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RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

It’s now been two weeks since an allegation of sexual assault against attorney general Christian Porter was first levelled, an allegation he denies.

The Prime Minister is still standing by him - in fact Scott Morrison has declared Christian Porter is “innocent” and said that an inquiry into the allegations would undermine the rule of law.

Today, contributing editor at The Monthly, Rachel Withers, on what exactly the rule of law means, and whether it’s a sufficient enough justification to stop an independent inquiry from going ahead.

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RUBY:

Rachel, you've been following this story, I think, every day since it began. So I wanted to start by asking you, if this is where you thought we’d be right now, still in this standoff?

RACHEL:

Look, I have to say no. I'm six weeks into this role writing The Monthly Today, every afternoon, and we've spent four of those weeks on sexual assault and two of those weeks alone just on the Porter allegations.

And I thought we might be further along in terms of having a conversation about the working environment for women in politics in Parliament House. And it seemed like that conversation was starting to take off.

But, you know, I think I might have underestimated the government's willingness to cling on through a credible, serious rape allegation against one of its own ministers. But the issue is definitely not going anywhere any time soon, and nor should it.

Archival tape -- Four Corners:

“After Minister Porter came forward last week, we can finally bring you the story of the untested allegation he has categorically denied.”

RUBY:

It's definitely not going anywhere, as you say. And I think a large part of that is because journalists are still pursuing the story. We saw that on Monday, Four Corners aired an entire episode about the allegations. Can you tell me about what we saw?

RACHEL:

Yeah. So on Monday of this week, Four Corners, which actually broke the original story online, they finally got an episode up about the allegations against Christian Porter.

Archival tape:

“Last week, Commonwealth Attorney-General Christian Porter went public to confirm what many in Australian political and legal circles already knew…”

RACHEL:

And it was able to run through the allegations in much greater detail than I think we've seen in the mainstream media

Archival tape:

“In an extraordinary press conference. Mr Porter strenuously denied the allegation that had been swirling around Canberra and across the nation for days.”

RACHEL:

There were no new allegations in the episode, as some had expected, but we got this rundown of what happened when it happened…

Archival tape:

“Kate told me that they had been out dancing, drinking, partying, until late, very late…”

RACHEL:

What the woman said about it, who she told, where she wrote it and when she wrote it...

Archival tape:

“She certainly presented as a person with damage and she was quite open that she’d had mental health challenges, but she also presented as a historian and a documenter, and a very brilliant articulate person.”

RACHEL:

And we also got to hear directly from her friends who have also been quoted in print a lot about what she was like before the alleged incident and how her life unravelled after 1998.

Archival tape:

“This beautiful, clever, young woman with so much potential has her life squandered and her life ended far too early…”

RACHEL:

And we also had a new revelation in that episode, which was that the woman told a sexual assault counsellor eight years ago that she had been raped by a boy named Christian who she had debated with in high school.

RUBY:

And so after that aired, what was the impact? Has it prompted more pressure on the government having those allegations out in the public the way that they have been since Monday?

RACHEL:

Yeah, I would say, you know, this week we've seen a lot more of a conversation about an independent enquiry being needed. Former Prime Minister Kevin Rudd happened to be speaking at the National Press Club the very next day, and he also threw his weight behind an independent inquiry.

Archival tape- Kevin Rudd:

“We're dealing with positions of state in this country which are of the highest significance and therefore require people of unimpeachable integrity.”

RACHEL:

He said it was the appropriate course of action under these circumstances. He said it could be short in duration and quite focussed in its terms of reference.

Archival tape- Kevin Rudd:

“The virtue of a judicial enquiry limited in time of defined terms of reference is it gives an opportunity for Mr Porter to answer for himself…”

RACHEL:

And then we had our other very vocal former prime minister Malcolm Turnbull tell ABC News Breakfast that same morning that he would have thought an independent enquiry would be in his best interests.

Archival tape -- Malcolm Turnbull

The best thing that could happen for Christian Porter is for there to be an enquiry because that would enable there to be a process which would enable the issue to be resolved...

