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Christian Porter vs the ABC - who won the defamation case?

Lawyer going to court

The defamation law suit brought by the former Attorney General Christian Porter against the ABC has ended after a settlement was reached between the national broadcasting network and Christian Porter. It is understood that no financial payments were made to Mr Porter by the ABC. So what happened?

The backstory

Christian Porter launched a defamation case against the ABC earlier this year following an article by reporter Louise Milligan about a cabinet minister who was accused of a historical sexual assault. The story did not name Mr Porter but noted that a letter had been sent to Scott Morrison containing the allegation.

Subsequently, Mr Porter publicly announced that he was the minister at the centre of the allegations. Mr Porter has, from the beginning, strongly denied the allegations, and the woman who made them committed suicide last year, before New South Wales police could properly investigate. NSW Police have since closed the case.

Legal hurdles on both sides

The defamation case was due to be heard in court in the coming days, but in recent weeks both Mr Porter and the ABC have faced legal hurdles.

Firstly, Christian Porter’s barrister, Ms Sue Chrysanthou was ordered to step aside after the Federal Court determined that she had a conflict of interest because she had provided legal advice to a friend of the deceased woman who made the sexual assault allegations about Mr Porter, and also helped to make those allegations public.

The ABC case also hit a snag in respect of their defence arguments which were due to be examined in a preliminary hearing in the Federal Court.

In terms of the law, if the court were to find the imputations contained in the article were defamatory, which would require a finding the former Attorney General could be identified through it, then the onus of proof would have been placed on the broadcaster to prove ‘on the balance of probabilities’ (that it was more likely than not) that the imputations were true.

It is understood the ABC also intended to use the defence of qualified privilege which can apply in certain instances where there is:

  • Fair and accurate report of proceedings of public concern,
  • Duty to publish in circumstances where there is an interest in receiving the information.
  • Discussion about government and political matters.

However at the eleventh hour all parties reached an out of court settlement.

Out of court settlement

It is understood that under the terms of the settlement no money will be exchanged, but the ABC will pay the costs of mediation and place an editor’s note on the original article (which remains online) stating that the ABC did not intend to suggest Mr Porter had actually committed the alleged offence.

In recent days, Mr Porter has said publicly that the ABC has been forced into a “humiliating backdown” over the “sensationalist” and “one-sided” story and that … “they regret the outcome of that article.”

However, the ABC has responded saying that, “The ABC has not said that it regrets the article… The ABC stands by the importance of the article, which reported on matters of significant public interest.”

While there appears to be no love lost between the ABC and the politician it would appear that both parties are content to move forward from the episode.

What is defamation?

In WA, Defamation is broadly defined as spoken or written words which harm an individual’s reputation in the eyes of ordinary people in the community, or are likely to result in a person being shunned, or made fun of.

While defamation cases tend to be settled in civil suits, defamation is also a criminal offence.

What the law says about criminal defamation

Section 345 of the Defamation Act 2005 reads as follows:

    (1)    A person who, without lawful excuse, publishes matter defamatory of another living person (the “victim”) —

            (a)    knowing the matter to be false or without having regard to whether the matter is true or false; and 

            (b)    intending to cause serious harm to the victim or any other person or without having regard to whether such harm is caused,

is guilty of a crime and is liable to imprisonment for 3 years. The summary conviction penalty is imprisonment for 12 months and a fine of $12 000.

    (2)    In proceedings for an offence under this section the accused person has a lawful excuse for the publication of defamatory matter about the victim if, and only if, subsection (3) applies.

    (3)    This subsection applies if the accused person would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the accused person.

    (4)    The prosecutor bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused person.

    (5)    On a trial before a jury for an offence under this section —

            (a)    the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judge;

            (b)    the question of whether the matter complained of does bear a defamatory meaning is a question for the jury; and

            (c)    the jury may give a general verdict of guilty or not guilty on the issues as a whole.

    (6)    A prosecution under this section must not be commenced without the consent of the Director of Public Prosecutions.

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If you are facing criminal charges and need representation from an experienced Criminal Lawyercontact the Andrew Williams Criminal Law Offices without delay on (08) 9278 2575.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.

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