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  • Writer's pictureCarrick Ryan

The Pursuit of Parliamentary Justice

I've held back commenting too much on the recent very serious allegations in Parliament for a number of reasons.

To put it most simply, there are certain issues where men need to speak less and listen more. There are plenty of amazing female journalists and communicators leading the charge here and there really wasn't a great deal I was going to add on the issues of sexual harassment and assault.

Instead, I've decided to enter my two cents on the precarious pursuit of justice when it comes to the behaviour of our politicians. I will warn from the outset, this is a murky area in which I can only seem to add more grey to the picture.

To start with, unless there is some pretty strong corroborating evidence, it is inconceivable that any prosecution would be successful without a complainant in Court to give her evidence.

It is one thing for her to have made a number of historic proclamations as to what happened but if the accused does not have the opportunity to cross examine their accuser in Court then they are ultimately denied natural justice.

Her previous statements would be at best circumstantial corroborating evidence. In the absence of anything substantial to incriminate the defendant, his denials alone would be enough to throw sufficient "doubt" on his guilt.

Morrison knows this, which is why he is quite happy to avoid questions by deferring to a Police investigation he knows will go nowhere.

But it is necessary to also consider the hypothetically plausible scenario that the defendant is innocent. In the situation as it stands, just as the Police have no avenue to prove his guilt, he has no recourse to prove his innocence.

The likely end result is deeply unsatisfactory on multiple levels.

The Australian people are unlikely to know if a Cabinet Minister is a rapist, and the hypothetically innocent Cabinet Minister has no mechanism to prove he is not one.

I have seen many people raise the somewhat optimistic hope that a Coronial inquiry into the victim's death will somehow be expanded to examine the alleged rape; this isn't going to happen. A Coroner is concerned exclusively with the cause and circumstances of a death, almost all suicides are investigated by a Coroner as normal practice. There is no scope for the Coroner to explore the veracity of historic allegations.

This then leaves us with the prospect of an inquiry, the shape and form of which raises even more questions.

How transparent will it be? What powers will it have? Is it seeking to confirm criminal guilt? Or impropriety? What level of proof will it need to find a resolution?

Not withstanding the desperate need for a Federal ICAC, this matter would be unlikely to fall within their scope.

Do we need an independent body to investigate ethical failings from our politicians? If so, this raises the possibility of a body inferring guilt upon a person our legal system has determined is innocent. What becomes of this person? Who decides what is intolerably unethical to sit in Parliament? Is this not the mandate of the voting electorate?

Ultimately, yes, it has always been up to us the voters to decide where that threshold exists, and historically it has been the Political Party that has tapped politicians on the shoulder to let them know when they have crossed into irrecoverable territory.

So what has changed? In a word: Trump.

Staring down lethal scandal after scandal, Trump rewrote the political play book. The notion of falling on one's sword has been replaced by staring down the fleeting media cycle until attentions have passed.

Gladys Berejiklian, with the assistance of a fairly sizeable distraction, avoided what was deemed a fatal corruption scandal. A fact every politician in the country no doubt scrutinised closely. They now know it works here too.

Undeniably, rape is incomparable to corruption on both an ethical and political level, but in absence of any meaningful forum to test the allegations, any guilty Minister could be sufficiently shielded by ambiguity to survive.

As I warned, I have provided more questions than answers, but hopefully I have shed more light on the scope of our dilemma.

We are still struggling to adapt our democracy to the Trump era of politics. As it stands, both the victim and the innocent politician are losers, and only the guilty are greater served.

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1 Comment

Mar 01, 2021

I agree with all you say about the prospects of a successful prosecution in this case and the malevolent influence of Trump. Maybe I’m old-fashioned, but when a person is accused of a serious offence against another person, and the prospects of a successful prosecution are reduced to near zero because the victim of the offence committed suicide (perhaps as a result of the offence), the appropriate test for determining whether the alleged offender should continue to serve as a minister of the Crown and decide what laws and policies should apply is not the criminal test of beyond reasonable doubt but something far lower - perhaps lower even than the civil balance of probabilities test. There are plenty o…

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