Christian Porter quits cabinet, refusing to find out who gave him money for legal costs


AAP/Lukas Coch

Michelle Grattan, University of CanberraIndustry Minister Christian Porter has been forced to resign from cabinet after declining to seek and provide to Scott Morrison the names of the anonymous benefactors who have helped fund his legal costs.

Morrison has appointed energy minister Angus Taylor acting industry minister and sources say he is likely to continue in the dual role.

Porter’s resignation comes as Newspoll shows the government slightly reducing Labor’s two-party lead, from 54-46% to 53-47%. Labor’s primary vote fell 2 points to 38%; the Coalition rose a point to 37%.

Both leaders took hits in approval: Morrison is on a net negative of minus 4, while Anthony Albanese is on a net negative of minus 11. Morrison’s lead as better PM has fallen to 47-35%, from 50-34% three weeks ago – this is the closest since March last year.

In a three-page statement, Porter renewed his attack on the ABC and said a statement provided by the now-deceased woman who accused him of historical rape – which he denies – showed the allegation lacked credibility and was written by someone “very unwell”.

Porter is keeping the funds donated to a “blind trust”, the amount of which is unknown. He also says he will seek to run again in his Western Australian seat of Pearce, which is on a 5.2% margin.

Last week, Porter updated his parliamentary register of interests to reveal a “part contribution” to his legal bills for his (now settled) defamation case against the ABC from “a blind trust known as the Legal Services Trust”. Porter said he did not know the names of donors.

Morrison asked his department to advise whether the arrangement breached ministerial standards.

But Morrison indicated at a news conference on Sunday he and Porter had finalised his future ahead of the advice.

Morrison was clearly anxious to have it settled before his trip to the United States, so it would not be a distraction during what he hopes will be a time of positive news following last week’s announcement of the AUKUS security agreement.

Bad publicity around Porter has been a running sore for the government for much of the year.

The historical rape allegation surfaced publicly in February, when the ABC reported material about it had been sent to several politicians, including the prime minister. Porter was not named but later identified himself, declaring the alleged assault had never happened.

Initially, he hoped to retain his position as attorney-general, but this was politically untenable and he was moved to the industry job in a reshuffle.

With an outcry over the “blind trust” and an election approaching next year, Morrison could not afford another prolonged scandal around Porter. He indicated Porter’s future was in doubt when he said last week he was taking the matter very seriously.

Morrison said on Sunday that in their discussions, Porter had been unable to “practically provide further information because of the nature of those [trust] arrangements”.

That Porter couldn’t provide the information meant he could not conclusively rule out a perceived conflict of interest.

Morrison said Porter was upholding the ministerial standards by resigning.

Porter said in his statement that while he had no right of access to the trust’s funding or conduct, he had asked the trustee for an assurance, which he received, “that none of the contributors were lobbyists or prohibited foreign entities.

“This additional information was provided as part of my Ministerial disclosure,” he said.

He said no doubt the desire of some or many of the donors to remain anonymous was driven by wanting to avoid “trial by mob”.

Porter said he believed that he had provided the information required under the Members’ Register of Interests, and that the additional disclosures he provided under the Ministerial Standards were in accord with its additional requirements.

“However, after discussing the matter with the Prime Minister I accept that any uncertainty on this point provides a very unhelpful distraction for the Government in its work.”

He said to the extent the uncertainty might be resolved by seeking further information about donors’ identities, “this would require me to put pressure on the Trust to provide me with information to which I am not entitled.

“I am not prepared to seek to break the confidentiality of those people who contributed to my legal fees under what are well-known and regular legal structures, including the confidentiality attached to the Trust contribution,” Porter said.

He had explained he “could not assist any process that would ultimately allow people who have done nothing wrong to become targets of the social media mob.”

“Ultimately, I decided that if I have to make a choice between seeking to pressure the Trust to break individuals’ confidentiality in order to remain in Cabinet, or alternatively forego my Cabinet position, there is only one choice I could, in all conscience, make.”

In his renewed attack on the ABC, Porter said that “seemingly with great care and effort – [it] has reported only those parts of the information that it has in its possession which feeds into its narrative of guilt.

“I have recently been provided from a source outside the ABC with a copy of the only signed document that the person who made and subsequently withdrew the complaint ever made.

“Many parts of that 88-page document are such that any reasonable person would conclude that they show an allegation that lacks credibility; was based on repressed memory (which has been completely rejected by courts as unreliable and dangerous); which relied on diaries said to be drafted in 1990/91 but which were actually words composed in 2019; and, was written by someone who was, sadly, very unwell.”

Albanese said Porter needed to answer where the money had come from. He also said Morrison had not sacked Porter – Porter had resigned.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations


Richard Wainwright/AAP

Brendan Clift, The University of MelbourneAttorney-General Christian Porter is suing the ABC for defamation and claiming aggravated damages.

Porter is claiming that an article published last month included false allegations against him in relation to a historical rape. A statement from his lawyer says although Porter was not named, the article made allegations against a senior cabinet minister “and the attorney-general was easily identifiable to many Australians”.

So, how does defamation law work, what is its impact on the media, and why has Australia been labelled the defamation capital of the world?

What is considered defamatory?

Defamation can be defined as a false statement about a person to their discredit. The legal action has three elements for the complainant to prove: publication, identification, and defamatory meaning. Significantly, the falseness of the published material is presumed.

