Opinion

Paul Bongiorno
Christian Porter, accusations and denials

It took one week for Australia’s first law officer, Christian Porter, to come out of hiding. In those seven days, he and his prime minister did everything to minimise the grave allegations of a violent historic rape. Porter has issued vehement denials and attempted the demolition of the claims against him. A dark cloud still enshrouds the government of the nation.

The strategy Porter and Scott Morrison determined initially during a fraught mid-evening conversation on Wednesday of last week is simply not fit for purpose. The purpose, as outlined by the prime minister at his news conference on Monday, was for the police to investigate and to have the last word on the matter. Few could doubt Porter – a former police prosecutor – wouldn’t be well aware of the advantages of pushing this course of action as a survival strategy.

Put simply, Porter’s denials of a rape that allegedly occurred in Sydney on January 9, 1988, could not be directly tested against his accuser’s testimony. The woman took her own life in June 2020. Furthermore, according to a New South Wales Police statement released on Tuesday, “for various reasons the woman did not detail her allegations in a formal statement” to them. Key among these reasons was the Covid-19 pandemic preventing police from flying to her home in Adelaide to interview her.

But the woman had prepared a detailed statement that was intended to form the basis of her complaint. Besides this statement, extensive diary entries and a digitally recorded conversation with her recounting her trauma exist, along with declarations from a number of her friends. Some people she confided in were interviewed for the ABC’s Four Corners program “Inside the Canberra Bubble”, which aired in November last year. Their contributions didn’t make the final cut because the ABC’s lawyers advised they could run afoul of Australia’s extremely restrictive defamation laws. Never mind that there is a clear public interest in the propriety of those who make up the engine room of the country’s government.

Spurred on by the courage of former Liberal staffer Brittany Higgins, friends of Porter’s accuser last week anonymously sent her unsigned statement and a dossier to the prime minister and other politicians.

There is little doubt what we are seeing is a “Me Too” moment in Australian politics. ABC investigative reporter Louise Milligan says she has been inundated with women claiming sexual harassment and assault. The high-profile cases of recent days trigger these responses and demand cultural change and leadership. Hiding behind the strict letter of the law won’t cut it, nor can a political calculus that is deaf and blind to the contemporary ethos demanding an end to gender discrimination.

And this is precisely where Morrison is falling short. For some unfathomable reason he makes a virtue of being uninformed. He admitted at his news conference that he had not read the 30-page dossier sent to him. He also took scant notice of the Four Corners program that last year raised questions about the behaviour of two of his cabinet ministers, Alan Tudge and Christian Porter. He dismissed what he had heard as “rumours” being checked out by an “ABC investigative journalist making some inquiries”. He said he tended not “to pay attention to rumours”.

More is the pity. Because had he been more curious, he and Porter would have been in a much stronger position to defend themselves when these serious allegations became a major news story creating a scandal for the government.

Morrison’s attempt to distance himself from his responsibilities as a prime minister is jarring. And it is in stark contrast to postures he has previously taken.

In October 2018, for example, Morrison issued a moving apology in the parliament to the victims of child sexual abuse. “As a nation, we confront our failure to listen, to believe and to provide justice. And again today, we say sorry,” he said.

More recently, with the help of his wife, Jenny, Morrison was eventually able to come around to believing Brittany Higgins.

But the prime minister has not been able to summon such empathy for the woman who levelled accusations against Porter.

Morrison made it crystal clear on Monday that he believes Porter’s vigorous denials. In fact, Morrison claimed it wasn’t up to him to believe or disbelieve them, rather it was up to the police. They are the ones to determine the “veracity of any allegations”, he said, because unlike him they are trained, competent and authorised to do so.

It was a statement strongly reminiscent of the “I don’t hold a hose, mate” that Morrison offered when faced with criticism for being overseas at the height of the Black Summer bushfires catastrophe.

When you think about it, this disavowal of the need for him as prime minister to make his own belief judgement on the matter is close to gobbledygook. His immediate predecessor in the top job was scornful. Malcolm Turnbull told the ABC it was “frankly not good enough for the prime minister to say, ‘Oh, it’s a matter for police.’ The prime minister cannot outsource his responsibility for composing his ministry to the police.”

As it stands, the police didn’t do the job the PM led us all to believe they would. They did not complete an investigation into the complaint, nor did they interview anybody. Porter says he didn’t hear from them.

The New South Wales Police statement noted that after the woman’s death they came “into possession of a personal document purportedly made by the woman previously”. They sought legal advice and, based on the information provided, “there is insufficient admissible evidence to proceed”. And then they took away the shield Morrison had been hiding behind: “As such NSW Police Force has determined the matter is now closed.”

There are as many opinions as lawyers about how things could’ve run. But former president of the Law Council of Australia, and current president of the NSW Council for Civil Liberties, Pauline Wright, told RN Breakfast that the police could have reached a different conclusion and proceeded with an investigation. She said there was a lot of material that has been produced and could be tested. Wright agrees with Turnbull that there should be an independent investigation.

Porter, struggling to hold his composure at his news conference in Perth, restated the very argument he put to Morrison last week against such an inquiry. He said he would be required to disprove something he insists “simply did not happen”. “What would I say to that inquiry?” he asked rhetorically.

Furthermore, he is refusing to resign because if he did anyone could lose their careers based on “nothing more than an accusation that appears in print”. He added there would be no need for an attorney-general if he stepped down, because there would be “no rule of law left in this country”. Porter will take two weeks’ leave to assess his situation and receive medical attention for his mental health.

The attorney-general is pleading for the same treatment received by Bill Shorten after the Labor MP was the target of rape allegations in 2014. After the police found not enough evidence to prosecute Shorten, he continued his career. The difference, of course, is that this came after a 10-month investigation where the complainant, many witnesses and Shorten himself were questioned.

But as Michael Bradley, the lawyer for Porter’s deceased accuser, said in several interviews this week, this accusation is as much an administrative issue as a criminal one. It goes to the prime minister’s ministerial code, which requires ministers to show “at all times the highest standards of probity”. Pauline Wright, like Bradley, gives far more weight to the seriousness of the allegations against Porter than mere scuttlebutt. There is extraordinary detail in the complainant’s dossier, and surely the Australian public needs greater assurance than a blanket denial that implies the whole thing is a malicious and elaborate hoax.

A properly constituted inquiry by an eminent, unbiased judicial figure would be guided by the presumption of innocence in weighing up the evidence and claims put before them. It would require Porter to prove nothing, according to Bradley. Conclusions would be left to the inquiry, based on “the balance of probabilities” after weighing up all the available evidence.

In this week’s Guardian Essential poll there was an ominous warning for the Morrison government. The poll, taken over the past two weeks, picked up a double-digit deterioration in approval of the prime minister’s handling of a number of leadership attributes. It reflects the public’s view of the response to the Brittany Higgins rape allegations, and the story of the cabinet minister involved in historic sexual assault claims. This deterioration, says the pollster Peter Lewis, has been “wholly driven by perceptions of female voters”.

The poll also found that two-thirds of Australian voters think the government is more interested in protecting itself than women. It’s getting very hard for the government to hide.

This article was first published in the print edition of The Saturday Paper on Mar 6, 2021 as "A matter for judgement".

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Paul Bongiorno is a columnist for The Saturday Paper and a 30-year veteran of the Canberra Press Gallery.