Porter turns tables on his media pursuers

Chris Merritt                 29 October 2021

Published in the Australian Newspaper

Christian Porter’s defamation case might turn out to be the best thing that has happened to journalism in a long time. It is a dose of reality for the lynch mob in parts of the media.

Was it ever really wise to run a campaign against the Attorney-General based on 30-year-old rape claims left by a woman with long-term mental health issues who took her own life and whose own parents were apparently concerned she might have made them up?

Porter has turned the tables on those who have been demanding he face a special inquiry that would require him to prove a negative — that he did not rape this woman in 1988 when they were teenagers.

Porter has outmanoeuvred the mob. He has ensured there will be an inquiry, but it will be conducted in a real court under the normal law of defamation. And its focus will be on the conduct of the ABC and its journalist Louise Milligan.

This gives him a strategic advantage while subjecting Milligan and her supervisors to intense scrutiny over whether their conduct was infected by malice, as has been asserted in Porter’s statement of claim.

The lesson for Milligan and others who have pursued Porter is simple: the rule of law prevails in this country. Everyone is innocent until proven guilty in a court of law. Even Christian Porter.

It is not the point that a dead woman’s friends might have a compelling story for the media about criminal conduct at the highest level. Journalists who ­ignore the presumption of innocence risk being crushed in the courts.

Milligan is in familiar territory. This is the same woman who pursued Cardinal George Pell until the High Court acquitted him of the wrongdoing alleged by a compelling complainant.

To succeed, Porter has just one significant hurdle — the question of identification. He is suing over a February 26 article in which he was not named.

Some might see that as an insurmountable problem. But Porter’s lawyers are relying on the argument that the elements of the tort of defamation do not necessarily need to be present at the same time. In this case, they hope to show that Milligan and the ABC made it possible for people to piece together that the February 26 article about the rapist in cabinet was a reference to Porter.

If Porter wins, his victory might well be due in part to statements by the ABC’s Paul Barry that are cited in the statement of claim. Those statements have been seized upon by Porter’s legal team as supporting the argument that Milligan and the ABC made it possible for those who read the February 26 article to realise Porter was the alleged rapist.

On March 8, five days after Porter told a media conference he was the subject of the rape allegations, the statement of claim says Barry told viewers of the Media Watch program that the ABC and Milligan “broke the story” on February 26.

Milligan and the ABC have been linking Porter to allegations of sexual misconduct since November 9 last year when Milligan fronted an episode of Four Corners. She followed this up on ­November 10 with an article on the ABC website entitled: “Investigation reveals history of sexism and inappropriate behaviour by Attorney-General Christian Porter.” What has been asserted about Porter is defamatory, just like much of what the media publishes on contentious matters. It has certainly brought him into hatred, ridicule and contempt. Just watch the ABC.

The big issue, as always, is whether it is defensible. The onus is now on Milligan and the ABC, not Porter. This is not what the anti-Porter mob had expected. Instead of forcing him to prove a negative, his chief accusers will need to prove the truth of what they broadcast.

They are now in a very similar position to that which confronted Porter. To retain credibility, Milligan and the ABC will need to prove that Porter did rape a teenager in 1988 — an impossible task.

Other defences look equally problematic. Did Milligan and the ABC conduct themselves reasonably in discussing a government and political matter? Did they, for example, give Porter access to the material they proposed to publish in order to obtain his side of the story? Did they suppress material that cast doubt on the woman’s accusation? Fair comment is a non-starter as commentary needs to be based upon a proper foundation of facts.

But in this affair, the truth is all that matters. Unless they can prove the truth of what they said, the court of public opinion is ­unlikely to forgive them.

If this goes to judgment, it may well provide a harsh but necessary lesson for those who asserted that the law was unable to deal with the allegations against Porter. Milligan and the ABC are in a dreadful position. Their best option is a long, grovelling apology accompanied by a very large cheque. They have been snookered.

The ABC and Milligan now have an interest in Porter continuing as Attorney-General and enjoying a long career in politics. If their conduct is found to have cost him his career, they will be up for a very large bill.

But this case is not really about money. Hopefully, it will expose Milligan and her supervisors at the ABC to the scrutiny they deserve.