Attorney-General Christian Porter

Notice of a Constitutional matter filed and served in the Christian Porter v ABC matter regarding the suppressed documents. It is not over yet

The Christian Porter v ABC defamation case is far from over with a hearing set down for the 9th of July after the judge refused to rubber-stamp Porter’s attempt to have material removed from the court file and suppressed on a permanent basis. I was also ordered by the court to file and serve all the Attorneys-General a s78B Notice of a Constitutional matter because I said that I would argue that any tampering with the court file and suppression orders would infringe on the implied freedom of political communication. A copy of the Notice of a Constitutional matter that I filed and served is below.

The High Court of Australia found an “implied freedom of political communication” existed under the Constitution in relation to political and government matters. One of the best-known judgments reinforcing the implied freedom is Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 which related to “The plaintiff, David Lange, who was the New Zealand Prime Minister, was the subject of a report on the Australian Broadcasting Corporation current affairs program Four Corners. He brought defamation proceedings in respect of that broadcast.” (Click here to read more)

I argue we have a right to have access to all the material in the court file because: “The material before the court in this matter is important for voters because it potentially has an impact on the suitability of Christian Porter for office as a member of the parliament and government.” And what happens in this case regarding the “implied freedom of political communication” argument could have implications for other defamation matters involving politicians currently before the courts such as federal MP Peter Dutton’s defamation case against Twitter user Shane Bazzi and NSW Deputy Premier John Barilaro suing YouTube comedian Friendlyjordies and Google for defamation.

Porter’s new barrister, Barry Dean, implied in court on Tuesday (1/6/21) that the matter could fail to settle if the court does not agree to Porter’s attempt to have material removed from the court file and suppressed on a permanent basis. This means there is still a chance the defamation case could go to a final hearing.

A hearing was set down for Tuesday (1/6/21) and Wednesday (2/6/21) to hear an application by Porter to have part of the ABC’s evidence struck out and suppression and non-publication orders put on the part struck out. But Porter and the ABC announced on Monday (31/5/21) that the matter has been withdrawn by Porter and court order details to withdraw the matter was agreed with the ABC.

But order 3 sought by Porter was not acceptable to Justice Jayne Jagot and her associate emailed us saying:

“Justice Jagot’s present view is that order 3 cannot be made merely by consent between the parties. Her Honour’s present view is that the intervening parties may still have a right to be heard about any order continuing, or having the effect of continuing, the suppression orders. Mr Dowling’s interlocutory application also remains unresolved.”

So a case management hearing still went ahead on Tuesday morning (1/6/21) and I also attended the hearing as I also have an application before the court to intervene and argue against the suppression orders. The matter will now be heard on the 9th of July to give parties time to prepare. I flew to Sydney for the hearing as I missed out on a video link hearing on Thursday the 27th of May because the connection failed and they could not hear me. And because people have been donating to help me drive the issue, and to pay for costs such as the $520 filing fee, I had enough to pay for the travel costs to make sure our voice was heard in the matter.

Below is the Notice of a Constitutional matter under section 78B of the Judiciary Act 1903 that I filed and served on the federal Attorney-General, 6 state Attorneys-General and 2 territory Attorneys-General.

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Is Kangaroo Court of Australia journalist, publisher and editor Shane Dowling a “news publisher” as per the Federal Court of Australia 1976 act?

Christian Porter’s barrister says he will argue that Kangaroo Court of Australia journalist, publisher and editor Shane Dowling (me) is not a “news publisher” so therefore I have no right to intervene in the matter to argue against the suppression orders.

I am not only using the constitutional argument against having material removed from the court file and suppressed but also using it to argue that the court has no right to stop me intervening, even if I were not a news publisher which I clearly am, as it would infringe on the implied freedom of political communication in political and government matters.

Section 37AH (2) of the Federal Court of Australia act says:

Each of the following persons is entitled to appear and be heard by the Court on an application for a suppression order or non‑publication order:

(a)  the applicant for the order;

(b)  a party to the proceeding concerned;

(c)  the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

(d)  a news publisher;

(e)  any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non‑publication order should be made.

A “news publisher” is defined in the Act at part 37AA Definitions as:

news publisher means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.

and publish is defined as:

publish means disseminate or provide access to the public or a section of the public by any means, including by:

(a)  publication in a book, newspaper, magazine or other written publication; or

(b)  broadcast by radio or television; or

(c)  public exhibition; or

(d)  broadcast or publication by means of the internet.

I qualify as a news publisher just on the basis that I have published 2 books and then add this website that has been publishing since 2011 and my Facebook page, Twitter and YouTube accounts and I am clearly a “news publisher”. It is interesting that the Act’s definition is very broad “news publisher means a person engaged in the business of publishing news” and it is clearly intended to cover very small publishers of news including independent journalists. 

Once again Porter is wasting the courts time and resources with frivolous arguments, such as I am not a news publisher, which runs counter to his claim he has limited funding.

The matter is set down for hearing on the 9th of July at 10.15am and I will be there, either in person or on video link, and it will be interesting to see if any of the Attorneys-General do decide to intervene as normally they don’t unless a matter gets to the High Court.

