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Muzzling Mulligan

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Last week, the ACT’s Director of Public Prosecutions announced that there would be no retrial of Bruce Lehrmann, because it would pose a “significant and unacceptable risk to the life of the complainant”, Brittany Higgins.

It’s a classic example of the dilemma that confronts our courts in the trial of alleged sexual offenders. The accused is entitled to the presumption of innocence, until proved guilty beyond reasonable doubt. He or she is also entitled to decline to give evidence – the “right to silence”. However, to plant a reasonable doubt in the minds of a jury, defence counsel will inevitably attempt to discredit the evidence of the complainant, who is usually the only other witness to the alleged offence. The result is too often a gruelling cross-examination that can retraumatise already vulnerable people, whether or not they avail themselves of the right to remain anonymous.

That is the issue with which Louise Milligan grapples in her 2020 book, Witness. It was the issue about which she was invited to speak to the Women Lawyers Association of the ACT at their gala dinner on 21 October this year. It is a matter of obvious public interest. But Milligan has now found herself under attack, not only in The Australian and on Sky News, but in the Commonwealth parliament, for things she did not say and does not believe.

This is News Corporation’s version of “cancel culture”, argues Jonathan Holmes – a phenomenon it has so often condemned.

Free speech for some, but not for others

By Jonathan Holmes / 6 December 2022

“I disagree with what you say but will defend to the death your right to say it.” That famous epigram wasn’t actually uttered by Voltaire (and Voltaire wasn’t his real name, either). No matter, we know the nom de plume, and we all know the epigram in which a 20th century biographer summarised the 18th century philosopher’s thoughts on free speech.

And it’s in defence of free speech that the culture warriors of News Corporation have weighed in for the past few years against the insidious growth of “cancel culture”. Janet Albrechtsen, for example, that doughty warrior of words, has inveighed against it in a couple of celebrated columns in The Australian.

In July 2020 she lamented that “we have a marketplace of outrage that routinely dismantles a marketplace of ideas … While we might disagree on whether any particular episode is cancel culture or not, we can surely recognise a growing intolerance towards people expressing a diverse range of views.”[1]

In October 2021 she returned to the fray[2] in defence of Tanveer Ahmed, the psychiatrist and journalist who was sacked by the Sydney Morning Herald in 2012 when his serial plagiarism was exposed (by Media Watch, as it happens, when I was in the chair). Almost a decade later, Ahmed was “uninvited” before delivering an address to the annual scientific congress of the Royal Australasian College of Surgeons. 

The man who conveyed the bad news to Ahmed was a plastic surgeon called Mark Ashton. Albrechsten reported that Ashton “expressed concern [to The Australian] about social media, and what The Guardian or the ABC would make of Ahmed’s inclusion”.

“Perhaps Ashton and medical conveners of the conference might have considered what would happen,” Albrechtsen continued, “if The Australian exposed how the College succumbed to the irrational, unscientific noise of a small group of members who seem determined to misrepresent and then banish Ahmed.”

“Cancel culture is one of those really bad ideas,” Albrechtsen concluded. And I agree with her entirely.

The problem with Albrechtsen’s defence of free speech, however, is that it is selective. And, of course, she is not alone – she seldom is. News Corporation’s opinion-mongers hunt as a pack. And they are all for free speech, provided they don’t disagree with it.

On 2 November this year, Albrechtsen wrote an excoriating column about a speech that ABC reporter Louise Milligan had given 10 days earlier to the Women Lawyers Association of the ACT.[3] The article revealed that some members of that Association seemed determined to misrepresent and then banish (or at least, since it was too late for banishment, to ‘cancel’ post facto) Louise Milligan.

But that was not how Albrechtsen saw it. She hadn’t heard the speech, and Milligan did not supply a transcript. So Albrechtsen’s column consisted mainly of a string of complaints by criminal lawyers, who claimed that they were hurt and upset – and some were reduced to tears – “as they sat through an address they say shamed female barristers and lawyers who defend people accused of sexual crimes”.

“All of these women,” one complainant told Albrechtsen, “are clever, kind and fierce advocates who were brought down by an evening supposed to lift them up.”

The column did include a riposte from Milligan: the complaints relayed to Albrechtsen, said Milligan, “were a complete distortion of my speech and contain multiple allegations that are demonstrably untrue”.

But was there a word from Albrechtsen about the marketplace of ideas? About the value of people expressing a diverse range of views? About freedom of speech? No, there was not.

Instead, she roundly condemned both Milligan, and the majority of her audience, who loudly applauded the speech: “Lawyers at the gala dinner,” opined Albrechtsen, “should have found Milligan’s attacks on criminal lawyers repulsive, not a reason for applause.” 

