The Federal Court has struck out Mark Latham’s entire defence in a defamation case brought by ABC Life deputy editor Osman Faruqi. In a judgement on Thursday, Justice Michael Wigney described Latham’s 76-page defence (in comparison to Faruqi’s two-page claim) as “on just about any view, an extraordinary document”.
“In order to address Mr Faruqi’s strike out application, it is necessary to attempt to come to grips with it. That is no mean feat,” he said.
Faruqi sued Latham over comments the former federal opposition leader made on his video commentary website Mark Latham’s Outsiders in August last year about “anti-white racism”, prompted by a tweet from Faruqi to another of Latham’s regular targets, Yassmin Abdel-Magied, saying: “The white people are getting fucked Yas, it’s happening”.
In a scathing judgement, Wigney said Latham’s defence raised almost all the positive defences available to him under the Defamation Act and common law, while arguing that the imputations Faruqi had argued were not made out in the video.
Faruqi claimed that Latham’s video defamed him by imputing Faruqi knowingly assists terrorist fanatics who want to kill innocent people in Australia, that he condones the murder of innocent people by Islamic terrorists, and that he encourage and facilitates terrorism.
In the judgement, the court is critical of Latham’s lengthy defence, which included a dictionary of references (including a definition of “the Bowdlerization” to describe an expression “which Latham used in lieu of the word ‘fucked’; comprising the name of the letter ‘f’ followed by the part participial suffix ‘-ed’; and sounding roughly like ‘effed’.”), and a history of genocides.
Latham’s defence also included 164 of Faruqi’s tweets and a section titled “The connexion between racial vilification and racist violence”, referring to historical events including the persecution of Christians in the Roman Empire, the persecution of Huguenots in the French Kingdom in the Sixteenth Century, Apartheid, and the persecution of African-Americans in the US by the Ku Klux Klan in the 1950s.
Another part of Latham’s defence referred to articles written by Faruqi in his then-role at website Junkee, including responses to the Lindt Cafe siege, and terrorist attacks in Paris and Brussels (which, Latham submitted, all had predominantly “white” victims). Latham’s defence argued that Faruqi had not denounced, condemned, censured or criticised the attacks or the people or groups that carried them out.
“There is a central hypsothesis which underpins all of Mr Latham’s positive defences. That hypothesis is, in summary, that so-called ‘anti-white racism’ — conduct which is calculated to demonise and dehumanise ‘white people’ — supports, foments, encourages and facilitates Islamic terrorism,” Wigney said.
Wigney found that Latham hadn’t established any link between alleged “anti-white racism” and contemporary Islamic terrorism: “No reasonable factual basis for the existence of such a link is pleaded in the defence.”
Elsewhere in his decision, Wigney considered Faruqi’s tweets directly, finding that while some may be considered offensive to some, or crude, they did not constitute vilification of white people:
“Some may not be amused by them. Others may, perhaps with some justification, consider some of the tweets to be rather puerile, shallow, trite or even hackneyed. But really, what does one expect from Twitter, or social media generally; deep, insightful analysis? It is also perhaps possible to imagine that some people who are not only white-skinned, but also thin-skinned, might be offended by some of them. That is, however, a long way from the proposition that the tweets vilify or dehumanise white people, and an even longer way from the proposition that the tweets, or their author, incite or encourage violence against white people.”
Referring to a tweet about a Pakistani restaurant owner warning Faruqi about the dishes “for white people”, Wigney said: “Does Mr Latham seriously suggest that this constitutes ‘anti-white racism’? He must, because he included this tweet in Schedule II, though that suggestion borders on the fanciful.”
Another tweet said: “Labradors are to dogs what straight white dudes are to politics. Boring, too common, entitled,”. Wigney responded: “This tweet may well have been offensive to owners of Labradors, or perhaps even Labradors themselves. Some readers may well have considered that it was a fairly crude and simplistic way for Mr Faruqi to make his point. Others may have been simply amused. Either way, it hardly constitutes vilification.”
Wigney struck out Latham’s entire defence, but has allowed him to re-plead: “The preferable course is to strike-out the entire defence to that Mr Latham can start from scratch. That will hopefully give rise to a more concise and comprehensible pleading,” he said. The new defence must be filed within 28 days.
The lawyer acting for Faruqi, Josh Bornstein, welcomed the decision, which included Latham to pay costs, in a statement: “Our client’s case is that Mr Latham defamed him including by suggesting that he had incited or encouraged terrorist violence … Our client Mr Faruqi is a strong supporter of robust debate, but what occurred in this instance were baseless and dangerous attacks from Mr Latham that crossed a clear line.”