A statement has defamatory meaning if it would lead an ordinary, reasonable reader to think less of the complainant, or if it would cause the complainant to be shunned or subjected to more than trivial ridicule.

Publication is broadly defined, including any communication to someone other than the complainant, whether written or spoken.

And identification requires reference to the complainant, which could be indirect if the ordinary, reasonable reader is able to read between the lines — as Porter is claiming in his case.




Read more:
View from The Hill: Despite his denial, Christian Porter will struggle with the ‘Caesar’s wife’ test


A news organisation might carefully avoid naming a person, as the ABC did, but it could still be liable if a reader would have known who that person was. Porter was named in social media chatter around the ABC’s story – whether that sort of speculation constitutes identification is questionable, but not inconceivable.

Where a complainant’s identity is confirmed after publication — as Porter’s was when he fronted the media two weeks ago — identification becomes straightforward for later downloads of the story. Each download is treated as a separate potential defamation under the law. At the time of writing, the ABC’s report was still on its site.

The elements of defamation are encapsulated in the expression cherished by news editors:

journalism is printing what someone else does not want printed.

This reflects the reality that the media is exposed to defamation risk daily — and the risk is serious.

A complainant can sue any person involved with the story’s production, such as journalist Louise Milligan in the ABC’s case. Add the fact the complainant doesn’t need to prove any harm was actually done — and aggravated damages awards are uncapped — and it’s easy to see why defamation inspires fear among media organisations.

What defences can media organisations use?

The defences to defamation are notoriously difficult to establish.

While the complainant need not prove the material is false, the defendant can escape liability by showing that it’s true. In the Porter case, this means the ABC would need to prove matters from more than 30 years ago raised in a letter by a woman who is now deceased.

Moreover, the defendant must prove the truth of the “defamatory stings” — the discrediting imputations that an ordinary, reasonable reader would take from the published material, regardless of whether those were the intended meanings.




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Social media and defamation law pose threats to free speech, and it’s time for reform


Even proving the truth of ordinary, factual reporting can be challenging in cases where journalists’ sources, such as whistleblowers, have legitimate reasons to preserve their anonymity.

These difficulties might be ameliorated if Australia had a “reportage” defence, like that of the United Kingdom. This defence excuses the media for reporting defamatory statements by third parties on matters of public interest, provided the media has merely reported the statement without adopting it.

Australia does have a “reasonable publication” defence, but its requirements have proven near-impossible for media organisations to satisfy in court.

For example, the defence is probably a non-starter in cases where a news organisation reports unproven criminal allegations and the person of interest, being unnamed, is given no right of reply in the story.

Reforming defamation

Changes to Australia’s defamation law are in the works. Some will help potential defendants, such as a new threshold of serious harm and tighter time limits for bringing actions.

Other reforms will require a wait-and-see approach, like the new public interest defence, which aims to rebalance defamation law in favour of public interest reporting but retains elements of the old reasonable publication defence.

This leaves room for courts to maintain a tough stance on what is regarded as “reasonable” media conduct when it comes to defamation. That stance recently saw NSW courts hold three Australian media companies liable for comments that were posted on their Facebook pages about a former youth detention detainee.




Read more:
Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet


More meaningful reform might have established stronger public interest and reportage defences, or required complainants to prove that the material published about them was false – or even that the publisher knew it to be false but published it anyway.

Defamation cases involving public figures in the United States require proof that the publisher knew the material to be false, which is why US politicians almost never sue for defamation.

In Australia, by contrast, politicians do sue – and successfully. They often opt for the Federal Court where, compared with the state courts, they are likely to have their matter heard by a judge alone, rather than having to convince a jury of the merits of their case.

Citizens and institutions seeking to hold those in power to account are too often being silenced by our current defamation laws. In a strong democracy like Australia, we can — and must — do better.The Conversation

Brendan Clift, Graduate researcher, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Christian Porter finds a target, and so does Brittany Higgins


Michelle Grattan, University of Canberra

Christian Porter on Monday gave notice that he’s determined to stage a fightback, however damaged his ministerial career might appear at the moment.

The Attorney-General launched a defamation action against the ABC and journalist Louise Milligan over the article that initially reported an allegation of historical rape by a cabinet minister had gone to the police.

Porter on Monday also put a date on his return to work – March 31. That means he doesn’t have to face parliament until the budget session, but indicates he has no intention of quitting the frontbench, which seemed one option for him after this crisis broke.

Porter strongly denies the rape accusation but previously asked, rhetorically: how could he disprove something that didn’t happen? Now he’s turning the line on its head – he’s challenging the ABC to run a defence of truth, proving it did happen.

Whatever the outcome, this is shaping as a case for the history books, with a star cast – the nation’s first law officer, Australia’s public broadcaster, lawyers from the cream of the profession.

The defamation action may ease pressure on Scott Morrison over the calls for an independent inquiry to determine whether Porter is a fit and proper person for his position. The case, under civil law, will be its own sort of inquiry.




Read more:
Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations


Porter, a Crown prosecutor in a former life, is making a calculated tactical decision that attack is the best form of defence.

For the ABC, there’ll be wider implications – and more at stake – than just the case itself. The broadcaster is a punching bag for its critics in the Coalition and the right wing commentators, who attack it as politically biased. Milligan was at the centre of reporting allegations against Cardinal George Pell, whose convictions were quashed by the High Court.

