Attorney-General Sues for Defamation

Attorney-General Christian Porter has been at the centre of a media storm over allegations he sexually assaulted a debating teammate during a trip to Sydney in 1988, as well as had inappropriate relations with a female staffer at a Canberra bar in 2017.

The Prime Minister has stood by the nation’s chief lawmaker, ruling out the possibility of standing him down or having an independent inquiry in order to ascertain the veracity of misconduct claims against him.

Mr Morrison invoked his own misconceived notion of the ‘rule of law’ to close the door on any further look into Mr Porter’s alleged actions, despite admitting he did not read a detailed dossier which contained statements and other materials regarding the matter.

Defamation proceedings

Now, the Attorney-General has commenced civil proceedings against the ABC and reporter Louise Milligan over what he believes are defamatory imputations contained in reports about the his alleged misconduct.

Mr Porter claims “false allegations… [were made] against him” in an online story which asserted that that a “senior cabinet minister” was the subject of a historical rape allegation.

The lawsuit also claims defamatory imputations were contained in a Four Corners report which aired on the ABC in November 2020.

While the reports did not name Mr Porter, the Attorney-General’s lawyers will be arguing that their client could reasonably be identified through the publications.

High power legal team

Mr Porter has engaged Bret Walker SC, Sue Chrysanthou SC and Rebekah Giles in proceedings which accuse the ABC of making false and damaging claims against him.

The proceedings further claim that reporter Louise Milligan acted with “malice” in a campaign to damage his reputation and have him removed from the position of Attorney-General.

What’s significant is that his team have confirmed that  “Mr Porter will have and will exercise the opportunity to give evidence denying these false allegations on oath.”

Essentially, this is an opportunity for Mr Porter to have the matter dealt with in the court, and to clear his reputation.

Of course, Mr Porter’s accuser will not be able to testify as she took her own life sometime after providing a statement to police.

Claims of biased reporting

Mr Porter is accusing ABC reporter Louise Milligan of editing portions of the alleged victim’s dossier to make the “allegations appear as credible as possible” and leaving out portions of the document which demonstrated that the allegations were not credible.

Mr Porter alleges that the ABC and Louise Milligan failed to contact him prior to publishing the article, giving him no warning of the intended publication or an opportunity to respond.

Ms Milligan is also accused of failing to disclose in the course of her reporting “her close personal friendship” with a friend of the woman who claimed Mr Porter raped her.

Court documents

Documents filed in court court claim that the ABC’s February 26 article revealed a Cabinet Minister was the subject of historic rape allegations. While it did not explicitly name Mr Porter, his lawyers argue he was “easily identifiable to many Australians as the subject of the allegations.”

“The ABC and Milligan knew that Porter would be readily identifiable as the subject of the article and that he would ultimately be compelled to publicly respond,” the statement of claim says.

It notes former prime minister Malcolm Turnbull made the same point in a media interview when he said “everybody knows” who the Cabinet Minister was and called on him to identify himself.

It also draws on a Media Watch episode on Monday March 9 to outline how easily identifiable Porter was from the ABC report.

Further, there is also a claim of aggravated damages, relating to how the ABC’s conduct exacerbated the damage to Mr Porter’s reputation, including Louise Milligan republishing Twitter comments from Mr Turnbull calling on the Cabinet Minister to identify himself.

The statement of claim alleges that the ABC and Milligan knew that the allegations could never be proved in any criminal or civil proceeding and despite that published the article to cause Mr Porter harm.

Along with aggravated damages, Mr Porter is also seeking costs and removal of the article and related material on the internet.

Mr Porter remains on leave until the end of this month. No date has been set for an initial court hearing.

Independent inquiry is unlikely

There are still calls for an independent inquiry into whether Mr Porter is a “fit and proper” person to be the first law officer of the land, although it appears unlikely that any such process will occur.

Journalists have long been concerned that Australia’s current defamation laws discourage reporting of sexual harassment and misconduct by exposing complainants to civil or even criminal liability for public accusations against alleged perpetrators.

What is Defamation in New South Wales?

Defamation occurs when a party publishes (either orally or in writing) something about another party that is untrue and harmful to their reputation.

The New South Wales law governing defamation is the Defamation Act 2005.

To successfully bring a claim for defamation, the following must be proven:

• That something was published either orally or in writing;
• That an ordinary person would consider the material that was published to be defamatory;
• The person claiming defamation can be identified in the material that was published; and
• That there is no legal excuse for the publication of the defamatory material.

Defences to civil defamation include

There are several defences available where a defamation action is brought. These include:

Part 4, Division 2 of the Defamation Act lists the statutory defences, which section 24 makes clear are additional to any others available under the law.

The statutory defences are:

1. Justification

Section 25 of the Act states that ‘[i]t is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

2. Contextual truth

Section 26 provides a defence where the defendant proves that:

• the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
• the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

3. Absolute privilege

Section 27 sets out the defence of absolute privilege, which relates to material published in the course of the proceedings of a parliamentary body, including (but not limited to):

• documents by order, or under the authority, of the body, and
• debates and proceedings of the body by or under the authority of the body or any law, and
• evidence before the body, and
• presentations or submissions of documents to the body.

