What is an independent inquiry and how does it relate to the rule of law?
**Warning: This article contains mention of sexual assault and suicide.
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Over the past week, an allegation of sexual assault against Attorney General Christian Porter has come to light. The allegation is that Porter raped a 16-year-old girl when he was 17, in 1988. The woman who made the allegation made a report to the NSW police, then later told the police she did not want to proceed with the complaint. She died by suicide only a couple of days later. Porter denies the allegation. It has caused a big uproar in the public and media, probably largely because Porter is the First Law Officer of Australia and it is a serious allegation.
If you’ve been following the news, you would be aware that there have been calls for an independent inquiry into the matter. You’ve probably also heard the phrase ‘rule of law’ being used quite a bit. In this article, we will explain what an independent inquiry is and how it operates and what all of this has to do with the rule of law.
There are different types of inquiries, such as royal commissions, that are provided for in legislation. The legislation gives these inquiries particular powers, such as the ability to compel a person to give evidence. An inquiry can also be held that is not provided for under legislation. These are often held by business and sporting bodies, for example, but they don’t have the same powers as those that are established under legislation. Barrister Fiona McLeod SC told the Sydney Morning Herald, in reference to a potential inquiry into Porter, that ‘there is no precedent for an inquiry such as this’ and there’s no ‘off the shelf process’ that can be used.
Inquiries are not criminal investigations and cannot result in criminal convictions. The only place a criminal matter can be heard is in a Court. In Porter’s case, the police have ceased their criminal investigation and, therefore, with the current available evidence, Porter won’t be charged with a criminal offence. If an inquiry does occur, civil principles will apply, rather than criminal. Some people have suggested that an inquiry could determine whether Porter is a ‘fit and proper person’ to hold the office of Attorney General, rather than looking at criminal offences.
Being a civil process, the investigator of an inquiry needs to be satisfied, on the balance of probabilities, that what is being alleged happened. There are lots of different descriptions of what ‘balance of probabilities’ means – some say it’s a more than 50% chance that something happened. In reality, it cannot really be assigned a numerical value. It requires a holistic approach to the circumstances of the case and an assessment of whether something is more likely than not to have happened.
There has been discussion about using the Dyson Heydon inquiry as a precedent for an inquiry into Porter. Heydon is a former High Court of Australia Judge, who was alleged of sexual assault. An inquiry conducted by High Court Chief Justice Susan Kiefel found Heydon harassed six former staff members. However, there are some significant differences between the Heydon matter and the allegation against Porter. The allegations against Heydon were of instances that occurred in the workplace, whereas the allegation against Porter does not relate to work and occurred more than 30 years ago (when Porter was still a minor).
There has also been discussion about ensuring that a Minister of the Federal Cabinet should have to satisfy a test of character to ensure they are a fit and proper person to hold that position. Many regulators of professional bodies have to be satisfied that their members are fit and proper to ensure they are granted the right to practice. There is no regulated process of this nature for members of the Federal Cabinet. It is left to the leadership and the electorate to determine this.
Porter and Prime Minister Scott Morrison have both made reference to the rule of law and how an inquiry would put Porter in the position of having to prove his innocence. The rule of law is an overarching principle of our justice system, which essentially says that everyone is governed by the same law – whether they are the Prime Minister, the Attorney General, or anybody else. This means that everyone is entitled to the presumption of innocence – the ‘golden rule’ that a person is innocent until proven guilty. The saying goes: ‘he who alleges must prove’.
For example, if someone alleges that you stole money off them, you don’t have to disprove the allegation. That is, you don’t have to prove your innocence, they have to prove your guilt. In a criminal matter they have to prove it beyond reasonable doubt, and in a civil matter, as discussed above, they have to prove it on the balance of probabilities.
What Porter and Morrison have been saying is that Porter is innocent until proven guilty – which is true. Porter is entitled to the presumption of innocence, just like everybody else. However, the argument being made is that holding an inquiry doesn’t erode the rule of law because an inquiry will not require Porter to prove his innocence. Rather, the investigator would have to be satisfied, on the balance of probabilities, that the alleged event occurred before they could make a finding of that nature.
We don’t know whether an inquiry will be held or, if an inquiry is held, what form it will take. What we do know is that if an inquiry is held, it won’t be for criminal charges. Any potential inquiry into Porter will be a civil process, following civil standards of proof and complying with the presumption of innocence.
About the authors:
This article has been co-authored by Chelsea McNeill and Steven Brown at Lynn & Brown Lawyers. Chelsea is a Law Graduate from Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.