our large institutions - corporations, universities and firms - have recently come under fire for their commitment to adopt every social cause known to modern society rather than concentrate on what could be said to be their core purpose.
When it comes to their compliance with and respect for the rule of law, they have little claim to any moral high ground.
Qantas has illegally sacked staff, is now being prosecuted by the ACCC for misleading and deceptive conduct and many believe Qantas entered into an agreement with the Federal Government to support the YES campaign if a major competitor, Qatar airlines, was excluded from having more access to the Australian market thus increasing air fares for consumers.
Our major banks have been found guilty of breaching anti-money laundering legislation with massive fines levied against them. Insurance companies have charged dead people with life insurance premiums.
Many of Australia’s largest corporations and universities have admitted to underpaying their staff at the levels of remuneration required by industrial law.
PWC tax partners are alleged to have breached their fiduciary duties and duties of confidence by effectively advising both sides of a matter, at the same time using information garnered from the government about plugging tax avoidance loopholes to then advise the private sector to avoid tax payable to the government.
It is hard not to be cynical and believe that the social activism by large institutions is a diversion from what is becoming regular and inexcusable misfeasance.
And on top of all of this, the decision makers of these institutions are paid eyewatering salaries and bonuses seemingly regardless of mistakes and bad behaviour.
Our Courts are designed to uphold the rule of law. Unlike politicians who make the law, judges and magistrates are supposed to be conservative and administer the law by following precedent. Judges, unlike politicians, keep their jobs if they make mistakes which can be corrected by courts of appeal.
Their immunity from popular scrutiny in theory gives judges the freedom to make unpopular decisions which they believe are correct having regard to legal principle and the evidence in the case.
As Barwick said in his autobiography:
“If the judiciary does not so confine itself and attempts to change the existing law – to make law according to its own ideas – it enters the area of authority exclusively vested in the Parliament which, as I have pointed out, is representative of and accountable to the community and controlled by it.”
Barwick pointed out that if the judiciary does not confine itself to the administration of the law it must, probably in a short time, lose the respect of the community on which its authority so largely depends.
Decades of judicial activism in the United States of America has left its judiciary greatly diminished in the eyes of the public.
Now it must be acknowledged that there are gaps in the law and grey areas in the law. Judicial figures do need to make decisions from time to time where the law and precedent is not clear.
But this rightly falls within what Barwick describes as the administration of the law and not the making of law.
But some of our judiciary, I am happy to say at this stage a minority, seem to believe that it is both acceptable and their duty to be a law maker like a Parliamentarian rather than a judge.
The High Court of Australia as the highest court in our nation sets the tone with regard to the rule of law and it has to be said that recently there have been some worrying decisions.
Barwick himself was critical of a line of authority towards the end of his life made by the High Court in relation to the so-called implied right under our Constitution to the freedom of political expression and I agree with his criticism.
By way of background to this line of decision, it must be acknowledged that the Australian Constitution has some qualities which are internationally unique.
Our Constitution was set out and approved in a secret ballot by a majority of citizens and by a majority of the people in all of the six former colonies that now constitute the States of the Commonwealth of Australia. That did not happen in the United States of America, Canada, New Zealand or the complex arrangements that constitute the constitution of the United Kingdom.
Our Australian constitution can only be changed under section 128 through a referendum passed by a majority of people and a majority in a majority of states. This is the very process that we are now going through with regard to a Voice to Parliament. Such a process does not occur in New Zealand, Canada, the United States of America or the United Kingdom to change their constitutions.
It is also internationally unusual to have compulsory voting. It does not happen in most countries in the world.
I have previously argued that the unique combination of constitutional change under section 128 by a referendum together with compulsory voting makes the Australian people more sovereign over its constitution than probably any other citizens in any other nation in the world.
That also means that our High Court judges should be the most restrained in the world because for them to make radical changes to our constitution has less legitimacy than in any other country in the world where their constitutions are changed by elites and not a democratic process.
The other matter of context is that, at the time that the Australian constitution was formulated, detailed consideration was given to and rejected with regard to inserting a bill of rights into our constitution. A bill of rights can protect individual rights like the freedom of expression, due process of law, the freedom of religion (in broader terms than section 116 of the Constitution) and the like.
However, despite this history and section 128 of the constitution requiring change to be approved by the Australian people, the Australian High Court Judges decided to “imply” a right to the freedom of political expression into the Australian Constitution.
An implied right is a made up right by a judge.
The High Court literally like a scene from the Australian movie The Castle based its decision on the vibe of the Constitution.
The High Court reasoned that, as the Constitution had within it a system of representative democracy, the Court should imply a right to free political expression into the Constitution to make our democracy work.
This implied right had been invisible to all High Court Judges for about ninety years before it was first discovered.
