Christian Porter: a question of character

To recap on the story, late in February a letter sent to Prime Minister Scott Morrison detailing an alleged historical rape by a Cabinet Minister in the federal government.

    The letter requests urgent action be taken by the Prime Minister to investigate the alleged rape, which occurred in 1988 before the accused man entered politics.

    The letter, shared with Four Corners by a friend of the complainant, attaches a detailed statement prepared by the complainant for her lawyer about the brutal rape she alleges took place.

The alleged rape was claimed to have taken place in Sydney, in the context of an international school debating competition. The complainant was a 16 year-old from Adelaide. Christian Porter was a 17 year-old from Perth.

From The Guardian:

    NSW police … confirmed the alleged victim contacted them in February 2020, telling detectives from the child abuse and sex crimes squad she had been raped by the man.

    NSW police set up Strikeforce Wyndarra to investigate. The woman had engaged a lawyer and told friends about the allegation, but took her own life in June 2020, the ABC reported.

COVID had prevented the police from proceeding further. Immediately prior to her death the woman had contacted the NSW police advising them that she no longer wished to proceed with the complaint.

On Wednesday 3 March Christian Porter, Attorney-General of Australia, Minister for Industrial Relations and Leader of the House, identified himself as the cabinet minister in question but denied the allegations:


    Christian Porter has categorically denied that he raped a 16-year-old friend in 1988, when he would have been 17, and declared he will not stand down as attorney general, suggesting that if he did “there would be no rule of law left to protect”.

Moreover:

    He said if he was to step down “then any person in Australia can lose their career, their job, their life’s work based on nothing more than an accusation that appears in print”.

    Asked whether it was appropriate for him to remain as attorney general, Porter said societies had due process for a reason.

    “My guess is if I were to resign, and that set a new standard, 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,” he said.

He said that it was up to others to decide whether there should be an independent inquiry into the allegations now the New South Wales police had ended its criminal investigations.

    Even though such inquiries are commonplace when allegations are levelled in corporations, Porter queried what such an inquiry could achieve.

    He said he would be asked “to disprove something that happened 33 years ago – I honestly don’t know what I would say to that inquiry”. He suggested such a process wouldn’t afford him procedural fairness, because he “couldn’t succeed to disapprove something”.

As Laura Tingle reported last weekend:

    On Thursday, Scott Morrison rejected calls for an independent inquiry into the allegation — such as the one ordered by High Court chief justice Susan Kiefel into allegations of sexual harassment by former judge Dyson Heydon — saying “that would say that our rule of law and our police are not competent to deal with these issues”.

    “There is not some other process,” he said. “There is not the ‘mob’ process. There is not ‘the tribe has spoken’ process.”

We all understand that no criminal case can or will be brought against Attorney-General Christian Porter for an alleged rape occurring in 1989, because the alleged victim died last year. So the presumption of innocence of a criminal offence applies.

This does not mean, however, that Christian Porter is a suitable person to be Attorney General. That is a matter decided by PM Morrison himself, while he is PM, and the ‘mob’ he refers to are voters who gave his party the right to form a government. His choice of who is attorney-general has everything to do with the law, because the AG is the nation’s chief law officer.

And there are processes under the umbrella of ‘civil justice’ where the standard of proof is ‘on the balance of probabilities’. Porter is right in saying it would be hard to defend himself under those conditions, but it is his only chance of having his name cleared.

Short of that, as Laura Tingle told Tracy Holmes on Late Night Live, Porter will struggle to gain the respect he needs to do the job.

Michelle Grattan thinks that Despite his denial, Christian Porter will struggle with the ‘Caesar’s wife’ test and Scott Morrison can’t get a circuit breaker while Porter remains.

She says, that with Porter out of the way Morrison and reshuffle his cabinet, at the same time moving Linda Reynolds to a less demanding portfolio.

On Monday 15 March Morrison will find out what some of the women of Australia think about the matter. Janine Hendry thought she would show up at parliament with seven friends and wave some placards. Now:

    March4Justice movement has 27,000 followers on Facebook and close to 8,000 on Twitter.

    On Monday thousands of them will dress as requested – head-to-toe in black – and stage 36 protests across Australia.