The word from Morrison’s office has been he’s wanted Porter to stay, rather than step down to clear away a political problem.

Morrison will hope, with the legal action afoot, the political heat around Porter will cool somewhat.

We’ll soon see whether this is heroically optimistic. But what’s absolutely clear is that the two separate and very different rape allegations dominating federal politics have unleashed a push by women to be heard that had been waiting to erupt.

The March4Justice protests show the organised anger of women is a potent force – what’s yet to be tested is its longer term strength. And Morrison’s reaction indicates he’s ill-equipped to deal with a political challenge that has become a social bushfire.

Monday’s marches were nationwide but in Canberra the day belonged to Brittany Higgins, the young former Liberal staffer whose claim she was raped by a colleague in Linda Reynolds’ ministerial office was a catalyst for forcing action to deal with parliament house’s dark side.

Higgins put Morrison directly in her sights in an emotional but controlled speech, accusing him of playing a double game.

“I watched as the Prime Minister of Australia publicly apologised to me through the media, while privately his team actively discredited and undermined my love ones,” she told the thousands of assembled women.

And she took aim more generally, declaring the women were there because “we fundamentally recognise the system is broken, the glass ceiling is still in place, and there are significant failings in the power structures within our institutions. We are here because it is unfathomable that we are still having to fight this same stale, tired fight.”

To an extraordinary extent, and in a testament to the importance of individuals at particular times, Higgins and Porter’s deceased accuser have become the conduits for women’s grievances – grievances extending far beyond the alleged circumstances of those two women.

Morrison cast his response to March4Justice in what might be characterised as narrowly conventional terms. In a statement to parliament, he spoke about what had been, and was being, done to tackle the scourge of violence against women. He also went to the issues in parliament house.

But he has not shown himself able to relate effectively to the emotional intensity that has gripped many women as they seek to raise their voice. It is, one suspects, beyond his ken.




Read more:
‘What are you afraid of ScoMo?’: Australian women are angry — and the Morrison government needs to listen


Morrison’s refusal to meet the women on their own ground brought to mind John Howard’s unwillingness to join the 2000 march for reconciliation across Sydney Harbour Bridge. He misjudged in not sending his Minister for Women, Marise Payne, to mingle with the marchers.

The PM had offered to see a delegation in his office. But the organisers played the power game, and declined.

Anthony Albanese understood better than Morrison. “We had, today, women gather around Australia with a few very clear and unambiguous messages – hear us roar,” he told parliament.

But earlier the Labor leader struggled when peppered by reporters with questions about a private Facebook group (revealed by Sam Maiden on news.com) where Labor present and former staff have listed allegations of sexual misconduct by male staffers and MPs.

Albanese could only stress the party had a process to deal with complaints, and say women should come forward. It was difficult to look into anonymous suggestions, he said.

It’s easy to say the last few weeks mark some sort of political “moment” – measured perhaps by the Coalition’s knock in Newspoll, which saw Labor move ahead on the two-party vote.

It’s much harder to predict where that “moment” will lead in electoral terms. Right now, Morrison can’t know either. But Monday must have told him the government’s perennial “women problem” has suddenly become broader, deeper and more dangerous.




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View from The Hill: Labor surges to 52-48% Newspoll lead, as women’s voices set to roar across the country


The Conversation


Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Christian Porter sues ABC and reporter Louise Milligan for defamation


Michelle Grattan, University of Canberra

Attorney-General Christian Porter has commenced defamation proceedings in the Federal Court against the ABC and journalist Louise Milligan.

He is suing over an article the ABC published on Friday, February 26, which he says made false allegations against him in relation to a person he met when he was a teenager.

The story reported police had been notified of a letter sent to Scott Morrison detailing an alleged historical rape by a federal cabinet minister.

A statement from Porter’s lawyer Rebekah Giles says although Porter was not named, the article made allegations against a senior cabinet minister “and the Attorney-General was easily identifiable to many Australians”.

The lawyer’s statement, issued on Monday, says that in the last few weeks Porter “has been subjected to trial by media without regard to the presumption of innocence or the rules of evidence and without any proper disclosure of the material said to support the untrue allegations”.

“The trial by media should now end with the commencement of these proceedings,” it says.

“The claims made by the ABC and Ms Milligan will be determined in Court in a procedurally fair process.”

The statement says Porter will give evidence “denying these false allegations on oath.”

The ABC and Milligan have damaged Porter’s reputation by publishing the allegations, the statement says.

“This Court process will allow them to present any relevant evidence and make submissions they believe justifies their conduct in damaging Mr Porter’s reputation.”

The statement points out that under the Defamation Act, it is open to the ABC and Milligan to plead truth in their defence – “and prove the allegations to the lower civil standard”.

Porter’s lawyers include two leading barristers, Sue Chrysanthou SC, and Bret Walker SC, who appeared for Geoffrey Rush when he successfully sued the Daily Telegraph for defamation. Walker also acted for Cardinal George Pell, whose child sex abuse convictions were overturned in an appeal before the High Court.

A statement of claim filed in the proceedings says the article carried the defamatory imputation that Porter brutally raped a 16-year-old girl in 1988.

It says the ABC and Milligan published the article without any attempt to give Porter an opportunity to respond.

It accuses them of selecting portions of the material in order to make the allegations against Porter appear as credible as possible when other portions demonstrated the allegations were not credible.

