Mon May 31

Porter decides it's time to 'fold em' in ABC defamation case

Written by Michelle Grattan, Professorial Fellow, University of Canberra

When he launched his defamation action against the ABC over an article reporting a claim of historical rape against him, Christian Porter boldly indicated he looked forward to going into the witness box to clear his name.

His lawyers said: “Mr Porter will have and will exercise the opportunity to give evidence denying these false allegations on oath”.

In the event, he never got near the witness box.

On Monday Porter settled for an ABC acknowledgement it hadn’t intended to suggest he was guilty, regretted some had read its article that way, and did not contend the accusations against him could be substantiated to a legal standard.

Both the ABC and Porter claimed vindication.

There were no damages and the ABC said the only costs (apart from its own) the ABC would be paying were the “mediation and related costs”.

The action centred on the ABC’s report of a February 2021 letter sent, together with accompanying material, to senior politicians, including Scott Morrison, detailing the allegation by “Kate” – who had committed suicide in 2020 – that Porter, as a 17 year old, had raped her when she was 16. Kate’s friends sent the anonymous letter.

While the ABC article referred only to a senior cabinet minister, Porter later identified himself, and strongly denied the accusation.

The fallout of the controversy that followed led Porter to lose his position as attorney-general and minister for industrial relations. He now holds the industry portfolio.

Porter could never clear his name via the legal system because the woman is dead. Also, she’d told police the day before she died she did not want to proceed with a complaint against him.

Both Porter and Morrison rejected the proposal advanced by many that the matter should go to an independent inquiry.

The action against the ABC seemed to Porter the obvious course. A win would be taken as some sort of clearance.

His decision to settle through mediation is pragmatic if surprising.

Yes, he has extracted some statements of concession from the ABC. But a court victory would have yielded much more.

One might suppose he judged the case increasingly risky. Certainly it was becoming horrendously expensive. Last week he suffered a severe blow when the federal court ruled top lawyer Sue Chrysanthou could not appear for him because of a conflict of interest.

With plenty of legal experience behind him, Porter presumably decided it was better to spin a settlement than play for more and possibly lose everything.

For its part, the ABC did its own spinning.

It was out of the blocks first, with a statement that Porter had decided to discontinue his defamation action ^[1] (which was against reporter Louise Milligan as well as the public broadcaster).

The statement said it “regretted” some readers had “misinterpreted” the Milligan article as “an accusation of guilt” against Porter, which it hadn’t intended.

The ABC stood by the importance of its article, which remains online, saying it “reported on matters of significant public interest”. It also stood by Milligan, whom it described as “one of Australia’s foremost and most awarded investigative journalists”.

The editor’s note now posted with the story says: “The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged.

"The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil.

"However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted”.

Speaking outside the court, Porter cast his legal action not only as an exercise in protecting himself, but others more generally.

He condemned the article as “sensationalist, it was one-sided, it was unfair and[…] the sort of reporting that any Australian can be subject to unless people stand up to it.

"So I brought an action to stand up to that sort of reporting.”

“And the ABC said now, they regret the article. That rarely ever happens in those matters.”

“Had they not been challenged, had the ABC not been forced to acknowledge regret at the outcome of the article, had they been not forced to acknowledge publicly that the accusations could not be proved to any civil or criminal standard, then publishing accusations in a deliberately sensationalist way that leads ordinary readers to presume guilt, would have become the new and terrible standard in Australia.”

Porter said he hadn’t thought the ABC would settle.

“I never thought that they would concede that the accusations that were put in the article could never be proven […]

"I did not think, frankly, there was any chance of them making those types of statements to settle this matter,” he said.

“The whole point about bringing in an action like this and getting the ABC to say they regret the reporting is that ordinary readers will think again about the nature of the article.”

Porter’s comments fired up the ABC which issued a further statement ^[2], denying ever saying it regretted the article and insisting it “has never and still does not accept that the article suggested guilt on the part of Mr Porter”. Nor was the article “senationalist”, it said, among much else.

Porter said if the matter had gone to trial he would have said what he said now – that the alleged rape “simply didn’t happen”.

He also said he was not seeking a return to his old portfolio (now in Michaelia Cash’s hands). Not that he would have got it.

More unexpected, he declared he will definitely stand at the election. There has been much speculation he might not recontest.

It remains to be seen whether the end of the legal action will still the voices of Kate’s friends. But they have achieved part of their objectives.

One of them, Jo Dyer, told the federal court last week Kate had said to her that “given how difficult it would be for her to pursue this case, a measure of success for her endeavours would be if Christian Porter did not become prime minister”.

To the extent that was Kate’s aim, she succeeded. Porter will never return to the list of future contenders for Liberal leadership.