The auditor general has said he is unable to judge the appropriateness of the ABC’s decision to pay $200,000 for costs incurred by reporter Louise Milligan in a defamation dispute with Liberal MP Andrew Laming, because there was no policy or precedent for it.
In a letter, auditor general Grant Hehir revealed the ABC had decided to cover Milligan’s costs – including a $79,000 payment to Laming – because of fear it could be liable and link to the defamation case brought against it and Milligan by former minister Christian Porter.
Fallout over Porter’s now-settled federal court case continued in parliament on Monday, with Labor seeking to refer the former attorney general to the privileges committee over a declaration his legal fees were paid for by a trust with funds from unknown sources.
In May, Laming sent a concerns notice to Milligan for tweets in which she suggested he had taken a photo of a woman “under her skirt”, which Milligan deleted and clarified was “incorrect because the woman was wearing shorts”.
Laming was represented by Company Giles, which Hehir noted was “the same legal team” the ABC was using in Porter’s case. A settlement agreement was reached in May.
In August, Milligan agreed to pay Laming $79,000 plus costs for the tweets, prompting Liberal senator Eric Abetz to write to Hehir requesting an inquiry into the “appropriateness and legal foundation” for the ABC’s financial support for Milligan.
In a reply to Abetz, Hehir said the ABC decided to meet Milligan’s “legal costs and liability” in relation to Laming’s complaint after discussions between the managing director and general counsel between 22 and 25 May, detailing concerns the ABC could be “vicariously liable” for the reporter’s personal tweets and the risk of being joined to proceedings.
Those discussions included that some of the tweets Laming complained about made reference to the Porter case, that Laming and Porter had the same legal team, and “the identification of the risks to the ABC and the confluence of the two legal matters brought by separate applicants, which meant the ABC would benefit from engagement with the proceedings brought by Dr Laming, and have input into its resolution”, Hehir said.
Hehir said the ABC had acknowledged it was “under no express legal obligation to meet these costs” but it was a “business decision” to help resolve both the Laming and Porter disputes.
The ABC believed this would help manage both proceedings “in an optimal and timely manner, and minimise financial exposure”, he said.
“To the [Australian National Audit Office’s] knowledge there is no documented advice which was prepared to support the appropriateness of the decision to meet the costs of an employee.”
Hehir concluded that “in the absence of any ABC policy, precedent, or process in place for this payment” he was unable to judge its appropriateness against criteria including efficient, effective, economical and ethical use of resources.
Nevertheless he noted the events “identified weaknesses and potential areas of risk within the ABC’s framework and practices governing the use of social media”, which were addressed by an update to guidelines in August that “ABC staff are personally liable for activities on their own social media accounts”.
Porter sued the ABC and Milligan over an online article that alleged an unidentified cabinet minister had been accused of rape in January 1988 in a dossier sent to Scott Morrison and three other parliamentarians. Porter subsequently identified himself as the minister and strenuously denied the allegations.
On Monday, Labor moved to refer Porter to the privileges committee to investigate whether he is in contempt of the House of Representatives resolutions relating to disclosure of members’ interests because of his declaration that the Legal Services Trust had part-paid his legal fees arising from the case against the ABC.
Porter has always maintained that he has properly disclosed his interests in accordance with the requirements of the register and the ministerial standards, but resigned as a minister in September on the basis the issue had become an “unhelpful distraction” for the government.
The manager of opposition business, Tony Burke, told the house if Porter’s declaration was within the rules the register would be “completely worthless”.
“It would mean that any member can set up a trust, instruct the trustee to accept donations on a confidential basis only – then receive cash from any source then claim they couldn’t say where it came from because it was given on the basis of confidentiality,” he told the house.
Porter claimed in his declaration that because he was a “potential beneficiary” of the blind trust he had no access to information about the original source of the funds, later explaining he was unwilling to seek “to pressure the trust to break individuals’ confidentiality in order to remain in cabinet”.
Burke noted Porter had provided assurances that no prohibited donors had donated to the trust, which meant he had been able to discover some information about donors.
The speaker, Tony Smith, said he would consider Burke’s request to grant precedence to a motion to consider whether Porter had breached the rules and whether MPs receiving anonymous gifts constitutes a contempt.