The rule of law in Australia is at risk. The case of Cardinal Pell made this plausible. The case of Brittany Higgins all but proves it.

This sordid drama has been in the headlines of newspapers as far afield as the BBC and the New York Times. One columnist called it “the court case of the century in this country”. In February 2021, a junior staffer, Brittany Higgins, alleged that she had been raped inside Parliament House by a colleague after a drunken night out two years before, in March 2019. Government ministers became entangled with the case. One minister ended up settling a defamation claim brought against her by Ms Higgins.

The trial of the accused, another young staffer, Bruce Lehrmann, began on October 4. However, to universal consternation, the trial was suddenly abandoned when the judge learned that one of the jurors had smuggled the findings of his own research into the jury room. There had to be a retrial.

But last week, Shane Drumgold, the Director of Public Prosecutions in the Australian Capital Territory (which includes Canberra and Parliament House), announced that he would not proceed with the retrial because of Ms Higgin’s fragile mental health. This is believable. After the trial it emerged that she had entered a mental health facility for five days during the trial.

Throughout the case, Mr Lehrmann has steadfastly maintained his innocence. He has flatly denied that he had sex with the young woman. “It simply didn’t happen,” he says.

But why was a formal trial needed anyway? It would have been cluttered with antiquated formalities like “presumption of innocence” and “the burden of proof” and “beyond reasonable doubt”?

Justice was administered more swiftly and expeditiously in the court of the media. Mr Lehrmann has already been found guilty and given a sentence of indefinite opprobrium.  

First, most of the nation believe that Bruce Lehrmann is guilty. This is mostly because of the efforts of media personalities such as Lisa Wilkinson who used her national platform to advocate for the “truth” of Ms Higgins’s claims. The Sydney Morning Herald immediately published a story: “Media alleged that Bruce Lehrmann assaulted other women: court”. Since when are defamatory and deleted stories on the internet worthy of headlines?

Second, Prime Minister Anthony Albanese described her as being “very brave”. This reinforced Mr Lehrmann’s perceived guilt. No words of support were extended to him, although he is broke, unemployed, and probably unemployable. He even considered suicide. No sympathy at all.

Third, Ms Higgins has already received A$325,000 as part of a book deal to tell her side of the story. And The Daily Telegraph has reported that: “Lawyers acting for Brittany Higgins are set to hold talks with the federal government over a million-dollar compensation claim”. That’s obviously a lot more than a court would be likely to award in the case of a guilty verdict.

Fourth, Ms Higgins has published an extended statement on Instagram which strongly implies the guilt of the man she has accused:

This is the reality of how complainants in sexual assault cases are treated. Their lives are torn apart, their families and friends called to the witness stand and the accused has the legal right to say absolutely nothing.

The criminal justice system has long failed to deliver outcomes to victims of sexual assault. In the ACT during 2020, only 16 per cent of sexual offences reported to police resulted in a charge. And of that 16 per cent – only half of that number again resulted in a conviction.

That is to our national shame. I want to thank the other women who came forward  and shared their own experiences. I believe you. You were with me every day I walked into that courtroom.”

So what would Ms Higgins have to gain from going to court again? Mr Lehrmann’s reputation has been so tarnished that letting him walk free crushes him more completely than getting him thrown into the slammer. Where is he going to find a job now?

Probably the most serious concern arises from an exclusive by journalist Janet Albrechtsen. She reported that: “The most senior police officer on the Brittany Higgins case believed there was insufficient evidence to prosecute Bruce Lehrmann but could not stop the ACT Director of Public Prosecutions from proceeding because ‘there is too much political interference’”. Albrechtsen cited diary notes made by the ACT Police Manager of Criminal Investigations, Scott Moller.

In a separate executive briefing, last year, Superintendent Moller advised that  investigators “have serious concerns in relation to the strength and reliability of  [Ms Higgins’] evidence but also more importantly her mental health and how any future  prosecution may affect her wellbeing”.

So the police were aware there was going to be insufficient evidence to convict and that Ms Higgin’s mental health was going to be significantly affected. But Mr Drumgold pursued the prosecution anyway? This was reckless behaviour on the part of the Public Prosecutor. Not only has he wasted A$2 million on an aborted trial, but he has ruined the lives of two young people. For nothing.

Well, not for nothing. He scored points for grandstanding as a champion of #MeToo.

I don’t know if Bruce Lehrmann is guilty or innocent. Without a proper investigation and trial, “innocent until proven guilty” should be the opinion of everyone in the country. But it isn’t. As Janet Albrechtsen wrote back in October in The Australian:

The Australian justice system is built on two foundations. First, equality before the law. And  second, the presumption of innocence, which at its core includes the right to a fair trial.

The persecution of Lehrmann by sections of the media upended this. A flank of high-profile journalists and celebrities transformed the presumption of innocence into the presumption of guilt.

In this instance, as in others, many in the media used the cover of #MeToo to advance careers, preen in public, and pursue political agendas. Feral activists on social media and some more seasoned journalists in the mainstream media decided that an allegation of rape was sufficient to do away with protections offered by the law such as the presumption of innocence, due process and the rule of law.

We have reached a critical point when those accused of sexual assault crimes are not being afforded these protections.

Justice in Australia is all but dead. And if you think this an exaggeration, consider the following consultation paper — released by the Victorian government — which proposes giving “complete immunity” to complainants from defamation suits. According to The Sydney Morning Herald,

Sexual assault and harassment complainants would have an immunity against being sued for defamation over reports to police and other authorities under a proposal being considered nationally.

Victoria is leading the push to extend the existing defamation defence of absolute privilege to people who make complaints to police and bodies such as anti-discrimination commissions and professional disciplinary bodies.

The “complete immunity and defence” would apply “even where the speaker deliberately or maliciously made a false or misleading statement”.

Harper Lee’s classic morality tale, To Kill a Mockingbird, is especially pertinent at this cultural moment. Unfortunately, sometimes people lie about the most outrageous crimes. Even those supposed to have been perpetrated by men against women.

I am by no means suggesting that Brittany Higgins has not told the truth to the best of her ability. But what her case proves is you don’t have to go to court to get “justice”.  Because in this #MeToo age, the accusation itself is enough to condemn. And if it’s a man, then he is guilty until he can categorically prove he is innocent.

Mark Powell is the Minister at Cornerstone Presbyterian Church, in Hobart, Tasmania.