Christian Porter has the right to remain silent. But the PM must show leadership

Former attorney-general Christian Porter has found a worrying loophole in our electoral laws, writes Richard Denniss.

Former attorney-general Christian Porter has found a worrying loophole in our electoral laws, writes Richard Denniss. Photo: AAP

Christian Porter has the right to remain silent about who funded his legal bills but, thanks to draconian laws drafted in the wake of the September 11 terrorist attacks, you do not have the right to remain silent.

Forget what American TV has taught you, in Australia you do not always have the right to remain silent.

Whistleblowers in Australia can be jailed for revealing the embarrassing secrets of our governments.

Journalists can be jailed for refusing to reveal who those whistleblowers are.

And the fact that you are reading this story online, along with all of the rest of your web history, is being stored by the Morrison government in case the national security agencies want to look through them.

But who gave Minister Porter up to $1 million to fund his failed defamation hearing against the ABC? That’s his secret to keep.

To be clear, there is no suggestion that Christian Porter has broken any laws.

Indeed, the problem is much more serious than that. It seems our former first law officer has found a loophole in our electoral laws big enough to drive a $1 million truck through.

But where other parliamentarians might have seen such a discovery as an opportunity to reform the laws, our former attorney-general instead decided to make good use of it.

According to the Australian Electoral Commission: The Electoral Act does not prohibit members of Parliament from receiving anonymous or foreign donations in their individual capacity outside of a candidacy (electoral) period. Nor does the framework require members of Parliament who personally receive gifts to report those gifts (outside of an election period) to the Australian Electoral Commission.

Who knew? I mean literally, who knew? As a close observer of Australian politics over a long period of time, I confess to having no idea that million-dollar personal gifts to MPs made ‘outside of an election period’ were, according to Australian law, completely tickety-boo.

But now that we all know this, the question is, what is the Morrison government going to do about it?

What needs to happen next

The best solution would be for Christian Porter to either reveal the identity of his generous benefactor or, if he is unable or unwilling to do so, to simply return the money.

As a former AG, Mr Porter no doubt understands the need for justice to be seen to be done, and for those in positions of high office to hold themselves to high standards.

Failing any ethical epiphanies from Mr Porter, the next best option for the health of our democracy would be for the Prime Minister to instruct Mr Porter to return the gift or remove him from the cabinet if he refuses to do so.

Mr Morrison’s Statement of Ministerial Standards demands ministers “comply with the requirements of the Parliament and the Prime Minister relating to the declaration of gifts”.

It goes on to say: “Ministers shall ensure that they do not come under any financial or other obligation to individuals or organisations to the extent that they may appear to be influenced improperly in the performance of their official duties as minister.”

Of course, it is open for Mr Porter to claim he has no idea who his benefactor is, but that then raises the question of why he was so confident that such a generous stranger would come forward before embarking on a million-dollar court case?

Or perhaps they came forward months ago and he has only just disclosed it?

But assuming Scott Morrison will choose to do nothing when the opportunity to show leadership presents itself, his code of conduct leaves open an intriguing third option.

Christian Porter’s use of a blind trust is a test of the Prime Minister’s leadership. Photo: AAP

No confidence looms

Given that the Prime Minister explicitly requires ministers to comply with the requirements of the Parliament, and given that the Coalition holds a minority of seats in both Houses of Parliament, there’s a good chance the Parliament might demand more information from him about his gift than the AEC.

Greens leader Adam Bandt has already announced his party will move a no-confidence motion in Mr Porter, which Green sources say is receiving “positive feedback” from the Opposition and the cross bench.

Some of the sharpest procedural minds in the country will be sharpening their political knives.

Although there are multiple paths to propriety, the real problem is that if this ridiculous situation is allowed to stand then our politicians, who are already among the best paid in the world, will be free to accept enormous ‘gifts’ from undisclosed friends through brown paper trusts, friends who may represent foreign governments, crime syndicates, property developers or billionaires looking for another tax break.

The whole point of our donation disclosure laws and anti-money laundering laws is to provide transparency in order to limit the ability of those who might seek inappropriate influence to find opportunities to wield it.

The purpose of such laws is not to prevent politicians from receiving gifts, but to prevent those who would distort our democracy from having the chance to do so.

No one likes blind trust

It’s not about whether Christian Porter can be trusted; it’s about whether our democratic structures are seen to be trustworthy.

The vast majority of Australians want far more transparency from their governments, not less.

And the vast majority of Australians support the creation of the kind of federal anti-corruption watchdog that Christian Porter promised and never delivered.

Without such a body, we are expected to have blind trust that there is no corruption in the Morrison government.

But as the past 24 hours show, no one likes blind trust.

Living in a democracy requires us all to give up some freedoms to ensure that greater freedoms are protected.

Whether they like it or not, Australians don’t have the right to keep a wide range of secrets from their governments.

Government ministers should not demand the right to keep the source of million-dollar gifts secret from those they govern.

Richard Denniss is the chief economist at independent think-tank The Australia Institute. You can follow him on Twitter @RNS_TAI 

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