Those who want to contemplate what the complete breakdown of the rule of law in Australia could look like should recontemplate one of the scenes of the riots in Washington as supporters of Donald Trump gathered in an effort, as they saw it, to prevent the two houses of the American parliament confirming the election of Joe Biden as President. Outside the congress was erected a gallows, at which, perhaps symbolically, Trump's vice-president, Michael Pence, was to be hanged if he participated in the final process of certifying the election.
The gallows and the noose, sometimes the tree and the noose, have long been symbols of the lynch mob or vigilante mentality which is deeply embedded in American history, particularly when white folk have become angry about allegedly unpunished crimes, such as horse or cattle stealing, or a perceived want of respect, particularly for white women, from blacks, Jews, and at one stage Catholics. It has also been used, frequently, to deal with people trying to unionise work forces. State and federal authorities have a long and ignoble tradition of cowering before white mobs, and of failing to punish exercises in vigilantism, or lynch law. Likewise, American hotheads on the far right of politics are greatly given to talking of exasperated American patriots, who are not going to take it anymore - seizing power and disposing of those they think have been abusing it. The American Bill of Rights is said to protect such speech.
And yet our Prime Minister, Scott Morrison, hesitated about condemning the mob violence of January 6. Or the words and deeds, and lack of deeds, of President Trump in inciting a violent takeover of the legislature, and the extension of his presidency on the grounds of his feeling that he had really won the election, but for the fact that the other side had more votes, more vote in the electoral college and had probably, if not provably cheated.
Given what happened, and the continuing truculence of Trump and many of his followers, it would be difficult to insist that respect for the rule of law, or for the processes and institutions of American government, have been restored. But it must be said that most of those institutions, and so far the rule of law itself, seem to have survived the novelty of the attack upon it.
Morrison is talking self-serving nonsense in claiming that the fundamentals of the rule of law in Australia would collapse if action were taken to investigate allegations of sexual assault by the Attorney-General, Christian Porter, even though the alleged victim is now dead. So is Porter, who is using the claim for refusing to resign. A criminal prosecution of Porter is now impossible, given that, investigating police had not, in spite of five interviews with the alleged victim, got a sworn statement. Indeed it is said that the victim, shortly before she was found dead, asked police by email to drop the matter, given her mental health situation.
It is quite open to government to hold an inquiry - even a royal commission. Or a parliamentary inquiry, for that matter. I don't see why it should be confined to questions of sexual assault.
Scott Morrison has suggested that the police having spoken, any form of subsequent investigation in Porter's behaviour would involve succumbing to "mob rule", or to being voted off the island.
"That's not how we run the rule of law in Australia.
"We run the rule of law based on the police. On courts. On judicial systems. On rules of evidence. On presumption of innocence. That's how liberal democracies function.
"And we have to be very careful even in traumatic and sensitive issues like this that we do not fundamentally undermine that principle. Because upon that, our entire system is built."
Morrison, Porter, and/or the Morrison government have, over the years, violated every single one of these fundamental principles. Regardless of their complete hypocrisy, we should respect (in a way they often do not) the principles of fair and public trials, based on evidence able to be seen and cross-examined on both sides, guided by the rules of evidence (including exceptions provided for) and on a fundamental presumption of innocence. If Christian Porter is to be tried for any crime it should be by the same rules that prevail for everyone else (including Bernard Collaery).
In theory, had the NSW Police been more diligent, they might have gathered enough evidence to found a prima facie case, and a charge, even after the woman's death. But it's too late to repair the deficiencies now. It is not too late to find out what happened by other means, and that can occur without putting Porter at any sort of criminal "double jeopardy" or denying him the presumption of innocence.
It is quite open to government to hold an inquiry - even a royal commission. Or a parliamentary inquiry, for that matter. I don't see why it should be confined to questions of sexual assault. Whether, for example, Porter is a fit and proper person to be the first law officer of the nation, does not depend on whether he has been charged, or convicted, of a sexual assault offence. It is not foreclosed, as some sort of autrefois acquit, by an incapacity to launch a criminal prosecution.
