There has been a flurry of politicians to our defamation courts in recent times. These delicate petals are concerned that their reputations have been sullied and, as noted by Shakespeare in Othello once their reputation has been lost ‘I ha’ lost the immortal part of myself, and what remains is bestial’. Perhaps Peter Dutton was ‘left with the bestial part’ when he ventured into the defamation courts to sue the pants off a citizen – but more of this later.
It has always been a point of contention in the arena of free speech that the only remedies for those who believe their reputations have been tarnished was either to challenge the offender to a duel or drag him before our courts of justice in an action for libel or slander, now collectively termed defamation. Do you remember how the Marquess of Queensberry in 1895 was somewhat peeved that his son Alfred was having an intimate affair with playwright and poet Oscar Wilde?
Queensberry left his card at Wilde’s club (as you do) with the scrawled message “For Oscar Wilde, posing as a somdomite” – not known for his spelling capabilities was the Marquess. Even so, this prompted Wilde to sue Queensberry in Libel however, things didn’t go too well and Wilde withdrew the action. Inevitably the case had revealed publicly that Wilde was an homosexual and that he had engaged in acts of ‘gross indecency’ which by the standards of the day were a crime : he was subsequently charged under the criminal law and after several trials with hung juries he was convicted and served two years in prison – his career was also brought to an end and he spent his final days in exile in France.
Politicians don’t generally seek to drag people through the courts with claims that they have been defamed and their otherwise impeccable characters and reputations tarnished. The reason for this is largely due to politicians not having impeccable characters and reputations but more specifically, having been granted ‘parliamentary privilege’ to say what they want in parliament without the risk of being sued, it has been considered as unseemly for them to mount actions against anybody who hurts their feelings beyond the parliament.
Which brings us to Peter Dutton who made it known in March that he would take a more aggressive stance against false and defamatory statements made about him online. ‘Spud’ as he is fondly known was as good as his word when he initiated a defamation action against refugee advocate Shane Bazzi. Dutton had told Sky News that female refugees held on Nauru were claiming they needed to come to Australia for an abortion following rape, but changed their minds when they arrived. “You could question whether people needed medical attention,” he said. Bazzi called Dutton a ‘rape apologist’ as well as a few other choice names notably beginning with an F and a C. In the preliminary hearing the appointed judge, justice Richard White, ordered the parties to attend mediation by 31 August and suggested the case could be settled without a trial.
What our politicians, including Porter and Dutton seem to overlook when they rush to the steps of the court is that judges – unlike lawyers – don’t really want to take up the time of the court with these defamation actions which in many cases (see Barilaro) are quite petty and even if the politician wins, their dubious reputations are rarely enhanced.
Mediation merely requires the parties sit down with a mediator, frequently appointed by the court, and discuss their differences and arrive at a compromise thus saving themselves and the courts a lot of time and money. The idea being that once an agreement between the parties has been struck and approved by the court, they go their separate ways and avoid the temptation of yelling to the media, “I won, you lost”. Not that this discouraged Christian Porter who, following mediation and having agreed to withdraw his action against the ABC, called it a “humiliating backdown” by the broadcaster, despite not having obtained an apology or the damages he had sought.
When mediation fails or is not adopted by the parties – as with the case involving Ben Roberts-Smith – the matter will go to court and the parties will go at each other in an adversarial fight to the death, not unlike the duels of days past. Whilst not a politician, Roberts-Smith has much to lose in defending his character against charges made by the Nine media network and relating to his army service in Afghanistan. A battle of the Titans of Australian media with Roberts-Smith is an executive with Seven media. His adversary, Nine media are adopting the defence of ‘truth’, a complete defence that they will be called upon to demonstrate as the case progresses. Should he fail, Roberts-Smith will be placed in much the same boat as Oscar Wilde, with the possibility of criminal charges to follow.
Mounting defamation actions is not for the faint hearted and much like entering a casino, you must be prepared to lose and to lose heavily if the cards don’t fall your way.
Shakespeare explains it well: “Who steals my purse steals trash; ’tis something, nothing; ’twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.”