Fowles play: Andrews chooses expediency over fairness on MP assault allegations

Admirers of Daniel Andrews would no doubt view the Victorian premier’s ruthlessness in disposing of one of his MPs — Will Fowles, the member for Ringwood — as an example of strong leadership. 

If you are troubled by Andrews’ cavalier disregard for Fowles’ right to what is commonly called natural justice and the presumption of innocence, you might see it as a troubling use of a leader’s position. As premier and as a political leader, Andrews should be upholding core rule-of-law and fairness principles — not dumping them in favour of political expediency. 

First, some background. Earlier this month Andrews and his office told the media they had received information a few days earlier about an allegation against Fowles of an assault. The alleged victim had not gone to police but Andrews’ office had referred them there. Andrews issued a media release saying that he had “sought and received the member for Ringwood’s resignation from the parliamentary Labor Party”. 

Fowles has vehemently denied the assault allegation and says he wants to clear his name and come back to the party. But Andrews, despite the denial by Fowles and the fact that there is nothing more than an allegation at this stage, doubled down last week, saying there was no way back for him.

“I just remind everyone … that this was not a leave of absence,” he said. “This was not a suspension. A resignation was sought. And a resignation was given.”

So Fowles sits on the crossbench, his role as chair of a parliamentary committee in jeopardy, and he is getting no public support from his erstwhile colleagues who are no doubt too afraid to stand up to the premier and his office. 

So what should Andrews have done once he and his office received the allegation about Fowles? A leader, whether it be of a political party, a community organisation or a business, should act with circumspection when one of his or her members or employees is accused of misconduct or a potential crime. 

Andrews should have spoken privately to Fowles and asked him for his version of events. It is a matter for Fowles as to whether he responds to this request or exercises his right — sensibly, one might have thought, in view of the matter being referred to police — to remain silent. If he chose that course, Andrews should have respected it.

Having spoken to Fowles, Andrews might have invited him to take some time out to deal with the allegation and ensured Fowles was supported — as he apparently did with the alleged victim. He should have told Fowles that he respected his rights in the matter and would make no comment publicly or privately which would undermine Fowles’ rights.

Any media statement should have made all these points clear because to do as Andrews has done is to encourage the public to think Fowles is guilty. Real leadership on the part of Andrews would have seen him resist any attempt to take sides in the matter.

Furthermore, Andrews should have warned his MPs that they should not feed the media — that they should respect the rights of both Fowles and the alleged victim and be reminded that the only way to do that was to refuse to comment.

Some might say that an insistence on procedural fairness and taking care not to undermine the right to the presumption of innocence is naïve and fails to take account of the potential damage to a leader and the party. The answer to that is simple: in a liberal democracy, the rule of law and core principles such as respect for fundamental legal rights must always take precedence over any other aims.

The way in which Andrews has dealt with Fowles would not be unusual in the context of an authoritarian regime where there is no regard for balance and nuance when it comes to dealing with sensitive allegations involving public figures. 

Former High Court judge Anthony Mason, who was chief justice of Australia between 1987 and 1995, wrote almost 40 years ago that it is “a fundamental rule of the common law doctrine of natural justice … that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given the opportunity of replying to it …” 

While Andrews is not a court or a tribunal, given the impact of his actions could end Fowles’ political career, he should have heeded these words. His failure to do so is a failure of leadership.