“Milligan engaged in a campaign against Porter in order to harm his reputation and have him removed as Attorney-General,” the statement says.

The ABC said it would defend the action.

Porter’s office announced late Monday that he will return to work on March 31. He is currently on mental health leave. His return date means he will miss all the current parliamentary sitting and will not be back in the House of Representatives until the budget session in May.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Attorney-General Christian Porter declares alleged rape ‘did not happen’ – and he won’t stand down


Michelle Grattan, University of Canberra

Attorney-General Christian Porter has identified himself as the minister accused of historical rape but declared categorically that the 1988 claimed assault “simply did not happen”.

A highly emotional Porter told a Perth press conference he had not slept with the then 16-year-old who made the allegation more than three decades later. “We didn’t have anything of that nature happen between us,” he said.

Porter declared he was not standing down from his position as first law officer.

“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.

“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.”

Porter will take a couple of weeks leave to “assess and hopefully improve my own mental health”.

“I think I will be able to return from that and do my job.”

He said he has been asked by colleagues “Are you OK?”. His answer was “I really don’t know. I am not ashamed to say it – I am going to seek some professional assessment and assistance on answering that question over the next few weeks.”

Porter said that in the past few days, while he had remained silent during the legal process, he had been subject to “the most wild, intense and unrestrained series of accusations I can remember in modern Australian politics.”

He said he had never had the allegation put to him in any substantive form before last Friday’s publication. “No-one put anything in any detail to me seeking a response.” He had never seen the woman’s statement, although a statement from her was included with the letter sent to Prime Minister Scott Morrison last week. The ABC published the allegation late Friday.

On the incident itself, Porter said when he was 17 and she was 16 they were both on the Australian schools debating team for a competition in Sydney. He remembered her as an “intelligent, bright, happy, person.”

He was noticeably reluctant to go into detail. Under questioning, he said he did not think he had ever been alone with her, but admitted “it’s not impossible,” while saying he was never in her room.

He recalled a memory, sparked by what he had read of the material – “I don’t think any of us had ever ironed a shirt before, and I recall, she showed us how to do that, I remember that.”

It was a team of four, including three boys and “we did what normal teenagers would do”.

“I remember two evenings that week. One was a night at one of the colleges with bowls of prawns, which sticks in my mind. I do remember a formal dinner and going out dancing sounds about right.”

He said he was not in contact with the woman – who took her own life last year – in subsequent decades.

Porter began his news conference by referring to the woman’s parents, saying he hoped they would understand that in denying the allegation “I do not mean to impose anything more upon your grief”.

He rejected the volley of calls into an independent inquiry into the allegation.

“What would that inquiry ask me to do? To disprove something that didn’t happen 33 years ago.”

“I honestly don’t know what I would say to that inquiry. Of course I can’t.”

Porter said he had spoken to Scott Morrison and had his full backing.

He said he was deeply sorry for the fallout the issue has had for his colleagues.

“My colleagues have become the target of allegations and speculation themselves. My colleagues are my friends. And I’m deeply sorry to each of them for that.”

The issue exploded last week when friends of the woman wrote to Morrison and several other parliamentarians demanding an inquiry into her allegation. The letter included a statement the woman had made, detailing her alleged experience.

The woman went to the police a year ago but had not made a formal complaint.

The allegation has derailed the government for a week, when it was already struggling to contain the fallout from former staffer Brittany Higgins’ allegation she was raped by a colleague in the office of the then Defence Industry Minister Linda Reynolds in 2019.

On Monday, Morrison said the woman’s allegation against Porter was a matter for the police. The federal police referred it to the NSW police. The NSW police said on Tuesday that, “based on information provided to NSW Police, there is insufficient admissible evidence to proceed.

“As such, NSW Police Force has determined the matter is now closed.”

Porter denied the allegation to Morrison on Wednesday of last week.

The ABC’s Four Corners was pursuing the woman’s story last year, but in the end was not in a position to include it in its November program “Inside the Canberra Bubble”. That program reported sexist comments made by Porter as a young man.

Porter entered federal parliament in 2013 after a high profile career in Western Australian politics, where he served as attorney-general and treasurer.

Federally, he was social services minister in 2015-2017, before becoming attorney-general. After the 2019 election, industrial relations was added to his responsibilities.

Australian of the Year Grace Tame, an advocate for victims of sexual abuse, answering questions at the National Press Club, criticised Morrison over invoking his wife Jenny’s counsel that he should think of the Higgins’ situation as a father. “It shouldn’t take having children to have a conscience,” Tame said.

Michaelia Cash will be acting attorney-general while Porter is on leave.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Despite his denial, Christian Porter will struggle with the ‘Caesar’s wife’ test


Michelle Grattan, University of Canberra

Christian Porter’s denial of the historical rape allegation is unequivocal, but it won’t draw a line under the issue for him or for the Morrison government.

Porter declares he’s determined to stay in his job, saying to quit would mean anyone could lose their career “based on nothing more than an accusation that appears in print”.

It’s true there is little natural justice in this situation. But in politics, there are often many competing factors.

Porter is right that it’s difficult to recall circumstances like this present crisis, with its passion and fevered coverage, and frenzied abuse via social media. And the worst of it is, there’s no way of definitively finding out what did or did not occur, and so where “justice” lies.

