(Image: Mitchell Squire/Private Media)

As Prime Minister Scott Morrison eloquently put it, in Australia we do not have “the tribe has spoken” law. We have the rule of law. That rule has been invoked like a sacred mantra in defence of Attorney-General Christian Porter, although not so much on behalf of Brittany Higgins’ alleged rapist.

Porter went so far as to say that if he stood down as attorney-general we would no longer have a rule of law at all.

What is this rule of law?

Its origins can be traced to Aristotle, Magna Carta, Locke, John Adams or any number of legal scholars. They all said the same thing: the rule of law is that the law applies equally to all. As Thomas Paine put it in Common Sense (which wasn’t a cliché in 1776):

For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”

It’s that simple: the rule of law is the antidote to tyranny, by mandating equality under the law.

Two things should be immediately obvious: first, the presumption of innocence — the other phrase being wielded by the Morrison government and mainly male commentators — is neither dictated by nor necessarily concomitant with the rule of law. A presumption of guilt, provided it was applied universally, would be just as consistent with the rule.

Second, the rule itself is and always has been honoured mainly in the breach.

Consider the presumption of innocence, the principle which underpins our criminal justice system, promising that no innocent person should ever be punished.

The presumption is rigidly applied to the crimes we commonly think of: murder, rape, theft etc. The burden of proof of guilt beyond reasonable doubt is entirely on the prosecution; the defendant has no obligation to even speak, beyond his or her plea of non-guilt.

But consider terrorism offences. There the presumption has been progressively fading away. Under our law, people suspected of terrorism, or of contemplating terrorism, can be detained and deprived of basic rights (such as access to a lawyer) for long periods. The High Court has upheld the validity of laws allowing for sentences to be extended and people to be pre-emptively imprisoned on the basis of the threat they present rather than the crimes they have committed. A similar principle applies to sex offenders in some states.

How about robodebt, a legal structure which required people who the state had declared owed it money to prove they didn’t. That was a direct reversal of the ordinary onus of proof, treating welfare recipients unequally with the rest of us.

The Northern Territory intervention, cashless welfare cards and the entire historical suite of laws applying specifically to Indigenous Australians — every one of them involved and involves an inequality in the law. Our constitution still contains explicit provisions authorising such legal discrimination on the basis of race.

And then there are our immigration laws. If you came to Australia on a boat after 2013, the law says you can never become a permanent resident or citizen. If you came by plane this morning, no such prohibition applies. If you were brought here under the medivac law you are, by law, in legal limbo with no rights at all.

If you’re an ordinary citizen who stands on a soapbox and says the attorney-general committed a crime, you’ll be liable for defaming him. If you’re a member of Parliament and say the same thing there, you cannot be sued.

I could go on all day. In any law book you pick up, by a few pages in you will have come upon an exception to the rule of law. Every law, every legal regime, is packed with provisions which apply the law unequally based on all sorts of qualifying differences. Between 1986 and 2009 it was illegal for women to engage in boxing matches in NSW. The law may have been stupid, but it was valid.

While the rule of law is a lovely aspiration, and the march towards equality is the social expression of exactly the same rule as an end goal, no society has ever got anywhere near it in truth.

It is therefore an absolutely unremarkable thing to suggest that, in the remarkable circumstances where the sitting first law officer of the land stands accused of raping a child (when he was one too), an allegation cannot be tested or resolved by the criminal law, those circumstances dictate an alternative legal mechanism to determine whether he can and should continue to occupy that role.

The criminal law is supposed to apply equally, although in practice it doesn’t. Nobody has ever suggested the civil law must also do so, to the extent that a bus driver, a casino licensee and a High Court judge should be subject to identical tests of probity and fitness to do their jobs.

The suggestion that Porter face an inquiry into his fitness to serve is not the end of civilisation. It’s an application of the rule of law.

Michael Bradley was the lawyer representing the woman at the centre of historical rape allegations against Christian Porter. Porter denies the allegations. The women took her own life last year.

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