Before this miraculous discovery our nation had operated as one of the world’s great democracies for about ninety years without anybody requiring an implied right to freedom of political expression for it to function properly.
Unlike an express right, there are no boundaries to this implied right suggested by the wording of an express provision.
Further, the High Court Judges were seemingly blind to the irony of judicial elites changing a constitution on supposed democratic grounds when the Australian Constitution expressly required a citizen vote to be essential to any change to our constitution under section 128.
In another context, this line of authority would be like the High Court implying a recognition of indigenous Australians into the constitution without the current referendum or, if the current referendum fails, ignoring that decision and implying it into the constitution anyway.
Barwick did something that he rarely did and criticised the High Court’s decisions on the implied right from his retirement.
He correctly saw the implication of this right to free political speech as an undemocratic, unconstitutional power grab by the High Court which he said was a “shift of power from the Parliament to the High Court.”
Barwick said that the implication of the right was done unnecessarily.
He said that “Free speech was quite firm in this country with the Parliament in control of it. There was no need to introduce an individual right to free speech which is what the Court did.”
He described it as “in some ways a pure invention because nothing in the constitution suggests it. I say invent it because there is no word in the constitution that suggests it. No word at all.”
He went on that free speech “isn’t a matter of constitutional law. It is there because the community is in charge of the law through the parliament and that ensures that there is no invasion upon free speech.”
The High Court has subsequently used this illegitimate implied constitutional right to free speech to justify striking down state legislation passed through our parliamentary democratic process to regulate political expenditure and donations.
It has done so using reasoning such as asking whether the purpose of a law asserted to be infringing free speech is legitimate, compatible with the implied right or reasonably appropriate.
But surely questions of legitimacy, compatibility and reasonable appropriateness are value judgments for Parliament and politicians and not for a judge to apply in respect of an illegitimate implied constitutional right.
In Brown v Tasmania (2017) 261 CLR 328 the High Court had to decide whether environmental protesters had an implied constitutional right to protest in native forests on Crown land well away from any people who might hear their protests other than via social media. It found that they did notwithstanding safety concerns to workers, the protesters and police that was said to motivate the State legislation.
An aspect of the judicial function can be to decide cases according to law even if it goes against the current Zeitgeist.
Two recent decisions of the High Court have caught the ire of many including Victoria’s leading Barrister, Allan Myers KC, for a departure from the judicial function in that respect.
In a paper delivered this year to the Samuel Griffith Society, Myers KC reviewed two decisions by the High Court in Love v Commonwealth (2019) 270 CLR 152 and Palmer v Western Australia (2021) 272 CLR 505. Palmer’s case involved an interpretation of section 92 of the Constitution and Love’s case involved the creation of a new category of non-citizen based on race which had the effect of preventing the deportation of a non-citizen with Aboriginal ancestry from Australia. Myers does not hold back on his criticism of the decisions. He said of the High Court that:
“In [Love] …they engaged in judicial creativity of a nature and degree not within the scope of the judicial function. In the other of those two cases [Palmer] five justices of the High Court did not adhere to the proper limits of judicial creativity and thereby damaged the fabric of the Australian federation.”
Palmer’s case provides a good counterpoint to the constitutional free speech jurisprudence. The Australian Constitution in section 92 has an express right protecting freedom of interstate movement.
Section 92 says that trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
During the Second World War the High Court found in the case of Gratwick v Johnson (1945) 70 CLR 1 that regulations made under the National Security Act which prevented Australian citizens from travelling from one state to the other without a permit were unlawful because they infringed section 92 of the Constitution.
Palmer challenged Covid restrictions in Western Australia that did the same thing.
Incredibly to Myers KC, Palmer lost that case without any proper explanation of the difference between the case where Dulcie Johnson travelled from New South Wales to Western Australia in 1942 to visit her fiancé.
Apparently Covid was a greater threat to Australia than Darwin being bombed by a foreign power in February 1942, thus justifying a different “structured proportionality” result between Palmer’s case and Dulcie Johnson’s case.
In the case of Dulcie Johnson, she was able to see her fiancé in Western Australia in 1942 but many Australians during Covid were prevented by inflexible State Governments from seeing their close family members in some cases to say their last goodbyes before they died from serious illness.
It is hard to understand how the High Court can simultaneously read down an express right in the Constitution while giving an illegitimate made-up implied right such a broad operation.
Before I leave considerations of the Judiciary and the rule of law, I wish to deal briefly with the criticism of Barwick concerning the High Court’s decisions on tax law when he was Chief Justice.
I am not a tax lawyer but the charge against Barwick is that somehow his Court, as if Barwick wrote more than one of the seven judgments of the High Court, facilitated the tax avoidance industry.