Christian Porter
Attorney-General vigorously denied the rape allegations in an emotional press conference.
Richard Wainwright/AAP

A woman who is now dead claimed she was raped by Porter when they were both teenagers. From what she told people and wrote, she had no doubt it happened. Porter says he has no doubt it did not happen.

The police can’t determine the truth, because the woman is deceased, and an independent inquiry wouldn’t be able to do so either.

The claim and counter claim will be fought out in the court of public opinion and it will be an ugly contest.

Porter is not just any minister: his role as attorney-general sets him apart. He is the country’s first law officer – which means he must be above any suspicion. It’s the old “Caesar’s wife” test and – properly – the bar is high.

However unfair it might be, Porter will now never be above suspicion, at least in the minds of many.

Before he was a politician, Porter was a crown prosecutor. He has been around court rooms, and so used to tense situations.

Of course his news conference was not a court room and things are different when you are defending yourself, but it was notable how rattled he was.




Read more:
Has Christian Porter been subjected to a ‘trial by media’? No, the media did its job of being a watchdog


He wanted to avoid the details of that January 1988 time when the four teenagers were in Sydney as part of a debating team (which raises the idle question, where are the other two team members now and what do they think?). When pushed by journalists, some of his answers were fumbling.

What state he will be in after a period of leave remains to be seen, because it is likely the pressure on him will increase rather than ease.

Then there’s the question of the impact on the whole government. It is extraordinary what a toll the Brittany Higgins’ affair and the allegation against Porter are taking. It amounts to an enormous distraction for Morrison.

Scott Morrison
The Morrison government is reeling after the Brittany Higgins’ affair and the allegation against Porter.
Mick Tsikas/AAP

All this at a time when the government is struggling with the early days of the vaccine rollout.

And of course, the positive news has been put in the shade – Wednesday’s economic growth of 3.1% for the December quarter, which is a seriously good performance by any international standards.

Morrison is loyal to his ministers – or at least he understands that to put political blood in the water by cutting a minister loose is never without consequences.

When it is the attorney-general, that would be a huge step.

But asked this week whether he believed Porter’s denial, Morrison would not commit himself. “That is a matter for the police,” he said.

Significantly, Morrison didn’t send the woman’s statement to Porter after he received it in the letter from her friends on Friday. Porter said he still hasn’t seen it.

Porter’s spokesman said on Wednesday night that to have received the statement or documents when he was the subject of them, and they were matters for law enforcement agencies, would have been “inappropriate”. This seems a stretch.

Porter says he has Morrison’s support. The question is whether he will retain it in the days to come.

There is this hiatus, while Porter is on stress leave, during which Morrison can assess the situation.

He must decide whether he will remain dug in behind his embattled minister or encourage him to conclude that, despite what he said in his statement, his position is untenable.




Read more:
Senator Hanson-Young’s defamation win reminds us how the law can silence sexual slurs and raise survivors’ voices



If this article has raised issues for you, or if you’re concerned about someone you know, call the 1800 Respect national helpline on 1800 737 732 or Lifeline on 13 11 14.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Has Christian Porter been subjected to a ‘trial by media’? No, the media did its job of being a watchdog



AAP/Richard Wainwright

Denis Muller, The University of Melbourne

Aside from his strenuous denials of the rape allegation against him, the central point made by Attorney-General Christian Porter at his media conference was that he had been the victim of “trial by media”.

He warned if the media’s publication of allegations in these circumstances resulted in a public figure being forced from office, it would represent a new and unacceptable standard for public figures generally.

He also said no one in the media had confronted him with the allegation. And he said that when Prime Minister Scott Morrison discussed the matter with him last week, the document containing the allegation had already been sent to the Australian Federal Police, so he had not seen it on that occasion either.

These are important questions deserving of scrutiny.

What constitutes a ‘trial by media’?

“Trial by media” is one of those phrases that trips off the tongue in cases where the media apply intense pressure on a person or organisation at the centre of an issue.

Trial by media occurs when either of two things happen. The first is where media coverage prejudices the outcome of legal processes, such as police investigations or trials in court. The second is when the media initiate an issue and then proceed to play prosecutor, judge and jury.

Neither applies in the Porter case.

As far as is known, there are no police investigations or legal proceedings on foot and there has been little prospect there would be, given the woman who made the allegations is now dead. The South Australian police are preparing a report for the coroner, an investigation that by definition is confined to the circumstances of the person’s death.




Read more:
Attorney-General Christian Porter declares alleged rape ‘did not happen’ – and he won’t stand down


The New South Wales police investigation was suspended after the woman took her life in June last year, and this week, Commissioner Mick Fuller said the case was closed.

The South Australian police commissioner discussed the matter with the NSW and AFP commissioners this week, as well, but has made no comment on whether his force would pursue an investigation. The AFP has no jurisdiction.

So much for the first test of trial by media.

The media also did not initiate the allegation. That was done in a 31-page letter sent anonymously to politicians on both sides of federal parliament, including Morrison and the Labor leader in the Senate, Penny Wong.

The ABC obtained a copy of this document and reported the allegation without naming Porter, saying only that it referred to a senior cabinet minister. The rest of the media then reported the story, also without naming Porter.

It would have been legally perilous and ethically unconscionable for the media to do so without putting the allegation to him.

How should the media have handled the allegation?

This raises the question: should the media have put it to Porter?

In principle, as a matter of fairness, yes. As a practical matter, however, it is a very difficult proposition.

No doubt the ABC and other media would have obtained pre-publication legal advice about this.

