Extract from The Guardian
What will be determined by the case? Will it preclude an independent inquiry?
Last modified on Wed 17 Mar 2021 12.31 AEDT
Christian Porter is suing the ABC and its journalist Louise Milligan for defamation over an online article that alleged a cabinet minister had been accused of rape in January 1988 in a dossier sent to Scott Morrison and three other parliamentarians.
After subsequently identifying himself as the minister, Porter strenuously denied the allegation, and through his lawyers has said the defamation case should end the “trial by media” he says he has faced.
What will be determined by the case? Does it preclude an independent inquiry that Labor and friends of Porter’s accuser have called for? And can Porter sue over an article that didn’t name him?
How does Porter say he has been defamed?
On 26 February, the ABC published a story online headlined “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister”.
According to his statement of claim, lodged with the federal court, Porter argues that the article contained a number of defamatory imputations including that he “brutally” and anally raped a 16-year-old girl in 1988 when he was 17 – and that he is “reasonably suspected” by New South Wales police of having done so – and that the alleged rape “contributed to her taking her own life”.
But the article didn’t name Porter?
Publications can identify a person sufficiently for them to sue for defamation even if they are not directly named.
That could be proved with “direct evidence” – a person in the witness box saying they connected the story to Porter, or an inference that a person had made the connection, he said.
Rolph said Porters’ lawyers seem to have taken the latter approach, as the statement of claim contains details of a surge of interest in Porter’s website, with his name trending on Twitter and social media users identifying him in comments on the article.
Of the 16 male cabinet ministers, the claim said, only six were about the same age as the alleged victim, and only three of those were senior ministers.
Why does the claim mention publications after the first story?
The claim contains references to publications after the first story including:
An ABC 7.30 story noting that the alleged victim was on her state’s debating team
Malcolm Turnbull saying “everybody knows” who the minister accused was
The ABC program Media Watch on 8 March, which noted the explosion in mentions of Porter’s name in the wake of the story
The facts set out in the Media Watch episode are described as “admissions” – meaning that Porter will argue that the ABC had conceded Porter could be easily identified by the original story.
How might the ABC and Milligan defend themselves?
Although the case was launched on Monday and no defence has yet been filed, Rolph said he expected the principal defences would be justification and proof of substantial truth.
If they decide to argue this the defendant has to prove any defamatory claims conveyed by the article are true – which is how the proceeding could become a de facto trial of the allegations against Porter.
Unlike the criminal standard of beyond reasonable doubt, this would be determined on the civil standard of whether the claims are true on the balance of probabilities.
Porter’s lawyer Rebekah Giles has said Porter would have “and will exercise the opportunity to give evidence denying these false allegations on oath”.
Rolph said there was a second set of defences for “qualified privilege” – which turns on the “reasonableness of the publication” in the circumstances.
“The journalistic and editorial decisions – such as decisions about whether to put or not put specific allegations [to the plaintiff] – will be subject to scrutiny in respect of those defences,” he said.
The statement of claim states that the ABC and Milligan had published “serious allegations of criminal conduct about Porter” in the article “without any warning to Porter and without any attempt to give him an opportunity to respond”.
Milligan has said the decision not to approach Porter for comment was done on legal advice that the questions about the allegation should properly go to the prime minister’s office, because it had received the written allegation.
What about malice?
The statement of claim accuses Milligan of “malice” for publishing the story “knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign to damage his reputation would be a more effective substitute against Porter”.
Rolph said malice – having an “improper motive” – would only be relevant if the ABC and Milligan were able to establish the other elements of the qualified privilege defence.
“If it becomes a live issue it is very difficult to establish,” he said. “It requires the plaintiff to prove on the balance of probabilities that the dominant motive [of the publisher] was an improper one.”
Does this mean there can’t be an independent inquiry?
Labor has rejected that claim.
The shadow attorney general, Mark Dreyfus, told Guardian Australia while Porter was entitled to bring a defamation case, “it remains the case that Mr Morrison needs to assure himself, and the Australian people, that Mr Porter is a fit and proper person to hold the position of attorney general.
“That is not an issue that can or should be resolved in defamation proceedings and Mr Porter must stand aside pending an inquiry into his fitness to remain in his position.”
Can Porter return to work?
Porter intends to return to work as the attorney general, minister for industrial relations and leader of the house on 31 March.
This may require the delegation of some of Porter’s responsibilities to avoid any potential conflict of interest, such as responsibility for defamation law reform.
On Monday the assistant minister to the attorney general, Amanda Stoker, told Guardian Australia the government was “in the process” of determining how to manage “any potential conflict of interest” arising out of the case.
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