David Marr is chief accuser, saying about Barwick:
“his notion, that he was the man who simply applied the law as written is nonsense.”
Barwick dealt comprehensively with Marr’s bias in the Prologue to his autobiography A Radical Tory and in no sense requires my assistance.
Barwick quoted from the introduction to Marr’s unauthorized biography of Barwick where Marr said the following:
“I began to write Sir Garfield’s life with a single purpose: to pin on the man his responsibility for the crimes of 11 November 1975.”
Barwick said this about Marr:
“that is to say, that the book was not written as a record of fact but as a polemic to fulfil a slanderous intention. The bias of which I earlier spoke was evidently deliberate. However, as things stand at the moment, I can leave David Marr to the historians, who I fancy will be unlikely to support his views.”
When the tax avoidance criticism was put to Barwick by Liz Jackson in her 1995 interview with him, Barwick responded that it was an unfair criticism.
Barwick said, “There is no moral obligation to pay more [tax] than the law required.”
He said that to do other than take a strict interpretation of the law would be “slack jurisprudence.”
Barwick’s defence does two things.
It reminds us that he believed in the rule of law and that it was for parliament not the judiciary to write laws. As a judge he would not and should not read words into legislation that were not there.
The criticism that Barwick was not, but should have been, an activist in tax cases also highlights how long so-called progressive people like Marr and Jackson have been undermining the rule of law by suggesting that Judges should make the law and that judicial activism if on an issue that they agree with is desirable but presumably if on an issue they disagree with should never occur.
Barwick’s defence is also reminiscent of the appearance by Kerry Packer before the House of Representative Select Committee on Print Media on 4 November 1991.
Packer said famously:
“I am not evading tax in any way, shape or form. Now of course I am minimizing my tax and if anybody in this country doesn’t minimize their tax they want their head read. Because, as a government, I can tell you, you’re not spending it that well that we should be donating extra.”
Barwick’s tendency to resist judicial activism was no doubt assisted by his prior experiences as a parliamentarian and the understanding that gave him of the proper limits to the role of a judge compared with that of a member of Parliament.
Criminal justice system
I wish to conclude my presentation of evidence about the modern-day state of the rule of law by addressing recent events in our criminal justice system.
Australia by and large has a very fair and good criminal justice system and this is also incredibly important to the freedom of citizens guaranteed by the rule of law.
It is some time since I have appeared in a criminal trial but, as a mainly civil lawyer, I have always been impressed by the way in which the criminal system is more disciplined than the civil trial process. Criminal procedure and its rules of evidence are designed through checks and balances to ensure the fairness of the system.
The burden of proving a crime beyond reasonable doubt through admissible evidence presented for serious crimes before a jury of ordinary citizens puts a burden of good behaviour on all of the players in the process including the police, the lawyers (for both the prosecution and the defence) and the judiciary.
But I cannot conclude a discussion of modern developments in the rule of law by ignoring the findings of the Board of Inquiry into the criminal proceedings commenced against Bruce Lehrman. It should be noted that the findings by Mr Sofronov KC, who conducted the inquiry, are themselves under a legal challenge by Mr Drumgold SC, the former DPP of the ACT.
Can I preface my remarks by saying that we may never know what truly occurred that night in Parliament House between Ms Higgins and Mr Lerhmann because their accounts differ.
What I wish to concentrate on tonight is the criminal law process and the importance of the independence of the prosecutor to our freedoms.
The responsibility for serious breaches of the rule of law and its process does not lay at the feet of either Ms Higgins or Mr Lehrman since they were not responsible for knowing the rules which were to ensure the fairness of the trial.
Ms Higgins made allegations of serious criminal misconduct against Mr Lehrman. They were both entitled to have that complaint dealt with in accordance with law.
There is a principle of what is called sub judice contempt. That is, nothing should be said or otherwise published outside of a court room that could influence a jury in a criminal trial either way towards acquittal or conviction of the accused.
In the cases on this area of the law, the Courts are clear to say that it is an important principle that the fountain of justice should not be fouled by publicity that could impact upon jury members from deciding cases according to admissible evidence presented inside the court room. Sub judice contempt is itself a common law criminal offence, such is the importance of protecting the fairness of a criminal trial to the rule of law.
In the Lehrmann trial, a media interview was given to Lisa Wilkinson prior to Ms Higgins making a formal police complaint against Mr Lehrman. This is highly unusual but apparently becoming more common. A Logie speech by Ms Wilkinson caused the original trial date to be vacated due to the adverse publicity.
The findings in the Inquiry into the prosecution, if they survive the current challenge, are astounding about the departures from a prosecution process that is designed to be consistent with the rule of law.
Mr Sofronov KC did find that there was a proper basis for the DPP’s advice that Mr Lehrmann should be charged and prosecuted.
