Legal experts have called for an independent investigation of the historical rape alleged to have been committed by a cabinet minister, citing it as a “very serious” integrity issue for the cabinet.
The call by Geoffrey Watson, a barrister and director of the Centre for Public Integrity, challenges the Morrison government’s position that the police – and only the police – should investigate the serious offence, alleged to have occurred in 1988.
It comes after the Greens leader, Adam Bandt, called on Scott Morrison to stand the minister aside pending an independent inquiry, and the former prime minister, Malcolm Turnbull, backed a coronial inquest into the complainant’s death, after she took her own life in July 2020 without having given police a formal statement.
On Sunday the health minister, Greg Hunt, said the police “always will be the appropriate body to investigate matters of alleged criminality”.
He cited the Australian Federal Police commissioner Reece Kershaw’s letter advising parliamentarians to report crimes to the police in a timely manner and not to “disseminate allegations via other means” such as the media or third parties.
“I would hope that everybody in public life heard the police commissioner,” Hunt said. “The very strong advice of the police commissioner is that commentary upon such investigations is not an appropriate pathway.”
But Watson said “it’s obviously entirely appropriate to conduct a properly designed inquiry at the same time as there’s a police investigation afoot”.
“You only have to look at the fact the high court thought they could and should do it in Dyson Heydon’s case to realise the best lawyers in Australia thought that process was appropriate,” he told Guardian Australia.
Heydon denied any wrongdoing but was found by the inquiry, led by the former inspector general of intelligence and security Dr Vivienne Thom, to have sexually harassed six junior court staff.
Watson said despite the “dramatic story and sad circumstances” of the complainant’s death “none of that detracts from the need to get to the bottom of what happened”.
“The people whose integrity we depend on the most are cabinet ministers, just as much, maybe more so, than the judges themselves.”
“[They] should do it [set up an independent inquiry],” Watson said.
“This is even more serious than that case. Dyson Heydon had long left the high court [when he was accused of sexual harassment], but here the matter may go to assessing the integrity of the cabinet minister involved.”
Watson said the alleged perpetrator’s interests could be protected by closed hearings, a choice of whether or not to participate, and providing him reasonable legal costs.
Maurice Blackburn principal Josh Bornstein told Guardian Australia workplace investigations are common in the private sector if allegations are made against a senior executive.
The usual practice is to conduct them in private and suspend the executive on full pay pending the outcome, he said.
Scott Morrison has so far rebuffed calls for a fresh inquiry, with his office instead stressing that the ministerial standards only require a minister to step aside if they become “the subject of an official investigation of alleged illegal or improper conduct”.
Bornstein argued that “illegal conduct” is broader than just criminal conduct to be investigated by police, and could encompass a breach of civil laws. The prime minister could also seek the agreement of the minister to stand aside, he said.
“Prosecutions for criminal offences always involve a very high standard of proof.
“Disciplinary investigations and processes, while requiring proper proof, involve a lesser standard.”
Bornstein said it “seems unlikely the police will prosecute” – given the alleged victim is no longer alive.
But Watson said if the complainant made reliable statements about the alleged crime then a “police prosecution is not out of the question”.
On Sunday Turnbull told an audience at Adelaide Writers’ Week that the woman “kept extensive diaries”. The woman also recounted her complaint to friends before taking her life.
“So I don’t know whether there’ll be an inquest or not – frankly there should be,” Turnbull said. “The allegation is incredibly serious.”
On Sunday Labor leader Anthony Albanese said the decision of how to handle the allegation is a “test” for Scott Morrison, who must satisfy himself it is appropriate for the man to continue in his current position.
Bandt said the “circumstances of this case and the potential difficulties of prosecuting the matter mean the prime minister cannot wait for the police investigation alone”.
“If the prime minister doesn’t at least stand this man aside while he conducts his own inquiry, then he’s sending the terrible message there is space in his cabinet for someone with an unresolved rape accusation.”