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Tuesday, 20 April 2021 09:52

How Hard It Is For Christian Porter To Win His Defamation Case? – A Critical Appraisal

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The Christian Porter defamation case has captured the interest of the nation and its media.  The former Attorney General has been accused of historical rape.  By a complainant now deceased, and her supporters.  The allegations were spotlighted by the ABC.  The eyes of the country are on the outcome, in the shadow of the Pell case and that of Fr John Fleming.

The Christian Porter defamation case has captured the interest of the nation and its media.  The former Attorney General has been accused of historical rape.  By a complainant now deceased, and her supporters.  The allegations were spotlighted by the ABC.  The eyes of the country are on the outcome, in the shadow of the Pell case and that of Fr John Fleming.

 

Attorney-General Christian Porter is seeking aggravated damages over a story written by journalist Louise Milligan, which was published on 26nd February and headlined: ‘Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister’.[1]

Posted on the website of the ABC (Australia’s state-owned broadcaster), the article starts as follows: ‘Australian Federal Police have been notified of a letter sent to Prime Minister Scott Morrison detailing an alleged historical rape by a cabinet minister in the federal government’.[2] It then argues that such a cabinet minister might have raped a 16-year-old girl in 1988 and this could have contributed to her taking her own life.[3]

                                      

The story referred to what might have happened as an allegation only. It did not affirm that it definitely happened and it did not even name Mr Porter.[4] However, the Attorney-General came forward in a press conference held on 3rd March as the cabinet minister accused of rape. He began that press conference by apologising to the family of the alleged victim. He explained that he was deeply sorry the media had made these horrible accusations that he raped a female colleague while attending a debating competition, thirty-three years ago.[5]  

Above all, the Attorney-General strenuously denies that the alleged event ever happened. He categorically affirmed that ‘the things that are being claimed did not happen’.[6] His press conference came after New South Wales Police announced that there was “insufficient admissible evidence” to investigate the case. Mr Porter then explained that he had been silent until that point due to needing to let the police conclude the case.

Apart from the lack of substantial evidence to the accusation, there is also the lack of reliability of the alleged victim, ‘who had long-term psychiatric problems that eventually ended in her suicide in 2020’.[7] This being the case, Mr Porter is now funding a powerhouse legal team: barristers Sue Chrysanthou SC and Bret Walker SC (considered ‘one of the nation’s top court advocates and a brilliant legal strategist’[8]), and solicitor Rebekah Giles.

The statement of claim lodged in the Federal Court in Sydney argues that Mr Porter’s character and reputation have been gravely injured as a result of the story published on the ABC website. His legal team accuses the state-owned broadcaster of “trial by media” and Ms Milligan of knowing it was impossible for criminal guilt to be proved when she wrote this story. Accordingly, she would have engaged in a malicious campaign against Mr Porter in order to harm his reputation and have him removed as Attorney-General.[9]

The statement of claim filed by Mr Porter’s legal team 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.[10] He is seeking aggravated damages, costs and removal of the article and related material from the web.

The ABC is engaging the formidable advocate Justin Gleeson SC to lead its defence. This is not his first battle against an attorney-general. In 2016 Mr Gleeson quit as Commonwealth Solicitor-General after a disagreement with Mr Porter’s predecessor, George Brandis.[11] Melbourne defamation barrister Renee Enborm QC and Sydney barrister Clarrisa Amato will also act for the ABC.

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.’[12] 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.[13]  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.[14]

Federal Court cases are allocated based on a judge’s practice area, their availability and workload. But a case’s public interest and relevant to the administration of justice can add another decision-making layer. If the case ends up before court, it will be heard by federal judge Jayne Jagot. She was allocated to the case by Chief Justice James Allsop in consultation with the court’s principal registrar, the national operations registrar and its national consulting team of judges.[15]

Justice Jagot was appointed by the Rudd government in 2008 and passed over for promotion to the High Court by Mr Porter, ‘to the surprise and disappointment of many around the Sydney courts.’[16] Curiously, she recently dismissed a high-profile defamation case brought by Ms Chrysanthou and Mr Giles, on behalf of two doctors from Sydney’s notorious Chelmsford psychiatric hospital.[17]  As stated by Nicole Berkovic, The Australian’s legal affairs correspondent,