Before Porter’s treatment of women became an issue there were reasons why Porter was not fit to be Attorney General. If you look at his Wikipedia entry, Porter was the social services minister when Robodebt was inflicted upon the nation in 2016. Remember last May, when Porter told Insiders Robodebt was “basically normal”? On 200 occasions in a row when the victims took the claims to the Administrative Appeals Tribunal the Commonwealth folded and paid the claim – a certain sign they knew they had no legal case.

Lives were ruined, people died.

Whoever wrote the Wikipedia entry reminded us that as social services minister Porter skipped the final sittings of the Royal Commission into Institutional Responses to Child Sexual Abuse in order to attend a cricket match with John Howard.

In September last year, lawyer Ian Cunliffe found Porter unfit to be federal Attorney–General when he defended Alan Tudge when the Federal Court found:

    that Immigration Minister Alan Tudge engaged in criminal conduct by detaining an asylum-seeker for five days in defiance of an order by the Administrative Appeals Tribunal (AAT)

Porter claimed that when the government was “undertaking its duties through the minister as a matter of policy” that trumps the law and judicial findings, putting government policy above the rule of law.

Elizabeth Minter in Christian Porter responsible for serial breaches of the law, now cries “rule of law” reminds us of Porter’s persecution of Bernard Collaery and Witness K where:

    Porter has had no compunction about destroying the life’s work and career of highly esteemed former ACT Attorney General Bernard Collaery.

And other official misdeeds by Porter.

They don’t like Porter much at Pearls and Irritations. See also Kieran Adair’s Attorney General Christian Porter breaches law over three years, claims it was a mistake and for a real character reference, Jack Waterford’s Is Christian Porter fit to hold public office?

ABC RN’s The Law Report devoted a whole episode to the Debate over independent inquiry into Christian Porter rape allegations, with a vigorous face-off between Senior Counsels Kate Eastman and Greg Barns, who regards the inquiries said to be used commonly in the corporate sphere as ‘kangaroo courts’ which he advises clients to avoid.

Sydney barrister Steven Boland’s opinion piece in the AFR Why Porter probe would be stunning denial of natural justice argues powerfully that:

    The impossibility of establishing the facts makes calls for a judicial inquiry into whether the Attorney-General is a fit and proper person is just a witch hunt in legal garb.

He says no judicial inquiry is capable of overcoming the fundamental difficulty that the facts cannot be established. The piece is no doubt pay-walled so I’ll give the central argument here:

    Journalists can be forgiven for this oversight, but lawyers supporting the call are in a more tenuous position.

    They must surely know that no fact-finding inquiry can overcome this basic failing.

    Sections of the media have also failed to recognise that allusions to the bright and happy disposition of the complainant, prior to the night in question, are a thinly disguised invitation to reverse the onus of proof.

    Four Corners this week continued the focus upon the complainant’s mental condition before and after the alleged attack, as if this might be a legitimate yardstick against which the veracity of the allegations can be judged.

    Such arguments invite unseemly counter-attacks in relation to the complainant’s subsequent diagnosis with bipolar disorder, her apparent detention as a psychiatric patient, her entry into dissociative states, her engagement with a recovered memory counsellor, and her conclusion that her memory of the incident is surreal because her attacker had drugged her.

    More to the point, character-based reasoning would not be utilised by a duty-bound judicial officer to make factual findings in relation to the allegation. In fact, it would be specifically disavowed.

Clearly Boland is heavily invested in criminal law and the need to establish guilt ‘beyond reasonable doubt’. What he apparently fails to realise is that many if not most decisions in real life have to be made where a degree ofuncertainty is normal. Indeed, at times a decision needs to be made when it is a 50:50 call.

Crikey has also published numerous article on the topic. I think they are the only media organisation to tell readers what allegedly happened on that night in 1989. Amber Schulz does it in Callous one minute, charming the next. Do you recognise this alleged predator?

I’m not going to repeat it here. Crikey might let you in to persuade you of the value of a subscription. Boland describes the alleged attack as a “heinous crime”.

