Scott Morrison has revealed he didn’t seek legal advice from the government’s most senior independent lawyer before rejecting calls for an independent inquiry into the sexual assault allegation against Christian Porter.
Morrison confirmed on Tuesday he had not consulted the solicitor general before he and ministers claimed that an independent inquiry would usurp a criminal investigation, which has now closed, and undermine the rule of law.
At a press conference in Sydney, Morrison also revealed the attorney general – who denies the allegation – will not be back at work when parliament resumes next week and he is unsure when Porter will return to work.
On Tuesday evening, the former solicitor general, Justin Gleeson, told the ABC that Morrison should have referred the allegation against Porter “directly to the second law officer, the solicitor general” for advice.
Gleeson reportedly said the solicitor general could advise whether “the material is sufficiently credible to justify an executive inquiry being instituted”, whether that could occur “consistently with our constitution and our rule of law” and what form an inquiry might take.
Gleeson suggested seeking advice could act as a “circuit-breaker” to the current impasse over the accusation that Porter raped a 16-year-old in January 1988 when he was 17. Porter has strenuously denied the allegation.
“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,” Gleeson told the ABC.
“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.”
Gleeson said if the solicitor general advised an inquiry could go ahead and the advice was rejected, it should be published and the prime minister should explain his reasons for departing from it.
On Wednesday Porter warned that if he “were to resign and that set a new standard, there wouldn’t be much need for an attorney general anyway, because there would be no rule of law left to protect in this country”.
Morrison and senior ministers have repeatedly invoked the claim that the rule of law would be harmed by an investigation, which has been contradicted by some legal experts including Prof Ben Saul and Kim Rubenstein.
Workplace investigations are common, operate on the lower standard of the balance of probabilities rather than proving allegations beyond a reasonable doubt, and in senior corporate and sporting contexts have included investigations into private matters.
On Tuesday, Morrison was asked if he had sought the solicitor general’s advice on the Porter matter. Morrison replied that he had not done so because “there is not a separate legal process that applies to the attorney general or anyone else”.
“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,” he said.
Morrison did not explain why he had not taken advice from the solicitor general, but again rejected an inquiry.
“If we do that, we are eroding the very principles of the rule of law in this country. So there are not two laws in this country and I won’t allow that to be eroded.”
Morrison expressed confidence in senior ministers Michaelia Cash and Marise Payne to take over the duties of Porter and Linda Reynolds, who is on medical leave while under fire over her handling of former staffer Brittany Higgins’ sexual assault allegation against a fellow staffer.
On Monday, Payne, the minister for women, said that Morrison had made decisions about Porter “in consultation with appropriate colleagues”.
She told ABC Radio it was the “strong view of the prime minister and the government” that the justice system is the only forum to determine whether criminal allegations can be proven.
The New South Wales police have dropped their investigation, citing a lack of admissible evidence because the complainant withdrew her complaint before her death in June 2020.
Morrison has said he would welcome a South Australian coronial inquiry into the circumstances around her death, a move also backed by the former deputy Liberal leader Julie Bishop.
Geoffrey Watson, the director of the Centre for Public Integrity and a former counsel assisting the NSW Independent Commission Against Corruption, told Guardian Australia it was “ridiculous” the prime minister had not sought legal advice from the solicitor general.
“I think it’s obvious – there’s an issue now that adversely affects the first law officer, the highest legal office in the land,” Watson said.
“It’s quite evident there is a division of opinion among lawyers around Australia about what happens next,” he said. “One way of resolving it, the ordinary way, is to take advice of the solicitor general.”
Watson said there was an “evident potential conflict” between the political interests of preserving the make-up of cabinet and the broader public interest. He argued this could be resolved by seeking advice from the solicitor general, who is independent of the political process, about the appropriateness of an independent inquiry.
The shadow attorney general, Mark Dreyfus, told Guardian Australia the prime minister should “stop making excuses, start taking this seriously and show some leadership”.
“It is deeply disturbing that – more than a week after receiving it – Mr Morrison still hasn’t even bothered to read the detailed statement sent to him by the complainant’s friend. It’s not good enough.”
On Tuesday Morrison said he had not read the complainant’s statement because the materials had not arrived at his office in Canberra until Friday 26 February, when he was in Sydney. The statements were immediately forwarded to police.
Morrison said on 24 February he was briefed on the content of the allegation, which had already been sent to a colleague, and put the allegation to Porter, who denied it.
The Labor deputy leader, Richard Marles, said the allegation against Porter needs to be taken seriously and “in these circumstances it is not clear” they have been properly investigated.
“Going forward it seems there does need to be some form of inquiry which means we don’t have this question lingering over the first law officer.”
Guardian Australia contacted Morrison and Porter for comment.
• In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is impacted by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org.