Why the Bill Shorten and Christian Porter cases are different

Our system of justice does not stand still. It evolves with us, and we need to remember that.

Christian Porter and Bill Shorten (Images: AAP)

Note: this story discusses sexual assault.

At the last federal election, I voted for the Labor candidate in my electorate. I am not a member of any party. I voted Labor, because it at least promised some policies to give our planet a fighting chance.

I did not know at that time of the rape allegations against Bill Shorten, which I now know he has strenuously denied. I am not sure why I didn’t know. Partly, Shorten’s case was reported differently in the media than in the case of the allegations against Christian Porter. Porter also strenuously denies the allegations against him.

I was also busy, with a young family, work and life generally. Would I have voted for Labor, if I had know about the allegations against Shorten, the police investigation, and the outcome of that investigation? I’m not totally sure, but probably yes.

It would not, however, have been a vote for Shorten. That is contradictory, but again, my one concern at the last election (and continuing) is stopping the denialism about the climate catastrophe that is staring us all in the face.

It says something about where we are, as a society, that at the last election the choice was either Shorten as prime minister or Scott Morrison, who once stood up in federal parliament holding a lump of coal. Why could those two parties not have been led by women?

Did the federal members of the Labor Party, who stood behind Shorten, do any internal due diligence as to whether he was a fit and proper person to put forward as the leader of the opposition? I do not know. If they didn’t, that is a grave stain on them.

Does Shorten’s case provide a valid precedent with respect to the current allegations against Porter? No. This is not because of the differences between the two cases that some media and commentators have identified, such as Shorten having been questioned by police and Porter having not.

It is not a valid precedent because our society, the values we hold, and our system of justice do not stand still. If they did, a husband would still have a defence in law to a charge of raping his wife.

The fundamental difference, the shift that has occurred, is that we no longer accept that the inability to prosecute and prove beyond reasonable doubt a charge of sexual assault means that such allegations should either not be raised or, if raised, not be seriously investigated in a civil context, particularly when fitness for public office is concerned.

As a lawyer, there are a number of things I do not understand about the statements made by Porter at the press conference he gave last week. Surely he must have known that this is not (and never was nor could have been, given the woman took her life before giving a formal statement to NSW Police) about his presumption of innocence to a criminal charge.

And to Porter’s question, “can you imagine for a minute that none of this is true?”, the answer has already been given by The Monthly‘s Rachel Withers: “Imagine for a second that it is true.”

Now to the question, “what if the allegation of rape had been made against you, Lisa?”

Apart from the improbability that I would have been considered, and chosen, for the position of attorney-general (or shadow attorney-general), what I would say is as follows.

I would be shocked. I would feel profoundly hurt and publicly humiliated. I imagine I would be angry as well, in particular to see my family being hurt in the crossfire. But I hope that, once my actions could not interfere with a criminal investigation, I would want to find out exactly what the allegations against me were.

I would be retaining a criminal lawyer and an expert on commissions of inquiry, not a defamation lawyer. I would then seek dispassionate advice as to whether I could continue in my position as attorney-general, or whether I should stand aside until there had been a formal, independent inquiry.

I would welcome the opportunity to make a statement under oath.

I trust I would be capable not to make these tragic circumstances just about myself; rather, that I would be able to give some recognition to the fact that for far too long our society (mostly ruled by older white men) has failed victims of sexual abuse.

We are continuing to fail young women and men, teenagers and younger children, by continuing to condone misogynistic, racist, homophobic statements and actions, and continuing to elect to our parliaments individuals who are misogynists, racists and homophobes (and climate change denialists), as well as those who are content to engage in dog-whistling if it helps them get elected.

If you are reading this as an elected member of one of our parliaments, please take a long hard look at yourself.

If, because of your past, or your present values and actions (or lack thereof), you cannot be an agent of change, resign. Resign and let the younger generations, and many more young women in particular, take charge.

Lisa De Ferrari is a senior counsel at the Victorian Bar.

If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.

For anyone seeking help, Lifeline is on 13 11 14 and Beyond Blue is 1300 22 4636.