Christian Porter claims the ABC driven by ‘malice’ in reporting rape allegations

Lawyers acting for former Attorney-General Christian Porter have hit back at the ABC and Louise Milligan in a 14-page document.

Christian Porter. Picture: Sharon Smith

Lawyers acting for former Attorney-General Christian Porter have accused the ABC and Four Corners reporter Louise Milligan of being motivated by “malice” and determined to do him “irreparable harm” when they revealed he was the subject of a historical rape allegation.

In explosive claims contained in a 14-page attack on the ABC, journalist Ms Milligan and former Prime Minister Malcolm Turnbull, lawyers acting for the Liberal MP have accused the national broadcaster of acting with the “improper purpose” of harming Mr Porter.

One of the arguments relied upon by Mr Porter’s lawyers was that because he and the alleged victim were teenagers and minors at the time of the alleged incident that they could not legally be identified.

Mr Porter strenuously denies he ever sexually assaulted the young woman at a debating conference in 1988.

RELATED: Christian Porter asks Federal Court to throw out ABC’s defence

RELATED: Legal action to ensure ABC’s ‘scandalous’ defence kept secret

Former Attorney-General Christian Porter. Picture: Joel Carrett

But the majority of the ABC’s defence to the defamation claim have been redacted and blacked out on the Federal Court’s website after Mr Porter successfully asked the Federal Court for an interim suppression order.

His lawyers are seeking to strike out elements of the broadcaster’s legal defence on the grounds it includes material that is “scandalous” and represents an abuse of the court.

The ABC’s redacted defence filing reveals it will rely on the defences of qualified privilege and substantial truth.

It also makes arguments around an implied freedom of communication on the assessment of damages for defamation which will be keenly watched by defamation law experts.

Entire pages of documents are redacted in ABC’s defence to the defamation claim.

Mr Porter’s own legal filing makes a range of claims that the ABC rejected including claims that Ms Milligan contacted Mr Porter’s female accuser before she died and she declined to be interviewed.

The legal filing also claims Ms Milligan told sources “a woman has died because of this” and “if men like you don’t speak out violence against women will continue” to prejudice sources against Mr Porter. However, it does not explain where these alleged comments were made or who they were made to.

It also includes large numbers of tweets and statements from high profile ABC journalists including Annabel Crabb, Four Corners EP Sally Neighbour and Ms Milligan who it is argued was aware of the rape allegation since at least June of 2020.

The conduct of former Prime Minister Malcolm Turnbull is also critically canvassed including his call for an inquest into the death of Mr Porter’s accuser at a writer’s festival in Adelaide.

“The conduct of Milligan and other servants or agents of the ABC in retweeting the despicable, unjustified and improper comment made by former Prime Minister Malcolm Turnbull that there was a need for an inquest into the cause of (the accuser’s) death and suggesting that her death might not be caused by suicide and instead had something to do with the cabinet minister … which led to the creation of the Twitter hashtag #cabinetmurderer,’’ the legal filing states.

In a statement, the ABC strongly defended Ms Milligan last night, categorically denying the claims made by Mr Porter’s lawyers and called for the publication of the ABC’s defence in full.

“Louise Milligan is one of Australia’s foremost and most awarded investigative journalists,’’ a spokesperson said.

“The ABC supports Ms Milligan – and all our journalists – in doing important, independent and brave journalism on matters that Australians have a right to be informed about. The ABC and Ms Milligan categorically deny the claims made in the reply.

“Ms Milligan’s journalism stands up to public scrutiny and will do so at trial. The ABC supports open and unrestricted reporting of these proceedings.”

ABC Journalist Louise Milligan. Picture: David Geraghty

Former PM Malcolm Turnbull.

The ABC’s long awaited defence to Mr Porter’s defamation claims has remained secret as a result of the legal tussle until now.

The Federal Court agreed on Friday to Mr Porter’s request to suppress 25 pages of the 37-page defence document pending the outcome of the politician’s strikeout application.

This sparked accusations by the ABC his legal move was an affront to open justice.

Mr Porter’s lawyers argued they had no issue with the redacted version of the ABC’s legal defence being made public.

Sue Chrysanthou SC, representing Mr Porter, said the national broadcaster did not rely on a “truth” defence for the rape claims for the majority of the defence.

It was later revealed the ABC would rely on the defences of qualified privilege and substantial truth.

After hearing the arguments today, the Federal Court agreed to issue an interim suppression order that will temporarily prohibit the publication of elements of the ABC’s legal defence until further arguments are heard on May 14 to strike out some elements.

“This is not about allowing the parties to hold hearings in secret,’’ Justice Jayne Jagot said.

Christian Porter. Picture: Stefan Gosatti

Earlier, the ABC’s counsel, Renee Enbom QC argued “this is an application to effectively strike out our entire defence”.

She warned if the defence was suppressed on an interim basis, then Mr Porter’s legal reply, which alleges the reporter Louise Milligan acted with malice in her reporting, should also be suppressed.

“The reply is 13 pages of allegations about the conduct of Ms Milligan and the ABC,’’ Ms Enbom said.

“So, the effect of Mr Porter’s position is this: the public would not be informed of the way the ABC and Milligan put their defence to the claim … but the public would be given 13 pages of allegations about the conduct of Louise Milligan and ABC, which he says defeats one of the defences relied upon.

“Your honour, in my submission, that’s an attempt to control how this proceeding is reported and what information is made available to the public.

“The principles of open justice, which are fundamental principles in this court, require that the proceedings be reported in a fair and accurate way, not in a one sided way or way that suits one party.”

However, Justice Jagot told the ABC she was “not persuaded” argument.

ABC journalist Louise Milligan. Picture: Luis Ascui

Mr Porter’s lawyer, Sue Chrysanthou SC asked for application to be dealt with urgently noting that Mr Porter “had to step aside as attorney general” as a result of the ABC’s original report and the fallout that followed.

The defamation action concerns an ABC online article published before Mr Porter outed himself as the cabinet minister at the centre of the alleged anal rape of a 16-year-old girl in 1988. The article did not name Mr Porter. The politician claims he was nevertheless identified in the article.

The legal action also relates to a November, 2020 online article that Mr Porter’s lawyers argue suggested that the MP is “a sexist and misogynist” and has a “reputation for making unwanted sexual advances” and had been accused of an “inappropriate sexual relationship with a female ministerial staff member.”

At the end of today’s hearings, Mr Porter’s lawyers asked the Federal Court to reserve three weeks for hearings in October to hear the matter later this year.

The ABC said the trial would take closer to six weeks.

“It is of significant importance to our client that the matter be heard this year,’’ Ms Chrysanthou SC said.

The ABC argues in the defence it did not defame Mr Porter because it did not name him and did not claim he was guilty of rape.

In a multi-level defence to prepare for various court rulings on the defamatory imputations conveyed, the ABC also says it can prove there were “reasonable grounds” for suspecting him of the crime.

Lawyers acting for the ABC have told the court “at least 15 witnesses” may be called on the issue but details of this evidence are redacted in the defence.