A few days later, all too predictably, the coalition joined The Australian in attacking two of its favourite targets: the ABC, and Louise Milligan. On 8 November, Senator Sarah Henderson, who is now the opposition’s shadow communications minister, spent a large chunk of a Senate Communications Committee estimates hearing putting Albrechtsen’s allegations to the ABC’s boss David Anderson.[4]

Had Ms Milligan got the ABC’s permission to speak to the ACT Women Lawyers Association? 

Yes, she had.

Had Mr Anderson read the speech? 

No, he had not.

Had the ABC vetted Ms Milligan’s speech in advance?

No. She is free to say what she likes at a non-ABC function, so long as she doesn't bring the ABC into disrepute.

Did Anderson agree with what Ms Milligan said in her speech, reportedly, “including condemning lawyers or criminal lawyers who defend those people who are charged with crimes such as sexual assault?”

I haven’t read the speech, Senator. I won’t comment on newspaper reports.

The ACT Bar Association has written to the ACT Women Lawyers Association to complain that many of its members were upset, and that the speech was “insensitive and polemical”. What do you say to that?

I haven’t seen that letter, Senator, it wasn’t sent to the ABC. Since Louise Milligan made the speech, a senior ABC executive has read the speech and found there was “absolutely no problem” with it.

And so on. Ten minutes later, Senator Henderson was back again, complaining that Louise Milligan was defaming her. In fact, wisely or otherwise, @Milliganreports was complaining on Twitter that Senator Henderson was repeating false allegations about her and her speech in Parliament.

Henderson complained to Anderson, ludicrously, that Milligan’s tweets were not “impartial” and that therefore they contravened the ABC’s social media policy, or its editorial policies, or both.

It was ugly, and absurd. Nobody at that hearing had read the speech. It had had nothing to do with the ABC. The ABC had received no complaint from anyone.

The following day, Milligan posted a full transcript of her speech on Linked In.[5] To those of us who have read her recent book Witness[6] – and presumably that includes whoever invited her to speak at the ACT Women Lawyers Association gala dinner – the speech contains no surprises. Both book and speech are pleas that our adversarial justice system, in its search for a ‘reasonable doubt’, take greater care not to retraumatise already vulnerable witnesses – particularly when those witnesses claim to be the victims of sexual abuse or rape.

Milligan has given versions of the same speech dozens of times since her book was published. She has had standing ovations, but no previous complaints.

Which is not to deny that there may well have been lawyers in the room, both male and female, who felt upset. This was, after all, a gala dinner. Usually, professional associations invite speakers on such occasions who will make their listeners feel good. Milligan was asking them, prosecutors and defence teams alike, to pay more heed than some of them do to the harm that lengthy cross-examination can do to the often-fragile mental health of witnesses.

Not a comfortable topic for a gala dinner. But nevertheless, a topic which all of us, and criminal lawyers especially, should be thinking about, as the only Supreme Court judge in the room told Milligan immediately after her speech. Especially in the ACT, where the trial of Bruce Lehrmann was in full swing, and the main crown witness, Brittany Higgins, had been subjected to a gruelling cross-examination.

Not that Milligan referred to the Lehrmann trial, except to say, at the very beginning of her speech, that she would for obvious reasons not be talking about it. She added that she had covered no trials in the ACT and that her comments were not directed at ACT lawyers. And I should add that Chief Justice Lucy McCallum, who presided over the first trial, congratulated both prosecuting and defence counsel for the way in which they had conducted themselves.

What is baffling is that the text of the speech makes clear that most of the allegations that have been hurled at Milligan, and repeated in parliament by Senator Henderson, are baseless. And yet the pile-on has continued.

For example, the digital editor of Sky News, James Houghton (whose expertise in either criminal legal procedure or the psychological impact on sexual offence witnesses is not apparent) wrote this[7]:

“Milligan specifically took aim at female defence counsel who cross-examine complainants in a way Milligan deems unnecessarily offensive.”

No, she didn’t. All the barristers at whom she ‘took aim’, some of them named, some of them not, are men. Indeed, Milligan lamented that such a small proportion of Australia’s criminal barristers are women. 

She went on to say this: “I know that the forensic purpose [of cross-examination] can be achieved by a far more subtle method that is simply about finding inconsistencies, without resorting to intimidating or bullying a witness.

“I have read transcripts and I have seen cross-examinations where barristers have done this very well. It will shock you to learn, friends, that many of these were executed by women.”

To me, and surely to most readers, Milligan is saying that female defence barristers are less inclined to bully witnesses than are men. But Houghton quotes this very paragraph as proof that Milligan was “specifically” having a go at female barristers.

It is bizarre. Can Sky News’s digital editor actually read?

But it’s clear that some, at least, at the dinner itself misheard or misinterpreted Milligan’s speech almost as dramatically as the egregious Houghton.

I know this because shortly after Milligan published her speech, I acquired the full text of the letter of complaint from the ACT Bar Association to the ACT Women Lawyers Association which was quoted by Senator Henderson in her grilling of David Anderson [although it is not, so far as I know, publicly available].