The first difficulty the media face in these circumstances is the accused person might not give an answer but make a threat to sue for defamation. Given the weakness of defences in defamation law in Australia, it would be a very risky business to publish in the face of such a threat.




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Even publishing what is called a “denial story” is risky because of the damage to reputation inherent in the question. If the media publish a story saying Porter denied a rape allegation, this leaves open the question of whether he is to be believed.

A story based on a voluntary public statement of the kind he made this week, however, is an altogether different situation.

The second difficulty is there is always the chance the accused person will obtain an injunction restraining publication. In a case like this, there is a good chance the court would also issue a “super injunction” banning the reporting of the fact that an injunction had been granted.

This would have tied up the matter in the courts, probably for weeks.

A political matter, not one for the media

Clearly, the media decided to treat this as a political story and watch it play out in the political process.

Of course, the media are part of the political process. The part they play is that of watchdog and commentator, and in this case, virtually all of the scrutiny was on Morrison’s response.

He was already under pressure for the way he and his government handled the rape allegation made by former staffer Brittany Higgins. A new allegation against a member of his cabinet intensified that pressure enormously.

When did he know? What did he know? How did he know? What did he do? What does he intend to do?

These are all legitimate questions and have nothing to do with the rights and wrongs of the allegation itself. They have everything to do with how the prime minister handles another alleged incident of sexual misconduct involving someone in his government.

Porter’s outing himself took the political process a step further. As he himself said at his media conference, where it goes from here is for others to decide.

Should there be an inquiry like the one instigated by the High Court concerning the conduct of the former justice Dyson Heydon? Again, the media spotlight returns to the prime minister for answers.




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Social media and defamation law pose threats to free speech, and it’s time for reform



If this article has raised issues for you, or if you’re concerned about someone you know, call the 1800 Respect national helpline on 1800 737 732 or Lifeline on 13 11 14.The Conversation

Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What’s in the ‘public interest’? Why the ABC is right to cover allegations of inappropriate ministerial conduct



Mick Tsikas/AAP

Alexandra Wake, RMIT University

Immediately after ABC’s Four Corners aired allegations about the conduct of government ministers Alan Tudge and Christian Porter, questions were raised about whether the report was in the “public interest”.

The Australian’s editor-at-large, Paul Kelly, said on Q&A that Porter was “trashed” by the program, adding

What the ABC has done tonight is that it’s crashed through some media barriers and created new media barriers. How far do we go in terms of our definition of the public interest?

We need to be very careful about the damage we do to people’s reputations here and ask ourselves is that an accurate portrait or was it a caricature?

Asked about the story in a Senate committee before the story aired, ABC managing director David Anderson defended it as “absolutely” being in the public interest.

It goes to conduct of ministers, ministers of the Crown, to be held to the highest standard in society. That’s the nature of the story.

Porter has denied the claims made against against him. He had earlier discussed considering legal options against the ABC, but played that down in an interview yesterday.




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Even tawdry stories are in the public interest

Despite Porter’s protestations, the ABC clearly had an obligation to air a story that contained allegations of ministerial misconduct (however tawdry).

News reports about politicians, sex and booze are as old as time and have brought shame to many a politician, from the former Deputy Prime Minister Barnaby Joyce to Deputy Labor Leader Gareth Evans and the UK Secretary of War John Profumo.

The one clear duty of journalism is to hold those in power to account, and that appears to have been lost on those members of government as they reportedly attempted to pressure the ABC, its managers and journalists, over the broadcast.

Barnaby Joyce became embroiled in a scandal over his affair with his former media adviser.
Lukas Coch/AAP

Standards for those in government

Many ethical issues arise from the broadcast, the attempt to pressure the ABC and the legal threats that have followed.

Even before the program had made it to air, the ABC’s management found themselves under attack, with an excruciating Senate Estimates Committee hearing a couple of hours before the broadcast.

But it certainly wasn’t a quick piece of “gotcha” journalism with a blurry photo at its centre. The Four Corners team have an exacting process to their work. For this story, the ABC said they interviewed 200 people over several months. They also contextualised the story beyond the two central politicians to raise real concerns about the place and safety of women who work in Parliament House.

Anderson also said the allegations had been thoroughly sourced and checked legally. Those named in the story were given “ample” opportunity to respond.

Moreover, while the so-called “bonk ban” on ministers having sexual relations with their staff was only introduced by Prime Minister Malcolom Turnbull in 2018, Cabinet ministers have had rules governing their behaviour since John Howard first established a public ministerial code in 1996.

Turnbull says he warned Porter about ‘unacceptable’ behaviour with a young female staffer.
Mick Tsikas/AAP

Members of the Morrison Cabinet now sign up to a code of conduct which says they will “act with integrity” and be “open to public scrutiny and explanation”.

Specifically, there is no grey area in these ministerial standards on the point of sexual relationships with staff:

2.24. Ministers must not engage in sexual relations with their staff. Doing so will constitute a breach of this code.

Prime Minister Scott Morrison pointedly said this week that neither Porter nor Tudge were in breach of his code of conduct.

But allegations of sexual misconduct and power imbalances, even historic ones, are still clearly a cause for community concern, and cannot not be ignored by journalists or political leaders. Such matters are no longer private affairs between consenting adults.

Just ask the complainants at AMP, the former CEO of Seven in WA, or even former US president Bill Clinton.




