Opinion

Richard Ackland
Defamation actions by politicians

Had Christian Porter carefully considered the sorry history of defamation actions brought by politicians against the media, he may have paused and pondered for longer.

While few things are certain in life, in defamation actions all bets are off.

Porter and Peter Dutton have both stepped into the ring: Dutton against an impecunious refugee activist and blogger who, according to the pleadings, called the minister a “rape apologist” on Twitter.

The tweet came in response to Dutton’s “she said, he said” comment in the wake of Brittany Higgins’ allegation that she had been raped in Parliament House. And to an earlier Dutton ministerial pronouncement on Sky News that women held on Nauru by the Australian government were “trying it on” and claiming they were raped as a plot to get to Australia for medical treatment.

However, it is Porter’s claim against the ABC and journalist Louise Milligan that has captured public curiosity, especially where he is seeking to have the national broadcaster’s particulars of its truth defence suppressed, and parts struck out. Apparently, the details are too much for the public to handle and may further harm Porter’s reputation.

That is one battle ahead for the minister, along with issues relating to the meanings he has attributed to Milligan’s online article of February 25. Already we are deep in the realm where lawyers spin words into gold.

Porter claims that a reasonable person who read the ABC’s article would believe he brutally raped a 16-year-old girl in 1988, resulting in her taking her own life in 2020; that there are reasonable grounds for New South Wales Police Force suspecting both that he had raped the young woman and that this resulted in the woman taking her own life.

Apart from a dispute over whether Porter was identified in the article, the ABC is also pleading a truth defence to Porter’s claim that he is “reasonably suspected” of raping a 16-year-old girl.

A brief history of politicians who sue for reputational harm may prove instructive for our current parliamentary litigants.

The case of Arthur Augustus Calwell, former leader of the Labor Party, may have sounded a warning bell. In April 1971, in the Sunday Review, the Nation Review’s predecessor, none other than Mungo MacCallum reported that Arthur was part of a backroom group of grumblers, opposed to Gough Whitlam’s attempt to modernise the party.

“Far from being a grand old conscience, they have deteriorated into a narrow and embittered gerontocracy, whose actions seem motivated by almost anything except the desire to enhance the party’s electoral prospects,” MacCallum wrote.

Calwell said that meant he was disloyal, and a New South Wales jury agreed, awarding him $18,000 in damages. The Court of Appeal overturned the jury verdict, so Calwell pressed on to the High Court, which couldn’t work out what all the fuss was about.

Justice Anthony Mason said: “In short, it is a typical exercise in political journalism, written in a fashion intended to attract the attention of the reader, blunt rather than subtle in style.”

Appeal dismissed.

However, by this stage Calwell was dead, so it was his estate that would have had to pay the fees.

A month before Nation Review’s non-defamatory article about Calwell, The Australian Financial Review journalist Max Walsh was interviewed by Richard Carleton on the ABC’s This Day Tonight.

The interview was all about the byzantine crisis embroiling the government of “Jolly” John Gorton. Walsh alleged that Gorton was complicit in the publication of a false denial by then Defence minister Malcolm Fraser of a true story in The Bulletin – also that Gorton had sought to discredit Fraser by giving journalist Alan Ramsey the nod to publish a false story about the minister in The Australian.  

“Frosty” Tom Hughes, QC, appeared for Gorton in the jury-free ACT Supreme Court, claiming Walsh had effectively accused the former prime minister of dishonesty and falsehood, and that it would be difficult to imagine a graver libel of a man holding high office.

It must have struck Justice Russell Fox that it was not uncommon for men of high office to peddle falsehoods. He awarded Gorton a miserable $7500 and ordered the defendants to pay only half the plaintiff’s costs.

In the end, when the money was divvied up, Gorton would have come out behind.

Then there was Neville Wran, who as premier of NSW was sometimes described as a “colourful Sydney identity”.

This was the mid-1980s and the state was awash with corruption, including the chief magistrate doing favours for important defendants, the promotion of bent coppers to the most senior ranks of the force and the get-out-of-jail for cash racket run by Corrective Services minister Rex “Buckets” Jackson.

This was just some of the odour lingering in the nostrils of citizens and it was inevitable that radio man and columnist Mike Carlton would satirise Wran and his government’s association with corruption.

Wran climbed onto his high horse and after a four-day trial there was a non-result, even though counsel for Wran – once again Tom Hughes, QC – laid it on thick to the jury, giving them a dose of Iago from Othello:

“Good name in man and woman, dear     my lord,

Is the immediate jewel of their souls …

He that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.”

