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April 27th 2012 print

James Allan

Legal standards & other standards

When it comes to our Prime Minister and this government having an MP in their political party who refuses to help the police it is a patent exercise in sophistry and sleight-of-hand to pretend that she and it can rely on legal safeguards in refusing to condemn him or throw him out of the party.


Right now Australia’s federal parliament has an elected Member of Parliament who refuses to co-operate with a police investigation into his possible wrong-doing.


It seems to me that a lot of the comments about this fail to distinguish between what we want from our legal system and what we want when it comes to other matters.

Start with our legal system. Australia is very lucky indeed on this front. We have inherited a common law criminal law system where the core motivating principle is that it is better to structure things to err on the side of acquitting the guilty than convicting the innocent, given that human beings are not omniscient.

In fact we properly go so far as to say that it is better that 10 or 100 guilty go free rather than 1 innocent person be convicted. This plays out in all sorts of procedural ways that help those accused of a crime. The standard of proof in criminal trials is ‘proof beyond reasonable doubt’ not the far lesser ‘balance of probabilities’ in civil trials over broken contracts and the like.

So in the latter we limited biological humans decide based on what is more likely (since none of us can know for sure). But for criminal trials we acquit if we have any reasonable doubt at all. You, as a juror, might think the accused most likely guilty. You’d even bet he was. But you have a reasonable doubt, so you acquit.

That means that plenty of people thought most likely guilty are acquitted. The jury doesn’t think them probably to be innocent. But it does have a reasonable doubt about their guilt and our system opts to err on that side, as I think it should.

There are all sorts of other safeguards built in to our criminal law system from rules that allow incriminating evidence some times to be excluded through to hearsay rules through to the core notion that no one can be forced to incriminate himself or be forced to co-operate with the police in getting evidence against himself.

And all of that, in the context of a criminal law system that bends over backwards not to convict the innocent, is wholly defensible.

But we all need to be clear that what makes this defensible is that underlying goal of our society being prepared to pay the price involved in not wanting to put innocent people in jail even though we all know the flip side of that is that some guilty people will walk free.

Without that underlying goal such deliberate procedural safeguards would strike all of us as other-worldly and bizarrely naïve.

So once we leave behind the criminal law and move to some other realm of social life, say whom you want dating your 17 year old kids or whether to invest your money with a fund manager with a history of embezzling or what is expected of those serving the public in important and honourable positions, our standards change. And they should change.

No one is obliged to give some previously embezzling fund manager the benefit of the doubt today. And no citizen in a functioning democracy needs to think ‘well, it’s better that 10 or 100 guilty MPs should get to stay in their political party rather than that 1 innocent MP should be thrown out of his party’. And this becomes a dead certainty when that MP refuses even to talk to the police.

By all means let’s celebrate that we have a criminal law system that allows you or me or that 3 time burglar or even one of federal MPs not to have to talk to the police. Let’s celebrate that in Australia the prosecution on its own has prove the accused’s guilt even if the price of that is that a bunch of guilty people slip through the net. In the long term the good consequences of that outweigh the bad.

But when it comes to our Prime Minister and this government having an MP in their political party who refuses to help the police it is a patent exercise in sophistry and sleight-of-hand to pretend that she and it can rely on those legal safeguards in refusing to condemn him or throw him out of the party.

Ms. Gillard need only say, loudly and in no uncertain terms, ‘If you want to stay in any Labor Party I lead, you co-operate with the police’. There is nothing objectionable about that at all. It does not impinge on how an MP ought to be treated. In fact it is wholly in keeping with the underlying notion that what is expected of an MP is not the lowest imaginable denominator that a civilised society attaches to anyone facing a serious criminal charge.

No one doubts that our MP may choose to answer that Prime Minister by saying that ‘my legal safeguards are more important to me than staying in the Labor Party’. Fine.

But let’s be clear that forcing that choice on him is in no way at all an infringement of those legal safeguards. Nor is it inappropriate. In fact it is absolutely essential to being part of our national parliament, and more specifically to one of the two great political traditions in this country.

Is our Prime Minister really saying that she expects no more from her MPs than what we as a society extend to those accused of the worst sort of criminal law breaches?

Be clear about what is going on here and you feel as though you’re watching the great magicians Penn and Teller. Some misdirection here. Some sleight of hand there. And hey presto you’re watching the unbelievable.


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