Why Christian Porter May Lose His Defamation Case

March 21, 2021 Updated: March 21, 2021

Commentary

Australia’s Attorney-General Christian Porter is seeking aggravated damages against the ABC—Australia’s state-owned broadcaster—over a story written by journalist Louise Milligan.

It starts 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.”

The story refers to what may have happened as an allegation only. It does not affirm that it certainly happened and it does not name Porter.

And yet, the attorney-general came forward in a press conference held on March 3, as the cabinet minister accused of rape, saying “the things that are being claimed did not happen.”

Porter explained that he was deeply sorry the media had made these horrible accusations—that 33 years ago, when he was a 17-old student, he allegedly raped a female colleague while attending a debating competition. The attorney-general above all strenuously denied that such an alleged event ever happened.

Australian Attorney-General Christian Porter
Attorney-General Christian Porter speaks during a media conference in Perth, Australia, on March 3, 2021. (Paul Kane/Getty Images)

To initiate this lawsuit, Porter is funding a powerhouse legal team: barristers Sue Chrysanthou SC, Bret Walker SC (considered one of Australia’s top court advocates and legal strategists), and solicitor Rebekah Giles.

Their statement of claim lodged in the Federal Court in Sydney contends that Porter’s character and reputation was gravely injured. He is seeking aggravated damages, costs, and removal of the article and related material on the web.

The statement of claim is designed to force the defendants—Milligan and the ABC—to give up and settle, or take on the challenge of running an expensive rape case on the balance of probabilities.

The ABC clearly wants to have a fight and it is engaging Justin Gleeson SC to lead its defence. This is not the first time Gleeson is involved in a dispute with an attorney-general. In 2016, he quit as federal solicitor-general after a disagreement with Porter’s predecessor, George Brandis.

Melbourne defamation barrister Renee Enborm QC and Sydney barrister Clarrisa Amato will also act for the ABC.

The defamation action promises to be a challenging case. It will rest primarily on whether a casual reader, and not a highly politicised person, would know beyond any doubt that the unnamed cabinet minister was actually the attorney-general.

In other words, Porter’s lawyers will have to demonstrate that he was easily identifiable to many Australians as the subject of the allegations.

If the case ends up before court, it will be heard by Federal Justice Jayne Jagot. She was allocated to the case by Chief Justice James Allsop in consultation with the court’s principal registrar, the national operations registrar, and its national consulting team of judges.

Supreme Court of New South Wales
The outside of the Supreme Court of New South Wales building is seen in Sydney, Australia, on Oct. 9, 2013. (William West/AFP via Getty Images)

Jagot was appointed to the federal court by the Rudd government in 2008 and passed over for promotion to the High Court by Porter, “to the surprise and disappointment of many around the Sydney courts.” She recently dismissed a high-profile defamation case brought by Chrysanthou and Giles on behalf of two doctors from Sydney’s “notorious Chelmsford psychiatric hospital.”

There is a serious risk that Porter will actually lose his defamation case. He is suing for defamation and so the matter is not criminal. That being so, his case is quite similar to the one involving Father John Fleming, a Catholic priest living in retirement in South Australia.

One may argue that after the Fleming case, the burden of proof relating to evidence can no longer be called when a judge simply prefers the uncorroborated narrative offered by the accuser, often in the face of evidence that powerfully contradicts his or her version of events.

John Fleming is a retired Catholic priest living in South Australia. He has been an eminent, widely published scholar with an international reputation in the field of bioethics. He was the inaugural president of Campion College, Australia’s highly regarded liberal arts institution located in Western Sydney.

However, Fleming’s career, reputation, financial security, and family life were all but destroyed when, in 2008, the local Adelaide paper, The Sunday Mail, ran a series of allegations made by journalist Nigel Hunt against Fleming related to the historic sexual abuse of a minor.

These allegations were previously examined and dismissed by police in South Australia, casting extreme doubt on their veracity.

Fleming subsequently sued The Sunday Mail for defamation, and the case was heard in 2014. The newspaper fought the action on the basis that the allegations it had published were true.

When Judge Gray’s judgement finally appeared in early 2016, Fleming’s defamation case was dismissed, the judge having accepted as truthful the stories published by The Sunday Mail against him.

Perhaps the judge in that case was swept up in the emerging ideology of “always believe the victim.” Of course, this does not exonerate him of the charge that he failed to give proper consideration to all the evidence and all the witnesses before coming to a judgement.

Fleming then appealed the decision, unsuccessfully, to the full South Australian Supreme Court and finally, also unsuccessfully, to the High Court of Australia—the highest court in the country.

Where does this travesty of justice leave a possible outcome in Christian Porter’s defamation lawsuit?

The outstanding legal issues surrounding the Fleming case constitute a dangerous precedent.

It is a notorious case concerning the overturning of the presumption of innocence and the standard of proof in civil cases. Even though it was Fleming who initiated the civil action here, it turns out that he was the one really in the dock.

Until the new standard in law—where the onus of proof now rests on the accused in historical sex abuse cases—is changed, no one accused of such crimes will stand a chance.

After all, it is extremely difficult to prove a person did nothing wrong in the distant past, where exculpatory evidence is hard to come by, where witnesses may be no longer available, and where written records that otherwise might prove valuable to the case may no longer be at hand.

Regardless of the outcome of Porter’s case, there will be no final vindication, no reversal of the calumnies nor of the pain.

As noted by law professor Gabriël A. Moens AM, a former colleague of Porter at Curtin School of Law, “The long term consequences of this ongoing saga are predictable: a saga without winners and with many losers, especially if it results in the further erosion and demeaning of the rule of law.”

I certainly agree with him.

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

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.