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How to Chill Free Speech: Defamation Down Under

The free speech argument in Australia has always been skewed. Lacking the confidence, courage and maturity to have a bill of rights that might protect it, Australia’s body politic has stammered its way to the frailest of protections. The Australian High Court has done its small bit to read an implied right into one of the world’s dreariest constitutions, though the judges have been at pains to point out that it can never be personally exercised. The wordy “implied right to protect freedom of communication on political subjects” can only ever act as a restraint on excessive legislative or executive actions.

The International Covenant on Civil and Political Rights, to which Australia is a signatory, enumerates a right to hold opinions without interference and the right to freedom of expression (Article 19). As uplifting as this is, the article also permits restrictions upon that right for reasons of protecting the rights or reputations of others, national security, public order, public health or morals. With such exceptions, authorities have vast latitude to clip, curtail and restrain. But even then, Australia expressly implemented the machinery that would enable anyone in the country to enforce it.

The great stifling brake on free expression in the country comes in the form of draconian defamation laws that can be used by the powerful, the petty and the privileged. The political classes, for one, regularly resort to that mechanism to silence critics, claiming that their tattered reputations would somehow be impugned by a comedy sketch, an angry social media post, or a hurtful remark.

One particularly nasty example of this has come from current Defence Minister Peter Dutton, described by the late Bob Ellis as a “simian sadist”, a pious detainer of refugees. Since then, we can also add war enthusiast, given his regular remarks about a willingness to send Australians over to die on that piece of land formerly known as Formosa.

Despite being in a government proclaiming the importance of free speech, Dutton has, like other politicians, availed himself of the tools that undermine it. That tool – namely, the defamation action – was used recently, with partial and regrettable success, against refugee advocate Shane Bazzi. It is worth reflecting that the action took place over a six-word tweet posted on February 25 this year. The tweet was flavour-fuelled with accusation: “Peter Dutton is a rape apologist.”

It had been typed – as things often are – in the heat of anger: some hours after Dutton had told a press conference that he had not been furnished with the “she said, he said” details of a rape allegation made by Britney Higgins, a former Coalition staffer who has spurred a movement to redress Parliament’s sexual violence problem.

That comment, while seemingly rash, had rich context in terms of opinion, taking issue with Dutton’s characterisation of refugee women detained on Nauru as being the sort who were “trying it on” to ensure entry to the Australian mainland. Those were Dutton’s own words, noted in a 2019 Guardian Australia article mentioned in the tweet.

This legal action was merely one measure of the Morrison government’s general enthusiasm for trying to regulate the Internet and, more specifically, the effusive, often mad hat chatter on social media. Prime Minister Scott Morrison, no less, has called it “a coward’s place” filled with anonymous abusers and vilifiers, and has been on a crusade to make publishers of defamatory comments, and the platforms hosting them, liable.

Dutton had also promised in March with menace that he would start to “pick out some” individuals who were “trending on Twitter or have the anonymity of different Twitter accounts” posting “all these statements and tweets that are frankly defamatory.”

His government is also drafting laws which will require social media companies to gather the details of all users and permit courts to force companies to divulge their identities to aid defamation cases. These regulations stink of advantaging the powerful and political whose tendency to be offended is easy to provoke. They also point to an obvious purpose: reining in criticism, however sound, of the government.

In instigating proceedings against Bazzi, Dutton claimed in the trial that he was “deeply offended” by the contents of the tweet. He claimed to be a paragon of veracity and accuracy severely misunderstood. “As a minister for immigration or home affairs … people make comments that are false or untrue, offensive, profane, but that’s part of the rough and tumble.”

Bazzi, however, had crossed the line; his comments were made by a person verified by Twitter. “It was somebody that held himself out as an authority or a journalist.” His remarks “went beyond” the acceptably rough and tumbling nature of politics. “And it went against who I am, my beliefs … I thought it was hurtful.”

In court, Dutton outlined a series of measures he had taken as a minister to deal with allegations of abuse. He created the Australian Centre to Counter Child Exploitation. He dispatched Australian Federal Police officers to Nauru to investigate sexual assault allegations. It never once occurred to him that these initiatives took place on a problem of his own government’s making. If you set up concentration camps on Pacific islands to allow asylum seekers and refugees to sunder, subsidizing client states to so, denigration and depravity follow.

