We know Peter Dutton isn’t shy about suing for defamation, having gone after an unemployed climate activist over a six-word tweet. But will he take the bait, lavishly laid out by Bob Carr and roll the dice again? Or is Carr on safe ground with his double-dare?
Carr has certainly done all he can to provoke Dutton, short of drafting the statement of claim for him. For reasons known only to himself, the former NSW premier and foreign affairs minister launched himself bodily into the Liberal Party’s “who called Scott a psycho?” debacle with a tweet on Monday, naming Dutton as the minister who had given Peter van Onselen a text exchange to which Gladys Berejiklian was a party, in which she supposedly called Morrison a “horrible, horrible person” and the other party called him a “psycho”.
Van Onselen had confirmed that the other party was a current federal cabinet minister and that his source for the leak was that minister (that is, the writer of the text and its leaker were the same person). Carr’s tweet hadn’t made that direct link, saying only that Dutton was the source. It follows that either Dutton was also the psycho-caller, or what van Onselen had said was wrong.
Dutton responded via Twitter saying Carr’s tweet was “baseless, untrue and should be deleted”. Carr doubled down, calling on Dutton to get another minister to admit to being the source, or else concede that it was him. Carr also told media that his source for the Dutton-naming was “a rock-solid media source”.
Does Dutton have a case? In Carr’s first tweet he made a direct factual allegation that Dutton leaked the text. He didn’t say that Dutton wrote it and, because that’s only one of two possible explanations for who did, the tweet doesn’t convey that allegation. So all it says about Dutton is that he leaks and that he’s trying to undermine the prime minister because he wants to replace him.
Well, the last part of that is true — Dutton does want to be party leader, and might already be if he could count. And he’s not averse to undermining his leader — ask Malcolm Turnbull. Is it defamatory of a politician to say that they are willing to drop self-serving information to journalists for ulterior motives? I’m thinking that’s a challenging proposition.
The second Carr tweet really adds nothing, apart from aggravation. What Carr says — that Dutton couldn’t win a defamation case unless he can finger another minister as the source — is an inaccurate statement of the law. Dutton’s sole legal burden would be to prove that Carr’s tweet had defamed him and caused him to suffer serious harm. The burden of proving truth is on the defendant (Carr).
And truth is the only defence Carr would have available, if sued. He’d have to prove that Dutton was van Onselen’s source. Which would be difficult, since according to what he’s been saying, Carr doesn’t have any direct proof of that; rather, he’s picked it up second- or third-hand from someone in the media. Awkward.
Still, I come back to the challenge Dutton would face: establishing that he’s been defamed. In addition, the defamation law now includes a hurdle for plaintiffs which Dutton didn’t have to contend with when he sued Shane Bazzi over the six-word tweet. A plaintiff now has to show they have suffered “serious harm” from the defamation, and their case may be struck out early if they can’t.
Assume for the moment the tenuous proposition that the average reasonable person reading Carr’s tweets would, having registered the allegation that Dutton is a self-promoting leaker, conclude to themselves: “Wow, I think a lot less of Dutton now, I really thought he was a better person than that.”
Even then Dutton would still have to satisfy the court that his reputation had been seriously hurt by the shift in public perception of his personal integrity.
I have no idea whether Carr carefully designed his tweet-storm with a view to wedging Dutton into a legal conundrum, forcing him to either cop it sweet or take on what would be a very interesting test case with an uncertain (and potentially expensive) outcome. Or whether he’s just lucky.
Either way, the bluff has been expertly played. Calling it would be bold. My bet is a Dutton fold.