Having an inquiry will open no floodgates
Does anyone imagine that Morrison can long hold out that Porter is without a single stain on his character, the ideal person to take his place in a campaign to enhance the dignity, safety and rights of women, including particularly people working in ministerial officers? It would be interesting to see Morrison try.
One sees regularly cases before professional tribunals in which lawyers, doctors, nurses, physiotherapists and others have been struck off after consideration of allegations going to their character and fitness. In some such cases, the person has had reregistration challenged, even after being acquitted of alleged crimes. Striking off is not regarded as punishment, but protection of the public.
Likewise with footballers (including those accused of sexual improprieties), racing clubs, even sporting clubs. Nor do allegations have to be framed in the form of alleging some criminal offence. Court challenges generally go to issues of whether the "rule of law" was followed: which is to say whether natural justice was accorded, whether the party was given a fair chance to answer allegations, including, usually but not invariably, a chance to face accusers and to cross-examine them.
Last month, after extensive hearings, former Justice Patty Bergin held that Crown Casino, as represented by its owners, board and managers, was not a fit and proper person to have a casino licence in NSW. Bergin cited evidence of slackness in enforcing strict rules - even laws - about money-laundering, association of the casino with organised crime figures and so on. But she did not "convict" Crown of such crimes. She simply found, to her satisfaction (and on the balance of probabilities) that such things were occurring and that Crown had not been doing enough to counter them.
Over the years, any number of commissions against corruption, royal commissions or commissions of inquiry have examined the behaviour of officials or citizens accused over conduct, which if found to have occurred, would amount to a crime. But such inquiries are not alternative courts, and they do not hand out sentences if they establish that a crime occurred. Rather, they make broader findings for government and the community about patterns of crime or misbehaviour, and whether these amount to official corruption. If they see evidence of specific crimes, they may pass these on to police, or directors of public prosecutions, for follow up.
A coroner's inquest is not usually well-placed to settle matters in contest, even if it has processes for bringing evidence to light. In the case of an alleged suicide, for example, the coroner's remit is to find the cause of death, not to conduct a wide-ranging inquiry into anything, or everything, thought to have been in the mind of the victim at the time of the actions which brought about the death. It is very rare for coroners to investigate the truth or reasonableness, or even the facts about, the grievance or matter agitating the mind of the person committing suicide, or to allow material - such as suicide notes - to point a finger, as it were, from the grave. In my experience, coroners are often given to dispensing with inquests altogether once police inquiries satisfy them that suicide was involved.
Women, already talking of gathering soon at parliament to protest the appalling treatment of victims of sexual assault are unlikely to be looking for a tree branch from which to suspend Porter. But their eyes will be on Morrison. Morrison should ask his wife, and daughters whether he really needs Porter more than the votes of more than half of the population. It's the fitness of Porter to hold public office that is the issue.
Any proper assessment of the fitness for office of Christian Porter would look not only at what a proper assessment of sexual assault allegations says about him, but would involve the way he has performed as a politician and as a minister.
Questions have been raised about Porter's moral fitness for office, in just that phrase, for years. It began long before I had any knowledge of his private character, as opposed to his public persona, or about the present allegations, no longer being investigated by police, of the rape of a schoolgirl 33 years ago. But they were strengthened by what I learnt in Louise Milligan's Four Corners report about his character as a university student and young lawyer around Perth. Milligan, it seems, was unable to satisfy ABC lawyers in November that it was safe to broadcast the rape allegations, but it is obvious, in retrospect, that some of the material that was broadcast had been gathered in the context of the allegation.
His personal failings seem to me to mirror his abuse of political principle. He has been described as having drinking issues, and deeply sexist, misogynist and dismissive attitudes to women, and to being, generally, a Hooray Henry type exemplified in Britain by the associates of David Cameron and Boris Johnson. He was frequently accused of inappropriate behaviour with women.
