NSW Police Commissioner Mick Fuller may have made the argument for fundamental reform of sexual violence and sexual harassment laws in suggesting, defensively this week, that only a small proportion of sexual assaults are reported to police, that of these, only about 10 per cent are developed to the point of charges against the perpetrator, and that of these, only about 10 per cent advance to a conviction.
If 10 per cent of sexual assault victims complain - and the figure may be less than that - the consequence is that the combined efforts of cops, juries and judges punishes about one in every 1000 offenders. That makes a complete joke of any idea that the "rule of law" prevails to protect women from unwanted sexual assault, and tends to suggest that all of the "reforms" to the laws dealing with sexual assault have been entirely ineffective - indeed a complete waste of time. I do not attribute this result to police incompetence or lack of motivation to deal with the scourge of sexual violence, or to wicked lawyers or legislators or corruption. But one could be pardoned for thinking that if all four of these factors were in play, the Australian justice system could hardly be producing worse results.
When only one in every 1000 rapists is punished, it's time for a fundamentally different system
The complete lack of fitness for purpose of state, territorial and federal laws dealing with sexual violence and harassment provide, by themselves, the foundations for the sense of complete exasperation with politicians expressed by women and men who attended rallies on Monday. Indeed, if fitness for purpose were to come into it, the complete lack of point of politicians, cops, and a legal system might be more to the point. The protection of over half the population would be better and more justly secured by having curfews or preventive detention for men.
But the fury was very much aggravated by the feeling that many politicians - mostly, but by no means exclusively men - simply do not "get it", that their response to complaints of sexual assaults and harassment tends to be based on political alliances rather than compassion or a strong sense of justice, and that many of the institutions of the parliament are as focused on cover-up, completely spurious worries of parliamentary privilege, and arse-covering so as to avoid civil liability. There seemed to be evidence in spades of each of these additional matters in the two cases that inspired the rallies.
Yet the record would suggest that even a timely and truly professional investigation of the alleged rape of a woman in the office of the then minister for defence industry in 2019, or the alleged rape of a high school debater in 1988 by the present Attorney-General, Christian Porter, might have been unlikely to produce a conviction, even if the facts were proven to be as alleged. Porter vehemently denies the allegations against him. Likewise with any inquiry able to be mounted through civil defamation proceedings - as now being taken by Porter against the ABC - or an inquest into the suicide of the alleged victim in 2019. A coroner's investigation is a very imperfect instrument for establishing background facts relevant to a suicide - a reason why most coroners dispense with an inquest once satisfied that it was a suicide. The proper object of a coronial inquiry is how a person died, not an alleged chain of falling dominos prior to the death.
If the criminal justice system is an absolutely useless vehicle for investigating, analysing and punishing sexual assault, might it not be better to start again, rather than to tinker at its edges in a way supposed to deal with the disadvantages faced by victims and the prosecution?
There are alternatives. A victim can, for example, sue for damages not through the criminal system but through the civil law. There the victim must establish that an assault occurred only on the balance of probabilities, and issues of consent, while still there, are (or should be) determined by objective rather than subjective standards. Damages can be high, and not only for the immediate costs, or the immediate pain and suffering occasioned. In Canada, where civil actions for sexual assault are more common than here, a victim can launch both a criminal and a civil case, the former being tried first, of course. Failing to have the person convicted because of the high criminal standard of proof does not provide any disadvantage in pursuing the civil case, where the standard is whether it was more likely than not that the assault occurred.
The civil system may have another advantage likely to bolster the protection of potential victims. One need not sue only the alleged perpetrator, but anyone whose actions or omissions might be said to have potentiated the assault, or even an institution (Parliament, a bank or a school, for example) that has failed to establish systems that would render such assaults less likely. It can also more easily incorporate readily justifiable assumptions - for example about the fundamental impropriety of sexual contact between teachers and students, bosses over employees, or the general principle that where a victim is drunk or incapacitated by drugs, a lack of consent is assumed. In many cases, the perpetrator will have no resources, and a successful victim may not be able to claim damages from the person who committed the assault.
