Let’s walk through this one carefully and slowly. In a recent post, I talked about how we were not committed to criminal standards of evidence when we talk about public accountability. Since that time, the Attorney-General, Christian Porter, has told the public that he is the subject of the complaint. He denies the allegation and has said that he would not step down.
Unfortunately, he said a few other things.
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.
Every child we raise can have their lives destroyed by online reporting of accusations alone.
My guess is that if I were to resign and that set a new standard, there wouldn’t be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country.
This is not true, but social media chatter is very confused about what’s being discussed here and how we resolve this kind of problem.
First, we need to carve away the dreck from the intellectually serious arguments. This gets me to the quote from the Martin Shkreli trial above: there are some people on social media and in the press who simply cannot accept anything than an admission of guilt from the Attorney-General. They don’t care about process or principle. They do not care.
But it is equally true that there are people in positions of power and influence who hold the complete opposite view: unless it is established beyond all possible reasonable doubt, then there is nothing more that can be done. Former political editor for ABC News and now political editor for Nine, Chris Uhlmann, is one of these people, absurdly quoting extensively from a play from the 1960s to establish why we cannot call the Attorney-General’s character into question unless the allegations are proven to criminal standard.
Now let’s be extremely clear: if I were to think either side were closer to the side of the angels, I’d definitely put my money on those who would accept nothing short of an admission of guilt.
But neither side is intellectually serious here, yet this is where our political culture wants us to focus our energies. With which group of unreasonable people should we cast our lots?
Our primary task is to diagnose the problem correctly. And this is not a difficult task: ‘To what extent are we comfortable that there is no substance to the allegations against the First Law Officer of the Commonwealth?’
That’s it. That’s the entirety of it. There has been an allegation of a criminal act where there is little prospect of a conviction; but to what extent was the allegation substantive and credible?
Some lawyers — especially those with criminal law proclivities — act as if you’re speaking some kind of moon language when you say that findings can be of a lower standard than ‘beyond reasonable doubt’, and yet all lawyers are familiar with these standards.
And here’s where we need to slow down.
There’s three major issues at play with matters in most legal processes. First, there is the determination of facts; second, there is the admissibility of evidence; finally, there is the onus of proof.
The simplest description of the ‘determination of facts’ is ‘How sure are you that something is true?’ Here’s where we start to hear familiar terms from movies: ‘beyond all reasonable doubt’ in criminal trials; ‘on the balance of probabilities’ in civil trials. But there are more standards. Most lawyers are familiar with the Briginshaw standard: civil cases where there are serious allegations (like fraud or dishonesty) need a higher standard of evidence in order to establish them. Public lawyers are finding new and far more creative standards: ‘high degree of probability’ appears in legislation related to keeping people in correctional facilities if they present an ongoing risk to the community (like violent extremists and certain sex offenders). There are jurisdictional facts which relate to whether a reasonable person could form the belief that something is the case, or come to the reasonable opinion that something is the case.
The admissibility of evidence relates to rules of what can be presented in court. For example, most people know that you can’t admit ‘hearsay’ evidence, although they might not know precisely what hearsay evidence is… or that you can admit hearsay evidence under certain circumstances. There are lots of legal contexts in which we change the rules of evidence. For example, there are much lower standards of evidence in investigations of the Australian Crime Commission, including being able to obtain evidence that is inadmissible in prosecutions.
And the onus of proof is about who has the task of establishing a fact. In criminal cases, the general rule is that the prosecution has the task of proving the charge. There are even exemptions from this rule, as noted by Isaacs J in Williamson v Ah On:
The broad primary principle guiding a Court in the administration of justice is that he who substantially affirms an issue must prove it. But, unless exceptional cases were recognized, justice would be sometimes frustrated and the very rules intended for the maintenance of the law of the community would defeat their own object. The usual path leading to justice, if rigidly adhered to in all cases, would sometimes prove but the primrose path for wrongdoers and obstruct the vindication of the law.
Now we can bring the pieces together. We can accept that the prospects of a criminal conviction are remote, but we should want to know whether or not the allegations have substance. For that, we need to lower the admissibility of evidence: if you put everything on the table, even the stuff that doesn’t meet the high standard of a trial, what does the picture look like? Is there anything beyond the individual allegation to make us think that the allegations are credible? Conversely, is there anything on the table that might make us think that the allegations are not credible, such as in the Pell case?
You don’t need to reverse the onus of proof. You don’t need to make a finding of guilt. You do not even need to come to a conclusion of ‘truth’. You would only be asking, given the gravity of the fact to be established, how satisfied can you be?
And this gets to the guts of it. There are options for the Government to put everything on the table; instead the Government says only ‘You could never convict on this!’ This has to be unacceptable to the broader, informed public. It has to be unacceptable to the reasonable public: those who aren’t avid for scandal and could be convinced either way on this issue.
So two conclusions. First, this debate should be dominated by reasonable, intelligent people who are capable of leading this discussion. Instead, we have maniacs from the extremes of the discussion trashing the place. Second, we need to inform the public about the legal framework and not abandon them to movie tropes.