Attorney-General Christian Porter
Christian Porter (Image: AAP/Richard Wainwright)

The Jane Doe/Christian Porter saga momentarily turned from tragedy to farce yesterday with a piece in The Australian about the “Jane I knew”.

From whom? Helen Dale-Darville-Demidenko, who knew the woman briefly before 1988, not after that, and gives no indication she attended the 1988 debating championships where the alleged events took place. Apart from that it was a searing revelation of hitherto untold etc etc.

The last half of it is pure ramble. Although its focus on the “hothouse” nature of the debating scene hints at a notion of someone coming apart mentally, so the attraction to the Oz‘s editors was presumably that it tilts towards the “possibly delusional” camp. Though not, one suspects, in the way that Dale imagined when she pitched the piece.

The point of the article was in the byline: to remind us that young people of a certain type can half-imagine they are Ukrainian children of war criminals, when they’re Brits from Paddington. Welcome respite, but the issue is not going to go away.

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At the moment we’re in limbo, with general exhaustion having taken over and Parliament in recess. It resumes next week, when Parliament resumes, and Porter and Linda Reynolds are both absent. Also Greg Hunt, but he appears to have got scabies from bad yoghurt then accidentally stabbed himself with a label-maker or something.

Sadly, this means the other Liberal minister who was at the 1988 Sydney debating championships may have to miss next week’s sitting, where he could be questioned under privilege. What bad luck!

When will Porter return? Morrison’s declaration that he is “an innocent man under our law” suggests the government may try to resume, slot Porter back in, and tough it out in the weeks to come.

Tough it will surely be. The notion that Porter is in the clear simply because future prosecution of the complaint is presumably impossible is a fantasy of the right. We’re talking about the attorney-general of the country for God’s sake.

In the past two weeks he has become the figure in a narrative — aired by all media, including News Corp — that specifically, narratively and descriptively puts him at the centre of an allegation of an event which, if it is true in its particulars, is brutal, disgusting and criminal.

How can anyone imagine that the minimal legal condition of innocence could simply end this attachment in the public mind? If Porter returns to the frontbench he’s not going to be fronting the despatch box so much as twisting in the wind.

How on earth are Porter’s defenders mounting this “innocence” defence, as if he was simply a private citizen, and we were not about to re-acquire a senior law officer accused of rape in some detail? Do they believe it, or is it just the line to be hewed to?

If they believe it then they do so on a simplistic notion of judicial innocence (and the public-private separation) that is simply unworkable as a theory of modern liberal government. The notion put forward is that the intersecting parts of liberal society and government are all perfectly self-functioning, because they are derived from nature-given rights.

We’re all citizens in this case, and those elected to office are simply citizens discharging their duty. So the question of their conduct starts and stops with their legal innocence or guilt.

But that conception ignores the character of representative “democracy” and its creation of two classes of person: the citizen-subject and the sovereign.

Ministers (of the crown) are part of the sovereign body. Their words are actions, and their actions can categorically change the character of thousands of lives at the stroke of a pen.

As Bernard Keane noted last week, Christian Porter and the Morrison government have been dab hands at using the sovereign power of the executive, outside the abstract rule of law, to effect many, many people’s lives. They’ve helped establish Australia as a place where the separation of powers has become very wide indeed, and the non-executive functions are diminished in the mix.

The further elision is in the nature of “enclosed” representative “democracy”, as opposed to a more reflexive form of it. Any elected set of representatives commissioned to government is an elected sovereign, for as long as they are in office.

Within the “executive space” of regulations, they rule as a monarch. The health minister cancels a hospital building program in a regional area. Over the next years, 50 people die due to lack of facilities in the area. Maybe more than 50 lives were saved elsewhere, by the re-allocation of the resources. Maybe not. But in any case, those people died by, at some extension, the minister’s hand. It’s the sort of decision no one else in the society can make.

Of course, if any sovereign minister holds that power it’s the attorney-general. Their office stretches across all three powers of the state, in a manner that utterly refutes the idea that there is a full separation of powers, or that the separation of powers is without contradictions or gaps in the joins.

The attorney-general’s role is largely to limit the full equality of powers: to ensure control of the executive over the judiciary. The office is a “state of exception”: its contradictory character both refutes the separation of powers and acts as a lynchpin for the particular, executive-dominated version of it. That is particularly so due to the attorney-general’s relationship to standing police forces, which constitute an unspoken fourth power.

So, the political upshot would appear to be this: if a mere backbencher were accused of these things, it could possibly be said that they should remain in office and then be submitted to the verdict of the people. If a junior minister were accused of these, it’s possible the government could busk through even that. But this is, let’s say it again, the attorney-general of the country.

The government and its supporters are thus running their line on abstract and simplistic notions of criminal law. Their political problem is that the notion of having an attorney-general standing up and making law while a detailed and much-aired accusation of rape lies undealt with is absurd.

Structurally — before it is shocking, offensive, patriarchal — it is simply absurd. The risk the government runs is that such absurdity simply corrodes legitimacy, in a way that no amount of spin and PR can remedy.

I mean, think of it this way: if you were going to write a dark, unsparing satire of spin-based government, isn’t this exactly the scenario you would choose?

This goes to the other “state of exception”: the crime of rape, made in a detailed accusation from beyond the grave. Were the attorney-general accused of murder in such circumstances — by say, a potential witness, whose death ended the police case — would anyone argue that he could continue the office without an inquiry? But if he were accused of embezzlement, in a case that had similarly died with someone, it could reasonably said that he had no case to answer.

Rape is the boundary crosser, the crime that was once regarded as simply among the run of crimes (when it reached the existing criminal standard at all) and is now regarded as unique and incomparable in its meaning, as murder always has been. There’s nothing, now, that is like rape.

The great error the crowd at News Corp and elsewhere have made in assessing the politics of this is to think of rape as still in the “embezzlement etc” category, as a crime that does not rise to the unique character of murder.*

It’s this double exception — of the office and the crime — that means this thing is not going to go away. In the next few weeks, Christian Porter is either going to have to leave politics, or return to the office of a sovereign minister and enact law.

If he does the latter, then the only way of remedying the corrosive absurdity of his position is by some form of inquiry. The inquiry Porter is resisting because it might finish him personally is, paradoxically, the only thing that would save him politically.

What the politics might be, we’ll consider tomorrow.

* A short note on the differences between the accusations against Porter, and the accusations against Julian Assange made in 2010.

I, and many others, believe that Assange had no moral obligation to return to Sweden to answer a rape accusation. I believe this not because his prominent political role made him immune from any such accusation, but because the accusation fell so far short of what could be morally defined as rape that the risk of incarceration in Sweden and US extradition vastly outweighed requirements to answer the accusation itself.

Some Assange defenders suggested that there was no requirement at all to discuss the content of the rape accusations. I never believed that. But nor did I, or others, agree that any state-driven accusation of rape should be acceded to, no matter how devoid of content, simply because of the special character of the accused crime.

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