2 March 2021

PUBLIC STATEMENT

Prime Minister abrogates his responsibility to look into the allegations of historical rape

In response to questions at a press conference yesterday about allegations made by a woman that she was raped in 1988 by a man who is now a Cabinet Minister, the Prime Minister stated that he had reported the matter to the Australian Federal Police and that the Commissioner had indicated that there was “nothing immediate” in terms of necessary actions that he considered the PM should be taking. The Prime Minister said that he was awaiting the advice of the Commissioner on the status of “other jurisdictions” that could be potentially involved when the Commissioner was “in a position to do so”.

Presumably the “other jurisdictions” refer to police in the State or Territory in which the rape is alleged to have occurred. The Australian Federal Police would not have jurisdiction unless the crime were alleged to have occurred in the ACT or the Northern Territory.

This deferral to the authority of the Commissioner of the Australian Federal Police by the Prime Minister of Australia is nothing short of an abrogation of his responsibility for the proper governance of the nation. It is the Prime Minister, not the Commissioner of the AFP, who is ultimately bound to consider whether the person is fit to serve in Cabinet.

Reporting this complaint of criminal conduct to the police was certainly appropriate in the circumstances, but it is not a complete discharge by the Prime Minister of his responsibility with respect to the information he has received, particularly under circumstances where the complainant is now deceased and would not be available to give oral evidence in a criminal trial. There are other responses that are available to the Prime Minister that should be considered quite separately from the police investigation.

The Prime Minister’s assertion that “it is the police in a country where you are governed by the rule of law that determine the veracity of any allegations of this nature” is quite mistaken in two respects.

First, the role of the police, when put on notice of a possible criminal offences, is to investigate and gather evidence and decide whether or not to pursue a prosecution based on a number of factors, including the nature and circumstances of the possible offence and the likelihood of a conviction based on the evidence to hand. It does not involve a determination by the police as to whether ‘allegations’ are true or false. Indeed, there are cases where the police are satisfied that the matter should be prosecuted and where there are no allegations at all, such as where sufficient evidence has come to notice without a complaint or allegation of any kind having been made by anyone.

Secondly, there is an implication in the Prime Minister’s assertion that the police have the exclusive function of determining the truth or falsity of the allegations which have been made in a complaint. This is patently wrong. Under our criminal justice system, it is the courts, and not the police, that have the function of making all necessary findings of fact if the matter goes to trial. It is fundamental to the rule of law that a person should not be subject to punishment by the State, whether by fine or imprisonment or otherwise, without determination of guilt in a court of law, and that finding must be beyond a reasonable doubt. More particularly, it is wrong to assert by implication that no other person or agency has the role or the function or the duty to determine whether a serious criminal offence has been committed.

Independent investigations are routinely carried out within corporations and government departments, for instance when allegations of sexual harassment or bullying are made. Internal arms’ length investigations are commonly undertaken in workplaces either in a parallel process if police charges are pursued, or as an alternative if police charges are not pursued. Similarly, where a complaint is made against a professional, and if it would tend to bring the profession into disrepute if proven, or otherwise reflects upon that person’s professional conduct, it may be investigated by the person’s professional association and potentially taken to court to determine whether they continue to be a fit and proper person to hold their position within the profession.

One recent example of the commissioning 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. The Chief Justice Susan Kiefel AC made a public statement upon the conclusion of that investigation about the complainants that:

“Their accounts of their experiences at the time have been believed.”

“We’re ashamed that this could have happened …”

Where a complaint is pursued through a workplace or professional complaints process, the truth or otherwise of the allegation will be determined through the independent complaints mechanism by the investigator, as occurred in the High Court example. The same would be the case if the Prime Minister were to instigate an independent investigation into this allegation of historical rape.

The Prime Minister also asserted yesterday that he and his office “do not have the people or others who are trained or competent or authorised to investigate matters of this nature”. Yet he has at his disposal all of the resources of his office as the first minister of Australia, including the power to appoint an independent investigator.

It is noted that the allegations are said to be vigorously denied by the accused person and it is important to remember that the presumption of innocence applies in any criminal process.

While the police investigation and criminal process should run its course, the Prime Minister should be considering as a matter of priority, and irrespective of any criminal process, the institution of an independent investigation into the complaint. Such an investigation would be expected to take into account all the available evidence, including the evidence of the person against whom the allegations are made” if he chose to participate, as well as any statement made by the complainant, any evidence of contemporaneous complaint, diary entries or the like.

To the extent that his statements yesterday means that consideration is not being given by the Prime Minister to an independent investigation into this serious allegation is disappointing to say the least.

Pauline Wright | President NSWCCL

Contact: [email protected]