April 2021

Comment

Dangerous precedents

By Bri Lee and Kieran Pender

Attorney-General Christian Porter, March 3, 2021. © Richard Wainwright / AAP Images

Criminal law is not the only legal avenue to consider Christian Porter’s accountability and his future

It was a spectacularly ironic day. On March 3, Grace Tame delivered her address to the National Press Club in Canberra. Calling for reform, conversation and courage, the Australian of the Year delivered a powerful oration that garnered a standing ovation. Just hours later, the federal attorney-general, Christian Porter, gave a press conference in Perth to deny allegations that he had sexually assaulted a woman in 1988. His remarks alternated between tearful and testy. “Just imagine for a second that it’s not true,” he pleaded.

Tame is a survivor of sexual assault whose role in Nina Funnell’s #LetHerSpeak campaign led to the removal of gag laws preventing survivors from speaking publicly, even after perpetrators had been convicted. Her speech implored journalists, the government and the public to believe survivors and get serious about our sexual assault and abuse epidemic.

Meanwhile, the Morrison government was juggling the allegations against Porter and those made by former Liberal Party staffer Brittany Higgins about an alleged sexual assault in Parliament House in 2019. The former colleague identified by Higgins has now been accused of sexual harassment and/or assault by four different women. Porter’s record with women had already been tarnished by numerous stories of boorish behaviour, all of which he also denied.

The meeting of these equal and opposite forces – of survivors often gagged or disbelieved, and some of the most powerful men in the country being accused – had whipped up a hyperbolic and rank state of commentary. We were told that sacred legal concepts, including “the rule of law” and the “presumption of innocence”, were being threatened. The foundations of democracy themselves were at risk, apparently.

In arguing against the need for any kind of inquiry, Coalition ministers read from the same “Introduction to Criminal Law” palm cards. Treasurer Josh Frydenberg insisted that the police “are the only body that are authorised to deal with such serious criminal matters”. Scott Morrison was asked in one particular press conference whether he believed Porter’s denial. He refused to answer the question, as he has done repeatedly since. Instead, he replied: “I believe in the presumption of innocence and the rule of law”, and explained that the “competent and authorised agencies” were “the police and the court system” and, of course, “proper process”. The attorney-general himself, in his surreal press conference, suggested that an independent inquiry would amount to “the first time in Australian history” that an individual was “put on trial in circumstances where they would be required to disprove something that didn’t happen 33 years ago”.

This invocation of the police and criminal law as the only possible avenue of accountability is a deliberate mischaracterisation. Yet several legal commentators have been happy to lend their weight to it. The president of the Australian Council for Civil Liberties, Terry O’Gorman, released a statement demanding that the “presumption of innocence must be urgently restored”.

Arthur Moses SC, former president of the Law Council of Australia, made similar comments on Four Corners. “Christian Porter, at the end of the day, is entitled like anybody else to the presumption of innocence and the right to silence,” said the barrister. “In my view, you cannot call for an inquiry into whether a criminal offence is allegedly being committed in a situation where the criminal justice system has determined that there is no charge to be laid in respect of the matter, because what you’re then doing is adopting a shifting-sands approach to our criminal justice system.”

Those citing sacred legal principles did so to add a veneer of legitimacy to their arguments. We were told these allegations died with the complainant; that because her statements weren’t signed and sworn, consequences of any kind for Porter are unimaginable. This is not true. There is a strong argument – and precedent – to support the idea that the criminal law’s inability to deal with situations like these in no way precludes other avenues for truth-seeking. A determination that this matter is closed, having never been properly investigated, would create a far more dangerous precedent than the one many commentators are warning us about.

In 1938, a peculiar case came before Australia’s High Court. Frederick Joseph Briginshaw was unhappy with his marriage: he believed his estranged wife, Clarice, had cheated on him. Mr Briginshaw filed for divorce, but a Victorian judge held that he had failed to prove the alleged adultery. “I do not know what to believe,” wrote the exasperated judge, denying the divorce.

Australian law knows only two standards of evidence: in criminal cases, the Crown must prove guilt “beyond reasonable doubt”; in civil cases, a plaintiff must convince a judge or jury “on the balance of probabilities”. This binary simplicity belies a more complex reality. It is commonplace for extremely serious allegations, including of criminal conduct, to be levelled in civil proceedings. That poses a dilemma: in such cases, which standard should apply?

Mr Briginshaw asked the High Court to confront this question. While adultery was not a crime, at the time it was socially taboo – Mrs Briginshaw’s reputation would be ruined if the court ruled against her. At trial, the judge applied the criminal standard, finding that he was not satisfied of the adultery beyond reasonable doubt. Mr Briginshaw appealed, arguing this was the wrong standard.

The High Court held that while the civil standard applied, the seriousness of the allegations influenced the strength of the evidence required to reach the standard. “In a serious matter like a charge of adultery,” one judge declared, “the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”

Briginshaw v. Briginshaw, now one of the most cited cases in Australian legal history, operates as an asterisk on the civil standard in cases involving accusations of serious misconduct. Despite arising in a niche context, it has proliferated across distinct areas of Australian law: from medical negligence to civil fraud cases, from employment disputes to discrimination claims. The principle is so well-established that it was codified in the uniform evidence acts, which apply federally and in most states and territories.

Which brings us back to Porter. Every day in workplaces and disciplinary tribunals across the country, personal and professional misconduct is interrogated by independent investigators and decision-makers. Sometimes these involve allegations of criminality, sometimes contemporary and sometimes historical. Every day, these investigators and decision-makers apply the Briginshaw standard. This is workplace law 101, not a threat to the rule of law. In many such cases, the employee is suspended, with or without pay, while the independent investigation or disciplinary process is undertaken.