RACHEL:

And he made a very interesting comment that he said if he was in his position, he would have come forward, defended himself, and then said that he was open to an enquiry.

Archival tape -- Malcolm Turnbull:

“If I was in Porter’s position, I would have defended myself and then said, I'm open to a you know, an enquiry, you know, Bob, you know, a retired judge, the usual sort of impartial expert person that we appoint…”

RACHEL:

And they’re interesting comments coming from Turnbull, who famously as prime minister had to tell Christian Porter off for some of his behaviour towards women at the time and saying that, you know, if you're innocent, you should want an enquiry.

RUBY:

So that is two former Prime Ministers uniting on this. And if you add to that the other voices who are calling for an inquiry - there are some within Labor, the crossbench, and others as well. There are now multiple people who say that’s what needs to happen?

RACHEL:

Yeah, the woman's friends, especially the ones who spoke on Four Corners, are calling for an enquiry, her lawyer has been calling for an inquiry, her family - who have been used as a bit of a pawn in all of this...

RUBY:

Mm

RACHEL:

...they have come forward and said that they would welcome any kind of inquiry into what happened. And legal experts around the country as well, who are not working directly on the case, have come forward to say that an enquiry is appropriate and in many cases warranted.

And on top of that, this week, we also had the former solicitor general, Justin Gleeson, urging the prime minister to call his lawyer, suggesting that Scott Morrison should enlist the advice of the current solicitor general, Stephen Donohue, who's the second highest ranking law officer in the country after the Attorney-General themselves.
And he should be asking him to make a quick assessment as to whether an inquiry is required. And he noted, as many others have, that there are precedents for such an enquiry.

RUBY:

OK, I mean, that is quite a lot of pressure and that is a lot of people saying that at the very least, an inquiry should be considered. And yet it seems like it's not actually having much of an effect. Right. The prime minister, you know, he's holding out here.

RACHEL:

Yeah, well, if there's one thing Scott Morrison is good at, it's resisting pressure. He said over and over again that he won't be holding an independent enquiry into the rape allegations. Basically, ever since New South Wales police announced they wouldn't be pursuing the case, Morrison has turned again and again to the rule of law, saying he won't entertain processes outside of the police in the courts, saying there's only one law in this country, and that Porter is an innocent man under that law.

So he's clearly hoping that parroting the phrase rule of law enough times will put a stop to the conversation and to the entire issue. But this is no longer a law and order issue.

RUBY:

We'll be back in a moment.

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RUBY:

Rachel, the prime minister, Scott Morrison, he's justifying standing by Christian Porter using this phrase, the rule of law and making the point that that rule needs to be upheld. Otherwise, who knows what will happen. But tell me about that. About that phrase, the rule of law, what it actually means.

RACHEL:

Yeah, well, the need to uphold the rule of law has become the government's main line of defence on the Porter allegations.

Archival tape -- Scott Morrison:

“All I know is what the criminal law procedures are. And I know that in this case, they have been followed and the rule of law applies in this country and applies equally to every single Australian.”

RACHEL:

Morrison has repeated it over and over, and the attorney general himself suggested that his resignation might represent the end of the rule of law in Australia.

Archival tape -- Scott Morrison:

“No Australian faces a different law to any other Australian. If any one here at this press conference was accused of the matter, you would face the same process that the Attorney-General would and you would have the same rights and the same presumptions made about you as he would…”

RACHEL:

And it's kind of become a phrase that people use to mean what they want it to mean. But what the prime minister is getting at here is that since the police have closed the investigation, he can't take this any further, that there is a presumption of innocence. And without any kind of court process, no one should be making a definitive judgement.

And so while due process and the presumption of innocence are obviously very important principles when it comes to criminal matters and convicting someone, that's not what we're talking about anymore.

We're talking about inquiry outside of the criminal law. And as many have pointed out, enquiries like the one being called for happening workplace settings around the country all the time without bringing about an end to the rule of law.

RUBY:

OK, so what you're saying is that holding an inquiry into these allegations could exist entirely separately to the world of the rule of law because it would be outside this framework of police and courts and place. It would be essentially a workplace enquiry.

