It’s down the line, I know. The trial hasn’t even started. But that doesn’t stop us looking ahead and being prepared (like good scouts). In the event that the ABC and Louise Milligan are found to have acted with malice against Christian Porter in his defamation case against them, the court may impose a hefty fine against both. The ABC’s fine and costs would be borne by the ABC — the taxpayer. Milligan’s fine and costs will be borne by the ABC — the taxpayer. Not much pain. Not much punishment. How can the intent of the court be delivered and the dual purposes of the penalty — punishment and deterrence — be served?
It is a well-established tradition that journalists are indemnified by their publishers, as it is the publisher that makes the final decision to put the journalist’s story to air, on the web, in print or whatever.
Milligan has confirmed on social media this is the case on the Porter matter. The comments came in response to offers of financial support and fundraising she turned down. But why shouldn’t she or the ABC accept such payments, no matter their motivation, particularly if the process goes against them? It will benefit the broadcaster’s bottom line – and the taxpayer.
Second, the Department of Communications, under which the ABC operates, and its minister or cabinet as a whole, might want to consider that the fine imposed should also be a real deterrent by reducing the ABC’s funding in the next round by the same amount as the fine imposed by the court. In other words, the ABC should have to pay the fine (and all costs) out of its current budget — and the ABC’s funding by the taxpayer should be reduced by the same amount in the next funding period.
If such a scenario were to arise, there will be the question of what do you (the responsible minister) do with an ABC whose culture has ripened like toxic waste, the green ooze on view a symptom of a diseased appendage of the body politic (once public broadcaster). Now, if the court were to rule that its ideological tunnel vision has defied the rule of law, the minister might ask whether the ABC deserves its highly privileged position without major reforms of its political monoculture that is exclusive and lacking socio-political diversity. There’s a challenge. Indeed, the minister and government should raise the issue of Milligan’s employment and seniority if the ABC is defeated in the Porter matter.
Both Milligan and the ABC seem unbothered by the ruling of the highest court in the land with respect to Cardinal Pell and what that means for the credibility of her reporting in that matter. In this post-modern world where truth is relative, the ABC, Milligan, various sectarian bigots and other partisans have shrugged it off. While not as definitive as a High Court decision, a victory by Porter over the ABC and Milligan will be a second blow that must even force the broadcaster to act.
Perhaps, if the court pleases, it might also order the ABC Board and all editorial staff to read Alan Dershowitz’s book, Guilt by Accusation, in which the respected legal scholar (and lifelong Democrat) examines current attitudes toward accusations of sexual misconduct, which are today, in the age of #MeToo, accepted as implicit truth without giving the accused a fair chance to defend themselves. The law, remember?
As for the possibility of a scathing judgement that flays the reputations of both Milligan and the ABC at large, that will be easily shrugged off, just as all public criticism of the ABC is shrugged off. You know, with a statement to the effect that ‘the ABC Board and management take these matters seriously and a review of editorial decision making will be held’ (chuckle, chuckle…).
Perhaps Milligan and the ABC’s ‘anti bloody conservatives’ editorial staff felt so much antipathy towards Porter they were blind to the possibility that he would initiate legal action and offer to testify under oath? Or they feel they are the ultimate power in the land?
But of course, the court may determine that Porter was not defamed, in which case malice would not be an issue. The implications of such a determination would convulse the institutions of the law, the media and politics.
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