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Scott Morrison must tread carefully on Christian Porter

Chris Merritt                 26 March 2021

Published in the Australian Newspaper

If the speculation is right and Christian Porter is no longer to be Attorney-General, Scott Morrison needs to make it extremely clear that he is not appeasing the mob and the first law officer has done nothing wrong.

Unless that happens, it will be interpreted as a retreat by the prime minister from his view that Porter is entitled to the presumption of innocence in the face of unprovable accusations that he raped a teenager more than 30 years ago.

Morrison looks set to move Porter for one reason: the apparent conflict of interest caused by his decision to sue for defamation in the Federal Court, which is part of his responsibilities as attorney-general. That said, it is also clear that Porter’s decision to sue in the Federal Court, rather than one of the state Supreme Courts, has given Morrison some badly needed cover. The prime minister can act for reasons that are sound.

Politically, the attorney-general is damaged goods — not because of any wrongdoing but because of a smear campaign that rests on the flimsiest of foundations: assertions from the friends of a woman with mental health issues who withdrew her complaint about Porter before tragically killing herself. Her own parents reportedly doubt the veracity of the rape story.

Which brings me to the debate about whether Morrison should convene an inquiry into whether Porter is a fit and proper person. The most interesting contribution on this question has come from Justice Francois Kunc of the NSW Supreme Court.

Writing extrajudicially, in his capacity as editor of the Australian Law Journal, Kunc has produced a thoughtful piece that says an independent inquiry into whether Porter is a fit and proper person would advance “both the rule of law and public trust and confidence in the proper administration of government”.

So does this mean a sitting Supreme Court judge has called for the attorney-general to be subjected to an inquiry over the rape allegation? The answer is no.

Kunc’s full article, which is available online from the Thomson Reuters website, is worth a read — particularly his qualification that such an inquiry should take place “when an allegation is made that can reasonably be described as sufficiently serious and credible to undermine public confidence and cast doubt on whether a minister is a fit and proper person to hold that office”.

Kunc, wisely, goes on to include the additional qualification that the Australian Law Journal “makes no suggestion that the allegations made against Mr Porter necessarily reach that threshold”.

So what we have is an article that says an inquiry should take place only if the allegation against Porter can reasonably be described as “sufficiently serious and credible”. Kunc is silent on whether that threshold test has been met — which is entirely appropriate for a sitting judge.

But this columnist is not so constrained. The allegation is based on material that is neither serious nor credible. Reports outlining the nature of the complete dossier left by the dead woman — not just the document produced later by others — suggest it is the product of a disturbed mind and should be viewed with compassion, but not as a testament of fact.

Yet even if that were not the case, the question of whether federal ministers are fit and proper to hold office is a matter for the prime minister, the Constitution and nobody else. If the prime minister makes a poor decision on the makeup of his ministry, a remedy is available at the next election. Outsourcing this part of the prime minister’s responsibilities whenever an unproven accusation is raised would lead to long-term destabilisation.

“I am not in favour of an inquiry at all,” says Gabriel Moens, emeritus professor of law at the University of Queensland. “The presumption of innocence would no longer apply and Christian Porter may well be called on to explain why he did not do what his accusers say happened.

“It would be a very bad precedent. Outsiders would be able to force a change in the ministry simply by making an unproven allegation. Outsiders, even though not in parliament, would have an inordinate amount of influence over the parliament, even to the extent that they would be able to force a restructure on the prime minister.”

In December, Robin Speed wrote about the presumption of innocence for the website of the Rule of Law Institute. While this doctrine applies to criminal matters, he wrote that it has a much wider meaning in Australia and is understood as applying “to any assertion made, and requiring the person, the subject of the assertion to be presumed innocent unless the maker of the assertion establishes the assertion as correct”.

In 2017, when former judge John Nicholson was acting inspector of the NSW Independent Commission Against Corruption, he produced a report that says: “My argument is that the presumption of innocence is an interest alive at all times although it may only come into play in the face of a formal charge.”

This affair means the nation is losing a great attorney-general — energetic and unafraid to make public policy based on principle and need. His design for a Commonwealth Integrity Commission that respects the presumption of innocence infuriated those who prefer show trials and the presumption of guilt.

Losing this job crystallises the immense damage that has been inflicted on Porter. That, undoubtedly, will be a factor when the time comes for the Federal Court to consider whether the ABC and its journalist, Louise Milligan, should pay aggravated damages in the defamation case.