Essentially, the Prime Minister claimed that he had no alternative because the New South Wales police had dropped their investigation into the allegations. He cited the importance of following the rule of law and insisted that Porter is entitled to the 'presumption of innocence’.
The Prime Minister is correct: Porter would be entitled to the presumption of innocence if he faced court. However, his use of the principle to deflect calls to stand Porter down pending an investigation is wrong.
In this case, the presumption of innocence is not a mechanism to ensure an individual receives a fair hearing. Rather, it is being deployed to shield a powerful member of the Government from scrutiny and to preserve his position.
The presumption of innocence is a balance against the tremendous power of the State. It means that when defendants walk into a criminal court, they do so without the burden of having to prove their innocence.
Instead, the prosecution must show that the defendant is guilty, which places the onus of proof on the State. This principle balances the discrepancy in financial and legal resources that exists between an individual and the Government, because proving an allegation is much more difficult when someone is presumed innocent.
Morrison’s use of the presumption in this context is a warping of a cardinal principle of our system of justice. The presumption of innocence is a legal construct for use in matters that come before the courts. Porter is not facing a criminal trial. The presumption does not, and should not, operate outside criminal courtrooms.
In fact, we have to be able to presume a person may in fact not be innocent and that a case against them may exist.
The Government or senior bureaucrats have to be able to act swiftly to stand a person down if there is a credible claim of wrongdoing against them, to protect the integrity of our public institutions. The police or other public bodies need to be able to begin investigations when credible allegations are made against a person. It could be difficult to justify either of these actions if we are to presume everyone is innocent.
The presumption of innocence works in conjunction with the requirement to find someone guilty beyond a reasonable doubt in a criminal trial. Beyond a reasonable doubt is the highest standard of proof we use. When someone is presumed to be innocent and can only be convicted if shown to be guilty beyond a reasonable doubt, the courts are setting a very high standard of proof.
This is because the consequences for getting it wrong are severe: innocent people can otherwise be put in jail. But using these standards to avoid an inquiry into Porter’s actions is misinformed at best. Porter is not facing a criminal trial and no other form of inquiry would be able to punish Porter or make any formal, judicial finding of guilt.
The risks that the presumption of innocence and the requirement to establish guilt beyond a reasonable doubt are there to counter simply do not arise in this situation.
Formally constituted inquiries are an important feature of our democracy. Parliamentary committees, for example, regularly investigate issues relevant to our governments, bureaucracy and institutions. At times, these committees raise uncomfortable issues for individuals.
The ideal is to have a transparent system where problems are uncovered, the public interest is considered and improvements are made. The same applies to other forms of inquiry, such as the kind that would investigate the allegations against Porter.
The historical allegation of rape is a deeply personal issue for Porter, but it also intersects with the public interest, given that he is the Attorney-General. It is critical that Australians have faith in the first Law Officer in the country. In using his understanding of the presumption of innocence to head off calls for further investigation and for Porter to stand aside, the Prime Minister is undermining the ideal of transparent and accountable government.
Moreover, he is turning a legal principle that is designed to limit the power of the State in criminal matters on its head. The presumption of innocence and the requirement to establish guilt beyond a reasonable doubt protect our rights. But acting as the Attorney-General is not a right, it is a privilege.
Privileges should come with greater oversight and higher standards.
Paul Taucher is a PhD candidate and casual tutor at Murdoch University with undergraduate degrees in Law and History.
Dr Dean Aszkielowicz is a lecturer at Murdoch University.
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