The ABC is likely to argue its article published on February 26, which did not name Mr Porter, was defensible because it acted reasonably in reporting on [a] government or political matter. It will have to show it did not suppress material that cast doubt on the woman’s rape accusation and that it was reasonable not to put the allegations directly to Mr Porter before publication.[18]

A Bad Precedent: The Case of John Fleming

 

This article is not the recipient of good news for Mr Porter. Indeed, I regret to inform that there is a good chance that he might lose his defamation case. He is suing the defendants for defamation and so the matter is not criminal. Curiously, the matters involving his case are similar to those involving the defamation case of Fr John Fleming, a Catholic priest living in retirement in South Australia.[19]

The Fleming defamation case could be construed as a persuasive precedent that may eventually become a decisive factor in the outcome of Mr Porter’s case. One may reasonably argue that after this notorious case the burden of proof relating to evidence can no longer be called when a judge prefers the uncorroborated narrative offered by the accuser. This happens in the face of compelling evidence that powerfully contradicts a woman’s version of events involving historic sexual abuse. 

John Fleming is a Catholic priest who initially was a married Anglican priest. He has been a widely published scholar with an international reputation particularly in the field of bioethics.  An eminent 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, financial security and family life were all but destroyed when, in 2008, the local Adelaide paper (The 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. 

John 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, he sought leave to appeal to the High Court of Australia.  Remarkably, leave to appeal was rejected on the grounds that no issue of general importance was involved. The Court stated:

The application for special leave to appeal does not raise a question of general importance.  None of the applicant's proposed appeal grounds enjoys sufficient prospects of success to warrant a grant of special leave.  Special leave should be refused with costs. [20]

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.

It is accepted in law that criminal cases are tried according to the principle of “beyond reasonable doubt”, and that in civil cases (like John Fleming’s defamation case) the burden of proof is “on the balance of probabilities”.  This, of course, is a lower standard of proof.  But there is a caveat, or so Fleming thought.  And that is that where accusations of criminal conduct (like sexual activity with a minor) are involved in the defamation, there is a far stricter standard of proof required, approaching that required in criminal cases.  It is known as the Briginshaw rule.

The Briginshaw approach rests primarily on the principle that a court in a civil action should not lightly find that a party has engaged in criminal conduct. While civil cases are decided “on the balance of probabilities”, where someone’s reputation is at stake, with accusations of criminal behaviour, courts should tread more cautiously before finding guilt. However, in Fleming’s case the initial judge dismissed Briginshaw saying that ‘the need for clear, cogent or strict proof was not required’[21] and the Full Court of the SA Supreme Court refused to reverse that decision.

These decisions were made in the face of evidence given by an eyewitness who denied any such sexual assault took place.  Nearly every piece of Fleming’s evidence was corroborated by other witnesses who gave evidence at trial. However, the judges in the SA Supreme Court preferred the uncorroborated evidence of the complainant and simply dismissed evidence given by an expert in human memory which indicated that the memories of the complainant were not reliable.

The judge in the Fleming case failed to give due and proper regard to the difficulties associated with defending allegations as to conduct said to have occurred many years ago, particularly when key witnesses are no longer alive.  When the plaintiff effectively becomes defendant, having to, in effect, prove a negative, the task of winning a civil action related to an ancient accusation and in the face of a judge overly sympathetic to the complainant’s “narrative” becomes next-to-impossible. 

Perhaps he was simply swept up in the emerging ideology of “always believe the victim”.  Of course, this does not exonerate him of the charge that he failed to give proper consideration to all the evidence and all the witnesses before coming to a judgement. Arguing the Briginshaw principle, but losing in the lower court, Fleming appealed and lost again in the SA Supreme Court in 2016.[22] The Court surprisingly played down the Briginshaw rule, claiming that High Court judgments do not import that presumption into the civil arena and that it was incorrect to raise it to an “onus”, “standard” or “principle”.

