Christian Porter’s lawyers have accused the ABC of failing to disclose that the parents of the woman who accused him of rape feared “she may have confected or embellished the allegations”.
In a letter to the ABC, published by the federal court on Thursday, Rebekah Giles explained Porter’s bid for aggravated damages, accusing the ABC and reporter Louise Milligan of omitting material that cast doubt on the complainant’s claim and inappropriately lobbying for an independent inquiry.
In February, the ABC published an article alleging a cabinet minister had been accused of rape in January 1988 in a dossier sent to Scott Morrison and three other parliamentarians.
After subsequently identifying himself as the minister, Porter strenuously denied the allegation. He brought a defamation case against both the ABC and Milligan, arguing it contained false and defamatory imputations including that he “brutally” and anally raped a 16-year-old girl in 1988 when he was 17.
The Giles letter setting out Porter’s case for aggravated damages notes the ABC story failed to disclose that the complainant’s statement was unsigned.
It revealed concerns the complainants parents had about the allegation, including that her call to police before her suicide in June 2020 “possibly represented [her] retracting her allegations”.
Details about the parents’ doubts are drawn from the letter attached to the complaint sent to Morrison, Labor’s Penny Wong and Greens senator Sarah Hanson-Young.
In the letter, seen by Guardian Australia, anonymous friends of the complainant say the context for her parents’ doubts were that she would be found an unreliable witness in any trial due to her history of mental illness.
The friends shared fears for her wellbeing but not doubts about the veracity of the complaint, it said. The letter said the complainant’s parents were “not supportive” of her pursuing the matter, and that she was “enormously stressed” by this lack of support.
Their relationship was described as “difficult and complex”, and the complainant had been “estranged from them at different times”.
In the Giles letter, Porter’s lawyers complain parts of the “private and confidential” dossier were publicised by the ABC and that the original article remains online, “continuously published after Mr Porter has been plainly identified”.
Porters lawyers claim hundreds or thousands of people were able to connect the story to Porter, citing as examples Malcolm Turnbull, journalist Peter Fitzsimons, Guardian Australia contributor Tory Shepherd and Anthony Albanese.
Wong had spoken to Porter’s accuser in 2019 but chosen not to make the complaint public, actions which “had the support of opposition leader and head of the Labor party Anthony Albanese”, Giles claimed.
Giles noted that the ABC’s Media Watch and the broadcaster’s political editor, Andrew Probyn, conceded that the minister’s identity was widely known before Porter identified himself. Giles asked the ABC to indicate if it sought to dispute that Porter had been identified.
In support of the aggravated damages claim, Giles said the ABC and Milligan had lobbied for an inquiry and called for Porter “to be stood down, which would have had the immediate effect of publicly naming him”.
Giles noted Milligan had retweeted a “despicable, unjustified and improper comment made by the former prime minister Malcolm Turnbull stating that there was a need for an inquest to question the complainant’s cause of death and suggesting that her death may not have been caused by suicide and had something to do with the cabinet minister the subject of the article”.
The ABC and Milligan knew there was “insufficient material to charge Mr Porter with the crimes alleged, thus with the knowledge that it was false to accuse him of being reasonably suspected of the offence or of their being reasonable ground to suspect him”, the letter said.
Giles also complained that the ABC had described the complainant as “the victim” and had claimed on 4 March she was under “extreme pressure to withdraw her police complaint when there was no basis to make that suggestion”.
Giles warned the ABC that Porter’s team had made copies of it and Milligan’s social media posts that she alleged had now been deleted and that may be relevant to damages.
The ABC told Guardian Australia: “The ABC and Ms Milligan understand their obligations to retain material relevant to the proceedings and are fulfilling these obligations.
“The suggestion that the ABC or Ms Milligan have deleted social media posts relevant to the defamation proceedings is strongly denied.”
A defamation expert, Prof David Rolph, has said that if Porter’s lawyers establish he was identified by the article, the case is likely to turn on whether the ABC can establish the defence of truth and qualified privilege, requiring that the publication be reasonable in the circumstances. The ABC and Milligan have until 4 May to file their defence.
In Monday’s cabinet reshuffle Porter was dumped as attorney general, minister for industrial relations and leader of the House of Representatives after the prime minister received advice about potential conflicts of interest due to the defamation case.
Porter is now the minister for science and technology, retaining his place in cabinet.