March 17, 2021

Law and order

Rushed judgement

By Russell Marks
Rushed judgement
When should allegations against senior politicians be published?

In November, ABC journalist Louise Milligan fronted a Four Corners episode, “Inside the Canberra Bubble”, in which a number of women made allegations about harassment and inappropriate conduct by senior men in the Liberal Party. Kristina Keneally, then a Sky News presenter and now a Labor senator, said “some Coalition men” had made passes at her at the 2017 Midwinter Ball. Rachelle Miller, then a staffer in Alan Tudge’s office, said she and Tudge had an affair. She also said she’d seen Christian Porter at Canberra’s Public Bar being intimate with a young woman while he had a wife and toddler at home in Perth. (Porter denies this allegation.) And two women who’d been in school debating teams and at university with Porter said he was sexist and misogynist as a young man.

It was a curiously underwhelming episode. Its exclusive focus on Liberal politicians opened the ABC unnecessarily, it seemed, to accusations of bias from the usual News Corp quarters. Parliament House is a gloomy, airy rabbit warren full of overworked, unsupported professionals with brittle egos and lonely hearts. Liberal men aren’t the only people seeking comfort and distraction in the wrong places, as Samantha Maiden revealed on Monday. Milligan said she’d focused on Liberals because they presently occupy the government benches. But it seemed a thin justification.

The story Milligan had hoped to tell – the main story – was one that didn’t make it past the ABC’s lawyers. The Four Corners episode contained a clue, however. It opened with Jo Dyer, now a film producer and the director of Adelaide Writer’s Week, but who was introduced to the ABC’s audiences as a member of the national schools debating team in 1987. That team had been captained by Christian Porter.

The significance of that debating team is now very clear. On the afternoon of Friday, 26 February, Milligan at last published the story she’d planned to broadcast. “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister,” the headline read. That morning, Morrison and senators Penny Wong and Sarah Hanson-Young had been sent copies of a letter, attached to which was a detailed statement written by a woman – now known as “Kate” – who says she was raped in Sydney in 1988 by a man who is now a minister in Morrison’s government. Kate took her own life in June, and SA Police were investigating for that state’s coroner. Milligan’s story didn’t name Porter, but most of Canberra and all the press gallery knew he was the alleged rapist within hours. Porter was referred to obliquely on Twitter and directly on Reddit.

Unless you’ve been under a rock, you know what happened next. Public speculation was rife. Morrison came under increasing pressure to stand down his accused minister and launch an inquiry. He refused both demands, insisting that the allegations were for police to investigate. But NSW Police confirmed on March 2 that the criminal case was closed for lack of admissible evidence: without Kate’s sworn testimony, there could be no prosecution. The following afternoon, an emotional Porter fronted a press conference and confirmed what the journalists present already knew: he was the alleged rapist. He’d been 17 at the time. He strongly denied the allegation, and pleaded for journalists to understand the difficulty associated with being wrongfully accused of a crime in circumstances where he’d never get an opportunity to be found not guilty. “Just imagine for a second that it’s not true,” he beseeched.

If Porter and Morrison had hoped the press conference would end the demands for an inquiry, they were wrong. Porter said it was important he remain in his job. “If I stand down from my position as attorney-general because of an allegation about something that simply did not happen,” he said, “then any person in Australia can lose their career, their job, their life’s work, based on nothing more than an accusation that appears in print.” But parliament was in the middle of a #MeToo moment. Most women who are sexually assaulted never see justice. Thousands of women are demanding an end to the culture Milligan described on Four Corners, in which “what happens on tour stays on tour”. Porter is Australia’s first law officer. He’s not above the law, but he is responsible for much of its function, and for the way it’s perceived. While Porter and Morrison are right about the danger of acting on a mere accusation, the question has now become a political one: does Porter need to find a way to clear his name if he is to continue as attorney-general?