It is important to consider that, although in Briginshaw Dixon J referred to a person against whom are alleged serious matters enjoying the “presumption of innocence” and the consequent requirement of “exactness of proof”, the later High Court judgments do not import that presumption into the civil arena.  Furthermore, from the above it would appear that any references to Briginshaw as establishing an “onus” or a “standard” are incorrect. Additionally, in the several High Court cases referred to, there is no reference to Briginshaw establishing a “principle”. Rather, reference is made to, for example, grave allegations being determined by reference to Briginshaw considerations: G v H at 400.[23]

The defendants in the Fleming case (The Advertiser/Sunday Mail) sought to use their publication of the allegations made by two other individuals (both adults at the time when they said events occurred) 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. Stories changed over time, there were long delays in the reporting of the alleged offences said to have been committed forty years earlier, and there were significant gaps in memory on the part of the principal accuser. Whatever the depth and extent of moral panic in the community over sex abuse of minors, and whatever the guilt that people may feel for not believing complainants in the past, we should expect far more from the justice system and from judges, in particular. 

These were some of the failures in relation to the evidence of the allegations, and there were many other problems during the trial and errors in the subsequent court decision. The judge overseeing the Fleming case made monumental blunders of legal reasoning and logical reasoning, including the use of the circular argument.  These errors were not reversed by the three judges of the Full Court of the Supreme Court and the High Court of Australia refused to even hear an appeal.  

Where does this travesty of justice leave a possible outcome in the 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 dangerous precedent that could very well have bearing on Porter’s defamation case. 

“Reaping What You Sow”

 

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 Mr Porter to serve for four years as a Law Reform Commissioner in Western Australia. Back in 2013 he was the Western Australian Attorney General.

Recall the Attorney-General’s appearance on Q&A in 2015. There he 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.[24] As the future principal legal officer[25] 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 which is directly responsible for the present problems facing our legal system. 

According to law professor Kenneth Arenson, a highly regarded criminal-law scholar, there is an “unsettling trend” in our legal system concerning the introduction of legislation that impinges on the right of the accused to adduce all legally admissible and exculpatory evidence on his behalf.[26] And how ironic that the Attorney-General is now facing a problem the Morrison government did not attempt to prevent, and quite to the contrary. In fact, the present government has never stood up to the media mob and demanded respect for basic procedural protections. On the contrary, as noted by Dr Rocco Loiacono, a senior lecturer at Curtin Law School,

Instead of dealing with the ABC [the Morrison government] gives them more money to perpetuate their insidious bile and gutter journalism. In an interview with Neil Mitchell on 3AQC recently, Morrison sniggered about wokeness, saying that he is ‘focused on jobs’. What he conveniently forgets is that wokeness actually costs jobs. It cost Peter Ridd his job, Nicolle Flint hers and, even though it should not, it may well cost the Attorney-General his.[27]    

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’.[28] 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 laid against Mr Heydon did not amount to criminal allegations and were not nearly as serious as those presently levelled against Mr Porter. 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’.[29]

Or take the whole episode of Cardinal George Pell. In that instance Scott Morrison even joined the lynching mob by making insensitive statements that could be construed as assuming the guilt of the person accused. When still awaiting trial, the Prime Minister effectively implied Pell’s guilt by making some bombastic statements to the effect that, in his own words, ‘those who abuse the shield of faith and religion to hide their crimes shall stand condemned’.[30]  Before Pell’s conviction was overruled by the High Court, Mr Morrison argued: ‘Our justice system has affirmed no Australian is above the law’.[31]  He also stated on that occasion that ‘the courts had done their work well’.[32]

Curiously, when informed that Pell’s legal team was appealing to the High Court, Mr Morrison dismissively commented: ‘I respect the fact that this case is under appeal, but it is the victims and their families I am thinking of today’.[33] Before even a final appeal had been made, he was already announcing that the Prime Minister’s Office was preparing to make an “urgent application” to the Council of the Order of Australia to the effect of having Pell’s appointment revoked.[34] As reported in The Sydney Morning Herald on 12 August 2019,

Mr Morrison said his sympathies were [solely] with the victims of sexual abuse… while Governor-General David Hurley said he would wait until Pell makes a decision about a possible appeal before “terminating” his prestigious Order of Australia...[He] told reporters in Canberra … that the courts had “done their job” and must be respected. “They have rendered their verdict, and that’s the system of justice in this country and that must be respected”, he said, adding this would see Pell, who remains a cardinal of the church, lose his Order of Australia.[35]

Cardinal Pell was released from jail on 7 April 2020, soon after the High Court quashed his convictions. This ruling should invite a proper reflection on Mr Morrison’s commitment to the presumption of innocence. The fact that juries and courts can reach incorrect verdicts should not come as a surprise since there are notorious cases of wrongful convictions throughout the nation’s court history. Had the good cardinal not enough money and institutional support to successfully appeal those controversial decisions, undoubtedly he would have become another victim of miscarriage of justice in Australia.

