New South Wales police have decided to close their investigation into the rape allegation against the attorney general, Christian Porter, an allegation which he has emphatically denied. It is now vital the prime minister institute an independent inquiry to transparently consider the allegation, and the circumstances surrounding the death of the woman who alleged she was raped 30 years ago, as a 16-year-old. The proper governance of the nation demands it. Without an independent inquiry there remains a shadow over the Morrison government and attorney general.
The NSW police reportedly closed the case because there was insufficient admissible evidence. In a criminal case, police must prove their case beyond reasonable doubt - a high bar indeed when the key witness is now deceased and unable to give a first-hand account.
But a criminal prosecution is not the only way to test the truth of an allegation. A fair and independent inquiry would provide Porter with the opportunity to clear his name. An inquiry would consider all available evidence, including that of the attorney general, if he chose to participate, statements made by the complainant, evidence of contemporaneous complaint, diary entries, all of which can be tested through a fair process.
Without an inquiry, the shadow of doubt will persist within the Australian public as to whether Porter is a fit and proper person to retain his role as Australia’s first law officer.
The foreword to the prime minister’s statement of ministerial standards states, holding office as a minister “is an honour and comes with expectations to act at all times to the highest possible standards of probity.” In order to maintain the trust of the Australian people, ministers are held to higher account than others in the community. The ministerial standards require that conduct must, both “in fact and in appearance”, comply with the standards. It also requires that their conduct in a private capacity demonstrates appropriately high standards of personal integrity.
It is not sufficient that a cabinet minister’s behaviour is above reproach – in order to maintain public trust they must appear beyond reproach. Scott Morrison taking Porter’s word that he “absolutely rejects the allegations” may not be sufficient to satisfy most Australians.
The coronial inquiry foreshadowed in South Australia will shed light on the circumstances of the complainant’s death, but it will not investigate her allegations of rape. A fair and independent inquiry remains the only available means for that task.
Despite Morrison’s protestations on Monday that his office does not have trained or competent people “to investigate matters of this nature”, he has, as prime minister of Australia, resources, including the power to appoint an independent investigator and call an inquiry.
According to the statement of ministerial standards, the prime minister can not only refer “a matter to an appropriate independent authority for investigation and/or advice”, he can also “decide whether and when a minister should stand aside if that minister becomes the subject of an official investigation of alleged illegal or improper conduct…”.
It is essential that any inquiry be both independent and fair. This is in line with the presumption of innocence applicable to the criminal process, and the requirements of due process or natural justice applying in administrative proceedings. A fair process requires that the case to answer be put to Porter and that he be given a proper chance to answer it.
Independent investigations are routinely carried out within professional associations, corporations and government departments, when allegations of sexual harassment or bullying are made.
A recent example of an independent investigation was the process adopted by the high court of Australia regarding the complaints of inappropriate conduct made against former justice Dyson Heydon. It would be appropriate in this instance for an inquiry to be undertaken by a retired judge or a respected senior lawyer.
It is essential that the public is assured the process is at arm’s length from all parties involved, and that it is conducted without bias, or the perception of bias.
It must be fair because natural justice demands it. A person accused of such a serious allegation is entitled to due process and it would be a gross injustice if procedural fairness were not respected.
The fact that Morrison’s statements to date indicate that an independent investigation into this serious allegation is not being considered, is disappointing to say the least. It fails the attorney general, depriving him of the ability to clear his name, and it fails the Australian people, depriving them of a transparent process and faith in their government.
• Pauline Wright is president of the New South Wales Council for Civil Liberties
