Eminent lawyer Justin Gleeson has urged the Prime Minister to enlist the Solicitor-General in assessing whether Christian Porter is a fit and proper person to remain Attorney-General.
Mr Gleeson, who was solicitor-general between 2013 and 2016, said Scott Morrison should have read the 31-page dossier sent to him anonymously by the friends of a woman who claims Mr Porter raped her 33 years ago.
Mr Porter strenuously denies the allegation.
The woman took her own life last year, after deciding not to lodge a formal complaint with police.
She struggled with mental illness throughout her adult life, but there is no way of knowing what caused her mental health issues.
The ABC can reveal the woman visited Parliament House just weeks before she began working on the dossier, attending the maiden speeches of two Labor MPs in August 2019.
Mr Gleeson outlined a two-step process which he said should have been followed after the receipt of the dossier by the PM’s office.
“This matter should have been referred directly to the second law officer, the Solicitor-General, who could have provided advice on a couple of key legal questions,” Mr Gleeson told the ABC.
“The key one of those questions would have been: Is the material sufficiently credible to justify an executive inquiry being instituted?
“Can that occur consistently with our constitution and our rule of law? And if so, what form might that inquiry take?”
Mr Gleeson said the first question – whether the material was sufficiently credible to justify an inquiry – could be answered by the Solicitor-General within 48 hours and could be the “circuit-breaker” many were looking for.
“For example, if the Solicitor-General comes down on the side that there is no proper legal basis for an inquiry, I for one, and I think many in the community, would accept that an independent senior law officer has said there is no room for such an inquiry,” he said.
“That would be the end of the matter. The cloud over the Attorney-General’s name would I think be substantially cleared and he could resume his duties in the fullest sense.”
But if the Solicitor-General advised in favour of an independent inquiry, Mr Gleeson said the Prime Minister should either accept the advice or explain his reasons for rejecting it.
“This would be one of those occasions where it would be in the interests of the community as a whole, if that advice were made public,” he said.
Gleeson: Precedents for independent inquiry are there
The Prime Minister is against holding an inquiry into the allegations in the dossier, which he has not read, arguing that police are the “competent and authorised” authority to investigate criminal allegations.
The Attorney-General told a press conference last week that while the question of an independent inquiry was for others to determine, he did not know what he could offer such a process.
“What would I say in front of that inquiry?” he asked.
“What would that inquiry ask me to do? To disprove something that didn’t happen 33 years ago? I honestly don’t know what I would say to that inquiry.”
But Mr Gleeson said there are precedents from the earliest years of the Constitution when the executive, or government, inquired into matters of alleged serious misconduct.
He cited the case of Clough v Leahey from 1904, and the case of former High Court justice Lionel Murphy.
Mr Murphy was acquitted after two criminal trials on corruption charges, only to have his fitness to return to the court become the subject of an attorney-general-ordered inquiry by three retired judges.
The South Australian coroner is considering whether to hold an inquest into the death of the woman.
But Mr Gleeson said an inquest would not consider whether Mr Porter was an appropriate person to hold the position of Attorney-General.
“Only the Attorney-General can take the ultimate responsibility for the attitude of the executive of Australia to the law, to the constitution, to our protection under the rule of law, ” he said.
“The Attorney-General is in that incredibly special position, and it’s therefore critical that that person not have justifiable doubts about their fitness and propriety hanging over them.
“It is no part of a coronial inquest to express an opinion upon whether any person is fit and proper to hold high executive office in Australia.
“So to that extent, while it is possible that a coronial inquest might, incidentally, cover some of the same territory, it can never answer the question which is so concerning to so many people in Australia.”
PM says he won’t speak to Solicitor-General
Mr Morrison gave the dossier containing the historical rape allegation to the Australian Federal Police, saying he had been adhering to prior advice on such matters from the AFP Commissioner.
Asked on Tuesday morning if he had discussions with the Solicitor-General on the dossier, or had any plans to do so, he said no.
“There is not a separate legal process that applies to the Attorney-General or anyone else,” Mr Morrison said.
“There’s only one rule of law here. And I’m standing firm on that principle of the rule of law.
“I’m not going to indulge in other extrajudicial processes that suggest that one Australian is subject to a different legal process to any other Australian.”
Mr Morrison said calling an independent inquiry into Mr Porter’s conduct and character would threaten the nation’s legal principles.
“If we do that, we are eroding the very principles of the rule of law in this country,” he said.
“There are not two laws in this country and I won’t allow that to be eroded.”
Woman who made rape allegation visited Parliament House before writing dossier
The woman at the centre of the historical rape allegation visited Parliament House just months before she first met NSW Police to discuss making a formal complaint.
She sat in the public gallery for the maiden speeches of two old friends, Labor MPs Daniel Mulino and David Smith.
She can be seen in parliamentary broadcast recordings of Mr Smith’s maiden speech, sitting with Mr Smith’s wife Liesl and their three children.
Dr Mulino and Mr Smith are childhood friends and debating partners, and Dr Mulino was in the same national debating team as Christian Porter and the complainant.
Mr Porter was in the chamber for Mr Smith’s maiden speech, sitting on the government front bench.
Just weeks after visiting Canberra for the speeches, the woman began writing the 31-page dossier that would eventually be sent by her friends to the Prime Minister, detailing the rape allegation against Mr Porter.
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