On Australia Day when Anthony Albanese urged new citizens to abandon old prejudices and hatreds, he framed it as part of what he described as “the Australian covenant”.
This idea has been on the prime minister’s mind for weeks. According to a count published by The Australian, he has used the term nine times since the Bondi Beach terror attack on December 14.
So what does it mean? Is it something that is relevant only to migrants? Or does the prime minister’s endorsement of this doctrine have broader implications?
On Australia Day he described the Australian covenant as: “A commitment every citizen makes to our nation – and a promise our people make to each other – to leave behind the burden of old prejudices and hatreds.”
Here’s why this should interest everyone: In return for abandoning those ancient hatreds, Albanese made it clear new citizens would be part of “A democracy where every citizen is equal”.
That is a commitment we should not just endorse but celebrate.
Equality is one of the fundamental principles of the rule of law. At its core it means we are all entitled not just to equal treatment, but to civic equality and, most importantly, equal protection by the law.
The law – particularly the criminal law – is there not just to punish wrongdoers, but to protect the innocent. It obliges judges to prevent prosecutors using using flimsy evidence to secure unjust convictions.
These ideas form the moral basis for true democracies. They are also the foundation for an equally important idea: freedom under the law.
If the prime minister’s embrace of the Australian covenant leads to a renewed emphasis on equality, particularly equal protection by the law, it will bolster Australian democracy at precisely the right time.
In the years leading up to the murders at Bondi, Jews were subjected to increasing levels of intimidation and violence. This and other factors meant confidence in equality was in poor shape.
Last year’s national poll by my organisation, the Rule of Law Education Centre, found just 47 per cent of people believed the legal system was providing equal treatment for everyone regardless of background.
That poll identified just two states – NSW and Western Australia – where a majority of respondents believed the legal system was treating people equally regardless of background. And those majorities were wafer thin, just 50 per cent and 51 per cent respectively.
That poll followed events that had made it clear to the entire nation that government decisions – particularly in the states and territories – had done enormous damage to the idea that we are all equal in the eyes of the law.
The justice system might be the bastion for equality before the law. But what if state and territory laws make it possible to bypass the justice system?
The clearest example of this is the way some people accused of criminal conduct are being denied access to criminal justice and are instead diverted to non-courts that are not bound by the rules of evidence.
There they face an increased risk of an adverse outcome due to lower standards of proof and limited rights of appeal.
Consider what happened to Walter Sofronoff KC, a former president of the Queensland Court of Appeal, who conducted an inquiry for the ACT government, annoyed that government over the way he handled his report and was subsequently accused by that government of breaching a law that carries a maximum penalty of six months in prison.
It’s worth pondering why Sofronoff was never charged. If he had been charged he would have had the benefit of full appeal rights, the rules of evidence and procedural rules that would have required the prosecution to prove its case to the exacting criminal standard of beyond reasonable doubt.
Instead, Sofronoff was referred to the ACT Integrity Commission – a non-court where appeals are limited to errors of law, the rules of evidence do not apply and accusations need only be proven to the much lower civil standard.
This was made possible by section 62 of the Integrity Commission Act which has an equivalent provision in NSW which enables selected allegations of a criminal nature to be referred to that state’s Independent Commission Against Corruption.
When the ACT Integrity Commission ruled against Sofronoff, his only option was judicial review – a narrow form of appeal that was limited to questions of law and was not permitted to examine the merits of the case against him.
The significance of this affair is not that Sofronoff lost his judicial review. The odds were always stacked against him.
The point is that this is the most blatant and unjust example showing just how easy it has become to deny selected people – even former judges – equal protection of the law.
Sofronoff, a former president of the most senior court in Queensland, was denied access to criminal justice – the only forum that could determine conclusively whether there was any substance in the accusation of criminal conduct that had been publicly made against him by a government he had annoyed.
The prime minister’s endorsement of the Australian covenant is undoubtedly a step in the right direction – particularly the implicit undertaking that everyone will be treated equally.
The reality, however, is that while the federal justice system is important, most of the justice system is the responsibility of the states and territories. And as the Sofronoff case shows, that is where our attention needs to focus.