If Christian Porter’s defamation case against the ABC makes it to trial, one thing will be certain: never will such a powerful figure with so much control over Australia’s court system and laws have been subject to its judgment.
Prime Minister Scott Morrison clearly knows this and last night rushed to ring fence some of Porter’s duties as attorney-general.
But it doesn’t completely remove the obvious conflict of interest at the centre of this case. Nor does it undo Porter’s legacy of presiding over a court system where he has appointed judges and overseen significant structural reforms. Just last month he axed an entire court.
Porter could have removed the conflict by stepping down as AG or filing the lawsuit in a different court, such as Western Australia’s Supreme Court. But by filing it in the Federal Court, experts say he has allowed for the unprecedented situation of becoming a plaintiff in a court which he, ultimately, controls.
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“So long as Porter remains the first law officer, this litigation will remain very unusual,” Michael Douglas, a senior law lecturer at the University of Western Australia, told Crikey.
“The Federal Court is a court that only exists because legislation was passed to create it. This means that he’s suing in a court that relies on the federal government for its power.”
Of course the Federal Court is still required to act independently, and judges impartially. But it may not be enough to remove the perception that something is not quite right, Douglas says.
The judge allocated to Porter’s case is not a Porter appointment. Justice Jayne Jagot was appointed to the Federal Court by the Rudd government in 2008. In October she was considered a leading contender for one of two spots on the High Court, but Porter appointed Melbourne Federal Court judge Simon Steward and Sydney Federal Court judge Jacqueline Gleeson instead.
Joe McIntyre, a senior law lecturer at the University of South Australia, says a Porter defamation trial would be the ultimate test of Australia’s unusual judicial appointment system in which the attorney-general has huge personal discretion in appointing judges — unlike in Canada and the UK which have moved towards judicial commissions.
“We’ve got this situation where judges who have potentially personally been selected by the attorney-general or who might potentially have aspirations of going to the High Court, deciding on matters that are directly in this attorney’s interests,” he said.
“The concern is there might be a perception that a judge might have some favourability to the attorney-general personally because they have some sense of personal obligation or loyalty to him, or they may want to move up to the High Court.”
Another irony of the situation is that Porter is relying on laws he has criticised.
After the Australian Federal Police raids on the homes of journalists in 2019, Porter threw his support behind calls from the media, including News Corp, to reform defamation laws to better protect public interest journalism.
In a speech to the National Press Club that year, he said: “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.”
Porter has supported efforts led by NSW Attorney-General Mark Speakman to update defamation laws, although the changes are yet to come into effect across all states.
It may just be a perception issue, but in a case that involves someone as high profile as the attorney-general, perception is all that matters.
A Porter defamation trial would not just be about deciding whether or not Porter’s reputation has been damaged by the allegations first aired by the ABC. It could well be the closest the Australian public comes to knowing whether he’s told the public the truth.
And unless the public is satisfied that the court won’t be influenced by the power that Porter holds over it, that truth may never be told.