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AMP doesn’t just have a women problem. It has an everyone problem


Action should be taken

Regardless of the salacious allegations made on the Four Corners program, there is also a point to be made about the hypocrisy of politicians who market themselves as having “family values” and demand others follow “Australian values”.

Certainly, it is not edifying to watch details of alleged impropriety by politicians broadcast on television, and it’s uncomfortable that such stories inevitably impact those who are innocently caught up in the furore (particularly partners and children).

Tudge did issue a statement saying he regretted his actions “and the hurt it has caused my family”.




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Is Canberra having a #metoo moment? It will take more than reports of MPs behaving badly for parliament to change


But with this story, Four Corners has not only produced a program that has interest from the public, it is also in the public’s interest.

There are many questions to be answered from the ministers named in the story and also those who knew about the allegations and did nothing (or even worse, promoted them).

The real outcome of this program should not be a defamation case, but rather action from Morrison. Questions over ministerial conduct are important. This is certainly a matter of public interest.The Conversation

Alexandra Wake, Program Manager, Journalism, RMIT University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Is Canberra having a #metoo moment? It will take more than reports of MPs behaving badly for parliament to change



Lukas Coch/AAP

Marija Taflaga, Australian National University

Sex and politics is a well-established theme of political life.

Often the debate comes back to whether or not politicians deserve private lives. The short answer is yes, of course. But this question is also misleading.

Too often the scandals arise out of political workplaces. While it might be Liberal Party ministers in the spotlight this time, this is not a problem exclusive to the Coalition. It is pervasive across political systems in Australia and worldwide.

Amid fresh allegations of MPs behaving badly, we need to look past the personal drama of each individual story and consider what they tell us about the wider structures in which politicians and their staff operate.

Minister-staff dynamics

Political staff are not public servants. They are employed under separate legislation and are hired and fired at the discretion of their boss — the minister, shadow minister or MP.

Staffers’ duties are poorly defined, and can range from emotional support to high level policy work. Their employment can be terminated with no notice (although this is currently under review in the latest enterprise bargaining agreement).




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There is little oversight over who MPs appoint, with involvement from party leaders typically viewed as interference. Indeed, there is little oversight of the work of political advisers generally — they cannot be summoned to appear before parliamentary committees.

Theoretically, ministers are responsible for their staff, but as we increasingly see, advisers can also be shields for their ministers, resigning when things go wrong.

While it may not be illegal or even immoral, the issue at stake here is a power imbalance. It is hard to argue sexual relations within this work environment could meet our modern standard of a mutually consensual relationship. Even if things start well, what happens if they end badly?

Political advisers turn into politicians

What happens in political offices matters for many reasons. Beyond creating safe workplaces, it also has an impact on who rises through the political ranks.

Evidence from across Westminster systems shows politicians increasingly have a background in political advising before they are elected.

Young businesswoman looking out window.
Many MPs do time as political advisers before they are elected.
http://www.shutterstock.com

Emerging evidence also suggests a stint as an adviser is increasingly associated with the probability of selection to safe seats and, later, ministerial office.

Why? Because politics is a networks game. And as politics has become more professionalised, the skills political staff obtain are seen as more important than skills gained via community organising or pathways through party membership.

We already know this has a disproportionate impact on women. Women were less likely to gain experience via their party machines and are less likely to be promoted to the most senior ranks of political offices.




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The type of work they do in political offices tends to be of a lower status, less strategic and with less access to ministers. Put another way, they are less likely to get the valuable experience they require to move forward in their careers and less likely to have seniority and power in the office.

Adding any unwanted sexual advances, or relationships which fail, place yet another barrier for young female staff. This was reflected in the case of two Liberal staffers who came forward with claims of sexual assault in 2019.

Parliament House is a workplace

It is true federal parliament is an atypical work environment: it is more intense than most and is more likely to breed a dimension of co-dependence with support staff than most other professions.

But parliament’s status as the seat of government does not make it “special” and therefore, beyond community standards.

House of Representatives chamber
Parliament House is an atypical work environment, but it still needs to meet community standards.
Mick Tsikas/AAP

If anything, public expectations suggest politicians are held to a higher standard than most managers. This is because there is a recognition politicians are disproportionately powerful and influential. MPs regularly affirm their legitimacy by claiming to represent everyday Australians. This means they need to reflect community standards.

This trade-off between ministers’ privileges and responsibilities are reflected in the Statement of Ministerial Standards which begins with two principles:

The ethical standards required of Ministers in Australia’s system of government reflect the fact that, as holders of public office, Ministers are entrusted with considerable privilege and wide discretionary power.

In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility, and the public interest, as required by these Standards.

Importantly, the same dynamics that may result in sexual harassment for some staff, may also result in bullying for others. This is because the core issue is the asymmetry of power in the ministerial-staffing relationship, compounded by the intensity of the work environment and complicated by gender relations. All staff deserve better.

Currently, an inadequate complaints process, run by the Department of Finance, makes it difficult for staff to come forward if they feel they have been mistreated at work. It has only recently added sexual harassment and the complaints procedures are opaque.

There needs to be clearer and more effective mechanisms for all staff to seek support and redress.

What could we learn from around the world?

Both the United Kingdom and Canada have introduced new complaints mechanisms. The Canadian parliament has adopted a code of conduct and a complaints procedure. The UK Parliament has a behaviour code and complaints hotline.

