Legal and business experts have said there is no “rule of law” issue with the attorney general, Christian Porter, facing an independent inquiry into an allegation of sexual assault, allegedly committed in 1988.
Porter strenuously denies the allegations that, as a 17-year-old, he raped a 16-year-old girl at a university debating tournament. He told media on Wednesday that if he resigned “there would be no rule of law left to protect in this country”.
Earlier this week, New South Wales police ended an investigation into the matter, saying there was “insufficient admissible evidence”. The complainant died in 2020, and the South Australian coroner has held open the possibility of a coronial inquiry.
Prof Ben Saul from the University of Sydney said that coronial inquiries, royal commissions, civil suits and non-legal independent inquiries frequently were conducted regarding potential criminal matters, and it would “not at all undermine” the rule of law or presumption of innocence.
“Police not proceedings with charges is not the same, for example, as an acquittal by a court,” he told Guardian Australia. “[The court] is a definitive judgment, with independent testing of the evidence, that there isn’t enough to meet the criminal standard of proof.
“It may be the police dropped the case because there isn’t enough evidence. But there are a lot of reasons why police don’t proceed with charges … That could be based on whether there is a reasonable prospect of a conviction. That could be because of the time delay, the cost, the public interest factor.”
The family of the deceased woman have supported an independent inquiry into the issue.
Saul said that it was “par for the course” in the Australian legal system for non-criminal inquiries to look at potential criminal matters, without threatening the rule of law.
“It could be the coroner investigating a cause of death which of course, overlaps with a criminal investigation but often proceeds in the absence of one,” he said. “The question is always why is the conduct being investigated? That determines the standard of proof, what kind of evidence is admissible and what kind of outcomes.
“They could be mere recommendations – like the ombudsman, or a coronial inquest, or royal commissioners. Royal commissions can investigate all kinds of criminal conduct, but they are only recommendatory. But nobody says that because the police cleared somebody the royal commission can’t investigate them. That’s par for the course.”
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.”
Young, an industry professor at Jumbunna Institute at the University of Technology Sydney, said that a similar process would apply to a CEO.
“If it was the CEO of a big ASX listed company, or someone who was a university vice-chancellor, for example, and there was an allegation of this type made, then they would step down while an investigation transpired,” Young said.
“It is very normal for Australians to expect that if allegations are made, the person would be stood down, usually with pay, and an investigation would be started.
“Here, the person is the attorney general of the country, and the community expects some kind of investigation into the events to occur. And nobody would think it odd for it occur. Australians are used to it happening.”
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”.
Saul also added that any inquiry would depend on the outcome that people were seeking. He said most complaints would concern behaviour by a current employee in a workplace setting, which is not the case for Porter.
“Much of the situations like in the alleged Porter case, where someone did something outside of a workplace relationship, they could still, depending on the basis of someone’s employment, go towards their good character.
“It could absolutely still be relevant. If it involves criminal issues that is often a basis of some kind of workplace termination of course.”