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.