The “Rape” of the Rule of Law

Feminist scholars have made the so called “rape culture” a central pillar of their teaching and research.[36] As a result, the meaning of words such as “rape” and “sexual harassment” have been dramatically expanded.  Philip Salzman, an Emeritus Professor of Anthropology at McGill University, noted that ‘great efforts have been made by feminists to expand the boundaries of the categories of rape and sexual assault, and feminist law professors have worked successfully to incorporate expanded categories in law’.[37]

There is no “rape culture” in Australia society and no legal reward for men who rape. To the contrary, our society strongly condemns rape, putting in place severe criminal penalties for those who dare to commit such a terrible crime. Some feminists however, contend that all men are naturally inclined to abuse women sexually.[38] If a woman regrets to have intercourse with a man, then this can also be potentially construed as a form of rape.  Ultimately, writes U.S. sociology professor, Stephen Baskerville, the ultimate goal is to ‘create another tool to criminalize male sexuality and men’.[39]

In this sense, the media has reported that Crown prosecutors in New South Wales apparently are running sexual assault trials with insufficient regard for the strength of the evidence.[40] According to Greg Walsh, a prominent criminal lawyer, the present “hysteria” around rape allegations has made it “increasingly difficult” to defend a man accused of committing such crime, especially when prosecutors have an ‘ideological bias to obtain convictions at any cost’.[41] As Mr Walsh also points out, these sexual assault cases ‘are becoming a cause celebre, they are just out of control’.[42]

Another Sydney criminal lawyer, Chris Murphy, confirms that prosecutors are now using “increasingly aggressive tactics” in these sexual assault cases, with critical evidence being withheld from the defence in some trials.[43] He contends that some witnesses have been excluded by the prosecution, ‘because they would be beneficial to the defence’. As a result, Mr Murphy writes, ‘false sexual allegations have become a mighty sword’, and ‘a lot of prosecutions are shit-scared to put aside complaints they don’t believe in for fear of public criticism’.[44]

Due to the seriousness of the matter, in August 2019 a District Court judge requested the NSW Parliament to change the law after being forced to exclude the evidence from a rape case trial, because it apparently aimed at protecting rape victims at the risk of causing grave injustice to defendants. This judge was presiding over a case where the man accused of rape was not allowed to bring evidence of twelve incidents in which the accuser had made false complaints about sexual abuse. On two separate occasions she made false reports to the police and, after being investigated, admitted to have fabricated the sexual assault allegations.

In other words, a District Court judge has been precluded from allowing evidence of a woman’s background of making false claims due to the existing laws that stop “offensive and demeaning” cross-examination of her sexual history. This judge has now called on parliament to amend the law in order to allow proper evidence to be presented in the interests of justice.  Indeed, this judge could not even allow evidence to be produced because of a section of the Criminal Procedure Act which requires the court to follow a certain procedure that, ultimately, engenders “significant unfairness”.[45] The unfairness is real and certainly not illusory, because, as His Honour points out, 

The law prevents the accused from placing before the jury relevant evidence (past fabrications) which is capable of going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the accused from showing the complainant to be a compulsive false accuser of sexual misconduct’.[46]  

Something is deeply wrong when a legal system inverts the onus of the proof and prevents the presentation of relevant evidence in the interests of justice. This means that some men can actually be serving jail for a crime they simply have not committed. It is difficult to accept the legitimacy of a court system where the accused (usually male) can be publicly “named and shamed” but be unable to properly defend himself against these awful accusations. Of course, this is certainly not happening just by a mere accident. In The New Politics of Sex (2017), Professor Baskerville commented:

Feminists openly advocate that convicting men of rape is a goal to be pursued for its own sake, regardless of the evidence in particular cases, and they agitate for using whatever political means are available to increase the convictions as a virtue in itself … It is hardly surprising therefore that the process for adjudicating rape is openly rigged in favor of conviction. Rape accusers remain anonymous, but the accused do not, even after the accusation is demonstrated to be false. The past sexual history of the accuser is not admissible as evidence, but that of the accused is. Accusers are exempt from polygraph tests, but not the accused. Even a history of false accusations is not admissible. Apparently police are now being instructed to hide evidence that exculpates the accused.[47]

