QED

Christian Porter’s Famous Victory

And everybody praised the Duke
    Who this great fight did win.
“But what good came of it at last?”
    Quoth little Peterkin.
“Why that I cannot tell,” said he,
    “But ’twas a famous victory.”
                           — Robert Southy After Blenheim (1795)

Former Attorney-General Christian Porter has discontinued his defamation action against the Australian Broadcasting Corporation (ABC) and journalist Louise Milligan, declaring the settlement of the case was a “humiliating” outcome for the ABC. Speaking late on Monday outside the court after a settlement was agreed to, Porter said, “That is a humiliating backdown for the ABC, no matter what way they want to spin it. They regret the outcome of that article.”

“What I wanted was for the ABC to acknowledge that the way in which they reported this was sensationalist and wrong … And they have said that they regret the outcome of their reporting,” he added.

The public broadcaster though spun the outcome differently, saying in a statement on Monday how “all parties have agreed to not pursue the matter any further. No damages will be paid.”

Porter was seeking aggravated damages over a story published on Feb. 26 and headlined, “Scott Morrison, Senators and AFP told of Historical Rape Allegations against Cabinet Minister.” That article begins as follows,

Australian Federal Police have been notified of a letter sent to Prime Minister Scott Morrison detailing an alleged historical rape by a Cabinet Minister in the federal government.

It then contended a cabinet minister may have raped a 16-year-old girl in 1988, which could have contributed to her taking her own life decades later. The story referred to what might have happened only as an allegation. It did not affirm that it definitely happened, and it did not name Porter. However, Porter identified himself in a press conference held on March  3, saying he was the cabinet minister accused of rape. He then took legal action against the ABC for defamation.

The case was always going to be difficult to prove because it rested primarily on whether a casual reader, rather than a highly politically engaged individual, would know “beyond any doubt” that the unnamed cabinet minister was actually the former attorney-general. This point would have been very difficult for Porter’s legal team to establish as a fact, given his lawyers need to demonstrate that he was easily identifiable to many Australians as the subject of the allegations.

But then the odds against Porter got higher.

Firstly, his case was to be heard by Federal Justice Jayne Jagot. Justice Jagot was appointed by the former Rudd government in 2008 but passed over for promotion to the High Court by Porter to the “surprise and disappointment of many around the Sydney courts,” as Crikey put it.

Secondly, Porter suffered a serious setback to his case when his top lawyer, Sue Chrysanthou, was restrained by the court from acting for him due to a conflict of interest. Chrysanthou had taken his case after advising on issues related to the case of Joanne Dyer, a friend of the deceased who helped make the allegations public. It was at this point that the lawsuit was dropped, with both parties agreeing not to pursue the matter further. The ABC would, however, cover the costs of mediation that resulted in the settlement.

By Porter’s reckoning, this characterised as a victory. But this is simply not the case. On the contrary, an ABC spokesperson said the broadcaster stands firmly by the importance of the article but would update it with the editor’s note, which it did:

Editor’s note (31/05/2021): On 26 February 2021, the ABC published an article by Louise Milligan. That article was about a letter to the Prime Minister containing allegations against a senior cabinet minister. Although he was not named, the article was about the Attorney-General Christian Porter. The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted.

Note the turn of phrase: the ABC said it does not accept the article suggested that the former attorney-general was guilty but regretted that “some readers misinterpreted the article as an accusation of guilt against Mr Porter.” In other words, the broadcaster strongly rejects the allegation that it regretted publishing the article, which will remain online.

Further, the ABC had this to say in a related statement:

The article was not sensationalist. It was an accurate and factual report on a letter that had been sent to the Prime Minister and two other senior politicians.

As can be seen, the ABC does not regret anything, and Porter is simply not telling the truth when he claims the broadcaster does. Indeed, the ABC does not even acknowledge that any serious mistake has been committed in that report by their journalist. And the editor’s note explicitly states that the ABC had and has no intention to suggest Porter has committed the alleged offence.

In another statement following Mr Porter’s comments, the broadcaster was even more specific (emphasis added):

The ABC has not said that it regrets the article. As we have stated, the ABC stands by the importance of the article, which reported on matters of significant public interest.

“The ABC stands by our investigative and public interest journalism, which is always pursued in the interests of the Australian community.

“The ABC stands by Louise Milligan, one of Australia’s foremost and most awarded investigative journalists, and all our journalists in their independent and brave reporting on matters about which Australians have a right to be informed.”

As can be seen, Porter had no right to claim victory when no such victory occurred. Instead, now we, the taxpayers, will ultimately pay the costs of Porter and the ABC’s legal counsel, who have been occupied with the mediation and defamation proceedings over the past few months. Regardless of the outcome of this lawsuit, a shadow will continue forever to be cast on Porter’s life and reputation.

The harm done never goes away, and there will be no final vindication nor any reversal of the calumnies or pain.

Augusto Zimmermann is a professor and head of law at Sheridan Institute of Higher Education in Perth, Australia. He is also president of the Western Australian (WA) Legal Theory Association, editor-in-chief of the WA Jurist law journal, and a former WA law reform commissioner (2012-2017)

This is lightly edited version of a column first published by the Epoch Times.

13 comments
  • Harry Lee

    The marxist people -at the ABC, in the legal system, and in the public services generally- have not ended their campaign against Porter -nor against other Libs and Nats.
    The Left’s assault on non-Leftists in elective politics and elsewhere will escalate to frenzy levels when the upcoming federal election gets underway.
    The ABC and SBS will be clear leaders in this marxist propaganda campaign, with full assistance from the denizens of the education and legal systems -and from their Big Statist/anti-free enterprise/greenist allies all through the public services at Fed, State/Territory and Council levels.

