Christian Porter judge tests ABC secrecy clause

A judge overseeing Christian Porter’s discontinued case against the ABC has raised concerns about an agreement to destroy documents.

Christian Porter dropped his legal pursuit of the ABC and its reporter Louise Milligan on Monday. Picture: Martin Ollman

The judge overseeing Christian Porter’s discontinued defamation case against the ABC has raised concerns about an agreement ­between the parties to remove confidential documents as part of a settlement.

The revelation comes as media outlets, including News Corp and Nine Entertainment, pursue ­access to the ABC’s full defence and the 27 pages that were temporarily suppressed from the Federal Court file in May.

Mr Porter dropped his legal pursuit of the ABC and reporter Louise Milligan on Monday, after the parties agreed to settle the case following mediation last week.

On Tuesday, the Federal Court heard Mr Porter and the ABC had agreed to “permanently” remove 27 pages of the broadcaster’s 37-page defence from the court file as part of the settlement.

But judge Jayne Jagot said the “integrity” of the file could be compromised if the Federal Court agreed to uphold the removal of a key part of the ABC’s proposed ­defence, redacted last month.

“You’ve filed orders in a court, it doesn’t then become a matter for you about what is to be disclosed or not disclosed,” Justice Jagot said. “There has to be a reason for ­removal of a document. It’s not just done because a party wants to do it.”

Mr Porter launched defamation proceedings against the ABC in March over a February 26 article that alleged an unnamed cabinet minister was facing historical rape allegations dating back to a high school debating competition in 1988. He outed himself as the minister five days later while vigorously denying the allegations.

A temporary non-publication order was made by Justice Jagot in May, pending an application by Mr Porter to strike out parts of the ABC’s defence over concerns it contained scandalous, frivolous or vexatious material, as well as ­material that would otherwise be considered “an abuse of the process of the court”.

Barrister Dauid Sibtain, for News Corp Australia and Nine Entertainment, said the media outlets should be allowed access to all relevant documents, ­including the redacted parts of the ABC’s defence.

In response to the media outlets’ argument for access, barrister Barry Dean, for Mr Porter, said the agreement to remove the pages from the court file was part of a settlement between the parties. He said the court made ­orders “all the time by the consent of the parties”. But Justice Jagot disputed Mr Dean’s position, suggesting the court would not make orders for the “removal of documents”. “There’s a fundamental issue about the integrity of a court file, or why a court would make an order that a document be removed from a court file,” she said.

National editorial counsel at News Corp Australia, Michael Cameron, said it was “only fair” the court grant media organisations access to the ABC’s redacted defence. “The country’s first law officer made serious claims against the ABC and a journalist,’’ Mr Cameron said. “It’s only fair that the general public is given equal access to the rebuttal of Mr Porter’s serious allegations.”

Blogger Shane Dowling, who was briefly jailed in 2018 for breaching a suppression order, has also made an application to intervene in the case. The matter will return to court at a later date.