There should be no argument about the fact that Christian Porter should have resigned as Attorney General as soon as he initiated defamation action against the ABC and Louise Milligan. This is an unfortunate and inevitable consequence of the position he holds.
To put the issue in context, the Attorney General had no alternative but to launch defamation action, given the strong possibility that he would be forced out of politics. If he could no longer be a politician, he would have to find employment somewhere else as a lawyer or other professional. He would not be able to do this with an allegation of rape hanging over his head.
This left him with two alternatives: accede to an independent inquiry or launch a defamation action. An independent inquiry would have been politically charged and would place the onus on Porter to prove he was a fit and proper person to be Attorney General. In effect it would be demanded that he remove any skerrick of doubt that he had sexually assaulted the deceased complainant 33 years ago. Since there were no independent witnesses this would be difficult to accomplish.
On the other hand, launching a defamation action could force the ABC to prove that they were telling the truth when they said a senior cabinet minister had been allegedly accused of rape. The ABC will raise some technical defences: they will argue that Milligan did not identify the cabinet minister involved, and that they did not actually accuse him of rape just allege that an accusation had been made. However, if these defences are over-ruled then they will have to rely on the truth and public interest defences.
In this case it will become a matter of judgement as to who is telling the truth. Christian Porter will give evidence on oath and be cross-examined, the deceased complainant cannot give evidence and the soundness of her allegation cannot be tested.
Supporters of the dead complainant believe there are witnesses that will confirm she is telling the truth but this is doubtful. Porter is being represented by the lawyers who acted for Brittany Higgins in her defamation action against Linda Reynolds, namely Rebekah Giles and Sue Chrysanthou. These women are unlikely to proceed with a matter that they will lose because there is evidence that their client is not telling the truth.
This raises a tricky question. Porter’s defamation action is listed to be heard by federal court judge, Jayne Jagot. She is one the country’s best judges and an obvious candidate for the High Court. Appointments to the High Court are made by the cabinet on the recommendation of the Attorney General. This means that if Justice Jagot finds in favour of the Attorney General in the defamation matter, she will disqualify herself from appointment to the High Court. This would apply to any judge who adjudicated on his defamation matter. This is an unfair penalty on the judiciary and the public of Australia.
There are likely to be two appointments to the High Court within the next term of parliament. It is not only the Attorney General who will be accused of bias on account of the Attorney’s defamation action but the whole government.
The fact is that Christian Porter may not be in parliament after the next election. While his seat is not likely to be abolished, if his presence is going to cost seats in WA he will probably quit politics.
Between now and the election he should stand down as Attorney General so that no taint adheres to the judges who hear his case at first instance and on appeal. In the meantime, he can keep his ministerial salary by staying on as minister for industrial relations.
As a postscript, it is worth noting that Christian Porter is paying for his legal action whereas the ABC’s defence will be funded by the taxpayer. This is a problem because it means that when the ABC engages in possible defamatory journalism, it has no skin in the game.
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