There will be no justice for anyone without an inquiry

To be clear from the very outset, I believe the Morrison government should initiate an independent inquiry into the rape allegation Christian Porter vehemently denies.

I accept there is no question of criminal liability here – that Scott Morrison is correct to say Porter is “an innocent man under our law” – and that there is no reversing that. But the unique circumstances of this case mean that no one has been accorded procedural justice in this. Not those close to the alleged victim, and not Christian Porter who must now labour under the cloud of a shocking, but unexamined allegation.

Attorney-General Christian Porter has strenuously denied the rape allegation.Credit:Trevor Collens

If Porter’s innocence is a legal fact, the taint surrounding him is (like it or not) now a political one. That might not have been so had the police been able to investigate fully. But the alleged victim’s death means that investigation ended before it could begin.

The taint exists largely because there has been no satisfactory ventilation of all this. And that’s a problem because Porter isn’t a private citizen: he’s a representative, and a very senior one.

Any taint attached to him also attaches to the relationship of civic trust that must exist between the people and their government. We desperately need a mechanism to restore that, and an inquiry is the best we have.

Illustration: Simon LetchCredit:The Sydney Morning Herald

But for all that, I have to confess the prospect of an inquiry worries me. Not for the various “rule-of-law” reasons the government has offered, which seem to miss the fact this would not be a legal process seeking to impose a legal punishment. Rather, I think there’s a real danger the inquiry will fail to resolve anything unless we’re very clear on what is – and especially what is not – the reason to do it.

That danger begins if we approach this cheering on or expecting a particular result. An inquiry like this is apt to be unpredictable and is unlikely to be pretty.

I’d expect everything to be interrogated, from the veracity of every little aspect of the victim’s statement (most of which we don’t know), to her psychological state and credibility as a witness.

All kinds of witnesses would be called to that effect – her friends, her family, anyone else she has mentioned in her notes. They would likely all be grilled.

I imagine much of this would be confidential, but it would still be traumatic. And after all that, there would be no guarantee whatsoever that an inquiry would find Porter guilty of anything – even on the lower civil standard of proof.

Accordingly, those calling for an inquiry would need to ready themselves for an “acquittal”. To be clear, I don’t say that as a prediction, but as an acknowledgement that a finding in Porter’s favour is a live possibility. And if that were to transpire, what then?

Well, nothing too detrimental for the general public if we’ve approached this, not as an ersatz trial, but as a process of national healing. An inquiry would call on us to be citizens dealing with a truly awful wound to our civic life, embarking upon the best way of treating it.

Is an inquiry the answer? Credit:Illustration: Andrew Dyson

It would require us to hold hands and take the plunge together, pledging to accept whatever decision comes – not with a view to claiming victory, but with a view to allowing us to move on with our common life. It probably even demands a certain dispassion as to the outcome.

How many people would you say that describes? I honestly don’t know. I can only observe that this has quickly become a uniquely impassioned issue for several reasons.

Prime Minister Scott Morrison.Credit:Kate Geraghty

One is the government’s handling of it, which ranged from incurious when the Prime Minister admitted he didn’t even read the full letter given to him, to dismissive as it has tried to declare the matter closed in the face of so many disillusioned people.

But more fundamental is the sense that the criminal justice system – like so many other social systems –routinely fails women, and especially victims of sexual violence. They might be disbelieved by police, or failed by the quality of the investigations of their complaints.

Or perhaps they’re dissuaded from proceeding by the trauma involved in reliving the assault in a courtroom and being attacked in cross-examination. And if they get through all that, they run into an evidentiary burden that is very hard to meet, especially where the attack happens with no other witnesses. Little wonder successful prosecutions are so rare.

The criminal justice system routinely fails women.Credit:Illustration: Dyson

Women have every right to be outraged by this. But if that outrage means the Porter case becomes a representative one – where Porter stands in for every unpunished perpetrator and the deceased woman stands in for every abandoned victim – then any failure to condemn Porter becomes explosive.

Far from restoring confidence in our government, it will likely render the inquiry itself illegitimate in the eyes of many: the latest incarnation of a system that fails women.

None of this means an inquiry should not happen. It should. Sure, it risks disillusionment. But the idea of doing nothing – of leaving this to fester with no sense of procedural justice and no attempt to restore public confidence – guarantees it.

It would have been so much better had the government announced an inquiry immediately, before it metastasised into something so intensely polarised. That has heightened the risks and left us with no good answers.

But if we can get our intentions right, there is still some hope. At the very least Australians deserve a shot at realising it.

Waleed Aly is a regular columnist.

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