NSWCCL on government’s proposed new hacking powers
Media coverage: InnovationAus
Civil society has been “completely sidelined and ignored” in the inquiry into the government’s proposed new hacking powers, after no civil or digital rights groups were invited to the only public hearing, Deakin University senior lecturer Dr Monique Mann says.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is conducting an inquiry into the Identify and Disrupt Bill, which hands sweeping powers to the Federal Police and Australian Criminal Intelligence Commission to hack into the devices and networks of suspected criminals to ‘disrupt’ their data and covertly take over their accounts.
The PJCIS held its only public hearing as part of its inquiry last week, but no civil or digital rights organisations were invited to appear before the committee.
The NSW Council of Civil Liberties labelled the proposed laws a “catch-all formula for abuse” and “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.
Allegations against Porter more than scuttlebutt says NSWCCL President
Media coverage: The Saturday Paper
Independent inquiry no threat to rule of law say legal experts
Media coverage: The Guardian
A former president of the Law Council, Pauline Wright, and workplace expert Narreen Young, said that if a CEO of a company or a senior lawyer in a firm were accused of a similar historical crime, they would normally step down while an investigation took place.
“If it was a partner in a law firm, generally speaking a complaint would be made to the Law Society of NSW, if it was in NSW, or the office of the legal services commissioner,” Wright said.
“And an investigation would take place by the independent body, and it would be looking at whether the person was fit and proper to continue on the roll of solicitors, or admitted as a barrister. The potential outcome for a solicitor or barrister is being struck off. Because this is the sort of thing that would bring the profession into disrepute”.
Wright said that, as the first law officer, the attorney general should be held to a similar standard.
Any inquiry would look at “fitness to continue in the role as opposed to criminal guilt”, she said, and thus would not conflict with the criminal law.
“It is not looking at his criminal guilt,” she said. “It is looking at whether or not he is of that very high standard that we expect of ministers, particularly of the first law officer.
“There would be numerous examples where individuals are accused of inappropriate behaviour where it is not referred to the police necessarily,” she said. “You might find the complainant doesn’t want to go to court but is very happy for there to be an investigation internally.”
Wright, who is also the president of the NSW Council of Civil Liberties, said that an independent inquiry could also apply a different standard of proof – higher than the usual civil standard of “balance of probabilities”.
“There is another standard called comfortable satisfaction, which is a higher standard than balance of probabilities, but not as high as reasonable doubt.
“It is the kind of standard that is often applied in administrative proceedings. I would have thought that is the kind of standard you were meaning to apply in a potentially serious allegation”.
Porter should face inquiry - NSWCCL President
Media Coverage: Australian Financial Review
Ms Wright said the “fact that a criminal prosecution is not proceeding does not mean that the matter is settled in the minds of the public”.
“There is nothing novel about independent inquiries being called to look into allegations even where the conduct alleged amounts to criminal behaviour.
“There is no breach of the rule of law if such an inquiry is conducted fairly in accordance with principles of natural justice or procedural fairness.”
Ms Wright said that if the allegations were true,“it would cast serious doubt on the integrity of the Attorney General and his fitness to be a Minister.
“For that reason, the PM should call an independent inquiry ensuring that procedural fairness is followed, ensuring the AG knows the case he has to answer and is given the opportunity to respond and clear his name.”
NSWCCL President 'Porter to be 'in shadow' until inquiry is held'
Media coverage: Sky News Australia
NSW Council for Civil Liberties President Pauline Wright says an inquiry into Christian Porter is necessary because until it is conducted his character and innocence will be in doubt.
Mr Porter yesterday declared historical rape allegations laid against him were false, stating he would not be stepping down from his position as attorney-general because it would set a precedent which could see anyone removed from a position simply by an allegation.
Asked whether he was right in making the point about bowing to pressure over allegations, Ms Wright said his comments proved the need for an inquiry. “Because unfortunately … unless and until an inquiry is held there will be a shadow over the attorney general and over this government,” she told Sky News.
“For a start he is the attorney general of Australia, he is the first law officer, he has got to be above reproach, ministers are held to higher account than others in the community.
“And again the prime minister’s ministerial standard require that conduct of his ministers must both in fact and in appearance comply with the standards.
“And their private conduct in a private capacity has to demonstrate those high standards of personal integrity.”
Opinion: Without an inquiry, doubt will persist
Media coverage: The Guardian
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.
President calls for independent inquiry, Cabinet Minister rape allegations
Media Coverage: The New Daily
Pressure is mounting on the cabinet minister at the centre of a historic rape allegation to step down and for a judicial inquiry into the claims.
The accused minister, who emphatically denies all allegations, is expected to make a public statement on Wednesday and repeated his staunch denial of the brutal assault.
Pressure is building on Prime Minister Scott Morrison to establish a judicial inquiry into claims the man raped a 16-year-old girl in 1988. The woman at the centre of the accusations died in 2020.
Lawyer Michael Bradley, who represented the woman, said it was no longer a criminal matter.
“We have a senior cabinet minister who’s been accused of a grave crime and that calls into question his integrity and, at the moment, the integrity of the whole cabinet,” he told the Seven Network on Wednesday.
Mr Bradley believes the minister should step down while an independent inquiry looks at the allegation.
NSW Council for Civil Liberties president Pauline Wright said independent inquiries were routinely conducted in government and corporate settings.
She said any investigation would need to ensure the minister received a fair hearing.
“The Australian people deserve to have it got to the bottom of. There needs to be some kind of investigation into this,” Ms Wright told ABC radio.
NSWCCL President on PM's rape claim response
Media coverage: 7News
'Senior lawyers have schooled the prime minister on his understanding of Australia's criminal justice system as they urge him to launch an independent investigation into rape allegations against a senior minister...
The NSWCCL's president Pauline Wright says passing the issue to the federal police is "nothing short of an abrogation" of Mr Morrison's responsibility for the proper governance of Australia.
"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," she said on Tuesday.
"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."
The council says Mr Morrison should follow the approach taken by the High Court and launch an independent inquiry.
Former High Court justice Dyson Heydon was last year found by the court's own independent inquiry to have sexually harassed six young female associates.
Ms Wright says independent investigations are a routine part of corporate and government department procedure for staff facing allegations of sexual harassment or bullying.
"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," the former Law Council president said.'
Prime Minister abrogates his responsibility to look into the allegations of historical rape
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]