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28 replies »

  1. Thank you for what you are doing, your determination to out the truth. Not just in the Porter case, because you are a truth seeker and what feels like a small minority in these times. Good to meet like minded people and know that you are appreciated for the work you do!

  2. Of course you are a “News Reporter” Shane, otherwise how is it if I want to find out the truthful news I read your site? “Other” news sites, not even one, do not give me the full details and name names, and actually are more classified in my mind as propaganda sites that include a bit of news.
    I have tried a few times to link this news site on other sites to bring others here for truth and facts, but sadly my links never get posted. I wonder if they are scared of losing readers or embarrassed you provide more news coverage on newsworthy narratives than they do?

  3. I am curious as to how “news” is defined? Must it be reportage of public interest events defined… how? Can it include opinion articles? Seems to me this is a finely balanced question because these days there is so much proliferation of (often well intentioned) misinformation in all media (eg. antivax articles provided by dissenting – sometimes highly qualified – people, other times by people with religious or strongly held “preferred” perspectives).
    That is to say a lot of news may not be news at all, even though it comes to the public through erstwhile credible channels, (like the announced $2b in funding for bushfire relief that was later described to the Senate as “Notional Funding”). Does a news item need to be tested for truthfulness before the Courts before it becomes news? Is a sworn but untested affidavit newsworthy?Is propaganda for a political case, that leads out of carefully cherry-picked history, news? (That would turn over most of the senior years history curriculum) Seems to me you are heading into turbulent seas. Good luck. I wonder are his lordships up to their task?

  4. As always, professional journalism at its best. Thank you for the service you provide to the public, who WANT to know the truth !
    Your reports, which I share on fb to a large ‘political ‘ page get well over 100 interested “Likes’..
    Some of which I see are now coming to your page ..:)

  5. Are Porter’s legals taking the piss? How stupid do they think we are?

    KCA is a “news publisher” according to …. Porter himself!

    The whole basis of Porter having been “defamed” in the public square is that “news publishers” were able to identify him as the alleged rapist. Now, anyone can define news, and anyone can publish online these days so what defines a relevant “news publisher” in this case is a) that it covers the news of Porter as the alleged rapist and b) it has sufficient reach to cause reputational damage. Now we can debate b) by hits, longevity etc but in this case we don’t have to – Porter has helpfully done this for us already! — by nominating KCA as one of the “news publishers” instrumental in his supposed reputational damage (incidentally this satisfies the other condition “a party to the proceeding concerned”).

    FFS, you can’t have it both ways china, a “news publisher” before and during the trial but then immediately ceasing to be a “news publisher” the moment the case settles.

    What is truly disturbing from this “black is white” effrontery is the total control over the courts he seems to think he is entitled to – just as we saw in his corruption of the whole judicial process in the Bernard Collaery/Witness K farce: the arrogance, the entitlement, the lying, the condescension, the selfishness, the psychopathy, the brutality towards truth and transparency — all the qualities of a rapist really.

  6. Even if the Court rules that you are not a news publisher under section (D), wouldn`t you qualify under Section (E)?

  7. Do you think this was part of a long game on their part? Sue for defamation so the ABC need to bring out all their evidence for a truth defence, then offer to withdraw if the evidence is suppressed. Keeps it from being published in other stories and if it ever gets out they can just refuse to comment due to legal restrictions and go after the publisher who broke the suppression order. Combine that with a docile media who are happy to put out articles claiming the ABC (a major competitor of course) ‘lost’ to keep Coalition voters from thinking too much. They just didn’t expect a judge to stand up against their old (and could be future) boss. ​

    • In the event the material is suppressed, is there anything to stop alternative versions of that material from the individuals themselves being made available, if they should choose to do so?

  8. Thank you for illuminating the contents of a rancid, rat infested ship, overloaded with alternative truth, whose journey to a rightful death at the bottom of the harbour is surely beginning.

  9. Just joined your site and learned a bucket load already. Very exciting stuff. Good luck I will stay glued👍

  10. Stay the distance.

    At the end of the day this is the type of legal flimflamery that robs our nation of its integrity.

    Chicanery duplicity and treachery.

  11. If the Court rules you are a news publisher, you get to have your say and present your case. If the Court rules you are not a news publisher, and does not accept your additional argument under Section (E), then you will be able to point to still one further example of Court corruption. Seems like a win-win situation for you and KCA contributors. No matter what the outcome, you don’t lose.

  12. Best of luck to you. In a country where the truth is becoming dragged into an alley of darkness, you are the lamp shining brightly. Keep up the good work.

  13. I look forward to reading your emails. The supportive comments from those who follow you must be of some encouragement as I imagine it takes a degree of chutzpah to persist with your work. Who else does what you do for this country”s awareness of how things really are. Section D or E? it will be a most wonderful moment to read your reporting of success in this matter.

  14. The irony is that Trump’s enabler, Murdoch and his dangerous maniacal flow of soiled effluent sheets and TV spewing hate and lies are nothing but a Republican/Coalition megaphone masquerading as news publishing.

    While Shane Dowling’s courageous KCA is a genuine fearless news publishing source of truth and fact and fits the definition as per above article.

    Whereas the Coalition’s enabler, Murdoch and his cesspit of reeking lies and hate, was found by a UK parliamentary committee to be the work of a man “not fit” to lead an international media company.

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