A barrister, Kathleen Foley, told Four Corners: "For a long time, Christian has benefited from the silence around his conduct and his behaviour, and the silence has meant that his behaviour has been tolerated and after a certain amount of time, the silence means that it's condoned and that it's considered acceptable. And I'm here because I don't think that his behaviour should be tolerated, and it is not acceptable."
Now none of this shows him to be guilty of the rape he so vehemently denies. But it says something of his character that an independent observer would be entitled to consider while assessing the detailed materials in the rape allegation, and wider questions about his personality, temperament and disposition. They certainly make a contrast with the posture of a strong ethical and moral base, and deep religious conservatism.
But that, and much more recent accounts of what happened with his debating partner, sit alongside a record as Attorney-General of appointing Liberal Party cronies to high-paying quasi-judicial positions, outside the merit process. It includes the giving of dubious secret advice permitting highly irregular distribution of grants for politically partisan purposes, interventions in a number of deeply political prosecutions that violated principles of the Crown being a model litigant. It involved his role as a social security minister administering the robodebt scheme when he knew, and was concealing, legal advice, and quasi-judicial findings that the scheme was illegal. It is not without interest, incidentally, that the robodebt process, like an increasing number of processes in the refugee system, has a reversed onus of proof, contrary to the rule of law to which he has so suddenly become attached.
Porter has carried on with a new type of approach to being law officer. Once, the first law officer had occasionally to stand at a distance from his colleagues, explaining what the law was, rather than presenting them with schemes, stratagems and dubious interpretations which would assist ministers or agents to circumvent the will of the parliament. Once, the concept of the rule of law necessarily implied that public administration was circumscribed by guidelines enforced equality of access to, and fair dealings from government.
Government law now about subverting basic principles
Particularly since the pandemic, we have had a government which seems to find ways to subvert the law. Much government is occurring under discretion, without accountability or public reporting, and without the slightest attempt to offer all citizens an equal fair go. Morrison may be chiefly at fault, but no one could suggest that Porter has demonstrated the slightest amount of spine in the way that he has enabled it. It is for that sort of reason, quite apart from his contribution to the moral confusion of the Morrison government over sexual assault that he would be doing Australia a big favour by withdrawing from public life.
Nearly 50 years ago, Richard Nixon's attempt to frustrate the various Watergate inquiries included the insistence that many of his claims for executive privilege were made not so much for his personal private advantage, but so as to preserve a necessary freedom of action for future presidents. If the public was able to learn what was said in the Oval Office, he claimed, no one would be able to give a president frank and free advice ever again. Indeed, the lawyer appearing for him told one court, "The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment." The US Supreme Court rejected the argument, and the power of presidents does not appear to have waned.
Porter's argument that his refusal to resign is in defence of the rule of law, to prevent the creation of some circumstance whereby a person can be forced to resign by mere allegation is entirely self-serving. First, it is simply not true that he is under attack only because an allegation has been made, although police have now dropped the case. The allegation has not been found baseless, even if the evidence available to police, after seemingly desultory inquiry, is not enough to sustain a criminal prosecution. It is of a sort that can be examined in any number of contexts, including the courts, as any number of notorious cases involving alleged sexual harassment, or unfair dismissal would show.
No process in prospect creates any risk of jail or fine, other than for perjury. If it puts at risk his position as a minister, that is not a position he holds by right but at the whim of the Prime Minister. It is clear that he must go if and when Morrison thinks him a burden. He is that, if only as an own-goal perpetual distraction about the government's treatment of women. There is simply no way in which a man of his character and disposition can become an asset rather than a liability.
Indeed, it is almost impossible to imagine Morrison - marketer supreme - transforming himself, in the mind of Australian women, into a champion of the rights and dignity of woman. If he doesn't already know that could never occur while Christian Porter is his legal adviser, he is not the politician I have thought.
- Jack Waterford is a former editor of The Canberra Times and a regular columnist.