Friday, May 7, 2021

Today by Rachel Withers

Porter’s complaint
Christian Porter wants his defamation case to run on his terms

Image of Industry, Science and Technology Minister Christian Porter and Prime Minister Scott Morrison. Image © Richard Wainwright / AAP Image

Industry, Science and Technology Minister Christian Porter and Prime Minister Scott Morrison. Image © Richard Wainwright / AAP Image

Former attorney-general Christian Porter has once again sought to have his side of the story prioritised, with a Federal Court judge agreeing to his lawyer’s demands that sections of the ABC’s defence against his defamation proceedings be kept confidential until a later hearing can determine whether they should be struck out altogether. The dispute relates to three schedules and a paragraph, which Porter’s lawyers suggest are scandalous, vexatious, ambiguous or “otherwise an abuse of the process of the court”, but which the ABC’s counsel suggest constitute “effectively … our entire defence”. The ABC believes its defence should be made public in its entirety. But Porter wants only the ABC’s redacted defence published – along with his full reply – and he’s likely to get his way, with Justice Jayne Jagot supporting that approach this morning. Porter, who wanted this case heard in court, has demanded that the ABC prove its claims, but has cried foul over its method of doing so, not wanting its purportedly supporting facts to be considered, or placed on the record. What “scandalous” or “vexatious” details does he not want heard?

The ABC’s defence, we’ve now learnt, will rely both on qualified privilege – suggesting that the allegations against Porter were in the public interest, and reasonable to report in the circumstances – as well as a “substantial truth defence to many of the imputations that have been pleaded”, involving at least 15 witnesses. The contested schedules – which ABC counsel Renee Enbom said were “the substance of the defence” – appear to relate to truth; lawyer Sue Chrysanthou SC, acting for Porter, said the particulars were “not the substance of the defence” and that “the ABC are not pleading truth for most of his case” (Enbom disagreed). The ABC has accused Porter’s team of seeking to “control” how the case is reported, noting that “the principles of open justice … require that the proceedings be reported in a fair and accurate way, not in a one-sided way or a way that suits one party”.

Porter, whose word, mental health and need for “justice” have been elevated by some in the media over that of his accuser at every turn, has now had his right to privacy prioritised too, for the moment at least, even though this is a dispute he wanted heard. As many wrote at the time of his defamation filing, being the plaintiff in a defamation case puts Porter firmly back in control, especially in Australia, where the public interest rules are stacked against the media. Not to mention, as Richard Ackland noted in The Saturday Paper, these trials “frequently hinge on what is left out of the case”, with “lots of the embarrassing bits about the person suing end[ing] up on the cutting-room floor”. What was meant to be “a substitute for the Inquiry We Didn’t Get to Have” (as Jo Dyer, a friend of the deceased accuser, tweeted) will instead be an inquiry in which Porter can contest which details are heard and which are suppressed.

Everyone will now be wondering exactly what is contained in the contested schedules, which will be redacted in any filings that might be made public in the coming week, but it’s obvious they contain “scandalous” details that either do not suit Porter’s claim that he has been unfairly defamed or are deemed legally inadmissible though nevertheless not something he would like made public. Many have suggested that Porter may have instigated defamation proceedings specifically to prevent this disputed information being made public, with new information having been uncovered in the weeks following his coming forward. But whether or not Porter did see that coming, he’s only added to the impression he created the day he launched proceedings: that he is unwilling to have the full detail of allegations against him exposed to the public, or tested in open court.

We don’t know yet whether the temporarily suppressed evidence will be struck out, with Justice Jagot telling the hearing the interim order was only about preventing the (potentially vexatious) information becoming public before she could determine the merits of Porter’s complaint. But there’s no doubt the former attorney-general – backed by some of the best defamation lawyers in the country, and a qualified lawyer himself – knows his way around a courtroom. Prime Minister Scott Morrison repeatedly insisted that no civil inquiry could be held into the allegations against Porter on account of the rule of law. The rules of law may mean that elements of the story will always remain unheard.

“And some day we’ll all be together once more,
When we’re sharing a cell on a cold cement floor,
But till then I’m stranded and I feel so alone,
’Cause I can’t call Australia home”

Comedian Sammy J’s riff on Peter Allen’s “I Still Call Australia Home” underlines the futility of that phrase.

“Rapid antigen testing is a requirement and a negative test to get on a border flight to Australia. I’m sure that’s what all Australians would expect.”

The PM confirms that Australians in India who test positive for COVID-19 will not be allowed to board repatriation flights – despite our quarantine system being “99.99% effective”.

Who foots the bill?
The federal government is about to drop its highly anticipated budget, laying out its priorities for the next 12 months. The stakes couldn’t be higher, as Australia reckons with the global economic fallout from the virus, and plots an uncertain future.

The additional funding needed to deliver the recommendations of the aged-care royal commission, with experts calling for the government to abandon its stage-three tax cuts to pay for it.

“The Morrison government will allocate another $58.6m to ‘gas-fired recovery’ measures in Tuesday’s budget and is continuing to hold out the prospect of building a new power plant in the Hunter Valley despite experts questioning the need for it.”

The budget will include new funding to support multiple gas infrastructure projects, following on from the $52.9 million allocated to gas in the last budget.

The list

The Virtues is some of the best television I’ve ever seen, and it derived from its director’s late reckoning with his own childhood abuse. Assaulted by teenage strangers during a bizarrely stressful period – Meadows’ father had just been wrongly accused of murder – he successfully repressed the incident. But every five years or so, throughout adulthood, he experienced acute periods of depression and anxiety attacks. In 2017, he was diagnosed with PTSD and underwent Eye Movement Desensitisation and Reprocessing therapy. It painfully clarified memories – Meadows ‘stormed out’ of early sessions – before he could own them and the feelings they generated. ‘[The show] was a chance for me to create a safe space, to face my abuser,’ he told The Guardian in 2019.”

“On his last night alive, Spiro Boursinos went hard. He knew no other way. Forty-five years old, few thought he would ever change. There had been plenty of opportunities for humility, sobriety, contrition. He let them pass. If anything, it was getting worse. The booze and coke; the paranoia and aggression. On his last night alive, the music promoter was living with his mother. He owned nothing, was circled by creditors, had even sold the name of his festival to some kid. His friends and family said this was proof of his noble indifference to money – he lived for nothing but staging parties and making people happy.”

“I have never felt quite as helpless as I did counselling international students during the COVID-19 lockdown. They told me stories of arriving in Australia only to be plunged into isolation and starved of human company for months on end. In response, I could offer appointments with psychologists, via Zoom, two weeks too late. As I looked into their eyes – mercifully pixelated as a result of my poor internet connection – and as I launched into my practised spiel about sleep hygiene and regular exercise, I felt like a fraud.”

Rachel Withers

Rachel Withers is the contributing editor of The Monthly Today.



The Monthly Today

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