  • Ian MacKenzie

    The ABC has been a Green-Left collective since before the turn of the century. There is no valid reason that such a partisan organization should be funded by taxpayers from across the political spectrum. It is to be hoped that after this latest politically motivated attack on the Government there is increased support among Coalition MPs and senators for the progressive defunding of the ABC

  • DG

    The ABC tendentiously, with a ‘it wasn’t me, sir’ air has descended to the puerility of the Daily Mirror of past Sydney fame. But at least the Mirror was fun, as it went about the gutters. The ABC has a studied seriousness that what it muck-rakes is important. But only in a Marxist-progressive sense. That the politicians in the LNP can’t see this, or won’t casts doubt on their political nous. If nothing else this episode should provide Fletcher with the iron backbone to tear through the board and the senior ranks of the ABC and return the organisation to be a (much changed) mender of market failures through contract management of bids from the private sector.

  • Peter OBrien

    DG, as Augusto has pointed out, the ABC emerged from this better than Porter, so, unfortunately, it is highly unlikely to energize the inert Fletcher from his usual torpor.

  • Harry Lee

    Better call a Constitutional lawyer eh.
    It is obvious that the Australian Constitution does not provide for protecting Australia from the marxists of the ABC, or indeed protection against the marxists forces that dominate and staff the entire public sector -which is funded by the declining number of nett wealth-producers.
    Blaming a Lib-Nat minister for not doing something that is intractable within the legal system is a waste of breath. Or is it a deliberate diversion from The Dark Truth?

  • NFriar

    Australia is headed towards very dark days.

  • Brian Boru

    Two points to add to Augusto’s accurate piece.

    1. Sue Chrysanthou’s conflict of interest is probably yet another indicator of the parlous state of the legal profession in Australia. (Remember Fergusson and Maxwell and lawyer x) That a SC would not disqualify herself from the outset in this matter is an indication of the what could very well be a general malaise.

    2. That a person who held the highest legal office in the Commonwealth would not acknowledge that and not dismiss that counsel is another.

  • Harry Lee

    Yes, the Left has destroyed Porter by innuendo. And note the Left’s baseless attack on Ben Roberts-Smith and the SASR. And the Left is well-advanced in the feminisation, and therefore destruction of the ADF and the police forces. This, after the Left’s destruction of the education systems, from Kindie to Uni.
    And the Left’s corruption of the legal system. And the Left’s destruction of the social fabric by way of the immigration/refugee systems. Then there’s the Left’s utter evil in instituting multiculturalism -which is simply a cover for anti-Europeanism, esp anti-Britishism. And all the rest of it.
    The Left is evil: Evil is the conscious, deliberate, malicious causing of great harm to others.

  • Lewis P Buckingham

    Brian ..’conflict of interest’
    Who knows if there ever was a ‘conflict of interest’.
    It took a long time for the complainant to speak up, which arguably would have made Porter start ‘all over again’ with another team.
    The SC in question made a submission, as I read it, that she did not recall anything in her meeting, at all about anything that would cause her to be conflicted. In fact she did not charge a fee and was there as moral support.
    The Judge, presumably not wanting even the whiff of compromise, had the SC excluded.
    Now even if this were unplanned, it was like gold for the ABC.
    Friendly fire has knocked out a well credentialed, paid and impartial advocate for the demoted A G.
    This would have seriously delayed Porter’s case.
    The next Federal election was months away.
    The Federal Coalition could not have this alleged rape case hanging over them.
    Good reason to settle.
    Quickly.
    Joanne Dyer may even have a book in her about this.
    One could imagine the Book Title
    ‘The Rise and Fall of Christian Porter’.
    She is not constrained as is the ABC.
    Best get this book out of the way fast and have the heavies lined up to stop it before the next election.
    Otherwise Porter and the Government, will have a problem of Milliganesque proportions.
    As for Porter not dismissing his counsel, perhaps he believes her and not his defacto accuser.
    After all, none of the rest of her story, against him, washes.

  • Brian Boru

    Thank you Lewis P. B. for the information in your comments. A most unfortunate situation and one that the ABC no doubt cheerfully used as a king hit to cripple Porter.
    I am most certainly not learned in this but I think that the matter of conflict of interest is not only for the conscience of the counsel involved but wider than that. In other words in is not possible to be only a little bit pregnant. One either is or is not.

  • Brian Boru

    But Lewis, I should add, in the circumstances you mention it may have been a bit harsh of me to say “an indication of the what could very well be a general malaise”.

  • Lewis P Buckingham

    Dear Brian
    You are indeed famous.
    My late mother claimed she was distantly related to a Brian Boru, who freed Ireland from the Vikings.
    I suppose after a millennia that is probably true.
    There are good people around us.
    Many of the accusations against people in high places can be traced to mental illness, some pathology of personality or simply a strongly held belief.
    Some are actually real.
    A role of the fourth estate must be to sort this out before reporting.
    We don’t need gullible reporters, including the investigative type.
    Where they go wrong we need to defend people of all walks of life.
    Otherwise no one of goodwill or competence will stand for parliament.

  • Brian Boru

    Lewis you have my complete agreement. If you come from the same lines as I, you probably have both a touch of viking and of Brian Boru. I would add, we don’t need reporters pushing an agenda.
    A quote that we all, and definitely reporters should heed and which I think you will appreciate;
    ” Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.”
    Antonin Scalia

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