However, both schemes have come in for criticism, ultimately because they do not fully address the imbalance between MPs and complainants.

This points to the fact that too much of the emphasis is on women (and junior staff) to cope, adapt or seek out resolutions after something has already happened.

Really, what is required is a deeper cultural change that sees parliament treated like any other workplace.

What happens now?

Is this Canberra’s #metoo moment? We should not get our hopes up.




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Without effective enforcement of the current ministerial code of conduct, which prohibits relationships with their staff, an adequate complaints process that does not disadvantage complainants and clear leadership that signals the need to shift the culture within parliament, it may not be.

After all, can Australians trust their politicians if there appears to be one rule for some and a different rule for others? Everyone needs to abide by, and be seen to abide by, the same rules and standards.The Conversation

Marija Taflaga, Lecturer, School of Political Science and International Relations, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: When Australia’s first law officer is in the dock of public opinion


Michelle Grattan, University of Canberra

It’s quite a moment, when the country’s first law officer is asked on his home town radio station, “So you don’t think you’re a sleazebag or womaniser or someone who’s drunk in public too much now?”

Overnight, Christian Porter had been reduced from high-flying attorney-general to a man forced to publicly confront a nightmare episode of “This is Your Life” delivered by Monday’s Four Corners.

“No, it’s definitely not indicative of who I am now,” he told interviewer Gareth Parker.

Parker did not resile from going to some of the worst of the confronting claims in the program. “Did you ever say you wouldn’t date a woman who weighed over 50 kilograms and preferred that they had big breasts?‘

“Absolutely not. I mean, like, give me a break.”

But Porter – who’s having to turn up on the House of Representatives frontbench all week under the eye of colleagues and opponents – was given no breaks in this long-distance grilling. His regular Perth 6PR spot became akin to a courtroom, with him in the dock.

First up: had he ever had an intimate relationship with a staffer?

Well, certainly not the staffer he’d been seen drinking with at Canberra’s Public Bar in December 2017, in the (details disputed) incident that led to then-PM Malcolm Turnbull telling him to watch his ways.

Indeed, Porter said, the woman in question had categorically denied to Four Corners (which said she worked for another cabinet minister) the slant put on the story or that it indicated any relationship. But (unfortunately for him) her denial had been “off the record,” he said. It was not reported.

Porter was lawyerly when quizzed about whether he’d ever had a relationship with any other staffer. He wasn’t going to be pushed down byways. “Is there another allegation?” he countered.

With the nose of the experienced prosecutor he once was, Porter smells political payback.

The program’s biggest punch was delivered by Turnbull, with whom Porter had a major falling out just before the former PM lost the leadership.

In a heated dispute Turnbull argued the governor-general should refuse to commission Peter Dutton, if he won the leadership, because he might be constitutionally ineligible to sit in parliament. But Porter insisted Turnbull’s suggested course would be “wrong in law” and threatened to repudiate his position if he advanced it publicly.

“I often suspected that there would be some consequences for that,” Porter said in the 6PR interview.

“I don’t think that Malcolm is a great fan of mine, I’d say that much,” he told Parker, when asked whether he was suggesting Turnbull was motivated by revenge.

Porter’s strategy is to own and regret his distant past – “I’m no orphan in looking back on things that I wrote and did 25-30 years ago that make me cringe” – but strongly contest the construction put on his more recent life.

He’s threatened legal action, but his Tuesday tone suggested he’s more likely to suck up the damage rather than take the distracting, expensive and risky course of going to a real court.

He and fellow cabinet minister Alan Tudge – whose affair with his then staffer the program exposed – retain the support of Scott Morrison.

Morrison relies on the “BBB” defence. That is, these incidents were Before the Bonk Ban – specifying no sex allowed between ministers and their staff – imposed by Turnbull early 2018 in response to the Barnaby Joyce affair.

Morrison was at the time, and is now, an enthusiastic supporter of the prohibition. He’d like to see it embraced by Labor, who’d “mocked” it when it was announced. (One of the government’s many gripes about the Four Corner’s program is that it didn’t poke around to find Labor’s dirty washing.)

“I take that code very seriously and my ministers are in no doubt about what my expectations are of them,” Morrison told a news conference.

But please, can people keep the language more delicate? Terms matter to this PM, who once lectured the media against using “lockdown”.

When minister Anne Ruston was asked (at their joint news conference on another matter) to reflect as a woman on whether the parliament house culture had become better or worse since the “bonk ban”, Morrison interrupted her.

“How this ban is referred to I think is quite dismissive of the seriousness of the issue,” he said.

“I would ask media to stop referring to it in that way. We took it very seriously and I think constantly referring to it in that way dismisses the seriousness of this issue, it’s a very serious issue.”

We can’t know whether the Porter story will fade or there’ll be some fresh spark.

Porter was asked if he could “go to bed tonight, comfortable in the knowledge that there isn’t a woman out there who’s going to come forward and give a truthful account of her interactions with Christian Porter that would further embarrass you or damage the government”.

Porter said: “I haven’t conducted myself in a way that I think would lead people to provide that sort of complaint about me”.

Whether the story goes somewhere or nowhere, one thing seems clear. The hopes of 50-year old Porter – who switched to federal politics after an impressive state career – of ever reaching prime minister are in the mud.

In under an hour on Monday night, a red line was likely struck through his name on the list of future Liberal leadership prospects.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.