‘This is a very black day for Australian parliamentary history’

It was another unprecedented moment in the never-ending Christian Porter affair. Yesterday, the government blocked an attempt to refer Porter’s use of a blind trust to fund part of his legal fees to Parliament’s Privileges Committee. Despite Speaker Tony Smith concluding there was a prima facie case for the committee to investigate further, the government used its numbers in the House of Representatives. 

Labor seethed. Prime Minister Scott Morrison had “used his numbers to turn Parliament into a protection racket for Christian Porter,” manager of opposition business Tony Burke said. Never before has a government used its numbers to block a referral to the committee backed by its own speaker.

So what does it all mean, and why is it such a big deal?

What happened

To recap, Porter quit the ministry last month because he wouldn’t name the people in the blind trust who’d funded his defamation action. He went reluctantly, before advice on whether he’d breached the ministerial code of conduct was due to return.

On Monday, Burke noted he wanted the committee to investigate whether Porter breached disclosure rules. Yesterday afternoon, Smith concluded there was a case for the committee to investigate. Importantly, the decision “does not imply a conclusion that a breach of privilege or contempt has occurred,” Smith told the House. 

The Speaker’s decision is meant to carry weight. Instead, the government, led by Leader in the House Peter Dutton, voted against it. Dutton said crowd-sourced donations used by Greens Senator Sarah Hanson-Young in her defamation action meant Porter alone shouldn’t be referred. Dutton wrote to Privileges Committee chair Russell Broadbent, asking him to clarify disclosure requirements around crowd-funding. Hanson-Young maintains that most donations were actually under the $300 disclosure cap, and hence didn’t have to be declared.

This morning, Morrison doubled down on the argument that Porter shouldn’t be investigated because other people crowd-funded their legal cases.

“If others want to play politics, that’s their prerogative. I want to make sure the rules are right so the integrity is protected,” the Prime Minister said, right after his government had done exactly the opposite. 

Either way, the government’s procedural flex means Porter, who avoided an independent inquiry into a historic rape allegation, avoided that allegation being examined by the courts after he backed away from his defamation action, will once again avoid scrutiny, this time with the government’s support.

The precedent

Labor has repeatedly maintained the government’s move to block the referral was unprecedented. It’s certainly one of those norms that just four years ago the Coalition respected.

In 2017 former Liberal minister Bruce Bilson was referred to the Committee over revelations he’d been getting paid by the Franchise Council of Australia before actually quitting Parliament to start his job as a lobbyist there.

The referral came from Smith. It was never blocked. Bilson, gone from Parliament by the time, was ultimately censured by the Committee. In 2014, former speaker Bronwyn Bishop referred disgraced former Labor MP Craig Thomson to the Privileges Committee, over whether he’d mislead Parliament by denying he’d misused a union credit card. Labor supported the Abbott government’s push. 

The aftermath

But even if Porter had been referred to the Committee, it’s unclear how much it could actually do. Notably, it is dominated by the Coalition. And as Labor committee member Anika Wells told the ABC yesterday, it is “a lot less powerful than it gets written up as”.

The Committee could potentially compel Porter to declare his interests. It could also make a finding of contempt. In the Bilson case, it didn’t do this, but simply censured the former minister. Still, Porter’s matter being referred would provide further scrutiny on the former attorney-general’s highly secretive legal affairs.

Instead, the government’s actions have left open the door for MPs and Senators to evade scrutiny on their registers of interests, which are a crucial transparency tool in a country where we have very few. Speaking to the ABC this morning, leading barrister Geoffrey Watson SC from the Centre for Public Integrity said the government had made a mockery of the register of interests.

“This is a very black day for Australian parliamentary history,” he said.