On March 15, tens of thousands marched in capital cities demanding greater action to end workplace abuse. The demands for an inquiry were not abating, and Morrison was not for turning. But on the very same morning, Porter provided another twist. He lodged a statement of claim in the Federal Court, with allegations of his own. With their February 26 news article, he said Milligan and the ABC had defamed him. He is seeking damages. He will testify. Unless the claim is settled, the March 4 Justice protesters will have their inquiry – a very public one – after all.

In late November 2017, Sydney’s Daily Telegraph published allegations by an unnamed actor who said Geoffrey Rush had engaged in “inappropriate behaviour” during the run of King Lear two years earlier. Rush denied the vague allegations, which predictably made international news. Some outlets initially declined to publish them. “Journalists should exercise a little caution perhaps,” warned the Sydney Morning Herald’s Andrew Hornery. “The damage can be irreparable.” The Tele’s News Corp stablemate, Melbourne’s Herald Sun, agreed and also declined to run the allegations. Its deputy editor, Chris Tinkler, ordered his staff: “Do not retweet or post any articles regarding GEOFFREY RUSH.” A newsroom leader warned: “The Tele are running with a yarn which is highly libellous.”

Inevitably, the actor’s specific allegations were made public – she said Rush had touched her without her consent and followed her into a toilet – as was her name, despite her wishes to remain anonymous. Just over a week after the Telegraph’s initial front page, Rush lodged a statement of claim. He’d been defamed, he said, and claimed his worth to the theatre and film industry “is now irreparably damaged”. The Telegraph declined Rush’s offer to settle for a mere $50,000, and the case went – sensationally – to trial. It turned out that the Telegraph journalist, Jonathan Moran, hadn’t actually interviewed Rush’s accuser. She gave evidence at the trial, but performed poorly. The judge, Michael Wigney, rejected her evidence as “not credible or reliable”. Her claims were contradicted by other cast members. Wigney found in favour of Rush and castigated the Telegraph for its “recklessly irresponsible pieces of sensationalist journalism of the very worst kind”. Rush was awarded over $2.9 million in damages. The Telegraph’s publishers appealed, and lost. Rush had indeed been defamed. He has not worked since.

One question now being asked is: how does the ABC’s publication of the deceased woman’s allegations about Porter differ from The Daily Telegraph’s defamatory allegations about Rush? Like Moran, Milligan didn’t interview Porter’s accuser directly: she couldn’t, because she’d died. Instead, Milligan interviewed people who said Porter’s accuser had told them about her allegations. But they aren’t able to corroborate the allegations themselves: all they can do is to corroborate the fact their deceased friend had made them. And like Moran, Milligan didn’t get Porter’s side of the story before the ABC published its February 26 article. She said she’d wanted to, but didn’t know, then, whether Morrison had yet told Porter of the letter he and the senators had received. “So we were advised that the proper thing to do was to send the questions to the prime minister,” Milligan told RN Breakfast, “and that’s what we did.” The PM’s office responded with a straight bat: “As per the AFP Commissioner’s instruction, any complaints or allegations of this nature made to anybody – whether they’re parliamentarians or journalists – should be referred to the AFP.”

The ABC’s report focused on the fact the allegation had been made, whereas The Daily Telegraph had – under its “King Leer” front-page headline – clearly implied that Rush was guilty. But perhaps the major difference is that Milligan didn’t name Porter. To succeed in a defamation claim, a plaintiff – in this case Porter – needs to prove that he was identified in the February 26 article. Porter has already outed himself, so there won’t be a straight repeat of the 1951 trial of author Frank Hardy for allegedly defaming Ellen Wren in his novel Power Without Glory. (Wren claimed that Hardy’s characters John and Ellen “West” were thinly disguised representations of the real-life Wrens. Wren brought her own action in criminal as opposed to civil libel, and had to prove beyond reasonable doubt that she was identified in Hardy’s book. She failed to do so, and Hardy was acquitted.)