But people who stood by with some guilty knowledge of what occurred, people who have organised some social function at which people became insensible, or (as happened in the ACT recently, with a university residential college) an institution that failed to take efforts to protect vulnerable students at a sanctioned function may be held liable. It has been often the fear of liability in such cases that has made banks, businesses, universities, schools, and social clubs pro-active in creating more protective environments, in organising supervision to protect potential victims, and in providing punishments (such as the sack from a job, military discipline in the defence force, expulsions from a university), which discourage potential perpetrators. One must, of course, prove that there is a relationship between the institution's functions and the wrong committed; but if American and Canadian cases are any guide, courts considering whether this connection is strong enough will generally consider, from a public policy point of view, whether society's need to have a fair and just remedy, and deterrence of future harm, is helped by imposing vicarious liability in a particular case.
If a ministerial staffer in Parliament were sexually assaulted on the job, it will usually be the taxpayer, through the Department of Finance, the ultimate "employer" under the Members of Parliament Staff (or MOPS) Act, which would probably be paying most of the damages. That ought to make it more proactive in promoting a safe working environment. But there is no reason why the victim in that case could not also sue the minister, as the person ultimately responsible for the way that the office operated, and the minister's chief of staff, the effective manager of the office. In Australia, such folk would quickly hand over their legal defence to Commonwealth instrumentalities - claiming that they were indemnified because the liability had arisen out of their official functions. In the United States, a senator or a congressional representative would be expected to personally meet any liability otherwise falling on state agencies.
Under the Congressional Accountability Reform Act of 2018, the protections are extended to include applicants for employment, former employees, and unpaid people such as interns, fellows, or individuals detailed to an employing office, say as agency liaison staff. The act has a strong (and developing) presumption against nondisclosure and non-disparagement clauses - something which would (unjustifiably) cause consternation if it were to be copied in Australia.
The American system includes an office of workplace rights for congressional staffers, and establishes its independence from the legislature (and the executive). It has "confidential advisers" who can advise staff, and help them prepare complaints. It also has hearing officers, whom the executive director can appoint from a master list of retired judges and lawyers. The Commonwealth Parliament could follow this general model - of an office independent of politicians - but would be better advised to have a master list of investigators: people like Vivienne Thom, say, operating on the inquisitorial system rather than an umpire in an adversarial process.
It would take a good deal more than such modest proposals to change the disadvantage that victims - mostly women - suffer from sexual assault and harassment, even in the Federal Parliament. But it would be an advance, if only because it is something substituting for Mick Fuller's nothing. His additional suggestion of a "consent machine" is so loopy - even from him - that it should escape comment.
The AFP clearing-house: more political than useful
Australian Federal Police Commissioner Reece Kershaw may have meant well in imploring that victims of sexual assaults, or those aware of sexual assault crimes, go straight to the police, not to politicians or the media. A cynic might respond that most Commonwealth-level misbehaviour gets investigated, even by police, only when the media is already involved.
But the Prime Minister, Scott Morrison, was wrong in deducing from Kershaw's letter a need to make the AFP a clearing house of allegations of offences against the criminal laws of the states and territories. Likewise with using this newly invented principle as a reason for pretending that he need not even bother to himself read detailed allegations.
There were several vices in what happened. Assuming that the ostentatious act of passing on the materials, sight unseen, actually happened, it showed just why it was not a good idea. Allegations alleging rape, a long time ago, by Attorney-General Christian Porter were accompanied by nearly 40 pages of supporting material. Yet the collective wit of the senior AFP thought only to send a short email summary of the allegations - sans any of the detail - to the NSW Police. It is true that the scant detail contained the information (already known in any event to NSW Police) that the alleged victim was dead. This might have enabled the AFP geniuses to deduce immediately that a prosecution was thus impossible, thus completely closing the matter. This was probably the practical consequence, but not as a matter of law. It is possible for a sexual assault case to proceed without a live victim. George Pell, for example, was charged and initially convicted of a sexual assault on a choirboy who had committed suicide well before the charges were laid. His conviction was quashed by a unanimous High Court, but not on the grounds that such a prosecution was legally impossible.