Based on a radical feminist perspective, the current approach to rape allegations goes far beyond the laudable objective of fighting against the existing problems. As noted by political theorist Cathy Young and Dr Michael Weiss of Houston Law School, feminist jurisprudence has resulted in ‘increasingly loose and subjective definitions of harassment and rape, dangerous moves to eviscerate the presumption of innocence in sexual assault cases, and a broad concept of self-defence in cases of battered wives that sometimes amounts to a license to kill an allegedly abusive spouse’.[48] Of course, we should be deeply concerned at how easily a perfectly innocent person might have his life entirely destroyed by false and malicious accusations, whilst the female accusers can go free and rarely face the negative consequences for their destructive actions, and quite to the contrary.  

Final Considerations

This article provides a general account of the legal flaws in the Fleming case. It is about the case of John Fleming, a highly esteemed Catholic priest who unsuccessfully sued an Adelaide newspaper which destroyed his reputation by publishing details of false and unsubstantiated allegations involving historic child sexual abuse. The High Court has twice refused to give Fleming leave to appeal on the grounds that no issue of general importance was involved, even though the basis for that second application for leave to appeal was the fact that the Federal Court in NSW applied Briginshaw in the defamation matter involving actor Geoffrey Rush.[49]  Within days of the High Court’s second refusal, the same Full Court of the SA Supreme Court correctly applied Briginshaw in another but similar defamation matter.[50]

The outstanding legal issues surrounding the Fleming case may constitute a persuasive precedent that might compromise any prospect of a successful outcome for Mr Porter in his defamation case. 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.

The High Court refused to give Fleming leave to appeal on the grounds that no issue of general importance was involved. If the court thinks that then the cards are stacked against Porter if the ABC successfully uses the Fleming case as a persuasive precedent. For as long as the new standard in the law of a reversal of the onus of proof in historical sex abuse cases remains, no one accused of such crimes will stand a chance, including Mr Porter.  Indeed, it will be incredibly difficult for him to prove he did not do something wrong, especially in the distant past, where exculpatory evidence is hard to come by, where witnesses may no longer be available and where written records that otherwise might prove valuable to Mr Porter, may no longer be at hand.

While immediate solutions to these embedded problems are not easy to come by, there are some measures that could be enacted to eradicate at least some of the problems revealed by the Fleming case.  They include addressing the reversal of the onus of proof that has occurred by stealth under the public hysteria engendered by the radical feminists with the support of the mainstream media and political establishment. Also to be included is the requirement of the High Court to do its duty and clarify whether or not Briginishaw v Briginshaw remains operative in civil matters, a proposition explicitly denied in the Supreme Court of South Australia, and not least because it may well have a bearing on the Porter defamation trials in the court.

These are matters that a more competent Attorney General would have addressed. Unfortunately, however, Porter 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. As correctly stated by Dr Bettina Arndt AM, an Australian psychologist specialising in sex and gender issues,

Porter has been sucking up to the feminist mob for decades. Just look at his incredible performance back in 2015 on the ABC’s Q&A, just after he’d announced 100 million dollars funding for the domestic violence industry. There he was spewing out all the buzzwords they wanted to hear, claiming the entire problem was due to vicious, misogynist men and telling a young male audience member to listen to women, believe women.

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 prominent people complaining about the defamation case of Fr 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 this case have created a dangerous precedent in lowering the standard of proof required in defamation cases where criminal allegations are involved. Of course, regardless of the outcome of Porter’s defamation lawsuit, a shadow will continue forever to be cast on Mr 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. As stated by one of our nation’s greatest legal minds, Emeritus Professor Gabriël A. Moens AM, a former colleague of Christian Porter at Curtin Law School, ‘[t]he long term consequences of this ongoing saga are predictable: a saga without winners and with many losers, especially if it results in the further erosion and demeaning of the rule of law’.[51]

 

[1] ‘Christian Porter’s Attorney-General Role Will Be Scaled Back Amid ABC Lawsuit’, Says Scott Morrison’, SBS News, 16 March 2021, at https://www.sbs.com.au/news/christian-porter-s-attorney-general-role-will-be-scaled-back-amid-abc-lawsuit-says-scott-morrison

[2] Ibid.

[3] Ibid.