In his statement of claim, Porter says that the subject of the allegations Milligan published could have possibly been one of only three people: Porter, and two other senior male cabinet ministers around the same age. Twitter streams made it clear that many people had put two and two together: Milligan quoted the same sources in the February 26 article who had made the earlier, vaguer allegations about Porter in the November Four Corners episode. Porter need only prove that one person identified him from the article. In any event, the ABC may well have made relevant admissions: in a follow-up episode of Four Corners that aired in March, Milligan acknowledged that within two days of the February 26 report’s publication, it was “widely known” in Canberra that Porter was the accused rapist. Porter’s case will be that Milligan may as well have named him directly.

On the other hand, Milligan and the ABC may identify the similarities between their February 26 report and The Australian’s front-page story on 14 November 2013, which was headlined: “ALP figure faces 80s rape claim”. The Australian didn’t name the accused politician, who turned out to be Labor’s then leader, Bill Shorten. But the paper did print his denials. Unlike Porter, Shorten wasn’t subject to frenzied speculation in the hours and days following that story. He outed himself 10 months later, during which the media mostly remained silent, after he’d been interviewed and cleared by police. Perhaps Milligan and the ABC expected their February 26 report would have a similar afterlife? In any event, Shorten never sued for defamation. It’s moot to speculate how a court case may have played out, given that his accuser would likely have testified.

If the court accepts that the February 26 report effectively identified Porter, Milligan and the ABC have few defences available to them. They could try to prove that the defamatory imputations – the claims that Porter anally raped 16-year-old Kate in 1988 – are substantially true. This would be practically impossible in the absence of the deceased woman’s sworn evidence. It could emerge that the only defence realistically available is what’s called “qualified privilege” or “fair comment”. But Milligan and the ABC would still need to show that the February 26 article was based on facts that are true. Even if they can somehow show that, their defence could still fail if the court finds the February 26 article was motivated by “malice”. That’s why Porter’s statement of claim alleges that Milligan has “engaged in a campaign against Porter to harm his reputation and have him removed as attorney-general”, and has “acted with malice knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign designed to damage his reputation would be a more effective substitute against Porter in replacement of the process of the justice system.”

Porter’s lawyers are Sue Chrysanthou SC (who acted for Rush and for Sarah Hanson-Young in her successful defamation case against David Leyonhjelm), Rebekah Giles (who also represented Hanson-Young and, more recently, Brittany Higgins in her settled action against Linda Reynolds) and Bret Walker SC (who represented George Pell when the High Court sensationally acquitted him of all child sex charges last year). His legal team is formidable.

Australia’s defamation laws were standardised following a 2004 meeting of the nine attorneys-general. But the “new” Model Defamation Provisions (MDP), subsequently enacted by state and territory legislatures, predated Twitter, smartphones and most Australians’ relationship with Facebook. “Social” media has since increased the risk that reputations can be damaged beyond repair. Defamation’s role in domestic violence and bullying is now much more accepted.

But those with the greatest interest in defamation law reform are newspapers and broadcasters. Joe Hockey’s partially successful lawsuit case against Fairfax Media for its “Treasurer for Sale” headlines – the accompanying article, which alleged that Hockey was offering privileged access to lobbyists in exchange for secret cash payments, was not found to be defamatory – led many in the media to step up their campaign to introduce a “public interest” defence. Last July, the Council of Attorneys-General – which included Porter – agreed to amend the MDPs to include such a defence, which lawyers predict may embolden a more aggressive, “gotcha”-style reportage. It’s unclear whether Milligan and the ABC could have relied on the new defence, were it available. But it’s not. The agreed changes haven’t yet been legislated by state and territory parliaments.

The victims’ rights movement has long urged police and courts to believe victims who say they’ve been sexually assaulted, instead of subjecting them to persistent scepticism that retraumatises them. #IBelieveKate is a trending Twitter hashtag, and believing Kate is clearly what Milligan has been doing. From this perspective, defamation law is yet another shield for powerful men. But Porter’s defamation claim also prompts a different question, one which flows from the law’s intent to protect reputations from being damaged by untruthful or unproveable allegations. Does believing Kate mean that her allegations – which now can’t be proven one way or the other – had to be published?

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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