This was published 3 years ago
ABC claims there were ‘reasonable grounds’ for suspecting Porter of rape
The ABC did not defame Christian Porter in an online story at the centre of a Federal Court lawsuit because it did not name him and did not assert that he was guilty of raping a young woman in the 1980s, lawyers for the broadcaster have said as it prepares to fight the case in court.
But in a written defence released late on Friday, 27 pages of which have been redacted ahead of a legal fight between the parties, the ABC says it can prove there were “reasonable grounds” for suspecting him of the crime.
Christian Porter is suing the ABC for defamation.
Mr Porter, who was then attorney-general and is now the Minister for Industry, Science and Technology, is suing the ABC and journalist Louise Milligan for defamation over a February 26 online article headlined “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister”.
He was not named in the article but alleges he was widely identified as the subject, including on social media.
In its redacted written defence, 11 pages of which are visible, the ABC says the article does not convey any of the defamatory claims alleged by Mr Porter and the article was not “of and concerning” him, because he was not named.
At a preliminary hearing of the case on Friday, Mr Porter’s barrister, Sue Chrysanthou, SC, said the law recognised that a small class of people, such as cabinet ministers, could all be defamed if a claim was made against one unnamed member.
Mr Porter claims the article defamed him in a number of ways, including by suggesting he “brutally raped a 16-year-old girl in 1988”, when he was 17, and that this contributed to her taking her own life last year, after she told NSW Police that she did not wish to pursue her complaint. He strenuously denies the claims.
In a statement in March, NSW Police said there was “insufficient admissible evidence to proceed” with an investigation in the matter.
Mr Porter says the article also suggested there were “reasonable grounds” for suspecting him of the crime, and for suspecting that the alleged crime contributed to the woman taking her own life.
It will be up to the court to decide if Mr Porter was identified by the article and, if so, whether any of the meanings alleged by him were conveyed by the article. If the court finds that none of the alleged meanings were conveyed, the broadcaster will win the case.
If the court finds some or all of the meanings were conveyed, it will proceed to consider the ABC’s defences to those meanings.
The ABC says in its defence that it can prove it was true to say there were “reasonable grounds for suspecting” Mr Porter of the alleged crime, and for suspecting that it contributed to the woman taking her own life.
The broadcaster expected to call “at least 15 witnesses” on this point, the court heard on Friday. Particulars pleaded in support of its defence have been redacted.
The broadcaster is not relying on a truth defence in relation to the more serious imputations of criminal guilt but has pleaded the public interest-style defence of qualified privilege, which involves publications of public interest where a publisher acted reasonably.
The ABC says in its defence that the article constituted “information, opinions and arguments concerning government and political matters” and falls within the defence.
A variant of the qualified privilege defence, which has also been pleaded, encompasses the freedom of communication on government and political matters implied in the Commonwealth Constitution.
The ABC says the implied freedom may also limit any damages payout available to politicians because they must “accept that their character and reputation is always subject to robust examination and criticism” as to their fitness for office.
The broadcaster’s legal team is led by former Commonwealth solicitor-general Justin Gleeson, SC, an experienced constitutional lawyer.
Ms Chrysanthou said on Friday the broadcaster’s “limited” truth defence would “fall away” if the court found the most serious meanings pleaded by Mr Porter, including allegations of criminal guilt, were conveyed by the article.
The ABC is also seeking to rely on the defence of contextual truth in response to some of the meanings.
Contextual truth requires a publisher to show that an article conveyed other, more damaging, claims about a person and that those claims are true, meaning that the person’s reputation was not damaged further by the publication of any other claims.
The ABC says the article conveyed four “contextual meanings”, including that Mr Porter’s “continuing suitability as Attorney-General and a Federal Minister is in doubt” following a complaint made to the Prime Minister about the alleged rape, “which is not being examined by police following the woman taking her own life”.
An interim non-publication order is in place over three schedules to the ABC’s defence, which set out particulars in support of its defences. Mr Porter has asked the court to strike out those schedules, meaning they would no longer form part of the defence.
His lawyers are seeking to rely on a section of the Federal Court rules dealing with “scandalous” and “vexatious” material, or material that is “otherwise an abuse of the process of the court”.
Victorian barrister Renee Enbom, QC, acting for the ABC, told the court on Friday that “this is an application to effectively strike out our entire defence”. It is unclear whether some defences would be feasible if the schedules were removed.
In a written reply to the defence, filed in court, Mr Porter’s lawyers allege that in publishing the article the ABC and Milligan were “actuated by malice” and motivated principally by a desire to harm him. If proven, this would defeat the defence of qualified privilege.
In support of the malice claims, his lawyers say the ABC did not report that an anonymous letter sent to Prime Minister Scott Morrison and others said the complainant’s parents feared “she may have confected or embellished the allegations”.
The anonymous letter said the woman’s friends “did not share” her parents’ doubts.
Mr Porter’s lawyers also say there was “no public interest” in the article, and that neither Mr Porter nor the woman who accused him of rape could have been named if he had been charged with an offence because of restrictions on identifying children in criminal proceedings. The restriction applies even if a person is charged as an adult with an offence allegedly committed by them as a child.
The woman did not speak to the ABC before her death, Mr Porter’s lawyers say, and did not consent to the broadcaster or Milligan disclosing her confidential information.
In response to the reply, an ABC spokesperson said Milligan was “one of Australia’s foremost and most awarded investigative journalists” and it supported her and all its 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. The ABC supports open and unrestricted reporting of these proceedings.”
The Porter trial is likely to start in October and run for up to six weeks.