When the law is gone, what happens?
Consider the sports rorts affair. The political shit has been spraying off the fan for weeks, with revelation after revulsion about the Coalition government’s lavishing of public money on “grants” chosen solely to get itself reelected.
It’s fraud, theft, corruption on a massive scale, numbing in its brazenness.
There has been much opining about the legal consequences. Writers, including me, have called up the weaponry of the constitution, the Public Governance, Performance and Accountability Act, the common law, ministerial standards and so on, on the implicit assumption that, in our society, when there is illegality, there will be an accounting.
So, what has happened?
Bridget McKenzie has gone temporarily to the backbench, felled not by her facilitating the government’s $150 million cash grab but for failing to declare her membership of a gun club that was awarded grants.
Otherwise, the prime minister tells us, his departmental secretary found no evidence of wrongdoing, despite the acres of evidence that the Australian National Audit Office had already found and reported.
A misdemeanour, picked out with tweezers from the neck-deep muck.
But we can’t see the secretary’s report; it’s secret.
And, the prime minister tells us, the Attorney-General Christian Porter “disagrees” with the Australian National Audit Office’s conclusion that the sports grants program was executed without valid legal authority.
But we can’t see Porter’s advice; it’s secret.
Meanwhile, the Angus Taylor affair — in which a senior cabinet minister’s office used a fake document to try to discredit the Sydney lord mayor — ended last week when the federal police (AFP) announced that it isn’t going to even bother investigating.
Because it’s not serious enough. And Taylor had apologised already. And that’s that.
The legal hypotheticals aren’t dead. It’s still theoretically possible for a disgruntled sporting club to challenge the federal government’s constitutional power to make sports grants, or join the mooted class action seeking damages.
McKenzie could be prosecuted for misconduct in public office and even face personal liability for the losses she caused the Commonwealth.
Clover Moore could take the AFP to court to try to force it to do its job.
But none of these things will happen.
Scott Morrison has stood up and said in explicit terms that his government will not subject itself to the proper legal consequences of its deliberate actions, staring right into the incredulous eyes that that arrogance provokes.
It’s all a bit disconcerting, if you maintain a romantic attachment to the concept of consequence. How can they just get away with it?
Remember when a cabinet minister had to resign for failing to declare the importation of a Paddington bear? Our belief in the rule of law is just that: a belief. An article of faith.
To understand where this is leading, note that the US president has just been acquitted of a charge of abuse of power, which the evidence demonstrated he really did commit.
That evidence was not required by the Republican senators, who were always going to acquit Trump and had no time for details like their constitutional oaths.
Trump is not innocent, but he is untouchable now.
The American system has more inbuilt risks to the rule of law than ours, because their constitution gives the president monarch-like powers and immunity from prosecution while in office, and their judiciary is inherently politicised.
Impeachment is the safety switch, placed unwisely in the hands of political animals.
The integrity of our judiciary, thankfully, remains essentially intact. The same cannot be said for the instruments of law enforcement, particularly the AFP, which has become hopelessly politicised since it fell into Peter Dutton’s Home Affairs empire.
But police forces are always vulnerable to political winds, because they are part of the executive. We must look to parliament and the courts to protect us from the overreach of governmental power.
As I said, the law is never short of options. There’s always a case that can be tried, an appeal filed. But translating legal theory to practical reality depends on an indispensable ingredient: the executive’s willingness to submit.
Democratic government can only sustain when two foundations are honoured: the sanctity of the ballot and the rule of law. If either of these fails, democracy ends.
The rule of law is a social construct. It’s a bluff, and both Trump and Morrison have called it. The executive, which they control, has power that is by law constrained.
But who owns all the guns? Not the parliament, and not the courts.
Whether Morrison and his gang are aware of the damage they are doing, I don’t know. It doesn’t matter. Their shameless refusal to submit to the law is lethal to our democracy.
Like president Eisenhower said: “The clearest way to show what the rule of law means to us … is to recall what has happened when there is no rule of law.”
He’d be horrified.