Caligula, the rule of law and Australia

The Roman Emperor Caligula (born 12AD, murdered 41AD) has had some bad press in the past, say, 1900 years.

And I am about to give him some more, not for all his personal torture, rape, murder and incest, but for his more general undermining of the rule of law.

It is an opportune time for doing so because in Australia in the past couple of weeks we have seen the rule of law gradually triumph over rule by persona, despite the cries of banana republic, political bankruptcy and economic doom and gloom.

The strength of the rule of law has been highlighted by the almost Shakespearean fate of Nick Greiner, the appearance in court in separate cases of the former Western Australian Premier, Brian Burke, and his deputy, David Parker, and in a less serious way by Paul Keating’s juggling of the youth-unemployment statistics.

But first to Caligula. In the first part of his nearly-four-year reign he was quite a pleasant chap, defering to the Roman Senate and generally being well-liked. Then he fell ill with a brain disease. After that he got a very idiosyncratic view of the rule of law: not only did he break it with impunity, but he promulgated new laws in novel ways.

Citizens complained that he should not proclaim laws by word of mouth, because they were caught unawares and had to pay extra taxes, which, of course, was the aim of the exercise. So Caligula wrote them in tiny writing and hung them up on high pillars where no-one could see them.

Many of Caligula’s laws were not intended as laws in the sense that we know, but a way of framing taxes that could only possibly apply to one individual or, worse, tricking individuals who fell out of favour into transgressions for which Caligua could execute them.

Instead of the law being permanent, uniform and universal, he often made it a series of sudden transient orders concerning particular individuals.

Culminating with Caligula, the fourth emperor, it had taken more than eight decades for the rule of law to be thus corrupted. Rome, once a republic where the rule of law, as proclaimed by an elected Senate, was paramount, had become a dictatorship where Caligua and subsequently Claudius and Nero could do as they pleased. Roman law wasn’t destroyed in a day.

In a tiny respect, the enactment by Nick Greiner’s Government of the Independent Commission Against Corruption shortly after coming to power was a little Caligula-like. It was a law aimed at a group of individuals, not society in general. It was aimed at exposing the corruption that was allegedly rife during the time Labor was in power.

But there the likeness ends. Fortunately, in Australia, laws are permanent, uniform and universal. That is, they apply to everyone, even those in executive power. They are not placed atop pillars in tiny hand-writing, to apply to particular individuals at a particular time at the whim of the ruler and to be ignored with respect to other individuals at other times.

Though a victory over the rule of law, last week’s events were a tragedy for Nick Greiner, because he is an essentially honest man doing his best. He certainly is not corrupt in the brown-paper-bag sense. Indeed, if giving a job to an underserving boy for political ends constitutes corruption, then hardly a political leader in the country’s history would remain unscathed.

None the less the law is the law. And the Premier is not above it.

In this instance, as it happens, the law has not been very precise, nor has is its administration. The ICAC Act provides for hearings and permits the commissioner, Ian Temby, QC, to recommend charges. It also permits him to make findings. That is what he did in this case. He did not recommend any charges should be made but said: “I have concluded that his conduct was such as could constitute or involve reasonable grounds for dismissing him.”

Mr Temby used the passive voice exquisitely. Who should do the dismissing? Mr Temby thinks Parliament. That’s fine, though one might argue the Governor had that power. So under Mr Temby’s interprestation of the law it is now is a political question, in which case it should be decided politically. The law required only that Mr Temby should look into the matter. He has done so. He has not recommended any charges be laid, so the only questions remaining are political ones, not legal. Of course, in the process of answering the political questions, those who want to condemn Mr Greiner for political reasons will use Mr Temby’s passive-voice findings to support their case.

Given Mr Temby did not find charges should be laid, it is unfortunate he went on to make a political judgment about Mr Greiner’s position. And it is a political judgment. The making or breaking of a Premier should be made politically on the floor of the Lower House, or in the courts if he is charged. The the case of the later the Premier is ineligible to retain his seat if convicted of a serious offence.

Instead we have Mr Temby giving his view (suggesting Mr Greiner should be dismissed) and passing the actual doing of it to Parliament.

In fact it shows that the ICAC Act is unsatisfactory. It puts an unrealistically low threshold on the definition of corruption and it permits the commissioner to make findings which in themselves have no legal effect, but which have great political fall-out. The best way out of the impasse would be for Parliament, in the absence of a finding to prosecute Mr Greiner, to exonerate him. Moreover, it should redefine the powers of the commission so it could only exonerate or recommend the pressing of charges. It should take away its power to condemn by quasi-legal findings while leaving the action to enforce those findings to political action in the Parliament.

Failing that the Liberal Party would be justified in testing Mr Temby’s actions in the court to see if his actions were legally tight.

Asinine as it was in this case, the law has taken its course. Australians should rejoice that it was so, and not despair that the country is in a state of political bankruptcy. In another polity (Rome in 40AD or China now), a Caligula or a Deng Xiaoping would have blurred their personal power with that of the rule of law. In banana republics the person rather than the office is what counts. The law becomes a series of sudden transient orders given by the “superior” person to the “inferior”. Power is vested in the pwerson to the office and is not circumscribed by law applicable to all and enforceable by anyone.

Asinine as it has been in the Greiner case, given the choice of the rule of law or the rule of Caligula or Deng, I would take the former any day, even accepting its hideous cost and delay. There is not enough room here to deal with those questions (not even Dickens with his fabulously long novels could do it justice).

None the less, there is good reason for Australians to take heart at the Greiner case. Whereas in Caligula’s time, Rome was going from a republic with the rule of law to the rule of personality, in Australia the process is going the other way.

The rule of law is asserting itself after the 1980s — a decade of mates, white-shoe brigades and ministerial misconduct, a decade of people in power doing what they like, irrespective of that power supposedly being constrained by the law.

Whether Mr Burke or Mr Parker were part of that is a

matter to be determined by the the courts. But the important point is that it is being determined by the courts: the rule of law is being applied.

It has been a big comeback by the rule of law after the excesses of the 1980s. The extent of the comeback is such that even an essentially honest Premier is finding himself contrained by it. Its permanence, uniformity and universality mean that it applies to subsequent cases undreamt of by its framers and to those in executive government long after its enactment. It applies permanently to all.

The other example of the rule of law in the past week has been Mr Keating’s reworking of the statistics on youth unemployment. The law of the Federal Parliament has set up the Australian Bureau of Statistics to prepare statitistics independently. The Government of the say might not like what the bureau says, or how it says it, but the law provides it with the duty and the power to publish the statistics objectively. Mr Keating, the highest in the land has to accept it. He cannot prohibit their publication, nor amend them. At best he can argue interpretations.

Liberal Senator Jim Short got it completely wrong when he said, “The Government’s own statistical agency, the ABS, says . . . .”

It is not the Government’s statistical agency. It is one created by law enacted by the representatives of the people of Australia. That law binds the executive (permanently, uniformly and universally).

Caligula would have chopped off the statistician’s head off. Deng would have imprisoned him. The past week has shown we have much to be grateful for in Australia. None is above the law.

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