NSW Police, in the person of its voluble commissioner, Mick Fuller, was soon ruling out any prosecution, and spent much of the next week rowing back from his general pronouncements about an investigation with which his sexual assault unit detectives were familiar, the fact that an email purporting to be from the victim had asked police to suspend the inquiry shortly before she is said to have committed suicide, and the practical difficulties of a trial without a live victim. He was also explaining, in less than satisfactory terms, why detectives had not flown to Adelaide, out of the NSW jurisdiction, to get a signed statement from the woman, even before travel restrictions caused by the pandemic, or later during those restrictions. Or, indeed, why NSW police did not ask South Australian cops to go to the woman's house, to have her sign her statement, and then to forward it on. This is something that happens all the time, in normal cases.
What was also quickly on display was that both the commissioner and his deputy had been all over the case, from the time that the woman first complained to NSW Police. They held several meetings, including with investigating detectives, although we have not been let in on the secret of what directions were given about the conduct of the investigation, other than (inferentially) a decision to postpone going to Adelaide.
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I do not suggest that this close attention from the higher-ups was designed to sabotage the investigation. But the interventions of the political and managerial classes of a police force on the professional investigations of experienced detectives are never welcomed by the detectives themselves, and create a serious risk of compromising an investigation, or even the police force itself. This is probably not something which would much trouble Mick Fuller, who trades to a degree on his being "a character", and whose personal style has involved a reluctance to discipline violent actions by a cop if he thinks they have had a bad day, or to opine, after criticism of illegal and indiscriminate police strip searches of young people that they needed to learn a healthy terror of the law, and guardians of it.
With long successions of "character" police commissioners, it may well be that Fuller does not care much about the reputation of his force, at least as long as he has the state premier in his thrall (as he does). If he did, he would have rather more concern for appearances.
But so might the AFP Commissioner, who has yet to explain just why and how an assistant commissioner saw fit to attend on the then minister for defence industry and her chief of staff soon after a staffer was found by parliamentary security staff in the minister's office in a dishevelled condition. By the time the assistant commissioner arrived, the woman had complained of sexual assault to detectives.
We want commissioners of character, not folk who are 'characters'
The assistant commissioner's visit to the minister was one of a large number of occurrences in the aftermath of the alleged rape, of which the victim was entirely unaware until two years later.
Reece Kershaw found himself deeply professionally embarrassed when, as a deputy NT Police Commissioner, his commissioner tried improperly to interfere in an investigation affecting his commissioner's mistress. Kershaw steered his way through the crisis, but ought to have learnt from it the fundamental dangers of too close relations with ministers, and of the heads-up principle.
Perhaps the commissioner was intending merely to give the minister a "heads-up" about ongoing police inquiries, but if that is what he was doing, his judgment is open to question because, as we have seen, the minister was inevitably to be a player in the aftermath of the case, not a disinterested observer. The heads-up is not supposed to be a privileged opportunity, not given to other interested parties, to begin preparing the alibis. It seems that it was, for example, after this meeting that the minister decided not to tell the Prime Minister - a decision that the ultra-loyal Peter Dutton may also have made about the same time.
Unlike all other Australian police forces, the AFP is not a force of what might be called general jurisdiction. The ACT part is, of course. One can complain to it of a rape, or murder, or a fraud, and it has the power - even the duty - to immediately launch an investigation. But the national AFP does not have a general brief to investigate fraud on the Commonwealth, corruption by a senior minister, or bribery with political donations. It must await a reference from a relevant Commonwealth agency. Easy enough to come by with an alleged social security fraud, or the theft of money by a public servant. Rather less common with high-level crime, a reason why the AFP, unlike the FBI or Scotland Yard, never conducts own-motion investigations, or stings, with corruption.
The ambitions of the Home Affairs Minister and his department have tended to undermine the independence and apartness of notionally autonomous stand-alone statutory bodies, such as the AFP and ASIO. That, and the character (and post-commissionership ambitions) of some of the commissioners have entrenched the AFP's reputation as the most politicised force in the country. When one considers the NSW and Victoria Police, that is really saying something.
- Jack Waterford is a former editor of The Canberra Times, and a regular columnist. firstname.lastname@example.org
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