[4] Louise Milligan, ‘Scott Morrison, Senators and AFP Told of Historical Rape Allegation Against Cabinet Minister’, ABC News, 26 February 2021, at https://www.abc.net.au/news/2021-02-26/pm-senators-afp-told-historical-rape-allegation-cabinet-minister/13197248

[5] Josh Butler, ‘Christian Porter Comes Forward as Minister Accused of Rape’, The New Daily, 3 March 2021, at https://thenewdaily.com.au/news/2021/03/03/christian-porter-minister-accused-rape/

[6] Ibid.

[7] Keith Windschuttle, ‘Women Power Gets Contagious’, Quadrant Online, 14 March 2021, at https://quadrant.org.au/opinion/qed/2021/03/women-power-gets-contagious/

[8] Nicole Berkovic, ‘Christian Porter’s Defamation Trial of the Century’, The Australian, 19 March 2021, at  https://www.theaustralian.com.au/nation/christian-porters-defamation-trial-of-the-century/news-story/c20d9d4eacbd4be617e5321dbadbc8ee

[9] The statement of claim settled by Bret Walker SC says: ‘Milligan acted with malice knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign designed to damage his reputation would be a more effective substitute against Porter in replacement of the process of the justice system’. - Chris Merritt, ‘ABC Faces Tough Fight in Christian Porter Defamation Case’, The Australian, 19 March 2021, at https://www.theaustralian.com.au/business/legal-affairs/abc-faces-tough-fight-in-christian-porter-defamation-case/news-story/34d28976484b35405cd6341bc4cee4d5

[10] Kishor Napier-Raman, ‘Advantage Christian Porter in the Defamation Trial of the Century’, Crikey, 16 March 2021, at https://www.crikey.com.au/2021/03/16/christia-porter-defamation-trial-of-the-century/

[11] Berkovic, above n. 8.

[12] Sharri Markson, ‘Christian Porter to Testify in Rape Trial After Launching Defamation Action Against ABC and Louise Milligan’, The Australian, 16 March 2021, at https://www.theaustralian.com.au/nation/christian-porter-launches-defamation-action-against-abc-and-journalist-louise-milligan/news-story/d33c2be73aa81f8161ed288b169aa524

[13] ‘Christian Porter’s Attorney-General Role Will Be Scaled Back Amid ABC Lawsuit’, Says Scott Morrison’, SBS News, 16 March 2021, at https://www.sbs.com.au/news/christian-porter-s-attorney-general-role-will-be-scaled-back-amid-abc-lawsuit-says-scott-morrison

[14] Ibid.

[15] Berkovic, above n. 8.

[16] Kishor Napier-Raman, ‘Advantage Christian Porter in the Defamation Trial of the Century’, Crikey, 16 March 2021, at https://www.crikey.com.au/2021/03/16/christia-porter-defamation-trial-of-the-century/

[17] Berkovic, above n. 8.

[18] Nicola Berkovic, ‘Former Solicitor-General Justin Gleeson Leads ABC Team in Christian Porter Case’, The Australian,  18 March 2021, at https://www.theaustralian.com.au/nation/christian-porters-defamation-trial-of-the-century/news-story/c20d9d4eacbd4be617e5321dbadbc8ee

[19] For a more detailed account of this notorious case, see: Augusto Zimmermann, ‘When Judges Get It Wrong: The Case of John Fleming’, Quadrant Online, 3 January 2021, at https://quadrant.org.au/magazine/2020/12/when-judges-get-it-wrong-the-case-of-john-fleming/ See also: Paul Collits, ‘The Crucifixion of John Fleming’, The Freedoms Project, 18 May 2020, at https://thefreedomsproject.com/item/522-the-crucifixion-of-john-fleming

[20] “The application for special leave to appeal does not raise a question of general importance.  None of the applicant's proposed appeal grounds enjoys sufficient prospects of success to warrant a grant of special leave.  Special leave should be refused with costs.” – John Fleming v Advertiser News Weekend Publishing Co Pty Ltd & ANOR [2017] HCASL 16 A44/2016

[21] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd & Anor (No 2) [2016] SASC 26 [183] (Gray J)  

[22] Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2016] SASCFC 109 (29 September 2016)

[23] Ibid., [108]

[24] ‘Q&A Hitting Home Special’, ABC News, 25 November 2015, at https://www.abc.net.au/qanda/qa-hitting-home-special/10653624

[25] He was appointed Attorney-General on 20 December 2017.

