Upholding a broken law

The instinct of our country’s first law officer, when accused of a terrible crime, is to seek the advice of a lawyer, one renowned for his skill in defamation proceedings.

To the media, the message is clear.

And so the country waits, for days, for the cabinet minister to name himself.

On Wednesday, the attorney-general fronts the cameras and vehemently denies the allegations levelled against him. He says the rule of law must be upheld.

He says he will not step down from his position, for if he did there “wouldn’t be much need for an attorney-general anyway because there would be no rule of law left to protect in this country”.

But the law as it stands offered no protection to the journalists who sought to name Christian Porter before his media conference.

Nor for any publication that believed there was a strong public interest argument for informing the country that one of its most powerful people stood accused of rape.

For years, there have been calls for reform of Australia’s notoriously restrictive defamation laws, not least because of the chilling effect they have on allegations of sexual assault.

The burden of proof falls too heavily on those who seek to publish, journalists have long argued, and the defences offered are too meagre, too indifferent to the public’s right to know.

“I think it is fair to say that current defamation laws no longer strike the perfect balance between public interest journalism and protecting individuals from harm,” Christian Porter himself told the National Press Club in 2019.

For journalists, this imbalance distorts the calculus. The question is not “Is this true?” or “Is this in the public interest?” but “Are they rich enough to sue?”

In this stricture, the media cannot function as a fourth estate. It cannot hold the powerful to account.

Some argue the present defamation framework is the only thing holding back a vicious media from ruining lives. Some say the days leading up to Christian Porter’s media conference were only further evidence of this, that it was a “show trial”, “mob justice”.

The legal process, they argue, should have been allowed to run its course in private.

But there are few figures more public than a country’s attorney-general. And few public interest arguments stronger than the public has a right to know if the person tasked with upholding the country’s laws stands accused of breaking one of them.

There will be no criminal investigation. The woman who levelled the allegations against Christian Porter is now deceased, she cannot be interviewed by police.

There will be no parliamentary inquiry, the prime minister is adamant. Even though the accuser’s family and her friends are in support of this process.

And so Christian Porter’s job remains protecting the laws of this country, and reforming those laws that have fallen out of step with the public’s expectations.

Which necessarily prompts the question: Should a man whose first instinct is to engage an expensive defamation lawyer oversee the reform of the laws that most keenly restrict the media from being able to hold the powerful to account?

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732.

This article was first published in the print edition of The Saturday Paper on March 6, 2021 as "Upholding a broken law".

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