The ABC will defend Christian Porter’s defamation claim by arguing the former attorney general was “reasonably suspected” of raping a 16-year-old girl when he was 17 in 1988, saying it did not assert he was in fact guilty of the crime.
A redacted copy of the public broadcaster’s defence was published on Friday after the federal court granted Porter’s request to suppress key details until it had a chance to decide if they were an abuse of court process.
The former attorney general is suing the public broadcaster, and journalist Louise Milligan, over an article alleging that an unnamed cabinet minister had been accused of a January 1988 rape in a dossier sent to Scott Morrison and three other parliamentarians.
After a storm of media attention, Porter identified himself in early March as the minister and strenuously denied the allegation.
In a trial set to take up to six weeks starting in September, the ABC has said truth will play a “significant” part in its defence, with at least 15 witnesses to be called.
But the framing of the defence means the defamation case will not definitively decide whether it is more likely than not Porter engaged in conduct which friends of the alleged victim, and political opponents, have said disqualifies him for office.
In defending Porter’s defamation claim, the public broadcaster will seek to argue that Australians were entitled to know of the allegations against the unnamed cabinet minister.
The ABC has denied that Porter was identified by the article.
The ABC noted that Porter had identified himself as the subject of the article, arguing this act should not be allowed to turn the article “about a class of ministers” into one concerning a particular minister for which the ABC was liable.
The court also published Porter’s explosive reply, in which he turned the blowtorch on the ABC, claiming the woman who accused him of sexual assault had rebuffed Milligan’s attempts to speak to her before her death, and that Milligan later told interview subjects the woman had “died because of this”. The ABC and Milligan categorically deny the content of the reply.
Porter’s lawyers criticised the ABC for sidestepping the question of whether or not the cabinet minister was in fact guilty of rape, suggesting it was inconsistent for the ABC to have lobbied for an inquiry, but then baulk at the opportunity to attempt to prove the most damaging imputation of the publication.
The ABC invoked defences including truth, the implied freedom of political communication and qualified privilege, a form of public interest that requires publication to be reasonable in the circumstances.
The ABC pleaded the defence of truth in relation only to imputations regarding whether Porter was “reasonably suspected” of rape, and not that he had in fact “brutally” and “anally” raped a 16-year-old and “contributed to her taking her own life”.
The ABC argued the article also suggested that Porter’s suitability as attorney general was in doubt and there were grounds for the prime minister, Scott Morrison, to order an independent investigation. These were “substantially true”, it said, supporting the further defence of “contextual truth”.
The ABC argued the implied freedom protects publication of facts required to discuss the suitability of ministers and is also relevant to damages, because there should not be any “substantial award of damages” for reporting allegations against politicians.
“When persons such as the applicant submit themselves for appointment to office … they accept that their character and reputation is always subject to robust examination and criticism by the body of electorate … as to their continuing fitness to hold such office,” it said.
Porter has sought aggravated damages, and argued that the ABC and Milligan maliciously published the accusation, omitting material that might cast doubt on the complainant’s claim and inappropriately lobbying for an independent inquiry.
His reply argued that Porter’s accuser did not consent to her written statement being reported by Milligan, and her parents had actively opposed it.
Porter charged that Milligan and the ABC should have known there was “insufficient evidence” for police to pursue Porter. Given that, there was “no public interest in publishing the article”, the reply said.
Porter accused the ABC of publishing the article “knowing and/or intending that it would cause Porter irreparable harm to his reputation, and likely cause him to have to step down as attorney general”.
The reply claims that Milligan made inappropriate remarks to sources including “a woman has died because of this” and “if men like you don’t speak out, violence against women will continue”.
An ABC spokesperson told Guardian Australia that it and Milligan “categorically deny the claims made in the reply”.
“The ABC supports Ms Milligan – and all our journalists – in doing important, independent and brave journalism on matters that Australians have a right to be informed about,” the spokesperson said.
“Ms Milligan’s journalism stands up to public scrutiny and will do so at trial.”