BLM’s intimidation of our governing classes continues apace.

Big Licentious Media – which is to say, the handful of corporate broadcasters and publishers who constitute our mainstream media – have seen a reward for their intensive lobbying campaign with the amendments to the Defamation Act passed in the NSW Parliament this month. Not only are the damages awards against publishers for the reputational loss their libel has occasioned likely to be much lower in future because of changes to the way such losses are calculated (that is, independently of an award of aggravated damages) but they have been granted their wish of a new “public interest” defence, modeled on the current English law. With this, they anticipate they will be able to jump over all of those troublesome hurdles that the common law had so carefully and scrupulously put in the way of the use of a defence of qualified privilege these last two centuries.

We can all therefore look forward to viewing more tawdry stories about the degenerate private lives of actors and athletes and politicians in our newspapers and on our screens. Ease of access to prurient and unedifying gossip has long been corporate media’s understanding of how the public’s “interest” should be understood and measured and now the courts are more likely to have to go along with it.

The changes had been agreed by all of the Attorneys-General of the States last year, defamation law for a decade-and-a-half now having been regarded as a matter of such prime public importance as to require a Uniform Defamation Law throughout the Commonwealth. NSW jumped the gun on the introduction of the changes but the other States will follow. The Attorneys who agreed these changes and the Parliaments who will enact them will say it is all about protecting our precious inheritance of free speech from a jurisprudence that has become too esoteric.

They will say that but you should ignore them because they have no more affiliation or attachment to that inheritance than your average ABC news editor – or our Prime Minister for that matter. Our right to express ourselves freely is at the centre of that war by the Left on all of our cultural institutions; a war in which the PM openly professes having a “zero interest”.

You can be sure that these changes to defamation law have nothing to do with protecting free speech because the parliaments making the changes are the same ones which are simultaneously committed to the entrenchment of the Human Rights and Anti-Discrimination Tribunals which every day in every part of the Commonwealth control and intimidate and punish the expression of opinions and the reporting of facts which challenge the regnant Left political narratives.

The same Crown Law offices are commanded to produce such meticulously researched discussion papers and draft such finely calibrated legislation about the advantages and disadvantages of imposing a threshold requirement of “serious reputational harm” before a defamation suit can be instituted or whether preliminary “concerns notices” should be pre-requisite in all such cases. Such matters are of little importance to other than those few folk who have the resources to even consider bringing such a claim and instructing the high-calibre counsel required to conduct them (or the few media monoliths defending them). These offices are never asked by their political governors to use their considerable resources to compile a report upon the chilling effect upon free speech of anti-vilification laws which criminalise the utterance of views about important political matters by ordinary citizens.

Why has, say, a draft Uniform Free Speech law never been released for public discussion and submission in the 45 years we have been burdened with anti-discrimination laws? How is it that those involved in a defamation suit – principally defendants – have had and are now having such legislative resources lavished upon them while those dragged in to the Kafkaesque world of Human Rights Tribunals are left to look after themselves, even as the State expands the grounds upon which they might be brought before such Tribunals?

Such questions must necessarily arise for those of us who have been following the travails of Bernard Gaynor as described by Mark Latham in distressing detail when he introduced his Anti-Discrimination (Complaint Handling) Bill 2020 to the NSW Legislative Council earlier this year or those of Lyle Shelton outlined here in The Good Sauce last week as he fronted the compulsory “conciliation” process in the Queensland Human Rights Tribunal which process was merely the precursor to the referral to Queensland Civil and Administrative Tribunal – for trial – of the complaint laid against him. The complaint arises from his temerity in describing his deeply held conviction that two drag queens reading stories to young children in a public library in Brisbane was profoundly wrong and harmful to those children for reasons which he soberly articulated but which are surely unnecessary of articulation (save in an age of deliberate moral inversion like our own).  

We who are familiar with these cases and hundreds like them may be pardoned, surely, if we do not join Law Societies and Bar Associations and the corporate and public media and party-political chiefs and other members of the clerisy in regarding the changes made to defamation law in NSW and which will follow soon in other States, as an occasion for celebration.

Our freedom to speak up about the forces that are dismantling our civilisation is being crushed under the weight of the Human Rights and Anti-Discrimination Complex.

Compared to the battle in which we are engaged the law of defamation is mere legal exotica, a playground for privileged communication.

Stuart Lindsay is a retired Federal Circuit Court judge who presided in more than two thousand Family Law Act cases and in many cases in other parts of the Commonwealth jurisdiction. He was admitted to the bar in 1981 and worked as a solicitor & barrister until being appointed to the Federal Circuit Court in 2004. He retired in 2014 to continue working as a barrister.

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