Unlike cases that go to trial, Christian Porter has lost the right to the presumption of innocence while Scott Morrison keeps protecting him, writes Dr Jennifer Wilson.
*CONTENT WARNING: This article discusses rape and sexual abuse
MUCH HAS BEEN written about acting Leader of the House of Representatives Christian Porter’s right to the “presumption of innocence” in the matter of his alleged rape of a young woman, Kate, when both were teenagers.
It’s useful to point out here that interest in this matter has once again peaked as a consequence of Prime Minister Scott Morrison appointing Porter to this role in the absence of incumbent Defence Minister Peter Dutton. There is a Deputy Leader of the House, the Nationals’ David Gillespie, who was passed over for the temporary replacement in favour of Porter. Speculation as to the motives for Morrison’s decision requires a whole other article, however, the rehabilitation of the former Attorney-General may be one aspiration.
The presumption of innocence is a legal term relevant only in a trial circumstance and does not imply that the defendant is actually innocent, according to Bret Walker SC.
“The presumption of innocence involves an open mind about the outcome of a trial but not the magical thinking that says until a person is convicted they were innocent, they should never have been tried.”
Readers may recall that some time ago, Mr Morrison himself declared Mr Porter “an innocent man under our law”, one of the increasingly frequent demonstrations of magical thinking, willful ignorance and calculated misinformation we have come to expect from a Prime Minister who puts self-interest ahead of all other considerations.
Morrison attempted to set in stone the narrative of Porter’s “innocence” with a cavalier disregard of the law’s processes despite the fact that Mr Porter had not faced “the law” and, indeed, would never face “the law”.
This behaviour from Mr Morrison should surprise no one, as his primary strategy is to create an alternate reality in which he is always right.
There is, in fact, nothing that compels us to think of Porter as “innocent”. In the absence of criminal proceedings, we are free to read the dossier written by Kate before she took her own life, a dossier that details her allegations against Porter. We are free to consider Porter’s behaviour that includes a successful attempt to suppress evidence against him garnered by the ABC in their defence of his defamation action.
We are also free to consider the refusal by Mr Morrison to countenance an inquiry into whether or not Porter is a fit and proper person to hold high office. We are free to form an opinion on these matters. It’s nonsense to claim that we must relinquish this freedom in order to observe “presumption of innocence”, a presumption Mr Porter has forfeited as there will be no trial.
This leads to the progress of the investigation of another alleged rape, that of Brittany Higgins in the office of then Minister for Defence, Linda Reynolds, in 2019. The accused man has been summonsed to appear in court in the A.C.T. in September. He was identified by the media on Saturday as Bruce Lehrmann, a former staffer in Minister Reynolds’ office.
Unlike Christian Porter, Mr Lehrmann will be entitled to the presumption of innocence if the matter proceeds to trial. While in the case of Mr Porter the only risk we might run is that of being sued by him should he object to published commentary, publicly discussing Mr Lehrmann’s situation once it becomes sub judice can be regarded as contempt of court and interference with due process.
Merely naming Mr Lehrmann incurs no such risks. It is a fact that he has been summonsed and that he will appear in court to address the charge of sexual intercourse without consent.
Publicly expressing opinions as to his guilt or innocence may be reckless. In this instance, it is perhaps necessary to put the interests of Ms Higgins before the desire to publicly reach a conclusion of any kind on the alleged perpetrator. If there is a trial, it will be ordeal enough for Ms Higgins without further complications that can arise from public discussion.
That Prime Minister Morrison is involved in both situations and not in a good way is unnerving.
Mr Morrison appears to be surrounded by alleged sexual offenders of various kinds and worse, he appears to be supportive of all of them.
It’s unsettling to observe the Prime Minister’s blatant manipulation of the law to serve his own purposes, as in his declaration of Porter’s “innocence”.
Should the Higgins matter go to trial, we might well see Morrison be given the opportunity to clarify his role in the alleged cover-up of the events of that night in Parliament House by senior members of government and their staff.
We live in interesting times.
If you would like to speak to someone about sexual violence, please call the 1800 Respect hotline on 1800 737 732 or chat online.
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