To compare that letter to the text of Milligan’s speech is to experience a sensation like passing through Alice’s Looking Glass.

“She demonstrated no understanding of the difficult and vital work done by barristers of all genders … Milligan seemed to generalise that all barristers that acted for defendants in sexual assault matters were ‘part of the problem’.”

No, she didn’t. Just read the two pars I have quoted above. Milligan has a law degree, spent years as a court reporter, and in researching her book spoke to a large number of prosecutors, magistrates, judges, defence counsel, and of course, witnesses. Just because she is a journalist and not a practising lawyer does not mean she is dim-witted, or ignorant of the most basic fundamentals of our justice system.

“She seemed to encourage lawyers to run cases in the media.”

No, she didn’t. She urged lawyers not to fob journalists off with non-answers if they want them to write intelligently about matters they are trying to cover. That’s not “encouraging lawyers to run cases in the media”. It’s just good, practical advice about how to deal with the press.

“Most damaging, her speech was divisive of the community that had gathered to celebrate women in the law.”

Well, clearly, for the ACT Bar Association to write this unusual letter to the organisers of the event shows that the speech was divisive. But that was hardly Milligan’s fault. She didn't invite herself to the podium. And one can’t help noticing that the tender legal flowers who were so distressed by a straight-shooting speech utter not a word in their complaint about the vitally important topic that Milligan was on about: the far greater distress and trauma that our adversarial justice system too often inflicts on the complainants and witnesses in sex offence trials, without whose evidence prosecution of sex offences simply could not take place.

One is tempted to say to the ACT Bar Association: you know what? This is not about you.

It’s about people like Saxon Mullins, and Paris Street, and the unnamed witness in the George Pell trial, all of whom Milligan discusses at length in her book. And it’s about Brittany Higgins too, whom Milligan did not even name in her speech. And hundreds of others over the years.

But for The Australian and its lynch mob over at Sky News, it’s Milligan who is the target. The woman who (in their view) unjustifiably pursued George Pell. Never mind that a jury and the Victorian Appeal Court agreed with her that the un-named witness in the Pell case was telling the truth. The fact that the conviction was overturned by the High Court means (in their view) that Milligan’s journalism is worthless too. The woman who (in their view) drove Christian Porter from office. The woman whose defamatory tweets about Andrew Laming cost the taxpayer an estimated $200,000.

Milligan has been in The Australian’s sights for years. Anyone who complains to the paper about anything she says or does is sure of a willing megaphone.

We have seen these pile-ons by The Australian often enough before. Usually, they are directed at prominent people (more often than not, prominent women) who challenge either the newspaper, or one of its sacred cows. Human Rights Commissioner Gillian Trigg; journalism academic (and skilled reporter) Margaret Simons; ANZAC Day tweeter Yassmin Abdel-Magied; social media expert Julie Posetti; the list goes on.

The Australian will no doubt argue that there is nothing wrong with Albrechtsen’s column. She clearly had genuine sources, even though their allegations would later prove exaggerated or baseless; she tried to get a copy of the speech; she put most of the allegations to Milligan and published a summary of her responses. Her editors will argue that Albrechtsen followed the rules.

But it’s clear that the people who were upset by Milligan’s speech were a small minority of those who heard it. Indeed, one of their bitterest complaints was that the speech was greeted with rapturous applause by their fellow lawyers.

In amplifying a dispute within the ACT’s legal fraternity into a public attack on Louise Milligan, Albrechtsen is doing precisely what she deplored in the case of Tanveer Ahmed. She is aiding and abetting an attempt to silence someone with legitimate, well-researched views on a matter of crucial public interest. 

In other words, she is participating in the cancel culture. And, to quote her own pithy phrase, that is a really bad idea.  

Jonathan Holmes is a former presenter of the ABC’s Media Watch, and the chair of ABC Alumni. This article is his personal view.


FOOTNOTES:

[1] ‘How to cancel “cancel culture”’ The Australian 6 Dec 2020 [paywalled]

[2] ‘The problem with cancel culture: too much cachet’ The Australian 30 October 2021 [paywalled]

[3] ‘Journalist’s speech to women lawyers ends in tears’ The Australian 2 November 2022 [paywalled]

[4] Environment and Communications Legislation Committee Estimates hearing 8 November 2022 
[relevant exchange begins about 2/5ths of the way into the hearing]

[5] Louise Milligan’s Post Linked in, 9 November 2022

[6] ‘Witness: An Investigation into the brutal cost of seeking justice’ by Louise Milligan, Hachette Australia October 2020

[7] ABC journalist Louise Milligan releases full speech which references Bruce Lehrmann trial and blames criminal prosecutors for victim suicides  SkyNews.com.au, 10 November 2022


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