Flat White

You reap what you sow: why Christian Porter may lose his defamation case

29 March 2021

4:00 AM

29 March 2021

4:00 AM

You may recall the Attorney-General’s appearance on Q&A in 2015. There Christian Porter metaphorically threw all male victims of domestic violence under a bus by arguing passionately that women are always innocent, never lie, and can never themselves be violent.  As the principal legal officer who represents the Crown in legal proceedings and gives legal advice to the government, those comments amounted to an endorsement of a radical feminist ideology that is directly responsible for the problems currently facing our legal system.   

James Allan, one of our leading legal academics, contends that ‘there is a clear element of this Coalition government being hoist with its own petard about not having insisted on proper procedural justice for others in the past and now reaping what they sowed’. In a recent article for The Spectator Australia, he gives the example of the unsatisfactory procedures used to make determinations against Dyson Heydon AC QC, a former High Court judge.  

Of course, those allegations of sexual harassment laid against Justice Heydon did not amount to criminal allegations and were not nearly as serious as those presently levelled against the Attorney-General. Although there was no procedural fairness for that former High Court judge, Professor Allan complains that ‘Mr Porter as Attorney General, and the whole of the Morrison government, spoke not a word about the need for procedural fairness protection’.

Curiously, Porter is now seeking aggravated damages over a story by ABC journalist Louise Milligan, which was published on 26 February and headlined: ‘Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister’. The story referred to what might have happened as an allegation only. It did not affirm that it definitely happened and it did not name Porter. 

However, the Attorney-General came forward in a press conference held on 3rd March as the cabinet minister accused of rape. He categorically affirmed that ‘the things that are being claimed did not happen’. His press conference came after New South Wales Police announced that there was “insufficient admissible evidence” to investigate the case. Porter then explained that he had been silent until that point due to needing to let the police conclude the case.  

Porter is now funding a powerhouse legal team: barristers Bret Walker SC and Sue Chrysanthou SC, and solicitor Rebekah Giles. Their statement of claim lodged in the Federal Court in Sydney contends that Porter’s character and reputation have been gravely injured as a result of the story published on the ABC website.  

The statement of claim is designed to force the defendants (Ms 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. He is seeking aggravated damages, costs and removal of the article and related material from the web.  

Although his name was not mentioned in the story, Porter’s team argues that it was defamatory because apparently he could be ‘easily identifiable to many Australians as the subject of the allegations.’ This defamation case will rest primarily on whether a casual reader rather than a highly politicised individual would know beyond any doubt that the unnamed cabinet minister was actually the Attorney-General.  

To establish identification, his lawyers will have to demonstrate that he was easily identifiable to many Australians as the subject of the allegations. The bar is fairly high for the plaintiff to establish the fact that where they weren’t named they were clearly identifiable to the audience.  

This article is not a berarer of good news for the Attorney-General. Indeed, I regret to inform that there is a good chance that he might lose his defamation case.  

Porter is suing the defendants for defamation and so the matter is not criminal. Curiously, the matters involving his case are quite similar to those involving the defamation case of John Fleming, a Catholic priest living in retirement in South Australia. A prominent media commentator in his home state of South Australia, he was the inaugural President of Campion College, Australia’s highly regarded liberal arts institution located in Western Sydney.   

Fleming’s career, reputation and financial security were all but destroyed when, in 2008, the Adelaide Sunday Mail ran a series of uncorroborated allegations made by the journalist Nigel Hunt against him, related to the historic sexual abuse of a minor. These allegations had been previously examined and dismissed by the 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 grounds that the uncorroborated allegations it had published were true.  When Judge Gray’s judgement finally appeared in early 2016, after an inordinate and unexplained delay, Fleming’s defamation case was dismissed, the judge having accepted as truthful the stories published by The Sunday Mail against Fleming.   

Fleming then appealed, unsuccessfully, to the full South Australia Supreme Court and, finally, to the High Court of Australia where his leave to appeal was rejected on the grounds that no issue of general importance was involved. Apparently, judges of the nation’s highest court believe that removing the presumption of innocence and the onus of the proof in defamation cases are no longer matters of great relevance for the court to consider.  

The defendants in the Fleming case sought to use their publication of the allegations made by two individuals as “contextual truth” to assist their defence in circumstances where a defamation action had been taken over the imputations contained by their publication of allegations made by an unrelated person.  Here was a case where it wasn’t simply a case of “he said she said”.  

There emerged no reason whatsoever during the trial for finding the accusations either reliable or compelling.  The police hadn’t believed it, at least to the extent that they didn’t think the complaint could become the basis of a criminal prosecution. The accusers’ contradictory and uncorroborated testimony was anything but compelling, as the trial transcript demonstrates.  

Where does this ruling leave a possible outcome in Christian Porter’s defamation lawsuit?   

Given the confusion caused by the SA Supreme Court and the High Court’s refusal to hear John Fleming’s appeal, this case sets a precedent that could have bearing on Porter’s defamation case. In other words, the outstanding legal issues surrounding the Fleming case may constitute a persuasive precedent that might compromise any prospect of a successful outcome for Porter in his defamation case. 

Ironically, on 23 December 2020 an email was sent by me to Christian Porter concerning the Fleming case. In this email I attempted to call his attention to the very serious problem involving the Fleming case, including the fatal shortcomings in that trial and subsequent appeals.  

I was merely attempting to inform him on the fact that the matter required an urgent re-examination. Otherwise, the Fleming case could set a dangerous precedent that would have quite detrimental effects for future defamation cases.   

Unfortunately, I did not even receive a reply from the Attorney General or his Department. My request was completely ignored, although in 2013 I had been appointed by Porter to serve for four years as a Law Reform Commissioner in Western Australia back in 2013 he was the Western Australian Attorney General. 

That is a case concerning the overturning of the presumption of innocence and the standard of proof in civil cases. The judge chose to believe the uncorroborated narrative offered by the accuser in the face of evidence that powerfully contradicted her version of events. Even though it was Fleming initiating the civil action here, it turned out that he was the one really in the dock. 

While some measures could be enacted to eradicate at least some of the problems revealed by the Fleming case, the Attorney-General has been for quite a long time empowering the feminist lobby and assisting them to build a sexist narrative of tragic consequences for the preservation of the rule of law.  

It is quite ironic that Porter’s performance as Attorney-General has now assisted to trigger a “cultural reckoning” where the prominent feminists he fawned over are now taking delight in destroying his reputation. Even more ironic is the fact that he completely ignored appeals from concerned citizens complaining about the defamation case of John Fleming, who is the innocent victim of unsubstantiated allegations made by a woman in the face of evidence that powerfully contradicted her version of events.  

There is little doubt that the Fleming case might have a bearing on Porter’s case. The legal flaws in Fleming’s matter create a dangerous precedent in lowering the standard of proof required in defamation cases where criminal allegations are involved. Regardless of the outcome of Porter’s defamation lawsuit, a shadow will continue forever to be cast on Christian Porter’s life and reputation.

The harm done never goes away, and there will be no final vindication, no reversal of the calumnies nor of the pain.  

A fully footnoted copy of this piece is available by contacting Professor Zimmerman directly.

Dr Augusto Zimmermann PhD, LLM, LLB is Professor and Head of Law at Sheridan Institute of Higher Education in Perth/WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is a former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017.  

Got something to add? Join the discussion and comment below.

Show comments