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RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am
After identifying himself as the subject of a sexual assault allegation, an allegation he denies, the Federal Attorney-General Christian Porter announced he would be taking leave. But even though there are still calls for an independent inquiry to examine the allegations, Porter is returning to parliament in his role as the Nation’s first law officer.
Today, columnist for The Saturday Paper Paul Bongiorno on the conflicts of interest facing Christian Porter as he tries to do his job as a senior Minister while also suing the public broadcaster.

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RUBY:

Paul, this week, we learnt that Christian Porter, the Attorney-General, would be returning to work at the end of this month, but will be delegating some of his responsibilities when he's back. So what is the plan here?

PAUL:

Yes, Ruby, that's right. He will be coming back to work in a couple of weeks, but without a lot of his responsibilities. Scott Morrison sought the advice, this time from the Solicitor-General, the second highest legal officer in the country, and has come up with a plan that would see Porter back in the role of Attorney-General, but no longer be responsible for such things as appointing judges to the Federal Court, proposed reforms to defamation law or anything to do with the ABC. And that's because Porter is currently pursuing defamation action against the ABC in the Federal Court. In fact, the day Porter is due to return, Wednesday March the 31st, he's scheduled for a meeting with Attorneys’ General from around the country to deal with a range of legal matters, including defamation law reform. So really, it's going to be fascinating what comes of that, if indeed he attends.

RUBY:

Right, so it seems like there is a fairly long list of potential conflicts of interests here, Paul, arising from the defamation action. Among them is the fact that the Attorney-General is the person who's responsible for appointing judges and is also the person responsible for reforming the very law that he's using to sue a public institution. So is removing these areas from his control temporarily while this action goes forward enough, Paul, to address these conflicts?

PAUL:

Well, Ruby, it's a very significant conflict of interest in the first instance. And we've got an extraordinary situation. We have the ludicrous position of the Chief Law Officer of the land still claiming the title and the big salary while not being able to perform a huge and important whack of his portfolio.

RUBY:

So is there much criticism then, Paul, of this proposal to bring Porter back into parliament, but without some of his key responsibilities?

PAUL:

Well, Labor, for its part, doesn't believe stripping Christian Porter of some responsibilities will be enough for the Attorney-General to return to work. Labor's shadow Attorney-General, Mark Dreyfus QC, who specialised in defamation cases before entering parliament, says Morrison's stripping Porter of some of his duties actually proves the point. He can't do the job while this cloud hangs over him.

Archival Tape -- Mark Dreyfus Q.C

“This Attorney-General has to establish that he's fit for office, fit for the high office that he holds as the first law officer. And the Prime Minister seems to be pretending that all of this has been made to go away because the New South Wales police can investigate no further…”

PAUL:

Opposition Leader Anthony Albanese echoed Dreyfus...

Archival Tape -- Anthony Albanese

“There's a range of processes that the Attorney-General has to fulfil. And in my view, it is going to be very difficult for the Attorney-General to just return to work and to pretend that all of us that we can un-see and un-hear what has been said over recent weeks”

PAUL:

...and said there were a range of other duties porter is responsible for including overseeing the Sex Discrimination Act, which is clearly problematic.

RUBY:

Mm, because as the person who oversees the Sex Discrimination Act, Christian Porter, would be responsible for formulating a response to the Human Rights Commission's report, the Respect to Work Report, right? Which was one of the key demands from protesters on Monday.

PAUL:

Well, that's exactly right. The March for Justice rallies were bigger than most politicians were anticipating, and they were inspired by the alleged assault against former Liberal staffer Brittany Higgins. And then they were supercharged by the allegations against Porter. And one of the key demands of the march was for the government to implement all 55 recommendations of the Respect At Work report, including better funding for community legal services and the 1800-respect hotline, as well as more powers of the Human Rights Commission so it can make sure employers are doing everything possible to stamp out harassment in the workplace and following up allegations. And even though Scott Morrison is praising Porter as a good Attorney-General who doesn't deserve to be stood aside, he announced on Wednesday he was taking implementation of that report off Porter and giving it to his assistant minister, Amanda Stoker. You know, Ruby, it's another example of how many elements to Porter's job that he can't appropriately do, both because of the allegations against him and now his decision to launch defamation against the ABC.

RUBY:

We'll be back in a moment.