Alarmist statements that lean on the police as having singular fact-finding abilities also conveniently ignore the fact that the vast majority of gendered crime (including sexual abuse, harassment, assault and domestic violence) is dealt with outside the parameters of the criminal law, or not at all. The latest figures from the Australian Bureau of Statistics show that nine out of 10 women who experience a sexual assault do not go to the police. Indeed, the high status of a parliamentarian may well act to dissuade a survivor from proceeding with a formal, criminal complaint.

Much of Porter’s press conference seemed to be coded; an attempt to communicate to other male politicians that if his head rolled, so might theirs. He used the words “leader of the opposition” and “former opposition leader”, in reference to the allegations made against Bill Shorten in 2013, four times. The possibility of serious criminal allegations being used as a political tool is distasteful but cannot be ignored.

The obvious answer is to have an independent civil process that neither party loves but that the public can trust. This would, by law, be undertaken pursuant to the Briginshaw standard. The Morrison government’s current position is criminal law or bust, but there is a middle ground, entirely ordinary and consistent with the everyday operation of the Australian legal system.

The way the High Court dealt with the numerous allegations of sexual harassment against former justice Dyson Heydon offers a potential road map. More than one of Heydon’s peers on the bench knew about his conduct towards his associates; the former judge’s harassment has been referred to as an “open secret”. An even clearer problem was that politicians, judges and statutory appointees are exempt from both the protections and obligations of the Sex Discrimination Act. (Independent MP Zali Steggall has proposed a private member’s bill to address this omission.)

The chief justice, Susan Kiefel, therefore commissioned an independent investigation by a respected third party. No one, not even Christian Porter, has suggested that Heydon’s fundamental rights were denied because the High Court proceeded with a civil rather than criminal investigation. In his press conference, Porter insisted Heydon’s situation was different than his own because the allegations made against Heydon were in a workplace context. This does make them different. It does not prevent action.

Initially Morrison announced that an inquiry into the allegations made by Higgins et al would be run by a Coalition colleague. After significant criticism about the impossibility of impartiality, Sex Discrimination Commissioner Kate Jenkins was assigned to undertake a wider review. Jenkins has stated that an independent complaints-handling body may be needed to deal with matters such as Higgins’, but is yet to comment on the appropriate course of action in the Porter case.

None of this is to say the Porter case does not throw up complicated issues. Any investigation, if it is to set a healthy and reliable precedent, must be truly independent and operate according to orthodox legal principles: Briginshaw, procedural fairness, natural justice and so on. Employer-initiated investigations require a sufficient nexus with employment; in many cases, historical allegations of criminality would not meet that threshold. There are legitimate concerns about the appropriateness of an ad hoc inquiry into Porter, rather than a holistic institutional response. Even former solicitor-general Justin Gleeson SC, in a Guardian Australia column calling for an independent inquiry, admitted that it would raise challenging legal questions.

The correct response to these caveats and contradictions is a renewed search for better answers. Extremely serious allegations have been made against someone whose conduct must be beyond reproach. The power Porter wields is too mighty to be held by someone of impugned integrity. The rule of law is not reducible to the criminal code, and nor are ministerial standards. Addressing the thorny legal questions posed is certainly a precondition to a proper inquiry, but in no way does that preclude it. And the rule of law cannot be an excuse to derail a constructive conversation about potential solutions.

Porter has sought to upend the narrative. With his characteristic impeccable timing, he commenced defamation proceedings against the ABC and journalist Louise Milligan just hours before the March 4 Justice rallies conducted in cities across Australia. Milligan’s original article did not name the attorney-general specifically, and he is having to plead that, essentially, “everybody knew” it was him. With the firepower of two silks, including Bret Walker SC, Porter has made a strategic gamble. The plan is clearly that the defamation claim will kill two birds with one stone: frighten journalists from further covering the issues, and provide an answer to the ongoing calls for an inquiry. Porter’s lawyer, Rebekah Giles, said in a statement: “If the ABC and Ms Milligan wish to argue the truth of these allegations, they can do so in these proceedings.” If this litigation – made by the attorney-general against the national broadcaster – ends up being the only opportunity for the public to get answers, then a different, extremely dangerous precedent may have been set.

Unless Porter were to confess, Australians will never know what exactly happened on the night in question. Indeed, it is entirely possible that an independent investigation would find insufficient evidence to uphold the allegations; the Briginshaw principle, in the context of such a significant allegation, would be exacting. But that is not the point. Not only must justice be done, it must also be seen to be done. Unless and until it is, Porter’s position is untenable.

Survivor advocates spend much of their time reiterating that they are not fighting for a reduction of legal standards, but for improvements to processes and procedures that might empower individuals to speak up and lead to better outcomes for complainants. If there is any good to come from the present conversation, it might be a renewed focus on those questions. Only then might we do justice to the words of Grace Tame, spoken mere hours before the Porter scandal erupted. “History – lived experience, the whole truth, unsanitised and unedited – is our greatest learning resource,” she said. “It is what informs social and structural change.”

Bri Lee and Kieran Pender

Bri Lee is an award-winning author, freelance writer and legal academic. Her books are Eggshell Skull, Beauty and Who Gets to be Smart. Kieran Pender is a writer and lawyer. He is a visiting fellow at the Australian National University College of Law.

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