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ANALYSIS: Christian Porter’s defamation case against the ABC and Louise Milligan has put a spotlight on Australia’s legal system and our lack of a public interest defence for journalism. By Richard Ackland.

Christian Porter v the ABC

Attorney-General Christian Porter.
Credit: AAP image / Lukas Coch

Content warning: This piece contains descriptions of sexual violence.

Porter v ABC has kicked off in the traditional way with a series of defamatory meanings the attorney-general claims can be found in journalist Louise Milligan’s article published on the ABC website on Friday, February 26.

In his statement of claim, Porter and his lawyers are arguing a reasonable person would assume from Milligan’s piece that Porter brutally raped a 16-year-old girl in 1988; Porter anally raped a 16-year-old girl in 1988; Porter’s brutal and anal rape of a 16-year-old girl contributed to her taking her own life; Porter is reasonably suspected by the police of brutally and anally raping a 16-year-old girl, warranting criminal charges be brought against him; in 2020 Porter was reasonably suspected by New South Wales Police of raping a 16-year-old girl in 1988; there are reasonable grounds for suspecting that Porter brutally and anally raped a 16-year-old girl; there are reasonable grounds for suspecting that Porter’s brutal and anal rape of a 16-year-old girl contributed to her taking her own life.

Various computations and permutations chase themselves around the courtroom in the hope that at least one of them lands the blow – which in the defamation world counts as a win, and money, and (some) costs.

Milligan’s article essentially said four key things: that a letter detailing an alleged historical rape by a cabinet minister had been sent to the prime minister and senators Penny Wong and Sarah Hanson-Young, who forwarded the document to the Federal Police. The letter urged the prime minister to set up an independent parliamentary investigation into the claim. The article also said NSW Police Force established a strike force in February 2020 after the victim told them she had been raped by “the man”. And finally, Milligan noted that South Australian police had told the ABC they were preparing a report for the coroner.

Citizens may have trouble with all this, as the word “Porter” is not mentioned in Milligan’s article, nor is “charges”. It is contended by Porter’s lawyers that by osmosis a large number of people knew Milligan was writing about the attorney-general – even though the speculation was also on others.

The threshold for identification of the defamation applicant is low – it’s where we enter a world of inferences.

In the United States, in England and Wales, in New Zealand and Canada – the main English-speaking nations with an adversarial litigation system – Porter’s defamation case would not get very far.

It would be knocked out in the US because he is a public figure. In Britain, the journalism would attract the defence of public interest, with the defendant reasonably believing the report was in the public interest.

The New Zealand courts also have recognised a public interest defence for journalism, and the same in Canada in “responsible communication” cases.

This leaves Australia as a public interest backwater. Here “public interest” is only a factor that may be taken into account in determining whether readers or viewers have an “interest” in the news and whether “the conduct” of the publisher is “reasonable in the circumstances”.

Very rarely does this defence make it home for the media – too many hurdles – not to mention the vexed issue of “judicial predisposition” – that is, lack of love for the media among the judiciary.

In the Porter case, this leaves the ABC with one important leg on which to stand: the defence of truth. Even in these times of truthiness, real truth can help out at crucial moments – although not so much in the courts.

We saw it in the Geoffrey Rush case where The Daily Telegraph pleaded truth, but the additional evidence of Yael Stone was not allowed in because of the Federal Court’s timetable for the case.

In the Chau Chak Wing case against Fairfax and the ABC, the entire truth defence was struck out because various judges didn’t think it was particular enough.

Porter and his supporters in the media believe this defamation trial will get to the “truth” of the matter – that it will resolve once and for all the rape allegation against the first law officer of the Commonwealth. Until that moment, they argue, everyone should keep quiet. This ignores that defamation trials frequently hinge on what is left out of the case, and that lots of the embarrassing bits about the person suing end up on the cutting-room floor.

Porter has a top-ticket team for his fight against Milligan and the ABC. Bret Walker, SC, Sue Chrysanthou, SC, and solicitor Rebekah Giles – all from the small pond of Sydney defamation practitioners.

