Why Porter Can’t Claim Victory After Dropping ABC Defamation Case

Minister for Industry Christian Porter speaks to the media outside the Federal Court of NSW in Sydney, Australia, on May 31, 2021. AAP Image/Dean Lewins

Commentary

Former Australian Attorney-General Christian Porter has discontinued his defamation action against the Australian Broadcasting Corporation (ABC) and journalist Louise Milligan, declaring that the settlement of the case was a “humiliating” outcome for the ABC.

Speaking late on Monday outside the court after a settlement was agreed to, Porter said, “That is a humiliating backdown for the ABC, no matter what way they want to spin it.”

“They regret the outcome of that article,” Porter said.

“What I wanted was for the ABC to acknowledge that the way in which they reported this was sensationalist and wrong … And they have said that they regret the outcome of their reporting,” he added.

The public broadcaster though spun the outcome differently saying in a statement on Monday that “All parties have agreed to not pursue the matter any further. No damages will be paid.”

Porter was seeking aggravated damages over a story published on Feb. 26 and headlined, “Scott Morrison, Senators and AFP told of Historical Rape Allegations against Cabinet Minister.”

The article begins as follows, “Australian Federal Police have been notified of a letter sent to Prime Minister Scott Morrison detailing an alleged historical rape by a cabinet minister in the federal government.”

It then argues that a cabinet minister may have raped a 16-year-old girl in 1988, which could have contributed to her taking her own life. The story referred to what might have happened as an allegation only. It did not affirm that it definitely happened, and it did not even name Porter.

However, Porter identified himself in a press conference held on Mar. 3, saying he was the cabinet minister accused of rape. He then took legal action against the ABC for defamation over the story.

Attorney-General Christian Porter speaks to the media to address sexual allegations in Perth, Australia on March 3, 2021. Paul Kane/Getty Images

But the case was always going to be difficult to prove because it rested primarily on whether a casual reader—rather than a highly politically engaged individual—would know “beyond any doubt” that the unnamed cabinet minister was actually the former attorney-general.

A point that was very difficult for Porter’s legal team to establish as a fact given his lawyers needed to demonstrate that he was easily identifiable to many Australians as the subject of the allegations.

But then the odds against Porter got higher.

Firstly his case was to be heard by Federal Justice Jayne Jagot. Justice Jagot was appointed by the former Rudd government in 2008 but was passed over for promotion to the High Court by Porter to the “surprise and disappointment of many around the Sydney courts.”

Secondly, Porter suffered a serious setback to his case when his top lawyer, Sue Chrysanthou, was restrained by the court from acting for him due to a conflict of interest.

Barrister Sue Chrysanthou arrives at the NSW Supreme Court in Sydney, Australia, on May 14, 2021, in Sydney, Australia. David Gray/Getty Images

Chrysanthou had taken his case after advising on issues related to the case of Joanne Dyer, a friend of the deceased complainant who helped make the allegations public.

It was at this point that the lawsuit was dropped, with both parties agreeing not to pursue the matter further. The ABC would, however, cover the costs of mediation that resulted in the settlement.

To Porter, this was characterised as a victory. But this is simply not the case. On the contrary, an ABC spokesperson said the broadcaster firmly stands by the importance of the article but would update it with an editor’s note.

The logo for Australia's public broadcaster ABC is seen on its head office building in Sydney on Sept. 27, 2018. Saeed Khan/AFP via Getty Images

In addition, the ABC said it actually does not accept the article suggested that the former attorney-general was guilty but regretted that “some readers misinterpreted the article as an accusation of guilt against Mr Porter.”

In other words, the broadcaster strongly rejects the allegation that it regretted publishing the article, which remains online with an editor’s note added.

“The article was not sensationalist. It was an accurate and factual report on a letter that had been sent to the Prime Minister and two other senior politicians,” the ABC said in a statement.

As can be seen, the ABC does not regret anything, and Porter is simply not telling the truth when he claims they do so.

In fact, the broadcaster does not even acknowledge that any serious mistake has been committed in that report by their journalist.

And the editor’s note explicitly states that the ABC has no intention to suggest Porter has committed the alleged offence.

In another statement following Mr Porter’s comments, the broadcaster stated:

“The ABC has not said that it regrets the article. As we have stated, the ABC stands by the importance of the article, which reported on matters of significant public interest.

“The article was not ’sensationalist'. It was an accurate and factual report on a letter that had been sent to the Prime Minister and two other senior politicians.

“The ABC stands by our investigative and public interest journalism, which is always pursued in the interests of the Australian community.

“The ABC stands by Louise Milligan, one of Australia’s foremost and most awarded investigative journalists, and all our journalists in their independent and brave reporting on matters about which Australians have a right to be informed.” As can be seen, Porter had no right to claim victory when no such victory occurred.

Instead, now we, the taxpayers, will ultimately pay the costs of Porter and the ABC’s legal counsel, who have been occupied with the mediation and defamation proceedings over the past few months.

Regardless of the outcome of this lawsuit, a shadow will continue forever to be cast on Porter’s life and reputation.

The harm done never goes away, and there will be no final vindication nor any reversal of the calumnies or pain.

Augusto Zimmermann is a professor and head of law at Sheridan Institute of Higher Education in Perth, Australia. He is also president of the Western Australian (WA) Legal Theory Association, editor-in-chief of the WA Jurist law journal, and a former WA law reform commissioner (2012-2017).

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.