RACHEL:

That's right. It would be, as Justin Gleeson said the other day, just an inquiry to establish whether Christian Porter is a fit and proper person to remain the chief law officer of this country. And on top of that, using the rule of law as a shield against investigating these matters, against asking that question might actually be the thing that contravenes the ideals of the rule of law.

RUBY:

Right. Can you tell me what you mean by that?

RACHEL:

So legal experts Fleur Johns and Martin Kraja wrote a piece for The Monthly this week arguing that for a powerful person like Porter, for example, to be protected from questioning simply by virtue of their powerful position and their powerful allies might actually be the thing that contravenes the rule of law, which is that power shouldn't be exercised arbitrarily. And that's the point that Morrison is trying to make. He's saying that there is one law in this country. It applies equally to everyone.

But shielding Porter from questioning might be the thing that is an arbitrary exercise of power on the part of the government. They say this is exactly the kind of arbitrary exercise of power that the rule of law seeks to counter. So these kind of legal debates are taking place all through the Australian law community right now. And they're not the only legal debates that we have going on now.

RUBY:

Right, and some of those debates in the legal community are turning quite divisive I think Rachel? I’m talking about what is happening within the law firm that advised Christian Porter, Minter Ellison.. Which is one of the biggest law firms in the country.

RACHEL:

That’s right. Law firm Minter Ellison is still bitterly divided over the fact that the high profile defamation lawyer, Peter Bartlett, provided advice to Potter before he came forward. And this was widely reported in the media. And after this was reported, the chief executive of Minter Ellison, Annette Kimmet, said in an email to all staff that the move had triggered hurt for her and apologised to anyone who was hurt by it. And she's now apparently lost her job over that email.

RUBY:

And that is a really interesting point, because if it is true that she has lost her job from this email, it would mean that the only person who has lost their job over all of this is a female CEO of a law firm.

RACHEL:

That's right. Yeah. And there's a huge amount of debate now going on as to whether Kimmet acted appropriately in making those comments to the entire staff without speaking to Bartlett first. But the thing that's really hard to swallow here is that ultimately the only person who has been forced to take accountability here, the only person who has received any kind of punishment is a woman.

RUBY:

Hmm. So, Rachel, what do you think is likely to happen next year? I sort of feel like I'm circling back to my very first question, but there is this sense, I think, that there is a standoff. You know, there are so there are so many voices calling for an inquiry, yet there appears to be no concessions being made in that direction. So...where are we going?

RACHEL:

Yeah, look, I think we're going to see this conversation ramp up. And I think Morrison hasn't yet been forced to grapple with just how angry women in this country are over the whole situation. The anger towards the entire government over the Porter allegations is just sort of the tip of the iceberg in terms of how women are feeling.
There is this greater fury over how women are treated in the workplace and in schools and basically everywhere in this country. And this is just kind of the tipping point for women. And we'll see how much longer Morrison can withstand pressure on this one. But the overall issue, the overall anger is definitely not going away, even if the Porter story eventually does.

RUBY:

Rachel, thank you so much for your time today.

RACHEL:

Thanks Ruby

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RUBY:

Also in the news today…

In the past week three Indigenous people have died in custody.

A man in his 30’s and a woman in her 50s both died while in custody in NSW. Their deaths were revealed during questioning in state parliament.

In Victoria a man died in a Melbourne prison on Sunday but his death was not announced until yesterday.

Acting Victorian Premier James Merlino said the man’s death would likely be investigated by the coroner.

Legal groups say the deaths highlight the need for urgent reform of the justice system.

7am is a daily show from The Monthly and The Saturday Paper. It’s produced by Ruby Schwartz, Elle Marsh, Atticus Bastow, Michelle Macklem, and Cinnamon Nippard.

Brian Campeau mixes the show. Our editor is Osman Faruqi. Erik Jensen is our editor-in-chief.

Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

New episodes of 7am are released every weekday morning. Subscribe in your favourite podcast app, to make sure you don’t miss out.

I’m Ruby Jones, see ya next week.

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