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“Today, The Attorney-General launched a defamation suit against the ABC-...”

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“And Attorney-General Christian Porter has commenced now legal proceedings against the ABC-...”

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“Attorney-General Christian Porter has started defamation action against the ABC and Journalist Louise Milligan in Federal Court…”

RUBY:

Paul, let's talk about the details of Christian Porter's defamation case against the ABC. What is he actually claiming?

PAUL:

So the defamation suit relates to one story published by the ABC Online by Louise Milligan, the reporter with Four Corners. According to Porter's statement of claim, which, Ruby, was lodged with the Federal Court on the very day of the marches around the country, the Milligan article contained a number of defamatory imputations, including that Porter raped a 16 year old girl in 1988 when he was 17 and that he is reasonably suspected by New South Wales police of having done so and that the alleged rape contributed to her taking her own life. Well, these are the allegations that Porter denies. But the interesting thing is that the story didn't actually name Porter. It just mentioned serious accusations against a Senior Cabinet Minister.

RUBY:

So how is Porter able to sue the ABC then when the original story didn't actually identify him?

PAUL:

Well, Ruby this goes to one of the big issues here, which is how restrictive Australia's defamation laws are and how much they're stacked against journalists doing their job in the interests of the public's right to know what powerful figures are doing. It's actually possible to sue for defamation even if an individual isn't directly named. Porter needs to prove that at least one person who read the story was able to reasonably identify him, that his first hurdle and probably an easy one for him to jump. The second is that there were enough people who were able to do it to cause him significant reputational damage, and that could be harder. Porter’s statement of claim contains details of a surge of interest in Porter's website, with his name trending on Twitter and social media users identifying him in comments on the article. It's on that basis that they're arguing the story itself is defamatory.

RUBY:

Right. So what is likely to happen next? Paul, do we have any indication of how the ABC might defend itself?

PAUL:

Well, we don't know yet what path the ABC will take here. The executive producer at Four Corners, Sally Neighbour, merely tweeted, “So it begins...” when Porter's defamation action became public. But we do know the ABC intends to fight the claim in court. Porter's lawyers say that this is an opportunity for the ABC to prove truth in its allegations against him. They're basically saying you wanted an independent enquiry. Well, you've got one. But I have to tell you, Ruby, legal experts say defamation law is a very poor way to establish truth. It puts damaged reputations well above the public's right to know. And you know Ruby, this is something Porter himself conceded at the National Press Club back in 2019.

Archival Tape -- Christian Porter

“Thirteen years later, and I think it is fair to say that current defamation laws no longer strike the perfect balance between public interest journalism and protecting individuals from reputational harm.”

RUBY:

Interesting. And Paul, how do you think this all looks for the government? The March for Justice rallies? They showed just how strong the community feeling is on this issue, and it doesn't really seem like that's going to dissipate just because of Porter's lawsuit.

PAUL:

I think that's right, Ruby. The penny has finally dropped in the government's ranks that it's not only a narrow band of well-educated women who are exercised by the toxic, misogynist culture that's now seen to be endemic in our political structures, which is what the government initially seemed to believe and base it’s strategy on. Women’s anger is across the board; all demographics, income ranges and education levels, as we saw in the marches. First term Liberal MP Celia Hammond, a former vice chancellor at Notre Dame University in Perth and a lawyer, gave the party room a reality check this week. In a forceful speech, she told her colleagues, “We need to act on the underlying problems in the treatment of women rather than engaging in political dispute”. And it seems pretty clear that's what the country wants as well.

RUBY:

Paul, thanks for your time today.

PAUL:

Thank you, Ruby. Bye.

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RUBY:

Also in the news today - NSW Police Commissioner, Mick Fuller, has been heavily criticised for suggesting sexual partners could use an app to record consent. Fuller acknowledged the app might be "the worst idea” he’d had all year but said COVID-19 had shown the importance of adopting technology based solutions. A number of experts said the proposal was ‘naive’ and could do more harm than good by providing more protection to perpetrators.

And the Federal Health Minister Greg Hunt has defended the rollout of the government’s online vaccination booking system after doctors warned of waits of up to three weeks to book an appointment. GP clinics are supposed to start offering the vaccine from next Monday but the online booking portal has been beset with technical problems, and many clinics have reported being overwhelmed with interest.

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