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 But Porter and the ABC announced on Monday (31/5/21) that the matter has been withdrawn by Porter and court order details to withdraw the matter was agreed with the ABC.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.
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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