Flat White

Fight to win or don’t fight at all

1 June 2021

2:00 PM

1 June 2021

2:00 PM

Here are a few quick thoughts on the Christian Porter saga.  First, though, let me say bluntly what regular SpecOz readers will well know.  I am no fan of the ABC.  I agree with the British journalist who came to Australia and on his departure said that ‘the ABC makes the BBC look like Fox News’.  At least in Britain there are a few conservative presenters and non-wokerati.  In Australia, as many have been pointing out for years, there is not a single, solitary, identifiable right-of-centre presenter or producer on any of the ABC’s TV current affairs shows.  To my mind, the ABC should be privatised.  Or made to take advertising, in the hope that will force it to appeal to more than just the inner-city wokesters of the green left.  Or best of all, forced to be a subscription service so all of us can see just how many viewers would pay for its output. 

I mention that so no one might be mistaken into thinking I’m some sort of closet ABC cheerleader and as background to this brief comment on the Christian Porter defamation saga against our national broadcaster.  Here’s my take.  This was a humiliating capitulation by Porter, full stop.  There is no way to characterise this other than as a big win by them.  According to the ABC statement, Porter received no apology or retraction.  The ABC says it ‘stands by the importance’ of the report or article dealing with ‘allegations against a senior Cabinet Minister’.  What Porter got was this, and only this: ‘The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged [namely rape and sexual assault when he was a minor].  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.’  Again, Porter got no apology.  He got no damages paid to him.  The ABC seems to have picked up the costs of the mediation ‘and related costs’ [whatever that means].   

Well, here’s the thing.  If the ABC made allegations that could be seen as having identified Porter (an open question that would have been crucial), and those allegations were not proveable on the criminal standard (of proof beyond reasonable doubt) or on the civil standard (of the balance of probabilities, or more likely than not) why did Porter drop his action?  If Porter didn’t have the money or cojones to see this through then he should never have sued in the first place. 

Defamation law is in essence about allowing the plaintiff to restore his or her reputation.  You do that by means of being given a grovelling apology or by being awarded big money damages.  Yes, yes, yes. There are plenty of arguments about the proper scope of defamation laws, how much we want them to bite into the scope for free speech.  I’d be inclined to move more in the direction of US defamation law.  But all that is beside the point in assessing this settlement.  If Porter launched this defamation action because of the harm he thought this article did to his reputation – because he alleged it painted him as a possible sexual assaulter or rapist some three decades ago when he was a minor – then this outcome was nowhere near good enough. 

Now there are a couple of extenuating circumstances for Porter (whom I think was a much better Liberal Attorney General than his predecessor, however damning with slight praise that might be).  One is that the Prime Minister threw him under the bus when he removed Porter from being the Attorney General (and two other posts) to a much lower Cabinet spot.  At the time I thought Scott Morrison should have kept Porter in place.  Don’t cave in to the baying mobs who are making unproven and unprovable three decade old allegations.  But as Morrison seems incapable of standing up for the presumption of innocence (see Christine Holgate, see our SAS troops), this was not surprising. 

The other unfairness was the money factor.  Employing high profile barristers is very, very expensive.   Here, one side was having all of its legal costs underwritten by the taxpayer.  You.  The other side was not.  If you guessed the former was the ABC, you win the prize.  Neither its reporters, its editors, its managing directors, none of them were facing any financial risks at all.  They could hire the very best defamation lawyers at your and my expense.  Porter could not.  He had to fund what could have been a multi-million dollar action all on his own (and don’t forget if you lose you pay about two-thirds of the other side’s costs so maybe upwards of four million dollars all up).  Well, maybe he could get some big donors to kick in some money but think about how problematic that is.  We don’t want a Cabinet Minister beholden – or having the appearance of being beholden – to some wealthy party friend.  I’m no expert on trust law.  Maybe some sort of blind trust could have been set up for people to fund Porter’s legal costs.  Or maybe not.  But at the end of the day, this was a situation with one side financially risk free and the other facing potential bankruptcy. 

As Mr. Porter has been part of consecutive Coalition governments that for eight years have done nothing, zero, to rein in the ABC I am less sympathetic about this financial risk asymmetry than I might otherwise have been.  But it’s still a mighty unbalanced and unfair set-up. 

But Porter knew all that going in.  When you issue the writ and sue some other party for defamation you know the costs you’re facing; you know how much support your boss has or has not given you.  If you can’t swallow the potential costs, don’t sue.  But to my mind if you do sue, you surely would want more than what the ABC gave here.  Fellow conservatives can spin this any way they want.  This settlement amounts to a catastrophic loss for Porter.  At least that’s my take.  He went in to restore his reputation and what we are seeing is a slanging match over the technicalities of what was agreed.  But Porter got no massive money award.  He got no grovelling apology.  Just a statement that the serious accusations could not be substantiated to either the criminal or civil standard of proof.  Mush! 

I’ll be blunt.  I thought Porter was going to win this action had he taken it to its conclusion.  That was my best guess.  I have no idea why he folded on this.  But that’s the problem in a nutshell.  If you don’t have the cojones to take the many risks that come with going to court (and a case can be made, in most instances, for avoiding the courtroom like the plague), then don’t sue. But if you do sue surely you have to consider what Porter got here as the absolute thinnest of gruel.  Speaking personally, I would have preferred to lose in court on the highly technical legal issue of identification – that the ABC report did not contain enough to identify Porter as the cabinet minister about whom they were making the allegations – rather than to make this settlement.   

It pains me to say this.  It really does, because our national broadcaster is already in my view a disgrace.  But you can’t hide from the truth here.  This was a big win for the ABC. 

James Allan is Garrick Professor of Law at the University of Queensland.

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