Heinous or not, Porter claims that nothing that was printed happened at all. There was no sex, consensual or otherwise.

Today in breaking news Ex-boyfriend of Porter accuser offers to front inquiry.

The man is James Hooke, a senior managing director with Macquarie Group, who has offered to appear before an independent inquiry. He has a concern for the welfare of Porter and “was devastated by the untimely death of his very dear friend, whose name has been revealed only as Kate.”

He understands the fallibility of human memory, but has what he considers to be clear recollections of relevant discussions he had with Kate over the years from mid-1988 until her death.

He also has what he considers to be clear recollections of relevant discussions he had with Christian Porter from April 1992 in Perth and through the mid-1990s. Hooke was involved in debating, and studied law.

NSW police are considering whether the case is worth re-opening.

Meanwhile:


    The NSW Bar Association on Friday moved to clarify the use of the term “rule of law”, saying it applied not only to criminal and civil matters but “executive inquiries” with “specific terms of reference setting out the scope of the inquiry”.

    “Each of these criminal and civil processes involves the ordinary and lawful use of state authority, and comprises an aspect of the rule of law.”

That should settle the matter as to whether the mooted independent inquiry is possible and proper.

Geoffrey Watson SC, former counsel assisting ICAC and Police Integrity Commissioner, Adjunct Professor of Law at University of Notre Dame, and a director at the Centre for Public Integrity tells Why Christian Porter and Scott Morrison are utterly wrong about the ‘rule of law’:

    The law applies with equal force to the most powerful legal officer in the land – the Attorney-General – as it does to the powerless. That is the rule of law.

And:

    This practice of avoiding transparency and deliberately concealing information seems endemic in the current government.

Cait Kelly tells Lawyers join push for Christian Porter inquiry as accuser’s ex-boyfriend offers to testify. Monash University associate professor of law Luke Beck says:


    The question for the PM is not whether Christian Porter is guilty, it’s if he is a fit and proper person to sit in cabinet,” he said.

I would have thought that the attorney-general should be a person beyond reproach.

Dennis Atkins says:

    With Porter’s recollection now under genuine pressure and the calls for an inquiry growing in intensity and substance, Morrison is going to find his own position given maximum political and social pressure.

Does Scott Morrison have a standard of ethics he applies in political appointments? David Rowe’s cartoon appeared with Laura Tingle’s article in the AFR:

Christian Porter’s press conference had to be delayed on the day so that journalists could get back from Grace Tame’s address to the National Press Club. When asked about the Morrison government’s handling of Brittany Higgins’ complaint Tame rebuked the prime minister for his rhetoric and handling of sexual assault claims that have engulfed his government:

    Tame, who could not directly address the allegations that have consumed the parliament, was succinct in her response. “It shouldn’t take having children to have a conscience,” she told the National Press Club in Canberra on Wednesday. “And, actually, on top of that, having children doesn’t guarantee a conscience.”

Time will tell, but the times are changing.

21 thoughts on “Christian Porter: a question of character”

  1. BTW, the family have asked that the alleged victim not be named in the media, but it seems OK to call her “Kate”.

    The AFR have made much of the fact that the family considers Kate’s account may have been somewhat hyped, but I’d ignore that. She didn’t tell her family until 2019.

    Editorially the AFR have followed Morrison’s line.

  2. Hmm… was there this much hoopla about Bill Shortens rape allegations.

    And if not, why not ?

    I’m guessing political partisanship is the reason for that hypocrisy.

  3. Headline: Bill Shorten, A Question of Character.

    He’s still got his job and I believe the alleged victim is still alive to front a parliamentary investigation.

    How about it ?
    Or is #metoo only aimed at conservatives by this partisan media?

  4. I can’t comment on Bill Shorten but my daughter, like Chilla Jnr, commenced her studies at UWA in 1988 and like him she was active in student politics. When Porter outed himself she texted me, “How did I know that it would be Christian Porter?”
    From her experience of the man it wouldn’t be out of character for the allegations to be true. I suspect this is why he fears the prospect of an inquiry.

  5. Jumpy, the short answer about Bill Shorten is that the times are a-changing, but he still may get dragged into it. You may be surprised, but you are not the only one crying foul.

