What an inquiry into the allegations against Porter could look like

The federal government has rejected calls for an independent inquiry into allegations that Attorney-General Christian Porter raped a 16-year-old girl more than 30 years ago.

Mr Porter denied the allegation on Wednesday. But demands for an inquiry are growing, with suggestions that the political crisis is unlikely to disappear.

How are allegations of rape normally dealt with?

Via a police investigation and potentially a criminal trial. This will not happen because NSW Police announced it had closed its investigation after the woman died in June last year without making a formal statement.

Yesterday, NSW police released a statement that the woman had ‘‘very clearly articulated’’ in an email sent two days before she died by suicide that she did not want to proceed with the complaint.

A coronial inquiry could still occur and could take into account the allegations of rape if it is deemed to be relevant as a contributing factor in the woman’s death.

Where did the idea of an independent inquiry come from?

Friends of the woman wrote anonymously to Scott Morrison last week, urging the Prime Minister to establish an independent investigation into her claims, similar to the inquiry established by the High Court into allegations of sexual harassment against former judge Dyson Heydon.

The letter anticipated that the woman’s death meant there would be no criminal charges, but said that leaving it there meant ‘‘considerable damage to community perceptions of justice’’.

How would such an inquiry work?

It is not entirely clear. Prominent barrister Fiona McLeod, SC, said inquiries are often set up by business, sport and other professional bodies to address allegations of unprofessional conduct or misconduct that are different to criminal investigations. ‘‘These civil processes are very familiar to the law,’’ Ms McLeod said.

The government could appoint an independent person with investigative experience (such as an ex-judge) to advise what the parameters of the inquiry should be.

Barrister Rachel Doyle, SC, says there’s no ‘‘off the shelf’’ process that could be applied in such a case – there is no exact precedent for an inquiry such as this.

‘‘It’s not for me to say whether an inquiry should or shouldn’t happen but one reason why people might think it would be desirable to happen is because the allegations are serious and because the person they’re levelled against is the Attorney-General,’’ Ms Doyle said.

Australian Women Lawyers president Leah Marrone said an investigator could determine if Mr Porter is a ‘‘fit and proper person’’ to hold the office of attorneygeneral, rather than focus on a criminal matter.

Would an inquiry be confidential?

Ms McLeod says there is a need to balance the reputation of the person under investigation with the public interest in the process.

In inquiries carried out by ICAC or IBAC – the corruption watchdogs in NSW and Victoria – the inquiry satisfies itself that there is a need to proceed beyond the first review of the allegations. At that point, says Ms McLeod, ‘‘a hearing of evidence would then be held in public if appropriate’’.

Ms Doyle says workplace inquiries are usually conducted behind closed doors to enable people to speak freely and privately. This was the case with the High Court inquiry into Mr Heydon.

What standard of proof would be required?

In a criminal court, prosecutors have to prove beyond reasonable doubt that a crime occurred, but in a civil case the standard of proof required is on the balance of probabilities.

It’s a lesser standard than in a criminal case and the Briginshaw principle would also apply, ‘‘a lawyer’s term that means satisfaction to the highest degree within the civil rubric,’’ Ms Doyle says.

Mr Porter said in his press conference that if he were subject to an independent inquiry, he would be put on trial in circumstances where he would, in effect, be required to disprove the allegation.

But Ms Doyle says an inquiry need not reverse the burden of proof. It would be up to the investigator to satisfy themselves at a standard higher than the balance of probabilities whether or not the alleged events occurred.

Would it be similar to the Dyson Heydon inquiry?

The reason the High Court’s inquiry keeps being referred to is because it was seen as a successful mechanism to investigate the claims against the former judge, to listen to the women who the inquiry found were sexually harassed, and at the same time, balance Mr Heydon’s rights.

Mr Heydon denied the claims when the inquiry’s findings were made public, and criticised the process as non-judicial. He did not participate in the inquiry.

Both the inquiry itself and its report were confidential, however, once it was finished, High Court Chief Justice Susan Kiefel released a statement that said it had found Mr Heydon harassed six former staff.

The key difference was that the Heydon inquiry was a workplace investigation and the investigator could question the complainants. In the Porter case, the allegations do not relate to the workplace but allegedly happened in 1988 when the now Attorney-General was 17, long before he entered Parliament,

Because the woman is dead, she cannot be questioned, although evidence could be examined.

Would Mr Porter be forced to co-operate?

That would depend on the type of inquiry it was and whether it were afforded the powers to force witnesses to give evidence and documents to be handed over.

Who’s for an inquiry and who’s not?

Prime Minister Scott Morrison is not. He told reporters yesterday he didn’t agree with the calls to launch an inquiry because ‘‘that would say that our rule of law and our police are not competent to deal with these issues’’.

Mr Porter also rejected the suggestion of an inquiry in his press conference on Wednesday.

As well as the alleged victim’s friends, the Greens and Independents Jacqui Lambie and Zali Steggall back an inquiry. Labor leader Anthony Albanese has not specifically supported one, but said yesterday that Mr Porter’s denial ‘‘cannot be the end of the matter’’.