|Posted on November 23, 2016 at 6:10 PM|
Labor Member for the Queensland seat of Griffith Terri Butler is being sued by one of the university students involved in the infamous case of the Facebook posts which resulted in legal action by a former administrative officer of the University of Technology (QUT) named Cindy Prior.
On 28 May 2013, some students were kicked out of a computer lab reserved for Aboriginal students by Ms Prior.
QUT student Alex Wood posted the following comment on Facebook:
Just got kicked out of the unsigned indigenous students computer lab. QUT stopping segregation with segregation?
Another student named Jackson Powell joined in with this comment:
I wonder where the white supremacist computer lab is
A third student named Calum Thwaites denied making a Facebook post which referred to ‘ITT niggers’.
On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim arising from the above posts against the abovenamed students brought by Ms Prior under section 18C of the Racial Discrimination Act 1975 (Cth).
I know how the law works. I know how the commission works...
And I notice that when people talk about those QUT students, they never mention the fact that one of them was alleged to have used the ‘n’ word ... in one of those Facebook posts
This is the situation. And we never found out because it was not determined. I’m saying this is what the allegations were and the matters were not determined
When told that Mr Thwaites had repeatedly denied it was his Facebook post, Ms Butler replied: “He would say that, wouldn’t he?”.
When The Australian's foreign affairs journalist Greg Sheridan pointed out that Butler was smearing the students, Butler replied with "I'm not smearing anyone".
Contrary to Butler's claim, the issue of whether Calum Thwaites was the author of a Facebook post that used the word 'nigger' has been determined in his favour, which is why the claim against him had been dismissed.
And contrary to Butler's claim that nobody talking about the case mentions the post containing the 'n word', this has been mentioned on a number of occasions by The Australian.
The Australian reports this morning that a Claim and Statement of Claim seeking damages in defamation against Ms Butler has been filed in the Brisbane Magistrates Court on behalf of Calum Thwaites alleging that Butler implied on Q&A that he was a racist bigot and perjurer who had deceived the Federal Circuit Court.
In order to succeed in a defamation action, a plaintiff must prove the following three elements:
1. That one or more defamatory imputations have been made.
2. That the defamatory imputations were published by the defendant.
3. That the plaintiff has been identified in relation to the defamatory imputations.
Once a plaintiff has established these three elements, the defendant must in order to succesfully defend the claim establish one of the available defences under the Defamation Act 2005, including the defences of substantial truth, fair comment, absolute privilege and qualified privilege.
This case demonstrates the importance of being informed when debating social issues in public. In this case, Ms Butler's ill informed rant allegedly defamed one of the students involved in the Federal Circuit Court proceeding. It is important that participants in public debates are careful with the facts so that they avoid damaging the reputations of others and exposing themselves to liability in defamation.
This case is also an excellent example of how advocacy for a cause (in this case retention of section 18C of the Racial Discrimination Act) can be badly damaged by getting facts wrong.
It will be interesting to see whether Ms Butler makes an apology and pays damages and/or costs, or whether the matter proceeds to trial before a Brisbane Magistrate. If we were acting for Ms Butler we would advise her to settle the claim early in order to avoid the risk of an expensive and potentially political career ending loss in a defamation trial.