    However, no less an authority than Sky News Political Editor Andrew Clennell says that if Porter is investigated, Shorten will be too.

    At Crikey Lisa De Ferrari, a senior counsel at the Victorian Bar, looks at Why the Shorten and Porter cases are different — and why that’s not the point. In short she says our system of justice does not stand still. It evolves with us, and we need to remember that.

    She hopes the ALP did do due diligence on Shorten’s character.

    She doesn’t know, nor do I that they did. I’d be surprised if the didn’t.

    I will only say that the baggage Porter carries appears massive. di Ferrari thinks he should do what is best for the party and the country, which would surely be to stand down on his own initiative.

  6. Further to the Shorten matter, in his case police were able to interview the complainant.

    In there Porter matter, in the end there was no complainant in that she had asked the police not to proceed.

    I have discomfort with the notion that anonymous others, albeit friends are now using her story to complain.

    I’m not saying they shouldn’t, just that I have discomfort, because Kate chose not to go ahead, in part, we are told, because of what would happen to others as well as herself.

    Still, we are where we are and have to go on from here.

    If Shorten loses his job, then Shorten loses his job. We need a break with the past and a new beginning.

  7. Brian: When I was 17 my girlfriend dumped me because I was too shy to hold hands.
    This doesn’t stop me having doubts re people being blocked from adult jobs on the basis of something they did when they were 17.

  8. John, I was similarly shy, although in primary school we played with girls, including being district champions in tunnel ball, and you can’t get closer then that.

    I have similar concerns about the past coming back to bite, but that is the law as it stands. And new concepts of ‘consent’ say that it can’t exist if the victim is underage, or influenced by alcohol or drugs. In fact there is a new concept of ‘enthusiastic consent’.

    All that is too much for my knowledge of law, and of human memory, and what might constitute evidence.

    The best discussion I’ve heard was Scott Stephens and Waleed Aly with Rosalind Dixon, Professor of Law and Director of the Gilbert + Tobin Centre of Public Law at UNSW, in What “justice” can an independent inquiry deliver?

    She had a positive view of what might happen, including the rehabilitation of Christian Porter, which would involve restoring trust in institutions and persons.

    She spoke sensibly about the issues, with erudition, and in plain language.

    Can’t see it happening under PM Morrison.

  9. Brian: “Can’t see it happening under PM Morrison.” My take is that Morrison and Porter between them have created a situation where Porter should definitely resign from AG no matter what the truth of the matter is and has become a questionable ministerial appointment particularly any ministry that makes decisions about women.
    Morrison has made it hard by seizing on the police decision not to proceed because the complainant was dead and therefore there was negligible chance of a “successful prosecution”. Successful conviction depends on being very sure that someone is guilty.
    By contrast, “suitability to be AG” requires a level confidence in Porter’s innocence that is high enough to be able to say that the risk that Porter is guilty is low enough to take the risk
    of appointing him as AG.
    Porter complicated the process by presenting a very legalistic argument for not investigating the claims. Problem is that, in terms of the broader picture, it makes more sense to appoint someone who hasn’t got claims of rape hanging over their head.
    Porter should have claimed to be innocent and then went on to say that he was resigning as AG because it was a position that particularly required the holder to be free of claims that she/he was guilty of a serious crime.
    The above does not necessarily rule out the possibility of Porter moving to some other ministry once the investigation is complete.
    It is too late to do something sensible. Porter has to go.

  10. John
    “…Porter should definitely resign from AG no matter what the truth of the matter is…”

    You’re out of your fucking mind if you believe that.

  11. You’re out of your fucking mind if you believe that.

    Such clarity of exposition, such force of logic, such mellifluous language – you must have been on the same debating team as young Christian.

