Yesterday (15th Mar), the Attorney-General Christian Porter started a defamation action against the ABC and journalist Louise Milligan. The defamation action related to an article in Four Corners on ABC1 which had been sent to Prime Minister Scott Morrison containing a historical allegation of rape against a serving Cabinet minister. Mr Porter has vigorously denied the allegation and his lawyers said the article made false allegations against him.
What I find strange about this is that I do not know how you can materially prove that you have been defamed if you are not named. After the revelations that there was someone in Morrison's cabinet who was the subject of an historical rape claim, out here in the great unwashed general public we had no idea who it was. The person who eventually made the announcement about who it was, was Christian Porter himself.
Although having said that, his lawyers argue he was easily identifiable to many as the subject of the allegations. Those lawyer of Bret Walker SC, Sue Chrysanthou SC and Rebekah Giles who published the statement yesterday, accused the ABC broadly and and Ms Milligan in particular of conducting a "trial by media without regard to the presumption of innocence of the rules of evidence". They then further try to bait the ABC into pleading a truth defence, which given that it is literally impossible to question the alleged rape victim Katherine Thornton because she is dead, is also impossible to prove.
Speaking as someone who is not a lawyer, I find this kind of baiting from Senior Counsel disgusting. That says to me that they deliberately choose to misrepresent the law. I would argue that the ABC's article on Four Corners is covered under a "Defence of qualified privilege for provision of certain information
http://classic.austlii.edu.au/au/legis/nsw/consol_act/da200599/s30.html
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient" ) if the defendant proves that--
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
- Section 30, Defamation Act 2005 (NSW)
The spirit of both Section 29 & 30 of the Defamation Act 2005 in NSW provides both the "fair reporting of proceedings of public concern" and a "reasonable publication" of "government and political matters" as a defence. I think that given that Christian Porter is a Minister of the Crown; which by default means that matters of his criminality should very much be a government and politica matter which is of public concern, then it is "reasonable" that this should be reported. Also given that the Four Corners report didn't name him and Mr Porter identified himself as the Cabinet minister referenced in the letter that made the historical allegation, then this looks a lot like "The Tell-Tale Heart" by Edgar Allan Poe where one's own Mens Rea is the thing that convincts. If there is in fact anyone who Porter should be pursuing for a defamation case, then the only one that I can see who actually gave rise to it is Christian Porter; and he is not likely to sue himself for damages.
I want to also point out here that the respondent in this defamation case is specifically Louise Milligan of the ABC. Porter hasn't gone after anyone in News Corporation such as Samantha Maiden at the Daily Telegraph whose reportage has been equally as comprehensive and he hasn't gone after the ABC as an institution. Christian Porter is directly going after a woman who didn't actually name him in the report because the subject is sensitive.
What that demonstrates to me is the content of the character of Christian Porter. When you consider that he was the responsible Minister who presided over RoboDebt, then you might begin to paint a picture that this is someone whose actions repeatedly causes people to commit suicide. Starting a defamation case, looks like another use of power with little to no regard of the consequences.
https://pressfreedom.org.au/the-year-in-australian-media-law-9da4265c9269
Unfortunately, however, Australia’s defamation laws can be used by men to threaten to institute proceedings against women who make allegations against them and the publishers who disseminate the allegations. This may have the effect of suppressing both the articles exposing the sexual misconduct and thwarting the movement of women who are courageously coming forward to tell their stories.
- MEAA, 1st May 2018
Subsequent to this, The Australian published excerpts from the diary of Katherine Thornton, in an article by Peter Van Oneselen and Janet Albrecht. That article which quite frankly made my blood boil, demonstrates the utter evil in the mismatch of power here. Exactly how that was leaked I do not know but The Australian published those excerpts in full knowledge that it is impossible to defame the dead. The lesson here is simple, if you are in a powerful position then provided you can mobilise money and power, you can get away with rape and murder.
I do not know if Christian Porter did in fact rape Katherine Thornton but I do know that his actions in trying to supress this story, the preponderance of the evidence shows that he is not a nice person; which if we are going to assume that a trial by media, that was the result of him presenting a defence.
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