Muzzling Milligan: free speech for some, but not for others

Dec 13, 2022
Louise Milligan

The latest attacks on ABC journalist Louise Milligan show that ‘cancel culture’ is alive and well at The Australian and Sky News, aided and abetted by the federal opposition’s shadow communications minister.

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 – how can defence counsel, whose professional duty is to raise a reasonable doubt in the jury’s mind about the evidence of the complainant, avoid retraumatising often vulnerable people in the course of gruelling cross-examination?

That is the issue with which Louise Milligan grapples in her 2020 book, Witness, written long before the Lehrmann trial. 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” – a phenomenon it has so often condemned.

Its army of culture warriors see themselves as defenders of free speech – especially against the Twitter guerrillas and student censors who ‘cancel’ people of whose views they disapprove. For The Australian’s Janet Albrechtsen it has been a favourite topic.

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.”

In October 2021, she returned to the fray 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 conference conveners, wrote Albrechtsen, “expressed concern [to The Australian] about social media, and what The Guardian or the ABC would make of Ahmed’s inclusion”.

“Perhaps [they] 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 2nd November this year, Albrechtsen wrote an excoriating column about a speech that ABC reporter Louise Milligan had given ten days earlier to the Women Lawyers Association of the ACT. 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. Nevertheless, Albrechtsen relied on her sources, a small group of criminal lawyers, who fed her a series of allegations about it. They were dutifully reproduced in her column.

She 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 had 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. Neither she, nor Anderson, had read the speech. It was not an ABC event. But the senator went on, and on. It was ugly, and absurd.

The next day, Milligan posted a full transcript of her speech on Linked In. To those of us who have read her recent book Witness – and presumably that includes whoever invited her to speak at the ACT Women Lawyers Association gala dinner – the speech contains no surprises. It was certainly impassioned, and powerful.

But the text of the speech makes clear that most of the allegations in Albrechtsen’s column, repeated and amplified in parliament by Senator Henderson, are baseless.

Milligan did not say that all female complainants in sex offences should be believed.

She did not betray ignorance of the fact that accused are innocent until proven guilty.

She did not mention the Lehrmann trial, still going on at the time, except to say (without naming the accused or the complainant) that she would not mention it, “for obvious reasons”.

She did not condemn all barristers who take on the defence of people accused of sex offences. And she certainly did not, as Sky News reported, “specifically take aim at female defence counsel”.

On the contrary, she said 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.”

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.

It’s clear, nevertheless, that the speech did upset some of her audience, especially the criminal barristers. In fact, the ACT Bar Association has written to the ACT Womens Lawyers Association to protest that the speech was “insensitive and polemical”, and that it was “divisive of the community that had gathered to celebrate women in the law”.

Well, if the speech was inappropriate for a gala dinner celebration, that is 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, and hundreds of others over the years.

But for The Australian and its lynch mob at Sky News, it’s Milligan who is the target. Indeed, she’s been the target of hundreds of articles in the past six years or so.

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.

It seems to me, however, that in amplifying misrepresentations of Milligan’s speech by a small minority of those who actually heard it, Albrechtsen is doing precisely what she deplored in the case of Tanveer Ahmed. She is aiding and abetting an attempt to silence, or at least to shame, someone with legitimate, well-researched views on a matter of 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.


This article is a personal view, and is an abridged version of a story published this week by ABC Alumni.

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