The defence also extends material published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):

• documents filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
• evidence before the court or tribunal, and
• any judgment, order or other determination of the court or tribunal.

The defence further extends to material which would attract absolute privilege in another Australian jurisdiction.

4. Public documents

Section 28 provides a defence to publishing:

• a public document or a fair copy of a public document, or
• a fair summary of, or a fair extract from, a public document.

A public document is defined as:

• any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or
• any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:
• any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and
• any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or
• any report or other document that under the law of any country:
• is authorised to be published, or
• is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or
• any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or
• any record or other document open to inspection by the public that is kept:
• by an Australian jurisdiction, or
• by a statutory authority of an Australian jurisdiction, or
• by an Australian court, or
• under legislation of an Australian jurisdiction, or
• any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section.

The section states that a defence of publishing a public document can only be defeated if the plaintiff proves the defamatory material was not published honestly for the information of the public or the advancement of education.

5. Fair reporting of proceedings of public concern

Section 29 makes it a defence where the defendant establishes that the defamatory material:

• was, or was contained in, an earlier published report of proceedings of public concern, and
• was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and
• the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

Proceedings of public concern is defined any proceedings:

• in public of a parliamentary body, or
• in public of an international organisation of any countries or of the governments of any countries, or
• in public of an international conference at which the governments of any countries are represented, or
• in public of:
• the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations, or
• any other international judicial or arbitral tribunal, or
• in public of a court or arbitral tribunal of any country, or
• in public of an inquiry held under the law of any country or under the authority of the government of any country, or
• in public of a local government body of any Australian jurisdiction, or
• of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:

–  a member or members of the society, or

–  a person subject by contract or otherwise by law to control by the society, or

• of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:
• a member or members of the association, or
• a person subject by contract or otherwise by law to control by the association, or
• of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about:
• a member or members of the association, or
• a person subject by contract or otherwise by law to control by the association, or
• of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia, or
• of a public meeting held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office, or
• of an ombudsman of any country if the proceedings relate to a report of the ombudsman, or
• in public of a law reform body of any country, or
• conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section.

6. Qualified privilege

Section 30 makes it a defence where the defendant proves that:

• the recipient of the information has an interest or apparent interest in having information on some subject, and
• the matter is published to the recipient in the course of giving to the recipient information on that subject, and
• the conduct of the defendant in publishing that matter is reasonable in the circumstances.

In determining whether the defendant’s conduct is reasonable, the court is to consider:

• the public interest in the matter, and
• whether the material relates to the performance of public functions, and
• the seriousness of any defamatory imputation, and
• whether the material distinguishes between suspicions, allegations and proven facts, and
• whether it was in the public interest to publish the matter expeditiously, and
• the nature of the business environment in which the defendant operates, and
• the integrity of the sources of the information;
• whether the substance of the material is person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
• any other steps taken to verify the matter published, and
• any other circumstances that the court considers relevant.

The section provides that a recipient only has an apparent interest in the information on some subject if at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

7. Honest opinion

Section 31 provides a defence where the defendant, or an employee or agent of the defendant, or commentator, establishes that:

• the matter was an expression of opinion of the defendant rather than a statement of fact, and
• the opinion related to a matter of public interest, and
• the opinion is based on proper material.

Proper material is that which:

• is substantially true, or
• was published under absolute or qualified privilege, or
• was published in a context that attracted the protection of a defence under this section, or the defence of public documents or fair reporting.

The section further states that an opinion does not cease to be based on proper material only because some of the material on which it is based is such if the opinion might reasonably be based on such of the material as is proper material.

A defence of honest opinion is only defeated if the plaintiff proves that: the opinion was not honestly held by the defendant, or any employee or agent or the commentators as the case may be, at the time the defamatory matter was published,

8. Innocent dissemination

Section 32 makes it a defence where it is proved the defendant:

• published the material merely in the capacity, or as an employee or agent, of a subordinate distributor, and
• neither knew, nor ought reasonably to have known, that the matter was defamatory, and
• lack of knowledge was not due to any negligence on the part of the defendant.

A subordinate distributor is someone who:

• was not the first or primary distributor of the matter, and
• was not the author or originator of the matter, and
• did not have any capacity to exercise editorial control over the content of the material or publication thereof before it was first published.

The section provides that a person is not the first or primary distributor merely because he or she was involved in the capacity of a:

• bookseller, newsagent or news-vendor, or
• librarian, or
• wholesaler or retailer of the matter, or
• provider of postal or similar services by means of which the matter is published, or
• broadcaster of a live programme,

Or the provider of services consisting of the:

• processing, copying, distributing or selling of any electronic medium, or
• operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or

Or an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, over whom the operator or provider has no effective control, or

Or a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

9. Triviality

And finally, section 33 provides a defence where the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.