Rule of law means no room for show trials

Chris Merritt                 2 November 2020

Published in the Australian Newspaper

The great strength of Christian Porter’s anti-corruption agency is its commitment to the rule of law. By rejecting the titillation of show trials and NSW-style rough justice, the Attorney-General has shown a commitment to fundamental rights that others should emulate.

Federal Labor and the Greens have carved out a different position. By yearning for a NSW-style anti-corruption agency they have show themselves to have as much commitment to justice and human rights as Madame Defarge, waiting impatiently for heads to roll, regardless of guilt or innocence.

The hallmark of the Attorney-General’s plan for a commonwealth integrity commission is respect for the presumption of innocence, which is apparent in the decision to conduct most investigations in private. This will ensure the judiciary, and not the CIC, will tell Australia who is guilty of corruption. And that will only happen in a court governed by the rules of evidence, the presumption of innocence and the safeguard of appeals.

The alternative to Porter’s CIC is on offer in NSW, where a parliamentary inquiry is still trying to work out how to repair damage to the innocent who have been tainted unjustly by the Independent Commission Against Corruption.

Porter has created a high-powered investigator whose coercive powers will be subject to oversight by an independent inspector-general, the Ombudsman, the Attorney-General and a joint parliamentary committee. But the NSW experience shows even that might not be enough.

The jurisdiction of the CIC has been designed to prevent it wasting resources on trivia. Both divisions of the new body will instead pursue breaches of 143 laws directed at specific wrongs.

This is another safeguard against abuse of power.

Those who expect this work to take place in public reveal how little they understand about the criminal justice system. The CIC, just like the police, will investigate wrongdoing and prepare briefs of evidence for independent prosecutors. Prosecutors will make their own assessments before allowing a case to proceed.

Under the system we share with comparable countries, independent judges have the exclusive right to decide guilt or innocence — not prosecutors and definitely not police or other investigators. Public hearings are legitimate and necessary but only when a matter reaches court. That is where justice is done, not in a police interview room. By rejecting public hearings in most circumstances, Porter’s CIC should avoid the main problem that bedevils NSW: what happens when ICAC makes a mistake?

Shortcomings in the CIC’s work will be sorted out by the prosecutors. But with ICAC, which makes its own public findings, there is no appeal on the merits, even when courts reach the opposite conclusion. This means ICAC, alone among the works of man, is presumed by the law of NSW to be infallible.