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The Hypocrisy of the Liberal Litigator

Guest blogger Ben Clark examines the actions of a government that claims to support the right to free speech while attempting to muzzle the press.

Last month, Joe Hockey took to the witness stand defending his reputation from allegations made by Fairfax Media.

In 2011, Aboriginal activist Pat Eatock also stood in court defending her reputation from allegations made by News Corp columnist Andrew Bolt.

One had parliamentary privilege to defend themselves, the other didn’t. One had the parliamentary press gallery itching on their every word, the other didn’t.

Both stand in the way of a purist conception of free speech. But only one attracted the derision of the conservative commentariat.

Eatock and eight other fair-skinned Aboriginals smeared by Bolt’s column “It’s hip to be black” took the provocative commentator to court and won under provision 18C of the Racial Discrimination Act. And, if one read only News Corp publications, it would appear the sky consequently imploded.

The expansive state and its judiciary accomplice were conspiring to infringe the citizen’s “right to be a bigot,” as Attorney-General George Brandis put it. Boiled down to less hyperbolic terms, the court found that Bolt had racially discriminated against Eatock and the other litigants, not because what he said was offensive (which it was, but could be defended on the basis of fair comment) but because he had played fast and loose with his facts.

The state, therefore, was limiting the ability of the press to publish false information if it could give rise to racial discrimination.

Conversely, Hockey’s case seeks to limit the ability of the press to draw inference from undisputed facts, and to legally punish poor choices of words.

The fact that Hockey had a relationship with the North Sydney Forum, as the Fairfax articles claimed, is not in dispute. Fairfax did make a factual error about Hockey repaying money to Australian Water Holdings (which he didn’t do), however Fairfax published an apology for this and it would hardly sustain a law suit on its own.

What is being disputed is how Fairfax portrayed the facts of his relationship with NSF, particularly whether the headline “Treasurer for sale” implied corruption.

Surely those three words, no matter if they were poorly chosen, do not require a court action to discredit. Surely if journalists have the “right to be bigots” then they also have the right to print bad headlines, the right to generalize, the right to be somewhat sensationalist…

But Liberal politicians, News Corp columnists and the IPA have been unwilling to defend these rights. If the libertarians don’t defend one’s ability to make mistakes which cause little to no serious damage then are they really libertarians? Or are they just racist Andrew Bolt fans looking for intellectual justification?

Abbott has derided 18C as a “hurt feelings test.” But, of course, now that his colleague has taken his hurt feelings to court, he is markedly silent.

Perhaps some people’s feelings are worth more than others. More likely, Abbott is constrained politically from voicing his true opinion, as a former journalist, that a rich bloke with parliamentary privilege should not be whinging and seeking a pay-out over a few poorly chosen words, when he should be preparing the 2015 budget.

As for 18C, some outside of the conservative wolf-pack have voiced their concerns, such as former Media Watch host Jonathon Holmes. Some believe that the legislation, as it reads, too severely limits the ability of journalists to fairly comment on issues regarding race. This may be true. However, one can avoid the provision by proving they acted “in good faith,” which the Bolt case suggests means getting your facts straight. Presuming the court doesn’t expand its interpretation, is it such a bad thing to force pundits like Bolt to at least be truthful if they want to comment on racial issues?

If Hockey’s case were to succeed, the precedent set would be have a far more chilling effect on what the press can and can’t say. As Richard Ackland put it in The Guardian, “If a painstakingly researched article on a matter of clear public interest and importance can attract damages of the quantum sought by Hockey, then journalists may as well pack-up and go home.”

Defamation suits should be used by those without the power to counter a false allegation in the public arena. Hockey has this power in spades. Where Eatock’s case will go down in history as a victory for Indigenous Australians, Hockey will be lucky to regain an inch of his credibility from his current law suit – he lost most of that after his dismal 2014 budget. He may have the right to be a bigot, but Hockey has the responsibility to stop wasting our time.

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  1. Kerri

    And will the court case Hockey is involved in serve as this budget’s excuse for poor explaination??

  2. Pingback: The Hypocrisy of the Liberal Litigator – » The Australian Independent Media Network | winstonclose

  3. Lyle Upson.

    don’t be silly, you really want the Hockey to be spending his time and focus on the next failed budget

  4. Roz

    If the court was to find in Hockey’s favour, I so hope it gives him $1.00, that would send a message, wouldn’t it not?

  5. jimhaz

    [If the court was to find in Hockey’s favour, I so hope it gives him $1.00]

    That what I’d want if the SMH is legally liable. Politicians actually do not get bad names because of articles like the SMH one, they get it from the totality of their actions. It is not at all like the slander of a normal person. There is no future loss of income, if anything business would want to employ someone like Hockey – it is what they do all the time as there are virtually no big business ethics left.

    Thankfully though the SMH will now attack him at every opportunity.

    Here are some past politicians who sued.

    Joh Bjelke-Petersen: sued the ABC over allegations of corruption and rorts in his government. Sued Channel Nine and collected a $400,000 settlement from the station’s then owner Alan Bond which the dodgy entrepreneur said was to help him do business in Queensland. He also sued then opposition leader Tom Burns on numerous occasions and always used Ebsworths for his various other defo writs, totalling more than 20.