Bazzi, through his lawyer, Richard Potter SC, claimed that the defences of honest opinion or fair comment applied. According to Potter, the honest opinion defence was “a fundamental protection in our society”, “a bulwark of freedom of speech”. In Australia, such assertions would be going too far, given how difficult they are to apply.

The law firm representing Bazzi, O’Brien Criminal and Civil Solicitors, also made the understandable claim in April that the whole proceedings should worry us all. “For a politician to use defamation law to stifle expression of a public opinion is a cause for real concern.”

In the public domain, individuals who had known a thing or two about the spiritual and physical torment of rape expressed their puzzlement over Dutton’s response. Higgins, who is seeking redress for her own suffering in this matter, found the minister’s legal response to Bazzi “baffling”. “I’ve been offended plenty.” Despite that, it still afforded “people … the right to engage in public debate and assert their opinion.” The whole case was a “shocking indictment on free speech.”

From the outset, the Federal Court seemed, as much of Australia’s legal system is, inclined to the complainant. The Anglo-Australian culture puts much stock in the artificial contrivance of reputation, which is often a social illusion that says little about the conduct of the defamed individual. Reputations are often false veneers fiercely protected.

And so it came as no surprise that Justice Richard White was critical of the legal firm defending Barazzi. The justice asked those representing the firm whether they were appearing as solicitors with obligations to be objective and independent, or as “supporters and barrackers” of their client. He preferred the parties to seek a settlement. “It does seem to me that this should be a matter of capable resolution. There are risks on both sides.”

In finding for Dutton in November, Justice White ruled that the tweet had been defamatory, and that Bazzi could not resort to the defence of honest opinion. With classic, skewering casuistry, the judge found that “Bazzi may have used the word ‘apologist’ without an understanding of the meaning he was, in fact conveying.” If this had been the case, “it would follow that he did not hold the opinion actually conveyed by the words.” Let it be known: if you do no not understand the meaning of certain words, you can have no opinions about them.

Despite his eagerness to seek damages for all grounds, Dutton was only successful on one of the four pleaded imputations. Claims for aggravated damages and an injunction targeting Bazzi’s comments, were rejected. The Defence Minister’s appetite for pursuing Bazzi for his full legal bill also troubled Justice White, who had repeatedly urged the parties to reach a settlement. Why had Dutton not sued in a lower court, he asked? The reason, claimed Dutton’s barrister Hamish Clift this month, was because his client was a prominent figure requiring a prominent stage to protect his prominent reputation. “It would not be appropriate for the court,” retorted White, “to exercise their discretion more favourably to Dutton simply because of the important public and national office of which he holds.”

In stating that all were equal before the law irrespective of their position, White made a sound point that those schooled in aspirational justice would appreciate but hardly believe. When it comes to Australia’s defamation laws, such a statement is a matter of form and formality, not substance and reality.

 

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12 comments

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  1. leefe

    Is the absence of comments on this a reflection of how fearful we have become of speaking out due to this very problem?

    This is one of the few remaining media sites where one can still freely express an opinion about the misgovernment. Even The Grauniad’s political cartoons are closed to comments these days, and this is why.

    The only free speech the L/NP and Mudrake are interested in is their own. Dissent will not be tolerated.

  2. Harry Lime

    The five star cretin.Benito Dutton, is an apologist for a human being.And he fails at that.

  3. Andrew J. Smith

    Another imported or transnational tactic, from Open Democracy UK (14 July ’20):

    ‘the use of Strategic Lawsuits Against Public Participation – sometimes known as SLAPPs – to threaten and silence critical reporting. These can take many forms, abusing laws such as defamation, privacy or media regulation to restrict critical coverage.

    Greenpeace International and the University of Amsterdam define a SLAPP as “a lawsuit brought by a private individual (including those brought by public officials acting in a private capacity) with the intention of shutting down acts of public participation”, which can encompass a range of activities, from peaceful protest to writing blogs.’

    https://www.opendemocracy.net/en/rich-and-powerful-are-trying-silence-journalists-across-europe/

  4. Jon Chesterson

    DIGGER DREDGER FOUL MOUTHED DUTTON – Dutton is the one who defames others with his hot shot verbal mouth, political abuse, lies and corruption, capping it by using his political status to sue members of the public for calling him out. It is shameful and a gross travesty of democracy and justice he is even in Parliament far be the Minister for Defence.

