The ABC has argued that it did not identify Bruce Lehrmann when it broadcast Brittany Higgins’ and Grace Tame’s National Press Club address and, even if it had, it could not have been defamatory
The ABC says in court documents that if it was “notorious throughout Australia” that Lehrmann was Higgins’ alleged rapist – as Lehrmann’s lawyers have claimed – then its broadcast of the address would not have caused or been likely to cause serious harm to Lehrmann’s reputation.
Viewers would already have known about the allegation, that “it was not a proven fact that Lehrmann had raped Ms Higgins on a couch in parliament”, and that Lehrmann was entitled to the presumption of innocence, its defence said.
It will also argue that the address was in the public domain and in the public interest.
Lehrmann, a Liberal staffer at the time, was accused of raping Higgins, a colleague, in March 2019. He was charged in August 2021. He pleaded not guilty to one count of sexual intercourse without consent and has consistently maintained his innocence.
Lehrmann was not named in the NPC address, which reached about 560,000 views through ABC 24, the main ABC channel, and the ABC’s YouTube channel.
Higgins discussed her allegations and she and Tame discussed sexual assault more broadly during the program on 8 February 2022. Lehrmann’s trial began months later, in October, but was aborted after juror misconduct. An inquiry into the conduct of police and the prosecution during the trial is ongoing.
In his statement of claim, Lehrmann’s lawyers argued he was “identified and identifiable”, that the broadcast invited viewers to speculate about his identity, and that he had already been identified in the media, as well as by people who worked at Parliament House and people he knew.
“[It] was notorious throughout Australia that [Lehrmann] was the person accused of, and charged with, the sexual assault of Ms Higgins,” his statement of claim said.
The ABC has used that phrase to defend itself. It said Lehrmann was not named in the broadcast and it was not defamatory.
“If as asserted in [the statement of claim], it was notorious throughout Australia that Lehrmann was the person accused of, and charged with, the sexual assault of Ms Higgins, then … the matters complained of would not have caused, and were not likely to cause, serious harm to Lehrmann’s reputation,” the ABC said.
Anyone watching would know that Lehrmann was yet to face trial or knew he had not been convicted, so “accordingly it was not a proven fact that Lehrmann had raped Ms Higgins on a couch in Parliament House and that Lehrmann was entitled to the presumption of innocence”.
Viewers would also already have formed a view about Lehrmann’s reputation that the program would not have changed, the ABC said.
Lehrmann’s statement said aggravating factors in the case included “an apparent contemptuous attempt to prejudice the jury” in the upcoming trial, and that the ABC kept footage up even after the criminal proceedings were dropped. A concerns notice was served, the statement said, but there was a failure to apologise. The show went live so there was no chance to redact anything, and the ABC was “recklessly indifferent to the truth or falsity” of the allegation.
The ABC said the “concerns notice” Lehrmann’s lawyers issued to the ABC was not an actual concerns notice “in that it did not or did not adequately inform the ABC of the harm that Lehrmann considered to be serious harm to his reputation”.
A concerns notice is a prerequisite to a defamation action, and gives the accused party a chance to make amends.
The ABC sought more information, but said a second letter still did not comprise a concerns notice, so the defamation proceedings should be dismissed.
The ABC also said it broadcast the address “merely in the capacity of a subordinate distributor”, that it did not control the NPC or know in advance what would be said.
“The matters complained of were a fair report of proceedings of public concern,” it said, adding it was a “public meeting” and a matter of “public interest”.
Lehrmann has launched a separate defamation action against Network Ten and News Corp.
