How the law could permit the standing down of Christian Porter

18th Mar 2021

One of the major questions currently facing the Australian Government is whether Christian Porter should stand down – or be suspended – while an independent investigation is conducted into the historical allegations against him.

Mr Porter rejected this proposal in no unclear terms at a press conference on 3 March, stating: ‘If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life’s work, based on nothing more than accusation that appears in print.’

He went on to say that doing so would render the position of Attorney-General unnecessary altogether, ‘because there would be no rule of law left in this country’.

But is that true?

Under Australian industrial relations law, the standing down of a public service employee during an investigation into their conduct is not only lawful, but expressly provided for in the legislation.

However, that does not mean that it is always warranted, or that it does not cause the employee harm.

In fact, there has been significant judicial consideration of the potential risks to an employee’s health and career that such a suspension can pose.

In the 2010 decision in Quinn v Overland [2010] FCA 799, the Federal Court heard an application by a forensic scientist to end her suspension for alleged misconduct.

The allegations related to poor record-keeping and her failure to comply with her employer’s policies.

In the judgment, Bromberg J accepted evidence that the employee’s suspension was likely to have a substantial impact on her reputation and future career prospects.

His Honour also accepted that as a highly skilled professional, it was likely that the suspension – and specifically, the associated embarrassment and stress – had affected her health and wellbeing.

When considered alongside the finding that the suspension would not improve the integrity or efficacy of the investigation, Bromberg J ordered that the employee be returned to work.

Similarly, in Downe v Sydney West Area Health Service (No. 2) [2008] NSWSC 159, the NSW Supreme Court heard an application by a specialist paediatrician to overturn her indefinite suspension.

The basis for that suspension was an investigation into historical (and ultimately unsubstantiated) complaints that she had engaged in bullying and intimidation of her colleagues.

Rothman J emphasised that in the case of employees who are both senior and highly skilled, it is less likely that their employer has an entitlement to indefinitely require the employee not to work.

The Court found that this was particularly the case in circumstances where the paediatrician had only accepted the job because she was told that she would be able to establish and run the hospital’s neonatal intensive care unit, and had moved from Canada to perform that work.

Rothman J ultimately held that suspending the paediatrician for longer than was necessary to conduct the investigation was a breach of her employment contract.

What these and other cases tell us is that while it may be appropriate – and sometimes necessary – to stand down an employee while an investigation is under way, the negative ramifications of a suspension should not be ignored.

The current predicament involving the Attorney-General Christian Porter is unique in that it involves the highest law officer in the country, and the allegations are some of the most serious that can be levelled at anyone.

In those circumstances, there is an argument that it is appropriate to suspend him until the allegations are disproven or otherwise dismissed.

If that occurs, there are measures that should be taken to ensure that Mr Porter is still provided with due process, and the presumption of his innocence is maintained until proven otherwise.

These measures include that he be provided with the full details and particulars of all the allegations against him, any evidence that is in existence, the opportunity to fully respond to the allegations, and a clear picture of how the investigation will be conducted and by whom.

Another important measure, as emphasised by Rothman J in the case of the paediatrician, is ensuring that the suspension is only for as long as it needs to be for the investigation to take place.

While the allegations as they stand against Mr Porter are greatly concerning, they are at this stage just that: allegations.

Indeed, it may be argued that the best way to protect the rule of law in this area is to ensure that no employee, up to and including the Attorney-General, is subjected to an investigation that involves poor processes or a pre-determined outcome.

This is an edited version of an article first published at The New Daily.

Giri Sivaraman is a principal lawyer at Maurice Blackburn Lawyers in Brisbane.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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