The Director of Public Prosecutions is a position of recent origin. It was created to take prosecutorial decisions out of the hands of the Attorney General, who traditionally held them but who could be influenced by political considerations, and to put those decision into the hands of an experienced independent barrister.
Notwithstanding the importance of the position of the DPP, Mr Sofronov found that the Director of Public Prosecutions, the senior public official in the ACT responsible for administration of the prosecution process, did the following during the Lerhmann trial that impacted the process of prosecution once the decision to prosecute was made with a proper basis:
• The DPP failed to disclose material that he should have by law to the defence to ensure a fair trial.
• The DPP constructed a false claim of legal professional privilege and knowingly misled the Court as to the privilege.
• The DPP misled the Court as to the timing of a proofing note regarding the conversation that he had with Lisa Wilkinson prior to her Logie speech.
• The DPP alleged improper conduct by the police and improper collusion with the defence which he withdrew at the inquiry hearing.
• The DPP alleged improper pressure from Government in relation to the case and that a political agenda was followed by the Liberal Senator Linda Reynolds which was without any reasonable basis.
• The DPP made a speech announcing there would not be a re-trial, noting that he remained of the view that there were reasonable prospects of conviction, a prosecutor ought not to make such a comment about a trial which he or she has prosecuted, and by doing so the DPP unfairly deprived Mr Lehrmann of his common law right to the presumption of innocence.
• The DPP at times lost his objectivity and did not act with the fairness and detachment that was required by his role.
• The DPP kept the defence in the dark about steps that he was taking to deny the defence documents when a criminal trial is not a poker game in which a prosecutor can hide the cards.
If these findings remain, two things can be said. First, there could be no more damning instances of breaches of the rule of law by a prosecutor in the criminal justice process.
Secondly, they would suggest that the DPP sought to substitute himself for the jury and decide the case himself. His duty under the rule of law was not to convict but to fairly present all of the relevant evidence whether it suggested guilt or innocence to the jury and let the jury decide the case.
As a further dimension challenging to the rule of law in the criminal justice process, since the trial it has also come to light that, in preparation for the Channel 10 interview, Lisa Wilkinson allegedly suggested ways in which Ms Higgins could explain the events that occurred on camera even though Ms Wilkinson had no direct knowledge of and was not present during the events constituting Ms Higgins’ complaint.
Irrespective of whether the alleged conduct occurred, as a matter of principle to uphold the rule of law there can never be an ethical justification for a journalist putting words into the mouth of a person, especially one accusing another of a serious crime.
Similarly, the position of whether there was a sub judice contempt committed by the broadcaster of the Logie speech should be considered having regard to the aborting of the criminal trial. Justice McCallum delayed the commencement of the trial for many months due to the harmful pre-trial publicity of Ms Wilkinson’s Logie speech.
The media appears to more regularly now be publishing material which could have a tendency to interfere with the fairness of a criminal trial and this is becoming a more common challenge to the rule of law.
People accused of crimes regularly have microphones thrust in their mouths and asked questions by journalists when they are in police custody or coming to and from a court or Inquiry. If there is to be a jury trial, these actions by the media could only compromise the fairness of a criminal trial and create prejudice against the accused.
Tonight, I have endeavoured to give you a number of examples of actions which, if established for those still under challenge and for the others that are established, are contrary to the rule of law by people of great power and influence in our community. Even if individual instances turn out not to be established, there is enough to give us reason to be concerned.
A necessary consequence of these breaches of the rule of law is an erosion of public confidence in the leadership of our major institutions.
If our leaders don’t correctly exercise the powers that they currently have, it can be very difficult to convince the community to give them more power through mechanisms like constitutional change under section 128.
Frequently, small business people complain to me about the burden of regulation upon them. They can feel resentful that they are diligently expected to comply with ever increasing and more burdensome rules set by our government.
It must particularly grate with them when the leaders of large corporations, politicians, trade union officials, judges and senior public servants are or appear to be responsible for non-compliance with the rule of law relating to their activities.
It can be rightly said that some perspective on these matters is necessary.
Our nation is still one of the freest countries in the world and much better off than many other democracies. Our citizens and political elites still respect core democratic processes like the transition of government after an election, unlike what we have seen recently in the USA with the storming of the Capitol.
But our citizens do need to be more critical of those whose activities could or do compromise the rule of law so that we do not slide into an unlawful mess.
And we should never forget our good fortune to live in a country where we can openly discuss these issues.
That is in part because people like Sir Garfield Barwick were willing to exhibit restraint in the exercise of political and judicial power and willing to explain and advocate for the observance of the rule of law.
The price of our freedom is for all of us to be eternally vigilant with regard to the rule of law.