ABC determined to publish, says Christian Porter

Federal Court told ‘one way or the other’ the ABC or journalist Louise Milligan would make public the rape allegation against Christian Porter.

Former attorney-general Christian Porter seen outside the Supreme Court in Sydney. Picture: NCA NewsWire/Joel Carrett

A producer at the ABC’s flagship Four Corners program allegedly said late last year that “one way or the other” the broadcaster or journalist Louise Milligan would make public the rape allegation against Christian Porter.

Milligan also allegedly questioned her sources with inappropriate comments, including that “a woman has died because of this” and “if men like you don’t speak out, violence against women will continue” while she researched her story about the former attorney-general.

Mr Porter has made the claims — denied by the ABC and Milligan — in his reply to the broadcaster’s defence of his defamation claims, and is arguing both were motivated by malice.

He is suing the broadcaster for an online article published February 26 that reported an unnamed cabinet minister was facing historical rape allegations.

The ABC has argued in its defence released late on Friday that it had a “duty” to publish its article reporting allegations that affected the minister’s fitness to hold office, which had been sent to Scott Morrison and referred to the Australian Federal Police.

Mr Porter, now the Industry Minister, outed himself as the unnamed minister on March 3 while vigorously denying the allegations, and launched the defamation action later that month.

The broadcaster will not try to prove Mr Porter is a rapist — it argues Milligan’s article did not convey that he was — avoiding the case becoming a de facto rape trial into events that occurred in 1988.

It says it will prove that there were reasonable grounds for suspecting he was guilty.

The ABC maintains the article was not defamatory and not “of and concerning him”. It is unclear if the ABC is trying to suggest the article was not about him.

The 50-year-old has claimed he was easily identified as the subject of the article by thousands of people and that his name was trending prominently on Twitter before he outed himself. His lawyers have urged the ABC to concede the point to avoid wasted costs.

The public broadcaster has accused Mr Porter of effectively trying to strike out its “entire defence”, as he successfully sought to keep parts of it confidential at a Federal Court hearing on Friday.

Mr Porter has argued that one paragraph and three schedules of the defence, likely to contain material that would further harm his reputation, should be removed on the grounds it is scandalous or vexatious and an abuse of process.

In his reply to the defence, Mr Porter claims Four Corners producer Morag Ramsay told someone in November last year that “one way or the other” the ABC or Milligan “is going to get that allegation out. This is not over.” He claims she said this after an allegation was cut from a Four Corners episode that Mr Porter had engaged in criminal conduct.

He also alleges that Milligan or one of her colleagues tried to speak to the alleged victim, known as “Kate”, before she died in June last year, but she declined, and that after Kate’s death the ABC published the allegations over her parents’ objections. Kate withdrew her police complaint the day before she took her own life.

PDF: The Milligan tweets

Mr Porter has accused both Milligan and the ABC of being motivated by malice, citing “relentless” social media posts made about him by Milligan and other ABC staff.

An ABC spokeswoman said Milligan was “one of Australia’s foremost and most awarded investigative journalists”.

“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,” she said.

“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.”

She added that the ABC supported “open and unrestricted reporting” of the proceedings.

Some of the “most damaging” parts of the article, Mr Porter has claimed, were not actually taken from the dossier sent to the Prime Minister, Labor’s foreign affairs spokeswoman Penny Wong and Greens senator Sarah Hanson-Young, but came from another document or source that his legal team has never seen.

Federal Court judge Jayne Jagot agreed on Friday to suppress parts of the defence until the court could make a final decision on whether to strike the material, but said the rest of the defence and Mr Porter’s reply should be released.

The ABC’s barrister, Renee Enbom QC, strenuously objected to the court releasing its defence in a redacted form and Mr Porter’s reply, arguing the “substance” of its defence was found in the schedules. She accused Mr Porter of attempting to control how the case was reported.

The ABC will also rely on a defence of qualified privilege, requiring it to show that it acted reasonably, even though it did not go to Mr Porter for comment before publication. It has argued for an expanded interpretation of the implied Constitutional freedom of political communication. If Mr Porter successfully proves malice, this defence will be defeated.

Mr Porter’s lawyers have claimed Milligan selectively quoted from portions of the dossier which made the allegations look as credible as possible while omitting parts of it that cast doubt. This included that Kate’s parents had concerns she had “confected or embellished” the allegations due to her mental illness.

The ABC says the article conveyed that Mr Porter’s continuing suitability as attorney-general was in doubt after a complaint was made directly to the Prime Minister that he brutally and anally raped a 16-year-old, and that it will prove the truth of this as part of a defence of contextual truth.

Mr Porter’s legal team includes Sydney silks Bret Walker SC and Sue Chrysanthou SC. They face off against the ABC’s lawyers, including former commonwealth solicitor-general Justin Gleeson SC, Ms Enbom, and Sydney barrister Clarissa Amato.

Ms Chrysanthou told the court that Mr Porter wanted the case to be decided as quickly as possible.