The Christian Porter allegations and the National Redress Scheme

March 4, 2021

In our major article on this site, setting out our reasons for not joining the National Redress Scheme, we set out our position as being strongly based upon the rule of law and democratic principles.

We stated “The issue of institutional failings cannot be pre-determined independently of ascertaining whether allegations are true. The principle of the presumption of innocence is important and should not be readily abandoned even in the furtherance of the humane and responsible objectives of the National Redress Scheme.”

We wrote to the NSW Attorney General stating “As Attorney General, that is the chief legal officer of the State, you will no doubt feel revulsion, in a system based on the rule of law, at the notion of guilt by accusation alone.”

Christian Porter’s statements

In 2017, as the then Minister for Social Services, Christian Porter introduced into Parliament the legislation for the National Redress Scheme.

Anyone can contact the scheme and say that they were abused as a child and without due process, in fact it appears without any real process, can receive up to $150,000 compensation.

On 3 March 2021 Christian Porter the Commonwealth Attorney General made statements while defending himself against allegations of sexual assault.

Christian Porter said about the allegations against him:

“If you could just imagine for just — and I know that we're all cynics and this is a hard and tough and fast environment that we're all in — but just imagine for a second that it's not true, that for whatever reason the recollection and the belief, which I'm sure was strongly held, is just not true. Just imagine that for a second.”

Mr Porter spoke about those who have been accused of sexual assault:

“... there is rights and there are circumstances where someone might absolutely believe something, but it might not be a reliable account. That is actually why we have a justice system. It is why we have courts and the presumption of innocence and burdens of proof. That is why we do these things in that process and not like this”

Porter stated:

“If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life's work, based on nothing more than an accusation that appears in print. If that happens, anyone in public life is able to be removed simply by the printing of an allegation.

Is he aware of how many people have taken their life because of false allegations?

[Addressing why he is not going to step aside he said] - “I think that in the statement that I have given you, I have tried as best I can to address why I think that would be the wrong course. Because it would mean, in this hyper-politicised world that we have, that any allegation would basically mean if it weren't resolved through a court process to some group's satisfaction, that the person has to end their life and their career.”

The Attorney General spoke about the difficulty of defending himself against false allegations:

“You are talking here about a civil determination of a criminal allegation on presumably the standards of balance of probabilities where I would be asked to disprove something that just didn't happen 33 years ago. So, if that happens, I couldn't succeed to disprove something that didn't happen.”

Is he aware of the people who have lost jobs etc, as he states, because of complaints against them in the National Redress scheme?

The presumption of innocence and the Dyers Direction

Mr Porter’s summary of how a procedure in relation to the rape allegation would be dealt with incorrectly sets out the standard of proof and the burden of proof.

In any case involving an allegation of criminal conduct, the standard of proof would have to be on the criminal standard. Mr Porter’s assertion that there would be a normal civil standard applying is clearly erroneous. In any such procedure, Mr Porter, like any other Australian citizen is entitled to the presumption of innocence. This doctrine has regrettably been undermined by many developments in the criminal law and criminal procedure over the last 25 years. But it is an appropriate time for it to be reinforced as fundamental to the fairness of a trial of such allegations.

In the High Court case of Dyers v The Queen, the burden of proof in a criminal trial was reasserted by the High Court. Ken Dyers had been wrongly convicted as a result of a Judge’s misdirection to a jury that there was some burden on the accused to adduce evidence. This direction, which was standard in civil cases, the High Court said did not apply in a criminal case. Rather, the accused had no onus to prove innocence and the State always had the burden of proving guilt beyond a reasonable doubt.

In reinforcing the requirement that only the State (or effectively, the accuser) had a burden of proof, the court’s decision led to what is known as the Dyers Direction, which is now given to juries by judges in criminal courts every day throughout Australia. The direction to the jury is that they must never draw an inference against an accused, if it would have been possible for an accused to bring evidence, and that has not occurred. The accused carries no burden of proof in a criminal trial.

Mr Porter’s characterisation of the possible procedure he would find himself in in his above statement is false, because of the presumption of innocence, as reinforced in Dyers v The Queen.

Click here for the Australian Financial Review article

Kenja supports the rule of law

Kenja and its founder Ken Dyers were the subject of shocking false sex allegations over decades, all of those which were subjected to the forensic processes of the criminal courts were thrown out.

In a time of acute social tension and controversy over these kinds of issues, it is even more important that the institutional defences of the rule of law and the rights of an accused are protected, whoever they may be.

We are of the view that recent events including the Christian Porter case confirm the legitimacy and appropriateness of the position we have taken regarding not joining the National Redress Scheme. In our respectful opinion, if it is proper for the Attorney General to invoke the rule of law, it is also proper for us.

It is an extraordinary irony that Mr Porter, who was a leading promoter of the National Redress Scheme, which fundamentally circumvents the system of criminal justice, should now be calling in aid of his own defence the traditional safeguards and principles of that system.

A number of media outlets have commented on the irony of Mr Porter invoking the rule of law and democratic rights because of his record in politics in relation to human rights and the rule of law. We will let that record speak for itself.

Click here for the Kenja Response to the National Redress Scheme

Click here for the Statement by the Prime Minister in the Christian Porter matter regarding rape allegations

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