[26] Kenneth J Arenson, ‘The Demise of Equality Before the Law: The Pernicious Effects of Political Correctness in the Criminal Law of Victoria’ (2016) 7 The Western Australian Jurist 1, at 61.

[27] Rocco Loiacono, ‘The ‘Court of Public Opinion’ Is Nothing But Mob Rule’, The Spectator Australia, 4 March 2021, at https://spectator.com.au/2021/03/the-court-of-public-opinion-is-nothing-but-mob-rule/

[28] James Allan, ‘Hoist With Their Own Petards’, The Spectator Australia, 3 March 2021, at https://spectator.com.au/2021/03/the-court-of-public-opinion-is-nothing-but-mob-rule/https://spectator.com.au/2021/03/hoist-with-their-own-petards/

[29] Ibid.

[30] Calla Wahlquist, ‘Scott Morrison Deeply Shocked by Pell Conviction Amid Calls to Strip Honours’, The Guardian, February 26, 2019, at https://www.theguardian.com/australia-news/2019/feb/26/scott-morrison-deeply-shocked-by-pell-conviction-amid-calls-to-strip-honours

[31] ‘PM Scott Morrison Is Looking To Strip Cardinal George Pell of his Order of Australia Honour’, NeosKosmos, February 27, 2019, at https://neoskosmos.com/en/130569/pm-scott-morrison-is-looking-to-strip-cardinal-george-pell-of-his-order-of-australia-honour/

[32] Ibid.

[33] Judith Ireland, ‘Scott Morrison Says George Pell Will Lose Order of Australia’, August 21, 2019, at https://www.smh.com.au/politics/federal/scott-morrison-says-george-pell-will-lose-order-of-australia-20190821-p52j94.html

[34] Above n. 31.

[35] Ireland, above n. 33.

[36] Philip Carl Salzman, ‘The Campus Rape Culture That Never Was’, Minding The Campus, February 11, 2019, at https://www.mindingthecampus.org/2019/02/11/the-campus-rape-culture-that-never-was/

[37] Ibid.

[38] Ibid.

[39] Stephen Baskerville, The New Politics of Sex: The Sexual Revolution, Civil Liberties, & the Growth of Governmental Power (Kettering/OH: Angelico Press, 2017), p 130.

[40] Deborah Cornwall, ‘Hysteria Over Rape Cases, Says NSW Lawyers’, The Australian, 13 August 2019, 62.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Nicola Berkovic, ‘Judge Calls Rape Case Evidence law an Affront to Justice’, The Australian, August 7, 2019, at  https://www.theaustralian.com.au/nation/judge-calls-rape-case-evidence-law-an-affront-to-justice/news-story/a0a3c792d9fd0d1263847f7d57c330b7

[46] Ibid. 

[47] Baskerville, above n. 39, 132-33.

[48] Michael Weiss and Cathy Young, ‘Feminist Jurisprudence: Equal Rights or Neo-Paternalism?’, Cato Policy Analysis No.256, June 19, 1996, at http://www.cato.org/pubs/pas/pa-256.html

[49] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (11 April 2019)

[50] Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111 (27 Sept 2019)

[51] Gabriël A. Moens AM, ‘Who Next Will Be Accused’, Quadrant Online , 9 March 2021, at https://quadrant.org.au/opinion/the-law/2021/03/who-next-will-be-accused/

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Augusto Zimmermann

Dr Augusto Zimmermann PhD (Mon.) LLB (Hon.) LLM cum laude, CertIntArb., DipEd., is Professor and Head of Law at Sheridan College in Perth, Western Australia, and Professor of Law (adjunct) at the University of Notre Dame Australia, Sydney. In addition, he is a former Law Reform Commissioner with the Law Reform Commission of Western Australia (2012-2017). He has also served as Director of Postgraduate Research (2011-2012 and 2015-2017) and Associate Dean, Research (2010-2012) at Murdoch University. During his time at Murdoch University, he was awarded Murdoch University's 2012 Vice Chancellor's Award for Excellence in Research. Dr Zimmermann is also President of the Western Australian Legal Theory Association (WALTA), and the Editor-in-Chief of the Western Australian Jurist law journal.