Inside the Canberra Bubble

After the Four Corners program “Inside the Canberra Bubble”, I was asked whether, assuming there was any truth to the allegations made, there were any implications for a Federal ICAC. 

There are two related questions: what if we already had an effective ICAC; and what if we now establish one. In both cases, my short answer is: there are no direct implications.
The involvement of Gladys Berejiklian in the NSW ICAC inquiry into Daryl Maguire shows that, in some circumstances, relationships can become relevant to allegations of corruption. But, generally, such relationships are not corruption issues.

Malcolm Turnbull told Four Corners that, as the then PM, he had carpeted Christian Porter for reportedly being out in public having had “too much to drink in the company of young women”. Former Liberal staffer Rachelle Miller told the program she had a consensual affair with her then boss, Minister Alan Tudge. She also alleged that she and Tudge were in Canberra’s Public Bar where they saw Porter with “someone in the corner, and they were clearly very intimate … They were cuddling, they were kissing. It was quite confronting given that we were in such a public place”.  Four Corners said that the other person was a young staffer who was working for another Minister. That was apparently in 2017.

In a statement after the program went to air, Porter said many of the claims on Four Corners were defamatory and that he would be considering legal options. He later reportedly retracted the implicit threat of legal action. But he said he “categorically rejected” the “depiction of interactions” at Public Bar.

Mathew Elmas in The Mandarin reported that Porter had said: “The journalist, Louise Milligan, never contacted me or my office, despite my awareness that for many months she has been directly contacting friends, former colleagues, former students—even old school friends from the mid 1980s—asking for rumours and negative comments about me.”   However, according to Elmas, Porter later conceded that the ABC did contact his office on multiple occasions.

One focus of the commentary following the program has been on the particular sensitivity of the role of the Attorney-General. Another has been on the potential difficulties caused by power imbalances where there are sexual relationships in workplaces, noting that the staffer allegedly involved with Porter was working for another minister. An issue raised by Turnbull was the possibility that a person on the Security Committee of Cabinet – as the Attorney-General is – might be exposed to blackmail or other compromise.

The Attorney-General makes many life-changing decisions that affect the community – for example in appointing people to courts and tribunals and other key roles in the legal system, or approving the prosecution of people.  The Attorney-General is the First Law Officer of the Commonwealth.  He administers laws about sexual harassment and sex discrimination. The Sex Discrimination Commissioner ultimately reports to him. He is also in charge of developing the integrity/ICAC legislation to which the Government is committed.

I consider that Four Corners went too far in delving back a quarter of a century into Porter’s alleged conduct at university.

Acknowledging that Porter denies important aspects of the 2017 allegations against him, contemporary and recent inappropriate conduct of ministers is a matter in the public interest.

The true character of the Attorney-General is a matter that is in the public interest. Can we trust the Attorney-General to make good decisions? The Four Corners program might be thought to provide a window into the man, noting however that Porter has basically denied key allegations made against him.  Porter’s response to the program is another factor in that equation.

The Attorney-General regularly sends certificates that he has signed to courts. The certificates are made under legislation that he administers. The legislation is expressed to require the courts to give whatever Porter says in those certificates “the greatest weight” – just because Christian Porter as Attorney-General has signed the certificate. The Attorney-General accordingly needs to be a person whose veracity is beyond reproach.

Porter should be considering whether Alan Tudge should be prosecuted for contempt of the AAT after a recent Federal Court case before Justice Geoffrey Flick. According to Rachelle Miller who was then Tudge’s alleged lover, she and Tudge witnessed Porter’s alleged inappropriate conduct in Public Bar. This is where allegations of corruption could theoretically arise – it would be corrupt conduct if, in considering whether the contempt case against Tudge should proceed, Porter were to take into consideration how Tudge might react if Porter moved against Tudge; if Porter were to weigh in the balance that a decision to prosecute Tudge for contempt might make Tudge turn against Porter on the issue whether Miller’s allegations of inappropriate conduct by Porter in Public Bar were true or not.

We really need to be able to trust the Attorney-General not to take such a consideration into account. On a daily basis, we really need to be able to trust the Attorney-General to be a person of veracity, and one who will perform his duties without fear or favour.  Inevitably the Four Corners program and Porter’s response to it become part of the narrative about the present incumbent of that position.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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