Walker has done many defamation cases, including some for the ABC. Chrysanthou, who took silk last year, has been busy on all sides of the fence. She has been appearing most recently in the case solicitor Chris Murphy has brought against The Daily Telegraph, which she claimed painted him as “past it, decrepit or over the hill”.

Chrysanthou also acted for doctors John Herron and John Gill from the notorious Chelmsford Hospital in their Federal Court defamation case against HarperCollins and journalist Steve Cannane. Justice Jayne Jagot found against the doctors, saying they were “fixated on a single objective … [to] rewrite history and vindicate their conduct despite the overwhelming evidence to the contrary and the lack of any cogent evidence to support them”. There’s now to be an appeal.

Justice Jagot has the docket for the Porter case as well.

Rebekah Giles is well known in the “reputation management” business and in Sydney social circles. She previously worked at Kennedys, which has done all sorts of defamation work, including for Murdoch pundit Chris Kenny in The Chaser bestiality drama. For its part, the ABC will be represented by former solicitor-general Justin Gleeson, SC.

 

In the 14-year period up to August 2020, there were 105 cases in the Federal Court where the media was a respondent. Only 12 went to judgement, where the outcome was evenly split: applicants won six of them and the media succeeded in six.

However, in the same time frame, 46 cases were settled and 12 were discontinued. Settlement invariably has the media coughing up the cash. Overall, on the numbers, the Federal Court is not a happy place for the media.

It is not as though Porter is unaware of these ramifications. In a 2019 speech to the National Press Club, he said the current defamation laws “no longer strike the perfect balance between public interest journalism and protecting individuals from harm”.

Still, this is the law he is using.

He also said he didn’t like the idea that “aggravated damages” can be awarded, which had the effect of huge blowouts in payments to applicants, as in the Rush and Rebel Wilson cases. Yet here he is claiming aggravated damages against the ABC on the basis that Milligan and the broadcaster had an “intention to harm him”.

Further, Porter claims Milligan did not disclose her “close friendship” with people who knew the alleged rape victim and were sources for the story.

Porter has endorsed efforts by the states to end defamation “forum shopping” and to create a level playing field so people could not bring actions in places that advantaged their cause of action.

But here he is forum shopping in the Federal Court, an applicant’s no-jury paradise.

Citizens might think the attorney-general is a hypocrite, especially as the media law reforms he once championed have ground to a standstill. In stage one of the agenda, it was up to the state parliaments to pass amended Defamation Acts that introduced among other bits and pieces a newfangled, but not very helpful, “public interest” defence.

The amendments were agreed to by all the attorneys-general in July last year. So far only the parliaments of NSW, Victoria and South Australia have passed the law. That legislation cannot take effect until all jurisdictions have done likewise.

Stage two required some elbow grease from Porter – dealing with the liabilities of internet platforms, take-down orders and enforcement, tech giants as publishers et cetera – probably the main event when it comes to the contemporary media. We haven’t heard a peep in ages about progress with this stage.

Now Porter has his very own defamation case where he is endeavouring to use the civil law to quell a criminal allegation – the very thing some of his cheer squad insisted was not an acceptable resolution to the problem. In fact, it was their suggestion that the rule of law would be annihilated if the criminal allegation couldn’t get due process and relief beyond reasonable doubt.

Patrick George, the senior partner at Giles’ old firm Kennedys, who has a long-established defamation legacy, has some thoughts about politicians, their reputations and litigation:

“Politicians have, of course, always sued for defamation. There was once a special law to protect them as ‘Great Men of the Realm’. They will continue to do so into the future because they are elected based on their reputations and popularity. Any loss of face or damage to their electability is a potential threat to their career.

“While a day in court may give some satisfaction and some measure of relief against public disapproval or increasing unpopularity, the reality is that the election determines their fate, one way or the other. And a politician inclined to sue might have to hope that the trial process ends before the election cycle does.”

 

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732

This article was first published in the print edition of The Saturday Paper on Mar 20, 2021 as "Reputation and harm".

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Richard Ackland is The Saturday Paper’s legal affairs editor.