  12. Jumpy: ““…Porter should definitely resign from AG no matter what the truth of the matter is…”
    You’re out of your fucking mind if you believe that.”
    I really think you should read what I said properly before making such an astute astute remark.
    Think about someone who is alleged to have molested school girls. For me justice demands that we need to be very sure that the person was guilty before the person is convicted and sent to jail.
    However, if you had to decide whether that person should be allowed to work in a girls school where the nature of the job provided opportunities to be alone with girls? For me, caution demands that you had to be pretty sure of the person’s innocence before allowing that person to work at that school.
    Going back to Porter I think it is reasonable to ask what level of probity is required for a person to be allowed to continue in the job? You might want to ask yourself what the effect of the person trying to wiggle out of an inquiry into the allegations made against him would be on your decision? You might also ask what effect smart legal arguments would have?

  13. Jumpy is cherry picking again.

    I agree with everything John has said in the last two comments.

    AG requires someone who is beyond reproach. Porter is not that, even leaving the matter of 1989 aside.

    And his legal rulings seem politically weaponised.

  14. Courtesy of Loon Pond (I avoid Rupert’s flying monkeys like the plague) I have discovered that the media which is quite rightly opposed to the AG undergoing trial by media has no problems in trying his accuser.

  15. Zoot, my son Mark also told me that Rupert’s goons were trying to destroy her reputation.

    As an antidote (you’ve probably seen it) here’s Katharine Murphy’s ‘She was a very credible person,’ says friend of woman who claimed minister raped her in 1988 where her friend Jeremy Samuel talks about thhis friend and what she told him.

    The same article does give an account of what she says happened.

    There is also a link to Richard Ackland’s . Without an inquiry, Scott Morrison’s ministerial standards don’t amount to a hill of beans . Written before Porter outed himself his conclusion is still relevant:

      We’re now in the business-as-normal mode: duck, weave, deny, gasp for breath, hang on for grim death and hope the caravan moves on.

      This time it won’t and it shouldn’t.

  16. Interesting one from The Conversation re the bleeding of women’s support for the so called Liberal Party. (But not the Nationals – A situation supported by the WA results that made the WA Nats the lead opposition party. https://theconversation.com/could-the-morrison-governments-response-to-sexual-assault-claims-cost-it-the-next-election-156939
    In the last federal election only 35% of women voters voted liberal vs 45% for men. Interestingly the Nats got 3% of each.
    More women than men voted for both Greens and Labor.

  17. Thankyou zoot and John. This could go badly for Morrison in the ballot box.

    With perfect timing, Christian Porter sues ABC and reporter Louise Milligan for defamation.

    The ABC can defend on the basis of truth, which only has to be demonstrated on the balance of probabilities.

    Should be interesting to watch. If Porter wins, will he ‘win’ in terms of the public view?

    Meanwhile attention has been drawn to the Assistant Attorney General, newby senator from Qld Amanda Stoker. If you read through that Wikipedia entry, she comes across as a right-wing religious nutter, which is what she’s known as hereabouts.

    No wonder Morrison got Marise Payne to fill in. They really are short of talent.

  18. There is speculation in ABC just in that Peter Dutton will become Defence Minister and Michaelia Cash will be Attorney-General. https://www.abc.net.au/news/2021-03-24/cabinet-reshuffle-christian-porter-linda-reynolds/100026802
    Porter may remain in industrial relations. The decision could be made as early as Friday.
    I guess the question is: “Can Cash and Dutton’s ability to do harm to people by these moves (assuming that they don’t retain their present ministries?)”

  19. Yes, all will be revealed, but the move is on, so we are assured.

    Even Morrison could see that Porter running a court case while AT was not viable.

    Morrison is honestly trying, but still blundering about and can’t quite wipe the smirk off his face.

  20. Yuk alert!

    Upper Hunter MP Michael Johnsen stands aside over rape allegations:

      Nationals MP Michael Johnsen will take leave from NSW Parliament as police investigate allegations he raped a sex worker at a secluded Blue Mountains lookout.

      Mr Johnsen, the member for the Upper Hunter, late on Wednesday identified himself as the NSW MP under investigation by the NSW Police Child Abuse and Sex Crimes Squad over the incident in September 2019.
      Upper Hunter MP Michael Johnsen has taken leave from NSW Parliament.

      His statement came after Blue Mountains MP Trish Doyle used Parliamentary privilege on Wednesday afternoon to say she had been contacted by a woman 18 months ago who alleged she had been sexually assaulted by an MP in the Berejiklian government.

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