Yeah, I too always loved the cognomen “Cunctator.” It makes it sound like he was doing something deliciously naughty (when in fact he was only doing something wise and boring), but of course it’s just a trick of translation into our wonderfully guttural Germanic-derived tongue. (“Tongue!’ say it with me!, “tongue!” Now say Chinese “tong!” which means something else entirely! Don’t you just love planet earth?)

I always feel the same way when reading Burton Watson’s lovely but formally inaccurate translations of Su Tung-p’o and Po Chu-i. (disclosure: Su Tung-P’o is one of my totally favorite poets, in any language! Buy that man a drink!) Well, as they say in Bensonhurst, Whaddaya gonna do.

“If I’d been in Berlin in
1930, would I have seen you,
ambling the streets like
Krazy Kat?
– Oh yes.
…You’d have seen all of us
masquerading. Chipper,
but not so well arranged. Air-
ing old poodles and pre-war
furs in narrow shoes
with rhinestone bows.
Silent, heavily perfumed.
Black around the eyes. You
wouldn’t have known who
was who, though. Those
were intricate days.”

– Frank O’Hara, “The Threepenny Opera”

SerfChoices is as much the BCA’s creation as anyones, so not surprising one of its hired guns would go for longstanding opponents of its sadistic anti-worker machinations and spin such as the authors of this ACIRRT report.

Too late, Prof Wooden, mate.

When will intellectual honesty become the norm in “The Australian’s” coverage of public policy issues? Perhaps they could look for a model to the ethics that most academics subscribe to in analysing the data revealed by their research, whether surprising or not. We don’t expect that from the likes of Hockey, Costello or Howard, whose methods are Goebbles-like in their iteration of statements that fly in the face of the facts. And “The Australian” provides their ideological affirmations much misguided comfort.

In 1994 in Theophanous v Herald and Weekly Times Ltd [(1994) 182 CLR 104] and in Stephens v West Australian Newspapers Ltd [(1994) 182 CLR 211] the High Court considered the relationship between the implied constitutional freedom and the State defamation laws. The Court in Theophanous held that the implied freedom of political communication may, in certain circumstances, be a valid defence in defamation proceedings. Mason CJ, Toohey and Gaudron JJ considered that an alleged defamatory publication will not be actionable where the defendant shows:

*
* it was unaware that the information it published was false;
* it ‘did not publish the material recklessly, that is, not caring whether the material was true or false’; and
* in the circumstances, publication was reasonable (Theophanous p 141).

In Lange v ABC:

..ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.

However, the Court continued:

Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

In other words the constitutional implication of freedom of political communication does not establish in Australia a general or personal right of free speech. Rather, it acts as a brake on governmental or parliamentary efforts to limit what may be said on political matters. Importantly, the Court also re-affirmed earlier cases that had held that the implied freedom is not absolute.

It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.

I would suggest in the light of all the case law, that Hockey’s implied constitutional rights are non-existent in his comments re the academics.

I’d say Hockey was reckless, unreasonable, (Theophanous) and he has no personal right (by Lange) to have those comments protected.

The implied right refers logically in the vast majority of actual cases to individuals criticising pollies and being subject to state defamation laws. Here we have a pollie prima facie allegedly defaming individuals– another kettle of fish entirely, notwithstanding his rights as a private citizen.

GregM, Hockey would not be able to use the Lange defence, because it has a number of tests, and his comments fail them.

You’ve heard the case already have you? That’s very efficient.

These things are rarely so black and white that one could readily conclude that Hockey could not use the Lange defence. On my reading of Lange Hockey would have an arguable case. That’s not to say he would be successful, but it would keep a number of QCs and SCs occupied arguing on the topic as their fees piled up.

In any event it would be heard long after the election is held.

Makes me laugh, it does. Nothing personal Janet: once a dingo …

shame.

Yes, petty snarks about minor slips of language are unedifying, but my justification is that at least my snark was correct! Anyway, I have no dog in this fight and certainly am not aiming to parlay my skepticism about the erudition of Dee of the Darling Downs into some rolling counter-attack (with which caution Quintus Fabius Maximus Verrucosus Cunctator would concur). Incidentally, the Verrucosus in his name derived from a wart on his lip. Amusing people, those Romans.