Porter confesses and denies, the PM washes his hands. So what next?

Just because a criminal case cannot be brought against the attorney-general shouldn’t mean the PM does nothing.

Attorney-General Christian Porter fronts the media (Image: ABC)

Note: this story contains references to sexual assault.

Attorney-General Christian Porter — Australia’s first law officer, chief legal adviser to the government, and the man in charge of national security — has named himself as the person accused of raping a 16-year-old girl in 1988 and denied ever having sexual relations with her.

These allegations were contained in a detailed statement submitted to police in 2020 and sighted by Crikey.

The Australian Federal Police will not be investigating the alleged rape (and never could). The NSW Police have dropped their investigation. Prime Minister Scott Morrison, who has the power to temporarily stand the minister aside, has refused to do so.

Porter — again, a man in charge of law, order and behavioural standards — has previously been accused of being a sleazebag, a womaniser, and a man who gets drunk in public and makes passes at women.

Today he denied any wrongdoing, repeating over and over that the alleged rape simply did not happen.

Is that the end of the matter?

What could push Morrison over the line to stand Porter down?

Morrison has the power

The statement of ministerial standards is a document that governs ministers’ code of conduct. It has been endorsed by each government when it comes to power and, aside from the introduction of the “bonk ban” in 2018 following Barnaby Joyce’s extramarital affair with a staffer, it has been largely unchanged since being implemented in 2007.

The standards haven’t been legislated, which would mean either parliament or an independent body would be in charge of enforcing them. Instead, specialist in public sector ethics Howard Whitton tells Crikey that enforcing the standards is up to the discretion of the prime minister.

“It rests with the prime minister because the prime minister is responsible for the ministry. He appoints them and he un-appoints them,” he said.

The statement declares: “It is for the prime minister to decide whether and when a minister should stand aside if that minister becomes the subject of an official investigation of alleged illegal or improper conduct.”

The lack of an official investigation and this discretion has seen Morrison largely throw his hands up in the air and claim the allegations are for someone else to deal with. He hasn’t even read the woman’s statement , submitted to the NSW Police, which was sent to him on Friday. To be clear, he says he’s been briefed on the statement.

But there’s less wriggle room than this implies, Whitton says. While Morrison would have to stand Porter down if he was the subject of an official investigation, he can also stand Porter down “if the prime minister regards their conduct as constituting a prima facie breach of these standards.

“[He] can require a minister to resign if convicted, and may be required to resign if the prime minister is satisfied they’re not up to scratch.”

Porter has said he won’t stand aside.

“If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, 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,” he said.

“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 in rule of law left to protect in this country.”

Police were never really an option

The Morrison government referred the woman’s statement to the AFP. Unless these lawmakers don’t understand how laws work, they should have known that states have jurisdiction over sexual assault crimes.

NSW Police had been aware of the allegations since 2019 but suspended the investigation when the woman died by suicide in July 2020, and officially closed it yesterday due to “insufficient admissible evidence to proceed”.

Politicians pawning the allegations off to the AFP was nothing but a distraction.

Friends of the woman told Crikey that after speaking to police she questioned whether a criminal investigation was the right route to take, given the issues around prosecuting rape.

One friend who had known the woman since the ’60s, Jeremy Samuel, told Crikey he never expected the police to play a role after her death.

“We need to get some resolution,” he said. “There needs to be an inquiry.”

Independent inquiries are crucial

Expert in sexual discrimination Dr Karen O’Connell tells Crikey there were plenty of other avenues to investigate the allegations — and when it came to sexual violence, these other avenues were often better.

“The criminal standard has been almost impossibly high in many of these [sexual violence] cases,” she said.

“All my life, I’ve seen sexual assault cases being dismissed from public life because the police haven’t found evidence to meet that standard.”

When former justice Dyson Heydon was accused of sexual misconduct, the High Court conducted a workplace investigation. Investigations into things that happened in either a workplace or civil context examine the balance of probabilities.

“You’re not looking at beyond a reasonable doubt, and that’s really important,” she said.

The argument of “innocent until proven guilty” belonged to criminal law where someone is at risk of losing their liberty, she says. The argument of reputational damage through an inquiry was already largely moot, because details of the allegations have already been widely circulated.

“What’s important to say is just because we don’t have a standard of evidence robust enough for the criminal law, doesn’t mean we have nothing,” she said.

“The government is absolutely under an obligation to create some kind of independent investigation.”

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