The jury couldn’t reach a verdict, apparently confused about whether Wran was Iago, a jewel, or had filched something. Effectively, the premier’s action failed and a few months later he resigned.

Jim Cairns, the treasurer from the Whitlam era, had no better luck when he sued The National Times over a reference in 1981 to his “girlfriend Morosi”. Cairns ran to his lawyers who pleaded the story carried the imputation that Cairns was “improperly involved with his assistant, Junie Morosi, in a romantic or sexual association contrary to the obligation of his marriage and to that of Miss Morosi”.

All very quaint. So quaint the jury didn’t think it was defamatory, and nor did a majority of the appeal judges. Dr Cairns must have forgotten that he swore in court he had never had an adulterous relationship – “No, never” – because in 2002 he told ABC broadcaster John Cleary that he had indeed:

“I don’t think the ordinary person thought I was wrong or a fool in going to bed with Junie Morosi. They thought it was a pretty good thing.”

The great perjury cases of Lord Archer and Jonathan Aitken come to mind, both politicians who lied in defamation cases they had brought against the media in the English High Court – Archer and Aitken were sentenced to porridge.

Aitken is now a Christian and prison reformer, while Archer, who sued over a claim that he paid for a prostitute, is remembered for Justice Caulfield’s summing up to the jury: “Is he in need of cold, unloving, rubber-insulated sex in a seedy hotel roundabout quarter to one on a Tuesday morning after an evening at the Caprice?”

In 1986, the Queensland premier Sir Johannes Bjelke-Petersen and his entire ministry sued opposition leader Nev Warburton and his deputy Tom Burns over allegations of corruption. Speaking to a Channel 2 reporter, Warburton said “just as the tide turned against the dictator Marcos, so too can Bjelke-Petersen and his corrupt government be swept from office”. Burns said the whole government was corrupt and had its “hand in the till”.

In 1989, Joh & Co dropped their case.

While his hand was still in the till the premier also sued Channel Nine when Alan Bond was the proprietor, receiving an outsized settlement of $400,000 – believed at the time to be Bond washing a bribe so he could do business in Queensland.

It’s not as though all the outcomes are miserable for defamed politicians. There are winners, including Tony Abbott and Peter Costello, who took action alongside their respective wives, Margie and Tanya, over this passage from Bob Ellis’s book Goodbye Jerusalem: “ ‘Abbott and Costello,’ said Rodney Cavalier, pacing up and down his baronial mansion after serving me dinner as was his custom, bread and water, ‘they’re both in the right wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals.’ ”

Cavalier denied ever having had this conversation with Ellis, publisher Random House accepted the claims were false and pulped the book, and Justice Terry Higgins in the ACT Supreme Court awarded total damages of $277,500, averaging about $70,000 for each plaintiff. With their reputations fully restored, Tony Abbott went on to become one of the nation’s most risible prime ministers while Peter Costello never summoned the bottle to grasp the crown. Their wives continued to lead unblemished lives.

Former NSW powerbroker Eddie Obeid successfully sued over a 2002 Kate McClymont article in The Sydney Morning Herald, which alleged he was corruptly linked to a development involving the Bulldogs Rugby League Club in Western Sydney. The court handed him $162,000 in damages and there was another $150,000 from the ABC over a radio segment making similar allegations.

Obeid later went to jail. The defendants are still waiting to get their money back.

In 1966, the High Court upheld an award of £13,000 to Labor stalwart Tom Uren after The Sydney Morning Herald claimed he had been “duped” by a Russian spy.

The final wash-up in the case brought by Joe Hockey against Fairfax in 2014 over the “Treasurer for sale” stories is not altogether clear. The Federal Court awarded Hockey $200,000 after finding the articles themselves were not defamatory, but various posters and tweets were. In these circumstances the former member for North Sydney would have been up for more costs than he anticipated.

Politicians can always use the privilege of the “house of tongues” to burnish their plumage, spurn any ridicule, correct any slight and skewer any opponent. Yet, the extent to which they opt for Titanic courtroom contests, tiresome complexities, expense and uncertainties is puzzling.

In the public square, being handed a bundle of money by judges or juries does not invariably equate with winning the hearts of electors.

This article was first published in the print edition of The Saturday Paper on May 15, 2021 as "Actions seek shroud over words".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes 500Words.com.au.