Unsatisfactory end to Christian Porter defamation case

Chris Merritt                 29 October 2021

Published in the Australian Newspaper

The worst aspect of Christian Porter’s defamation settlement with the ABC and reporter Louise Milligan is that it settles nothing. Because nobody won, both sides are still slugging it out, pouring scorn on each other and claiming vindication.

They are conducting themselves like Monty Python’s black knight: they seem oblivious to the massive damage they have suffered. But this time, it’s all due to the fact that they left the field prematurely, bloodied, furious but unwilling to deliver the killer blow.

The decision of the former attorney-general to settle can only be explained in political and possibly financial terms. In the run-up to the next election he has chosen to remove a barnacle from the Coalition’s ship of state. He may have taken a hit for the team.

Remember, Porter was paying his own way, unlike the ABC which was drawing on taxpayers’ money.

He claims to be satisfied with the outcome, which includes the insertion of an editor’s note into Milligan’s “rapist in cabinet” story. This will be a permanent qualification that Porter correctly says was forced upon the ABC.

Apart from the massive cost of continuing, he would have been concerned about the risk that the ABC might succeed in proceedings aimed at removing a suppression order over 27 pages of material attached to its defence that Porter says is scandalous.

But that part of the settlement has hit a snag. The Federal Court wants to be persuaded that there is a good reason for removing this material. So there is still a risk that those 27 pages will be made public.

Even if he succeeds in permanently suppressing that material, the settlement merely addresses the private interest of one man. It fails to deal with important issues affecting the public interest that have been hanging over the ABC ever since Bret Walker SC drew up Porter’s statement of claim.

Was the national broadcaster motivated by malice? The ABC and Milligan have rejected that, arguing that they were simply enabling an informed discussion about matters that go to the central workings of government.

In defamation law, malice is present when an act is predominantly undertaken for an improper purpose. And in this case, the improper purpose outlined in the statement of claim is alleged to have several components.

It says Milligan and the ABC knew the justice system could never find Porter guilty of rape on the criminal or civil standard. It then says they decided it would be more effective to establish themselves as a replacement for the process of the justice system by campaigning to damage his reputation.

Even if the question of malice is put to one side, there is still the issue of journalistic rigour. Why did the ABC think Milligan had a proper basis for her February 26 article? It was about an anonymous letter that was based on the recollections of a mentally ill woman who tragically took her own life after withdrawing a complaint about events that were said to have taken place 33 years ago. Porter’s response was not sought before publication. What were the editors at the ABC thinking?

The editor’s note that was published by the ABC on May 31 has the effect of contradicting the organisation’s earlier positions on two key elements of the tort of defamation: identification and imputations.

On May 7, Milligan and the ABC filed a defence that repeatedly denies that their article had been published “of and concerning” Porter.

Yet the editor’s note says: “Although he was not named, the article was about the Attorney-General Christian Porter.”

Milligan and the ABC had also rejected Porter’s assertion that the article contained defamatory imputations that he raped a 16-year-old girl in 1988.

The editor’s note says the ABC did not intend to suggest that Porter had committed the criminal offences that had been alleged. But it accepts that “some readers misinterpreted the article as an accusation of guilt against Mr Porter”.

That means the imputation was conveyed, but it was due to an error by the ABC’s readers, not the organisation that wrote, edited and published the article. Really?

Even if Porter is satisfied, which strains credibility, the ABC needs to calm down and realise it has dodged a bullet. Milligan’s story should have raised a red flag. She accepts that it concerned Porter. She accepts that some readers believed she had accused him of criminal conduct. She did not seek his view before publication.

At the moment, the lessons from this case seem to have eluded the ABC. If that continues it will amount to the strongest possible argument for subjecting this organisation to an independent inquiry to examine whether there was an improper purpose behind this affair.

Remember, the nation has lost the services of a formidable Attorney-General due to unprovable accusations that, in other organisations, would have been published only with rock-solid sourcing. Even the dead woman’s parents are reported to have doubts about the veracity of her tale.

While there is no clear winner, Porter does have runs on the board. He has forced the ABC to insert a permanent qualification into Milligan’s article and has won the ABC’s agreement to permanently delete the suppressed 27 pages.

But if that material is made public, the balance will shift. He will have spared the ABC from a possible finding of malice and in return achieved much less than he wanted.

Without a clear winner and loser, neither side will be able to put this behind them. It will haunt Milligan and the ABC, just like their unprovable smear, will haunt Porter.