An independent inquiry into historical rape allegations: balancing accountability and the presumption of innocence

Senior Consultant Terry O’Gorman appeared on Radio National Breakfast on 05 March 2021 with Fiona McLeod, barrister and Chair of the Accountability Roundtable, and Pru Goward, former Sex Discrimination Commissioner and Liberal minister in New South Wales. They discussed how to balance ministerial accountability with the presumption of innocence in the context of the historical rape allegations against Federal Attorney-General Christian Porter.

Mr Porter has denied the allegations and the Prime Minister has stated that any further inquiries after the New South Wales police have closed their investigations would set a wrong precedent. Friends and family of the alleged victim nevertheless want an independent inquiry to be conducted.

Terry discussed that the biggest concerns with an independent inquiry being established into the rape allegations is that the presumption of innocence will not be respected. Criminal courts and the presumption of innocence exist for a purpose, and where there is no means to test the allegations, Terry argued that these processes should not be circumvented through an independent inquiry where an unfair outcome is likely. The matter stood separate to concerns raised regarding the toxic culture in Parliament as the allegations predate Mr Porter’s position in Parliament. These points were similarly argued by Pru Goward. In support of an independent inquiry, Fiona McLeod emphasised that the suggested inquiry would not sit within the criminal justice process but more closely resemble workplace or disciplinary investigations common in the administrative law sphere. In such inquiries, a suitably qualified person is appointed and a different burden of proof and laws of evidence apply. She gave the high-profile examples of Cardinal Pell, former Justice Heydon of the High Court of Australia and Israel Folau.

The presumption of innocence has been regarded as the ‘golden thread’[1] of criminal law and a ‘cardinal principle in our system of justice’.[2] It holds that a person accused of a crime is considered innocent until proven guilty by the prosecution. Such proof must demonstrate guilt ‘beyond reasonable doubt’, the rationale being that ‘it is better that ten guilty men should escape than that one innocent man should suffer’.[3] The presumption of innocence is enshrined in section 32(1) of the Human Rights Act 2019 (Qld).

To listen to Terry’s interview visit this link:


[1] Woolmington v DPP [1935] AC 1 481–482 (Viscount Sankey).

[2] Sorby v The Commonwealth (1983) 152 CLR 281, 294 (Gibbs CJ).

[3] William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) 352.