Note: the following story mentions sexual assault.
After weeks of vigorously resisting calls for an independent inquiry into a historical rape allegation, Attorney-General Christian Porter threw a curve ball yesterday when he filed a defamation action against the ABC and journalist Louise Milligan.
If Porter’s claim proceeds to trial (and that’s a big if), it could act something like an inquiry — putting the deceased victim’s friends and confidants on the stand and scrutinising the details behind her complaint in open court.
It means the Porter affair may not go away for many years.
But the attorney-general has a star-studded legal team and Australia’s traditionally plaintiff-friendly defamation law on side. For now, it’s the ABC that is playing catch-up.
The legal questions
When Porter’s team filed its claim in the Federal Court yesterday, it was following a recent trend among high-profile defamation cases designed, in part, to negate the prospect of a jury trial. It’s a trend Porter slammed as “forum-shopping” which needed to be stopped.
That hypocrisy shouldn’t surprise: Porter’s lawyers have run this to ensure every possible strategic advantage.
The ABC took great pains not to mention Porter in its article on February 26, but that may not matter. His lawyers have pieced together website traffic, Twitter posts, Milligan’s last Four Corners episode, and interventions from Malcolm Turnbull to show Porter was identifiable.
“To establish identification, you only need to prove that it’s been identified to one person who reasonably identifies a plaintiff,” University of Sydney media law expert David Rolph said.
If Porter can establish this, the ABC and Milligan are in trouble.
“[The statement of claim is] designed to force the ABC to give up and settle, or take on the challenge of running a rape case on the balance of probabilities,” Marque Lawyers managing partner and Crikey contributor Michael Bradley said.
A truth defence, as teased in Porter’s statement of claim, would put the onus on the ABC’s lawyers to prove the imputations pleaded — that Porter brutally anally raped a 16-year-old girl in 1988 — are substantially true.
Little surprise the attorney-general’s team wants the ABC to try and fail. Although the ABC could also try qualified privilege defences (generally where a publisher and audience have a reciprocal interest in the information conveyed), this would turn on the reasonableness of the ABC’s editorial and journalistic conduct in the lead up to publication.
Generally, qualified privilege defences are “the sort that are pleaded but don’t often succeed at trial”, Rolph said.
Porter has quickly assembled a formidable legal team. Bret Walker SC cemented his position as arguably Australia’s top barrister after convincing the High Court to unanimously overturn George Pell’s child sexual assault conviction.
He’s known for his exceptional legal brain (reportedly worth $25,000 a day) and astonishing breadth of expertise that’s seen him work for bikie gangs and tobacco companies and against traditional land owners.
He’s joined by Sue Chrysanthou, who took silk last year fresh from helping secure Geoffrey Rush a $2.9 million payout from The Daily Telegraph. She’s scored recent wins for Greens Senator Sarah Hanson-Young against former senator David Leyonhjelm, and helped venture capitalist Elaine Stead sue corporate AFR gossip columnist Joe Aston.
Advising them is Rebekah Giles, described as “colourful” and a “society lawyer”. Company (Giles), started just a year ago, sits somewhere between a traditional law firm and a PR shop, just where you’d imagine Porter going. Past clients have included, oddly, Brittany Higgins, and Tracey Spicer in her attempts to sue Buzzfeed.
If the case ends up before court, it’ll be heard by Justice Jayne Jagot who, while not a Porter appointee, was passed over by the attorney-general for a spot on the High Court last year to the surprise and disappointment of many around the Sydney courts.
It’s yet another reminder of how unusual this situation is: the attorney-general marshalling some of the country’s greatest legal firepower to sue a government-funded body in the courts he has control over.
And while Porter could well score some kind of victory (legal, reputational or otherwise), years of media interest and ongoing political fallout mean that what began as one woman’s tragedy could be turned, against her will, into the defamation trial of the century.
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.