Porter’s confusion around basic legal concepts ‘regrettable’, lawyer says

By Naomi Neilson|10 March 2021
Christian Porter

The lawyer who formerly represented Attorney-General Christian Porter’s accuser said to disregard some of the claims in his statement as they continue to be used to create confusion and send an “unfortunate message” about the rule of law. 

Fronting Perth media to deliver his strenuous denial that he raped a woman more than 30 years ago, Christian Porter suggested that if an inquiry or independent investigation of some form would go ahead, it would compromise the rule of law and somehow place the onus on him to prove that the assault never took place.  

Commenting on why he would not be standing down from his position as the chief legal officer, Mr Porter told media that there would “be no rule of law left to protect” and later claimed that the insistence for an inquiry was in some way “on the balance of standards and probability that I would be asked to disprove something”. 

Marque Lawyers managing director Michael Bradley said Mr Porter’s language – and it being repeated by senior members of Parliament, including Prime Minister Scott Morrison – was “regrettable” and “pretty concerning coming from the mouth of the Attorney-General” who should be well aware of basic legal principles

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“There is nothing unconventional or remarkable about the idea of conducting an inquiry in these circumstances. It’s something that happens every day of the week with people in positions of responsibility and power when they’re facing allegations of misconduct or whatever for there to be an inquiry of some form focused on their fitness to occupy that position,” Mr Bradley told Lawyers Weekly. 

“That is the rule of law in application, so there has been a really unfortunate amount of conflation of criminal justice concepts and civil law principles that has created a lot of confusion unnecessarily, and regrettably the government has been actively participating in creating and furthering all of that confusion.” 

Responding to Mr Porter’s claims that he would have to disprove the assault, Mr Bradley said it was “flat wrong and he has to know that”. There are no circumstances where Mr Porter would be bearing any legal onus to disprove anything, “and again, it’s disappointing that this kind of rhetoric is being deployed”. 

The confusion of this legal language coming from the Attorney-General might be considered understandable – given he was demonstrably upset when giving his statement and has taken some time away from office to address his mental health – but nevertheless, Mr Bradley cautioned people away from looking at Mr Porter as “a guide through how the law should be responding” to the allegations of an assault. 

“The best thing to do is disregard what he said,” Mr Bradley said. 

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Mr Bradley said that on top of the confusion around basic legal concepts, Mr Porter and the government’s subsequent response has effectively sent a message “that there is more or less impunity available if the criminal justice system is unable to respond to a serious allegation and that’s the end of [the investigation]”. 

The allegations have also highlighted the concerns that victims of sexual violence are repeatedly confronted with when considering whether to report: “I think it’s reinforcing the message that they won’t be listened to and if they are listened to, there is a high likelihood that they will be rejected. The highest likelihood is the person who they have accused is not going to face any form of justice.” 

Outside of just the allegations, Mr Porter has also faced claims that he has been “deeply sexist and misogynistic in his treatment of women” and has a track record of only appointing men to the bench. With all of this in mind, Mr Bradley said there is an opportunity to use the “awfulness we are experiencing” to bring a specific focus on the ways that the justice system is broken in its response to assault and gender. 

“There’s an opportunity now to turn that into something constructive and get to work on seriously dealing with those structural and systemic failures. If that is going to happen then we need in the positions of leadership – particularly Attorney’s-General at state and federal levels – people who understand these structural problems and failures and have a commitment and conviction about fundamental reform,” Mr Bradley commented. 

“It’s what we deserve and should expect because without that leadership, it’s not going to happen.”

Precedents for stepping aside (or standing down)

During his press conference, Mr Porter suggested that if he stood down it would mean that “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”. 

While he is absolutely entitled to presumption of innocence under legal concepts, there are precedents within a political space that could pave the way for either Mr Porter to stand aside or for Mr Morrison to stand him down pending an inquiry. 

Monash University associate professor Luke Beck listed five, including Ian Sinclair who allegedly forged his father’s signature and stood down while he awaited charges. Later, Mal Brough retired from politics and did not contest an election while he awaited an inquiry into improper behaviour towards a former speaker. 

“It would not be at all unusual for Mr Porter to resign, be dismissed or stand aside pending the outcome of an independent inquiry,” Mr Beck said.  

Mr Beck also pointed to NSW minister for small business Tony Stewart who was sacked following allegations he harassed a staff member. After receiving a report finding he had, then-premier Nathan Rees recommended he be stood down. 

Mr Stewart tried to challenge his dismissal in court and sue the barrister who conducted an inquiry but lost. The NSW Court of Appeal held that the decision to dismiss a cabinet minister based on the allegations and the process leading up to that decision “is entirely political and no business of the courts”. 

The Court of Appeal held that cabinet ministers can be “dismissed for any reason or for no reason”, that they have no right to be heard before they are dismissed, cannot challenge the dismissal in court and that the head of government owes a cabinet minister no duty of care in deciding whether or not to dismiss them from office. 

“Prime Minister Scott Morrison has full power to advise the Governor-General to sack Mr Porter, just like Premier Rees advised the Lieutenant-Governor to sack Tony Stewart. And just like Mr Stewart, Mr Porter has no legal rights in this process,” Mr Beck said.

Porter’s confusion around basic legal concepts ‘regrettable’, lawyer says
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