    As for his reputation, that swings before him like his sceptre and malice, sword and dagger, and we all hope here in Australia he will eventually fall on it. The sooner the better.

    I fear he intends to destroy us all by invoking the wrath of China.

    Julian Assange, who our LNP government has abandoned, as it has so many Australian citizens, the vast majority in fact, is the one we should be nominating and voting for. Instead like the British we give him up, the bullies and sycophants these bastards are, to the USA for vengeance sentencing, not justice – all part of the same malicious climate and game plan.

    Where are the genuine champions of free and responsible speech, truth and justice! Increasingly behind bars like Russia, North Korea and Myanmar – the same path Dutton is digging and dredging for.

  5. Wayne Turner

    I can’t see how the likes of Dutton can ever be defamed by others. He defames himself whenever he talks,and by his actions.

    A disgraceful,and sadly predictable decision by the courts. A play thing for the well off and powerful,who can’t handle criticism.Even worse,when he has all the platforms in the world to defend himself,from parliament,to every MSM outlet.

    Every politician,that tries this on,should be forced out of politics – Smug time wasters.

  6. Terence Mills

    Under the Westminster system of government politicians are given the right to absolute free speech on the floor of parliament with an immunity from being sued for defamation. This allows for our political representatives to speak freely on our behalf in all matters.

    Having been granted this privilege it has been accepted as a convention, an unwritten but generally accepted agreement, that our politicians will not initiate defamation claims against us (we who have no such immunity from prosecution).

    The Liberal Party seem to have waived this convention with Dutton, Porter and others quite prepared to sue if they feel they have been defamed.

    Perhaps we the people should remove the immunity we have given these people. After all in a democracy we are in charge !

  7. Michael Taylor

    Terry, it’s just me, but I think that a politician will have difficulty suing Joe Blow for defamation because they’d have to prove detriment in some way. Has Joe Blow’s comment resulted in the politician losing his or her job? Has it resulted in a demotion and a drop in income? Will it be an obstacle for the politician gaining employment after he or she leaves Parliament?

    Irrelevant to whatever I think, it’s obviously up to the court to decide.

  8. Terence Mills

    Hi Michael

    Well, Joe Hockey had a go and won and Spudley sued and won his defamation claim against the refugee activist Shane Bazzi over a tweet labelling him a “rape apologist”.

    Bazzi’s tweet, since deleted, said “Peter Dutton is a rape apologist”. It included a link to a 2019 Guardian Australia article reporting comments by Dutton that some female refugees on Nauru were “trying it on” by making claims they had been raped, and needed to travel to Australia from offshore detention to receive abortions.

    Dutton evidently considered that his good character had been impugned and that people would think less of him : a flimsy argument at best !

    Dutton was awarded damages of $35,000 which is a paltry amount and wouldn’t cover his legal costs – I don’t know what order has been made on costs.

    This is the court transcript should anybody be seeking a cure for insomnia :

    https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/1474.html?context=1;query=dutton%20v%20bazzi;mask_path=au/cases/cth/FCA

  9. Florence Howarth

    Dutton was ordered to pay 50% of Bazzi’s expenses. On the grounds, he could have taken the complaint to a lower court where costs would be lower. Far from a win for Dutton, one could say.

  10. Michael Taylor

    Hi Terry,

    The costs to sue for defamation can certainly be prohibitive.

    In Dutton’s case I’m undecided if he’s a snowflake or a bully. Maybe a bit of both.

    But I do agree that the offending tweet and claim were inappropriate, and should be a warning to others.

  11. Terence Mills

    Michael and Florence

    What would have been interesting would have been if the women who were raped, and were seeking access to a safe termination in Australia ( it is unlawful on Nauru) had sued Dutton for defaming them.

    After all it was he who said that women were using rape and abortion claims as ploy to get to Australia…Home Affairs minister says ‘some people are trying it on’ in an attempt to get to Australia from refugee centres on Nauru.

    They would surely have won but, of course, they were in detention on Nauru and had no access to the Australian justice system – in fact, that’s precisely why they were placed on Nauru (and Manus) to take them beyond the reach of the Australian judicial system.

    The law can be such an ass !

  12. Michael Taylor

    Terry, I remember that nasty little trick from that nasty little man, John Howard excising the islands so that refugees were out of reach of legal aid.

    But not out of reach, sadly, of our government’s cruelty.

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