    Neal Blewett: the former colourful Labor Health Minister owned a bong in the shape of a phallus, and successfully sued when a magazine said he was gay. Years later he came out and now lives with his gay lover in the Blue Mountains.

    Sir Robert Askin: the NSW Premier for a decade from 1965. Widely rumoured he collected bribe money from corrupt police and organised crime. Cowed media outlets with threats of defamation. When Askin died in 1981, The National Times ran a front-page story: “Askin: friend to organised crime.” In Australia you can’t defame the dead.

    Jim Cairns: he was Gough Whitlam’s disastrous Treasurer and his secretary Junie Morosi sued The National Times over an article alleging they were each involved in an improper sexual relationship. They split up in the late 1980s, Cairns went on to sell his self-published books at the Camberwell market, before finally admitting the affair. He died in 2003, eight days after his 89th birthday, althought he never ever paid the money back.

    Bob Hawke: has sued most outlets over the years and reputedly received truckloads in payouts which built various pools, tennis courts and new wings in his homes. Even as Prime Minister he is said to be scored more than $3 million in settlements.

  6. lindsayms

    is it such a bad thing to force pundits like Bolt to at least be truthful if they want to comment on racial issues?

    Could we alter that sentence
    is it such a bad thing to force pundits like Bolt to at least be truthful?

  7. Bronte ALLAN

    How dare any one from the Liberals or the Murdoch press say that this one “headline” about Joe Wobbly is “bad” or in any way derogatory against him? In the past three years or so, both the Melbourne Herald & the Sydney Daily Telegraph have printed literally reams of factually incorrect, untruths, falsehooods, derogatory, usually very large font (in black) “headlines” about the Labor party, both federally & in Victoria & now in NSW! ALL of these inaccuracies have depicted the Labor party & certain members of it, in a very poor, sensationalist, derogatory way, but nothing has been said about any of the very obvious bias towards them! Methinks the whole Liberal/Murdoch mob doth protest too much! Ignorant bastards!

  8. Phi

    Well said Ben Clark.

  9. stephentardrew

    Mr sooky boy “I can’t play in the school yard unless I make the rules”.

    The tough guy with a thin brittle veneer spread across an incomparably fatuous ego.

    The silent sound of one cigar puffin and a thin hide of nebulous unimaginative nuffin.

  10. eli nes

    James Hird got it wrong with the Essendon slogan for football. The politicians got it right with ‘whatever you can take’ for themselves.
    The headline was nothing compared to the murdoch and fairfax tirade against gillard(did anyone else wonder why she didn’t seek redress in the courts??) but it clearly was inappropriate and deserving of damages. A jury may have taken the cigar sucking hockey’s ‘the poor don’t have cars’ reputation into account and awarded $10 for damage to reputation and no costs. But I am dreaming, judges value the words ‘reputation’, ‘imputation’, ‘remuneration’ and recognise the power of insurance????

  11. Owen

    Newscorps headlines from the recent Rally in Melbourne was far more offensive than SMH headline on Hockey….Perhaps one should compare his claims of ” $275 a night for staying at his family owned home in Canberra ($1925) for a week with Tony Abbotts offering for his daughters accommodation @ Kirribilly…quoted as over….$250. a week for prime Sydney real estate…thought it would be just under the nightly figure not weekly???? Not sure why Hockey deserves so much while Abbott pays so little…age of entitlement for the rich???

  12. benclark56

    Thanks heaps for the comments on my article everyone, good to see some thorough criticism of the defamation culture among our political elite. Particularly interesting history of political defamation from Jimhaz, there were a few cases in the there I had never heard of. Unfortunately, Eli Nes, many of the statements made about Gillard were “puffs” (obviously exaggerated statements) which the courts do not recognize in defamation actions – inconsistent how truthful reporting from Fairfax can attract a law suit but horrible insults like Alan Jones’ “body bag” comment cannot be fought through legal means. Regardless of her treatment by some segments of the media, I still don’t believe Gillard (or any politician) should sue anyone given the exposure associated with the highest office. She didn’t sue, and maintained a grace in the face of the verbal abuse directed at her which, regardless of her numerous political flaws, will likely shape how she is viewed by history. Owen, I firmly agree with that if Hockey’s feelings are hurt from being called “treasurer for sale” then crowds of people fighting for just causes should be very offended for being called a “selfish rabble.”

  13. Annie B

    When all else fails, .. litigate … sue the pants off someone, for some allegedly ‘bad’ comment or other !!.

    In politics it is just another ploy that has people “look over there” ….

    It it pays off … wooopeee ….

    If it doesn’t – who cares. ……. ( ‘we have enough income and lifetime pensions to not even bat an eyelid ‘).

    I don’t disprespect your comment about ‘political elite’ Ben, but have to differ in a way …. they are anything but ‘elite’ … they are more like the dregs ( whatever that might be – according to who might be reading the comment – ‘dregs’ can be seen as anyone wants to see it !! ).

    As for ‘partliamentiary privilege’ … that is a scourge, even a furphy, and a huge excuse for being able to say anything about anything / anyone without due responsibility – while it is literally broadcast widely to the people of Australia. … the government protect themselves ( and always have – no matter who is in power ) with this ridiculous permit to slander and abuse those who represent us.

    A good article though …. and well written.

  14. Pingback: THE HYPOCRACY OF THE LIBERAL LITIGATOR | The Cynical Times

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