By David Speers for the ABC
Analysis - The emotion appeared genuine, the talk of seeking help with his mental health understandable, but here's the bottom line: Christian Porter is digging in.
It's now up to Scott Morrison, left, to decide the fate of Christian Porter. Photo: AFP
He has no plans to stand down and doesn't want an independent inquiry into claims he raped a 16-year-old girl in 1988. The attorney-general acknowledged, however, this is not his call to make. Ultimately his political fate rests with Prime Minister Scott Morrison.
Porter's extraordinary press conference professing his innocence on the allegation of rape ("I didn't do it"), his anger towards the media ("No journalist has put the detail of the allegations to me in a way that would allow seeking a response, not ever") and his fear all of this might destroy the rule of law in this country, doesn't alter the conundrum facing Morrison.
Does he continue to stand by his minister and resist the pressure for an independent inquiry, or does he acknowledge the only way through this is to commission some sort of investigation?
Porter's state of mind
Porter is taking two weeks off to seek mental health support and then plans to return. There was no doubt in his mind about the need to continue as attorney-general.
This leaves the ball squarely in Morrison's court. Deferring to law enforcement authorities may have been an understandable initial response for the prime minister, but after NSW police concluded there was "insufficient admissible evidence" to pursue a criminal charge, it's now entirely up to Morrison to decide what to do next.
NSW police concluded there wasn't enough evidence to charge Christian Porter. Photo: AFP
In the arguments both for and against an independent inquiry, there has been a great deal of focus on precedents. Those in favour of an inquiry point to the Dyson Heydon precedent. The High Court commissioned an independent inquiry into claims of sexual harassment made against the former judge.
If it was good enough for the High Court, why not the government? Porter says the difference is the High Court was dealing with a "contemporaneous workplace" matter.
Perhaps, but in this case we're dealing with the public confidence in Australia's first law officer.
A different precedent
Those arguing against an inquiry, including Porter himself, point to a different precedent, that of Bill Shorten. Much like Porter now, the then-Opposition leader outed himself in 2014 as the "unnamed senior Labor figure" accused of raping a woman in the 1980s.
He went public after Victorian police concluded there was "no reasonable prospect of conviction". There was no demand from either side of politics at the time for a further inquiry. Both sides accepted the outcome and the historical allegation largely died as a mainstream political issue.
It's worth noting, however, the allegation did threaten to re-emerge during the 2019 election campaign.
Former Labor leader Bill Shorten during the 2019 election campaign. Photo: AP Photo/Andy Brownbill
At the time, Labor suspected the prime minister was making a veiled reference to Shorten when he spoke about the difficulty women often face in coming forward.
"One of the things that often happens with [rape] is they're not believed and their stories are not believed and it's important that their stories are believed and they know that if they come forward their stories will be believed," Morrison said.
"Women in those circumstances should have a greater sense of confidence that if they tell their stories they will be believed."
It's not a sentiment the prime minister has repeated in relation to the allegation against Porter.
A circuit breaker
The reality is there's no clear precedent for the current dilemma. Neither the Heydon nor Shorten examples provide a template for what to do when the nation's attorney-general is accused of raping someone police can no longer speak to.
This hasn't happened before and it's a situation unlikely to be repeated.
Porter fears the "rule of law" would be threatened if he were to stand down. It's an appeal to the core belief of all democrats and an exaggeration to be sure.
Still, there is an entirely legitimate concern about the standard that's set here. In deciding the best way forward, it's important not to do anything here that will encourage vexatious complaints against innocent Cabinet ministers.
Equally, it's difficult to believe there will be many future cases involving a deceased complainant, whose committed group of friends and supporters have put forward such a serious, detailed allegation against an attorney-general.
The pressure for a public inquiry won't quickly dissipate. Labor has ensured that. So too has the public mood. Against the backdrop of Brittany Higgins, Grace Tame and other brave women who have come forward, there is a great political danger for the Morrison government if it is not seen to be doing all within its power to ensure its own Cabinet members are beyond reproach.
The prime minister must now weigh whether to call an inquiry which Porter clearly thinks would be an unfair process ("What would I say before that inquiry?", he asked rhetorically) or resist such a step and face even further criticism his government is not listening to victims; not giving women confidence their stories will be heard and "believed".
An inquiry by a respected former judge or panel of independent experts, looking at the "balance of probabilities" in this case may not be the perfect answer, but it may be the only viable option left available to deliver some closure in this unusual case.
Politically, it may also be the only circuit breaker for a prime minister in a difficult position.
*David Speers is the host of ABC TV's political discussion programme Insiders
