It is not hard to say if you have been defamed or libelled (the two are the same).  Would the publication complained of cause ordinary people to think less of you?  That is a question best left to the jury.  The old common law phrase spoke of a publication causing hatred, ridicule and contempt.

A son of Rupert Murdoch complains that he was been defamed.  This claim will be heard by a court that does not empanel juries for this kind of case – and by a judge who trashed the reputation of a witness in a previous celebrity bonanza in a way that no jury could ever do. 

The hard part will be whether people can keep a straight face at a member of a family saying he has been hurt by a publication when that family lives off the earnings of doing just that.  Doubtless his lawyers are sitting on a bullet proof disclaimer, but the court should ensure that its time and my taxes are not wasted by this bullshit.  The notion that people might think less of Lachie because of something said by Crikey is at best childish.

Libel actions can be tricky.  I know – I derived a decent living from dealing with them for fifty years.  But they are not nearly as tricky as cases of sexual harassment or racial discrimination.  Those issues are terribly sensitive, emotionally destructive, and the least amenable to our forensic process.  The evidence may well be distorted on both sides.  These cases require complete professional detachment, and patience.  At either end, the stakes are so great, as is the difficulty of assessing the case.  And it is so much worse when the antagonists have completely different backgrounds and world views. 

They were the hardest issues I confronted in half a century in the profession.  If you have to decide one of these disputes, you know that whatever you do will be wrong – just plain wrong.

The Hawthorn Football Club commissioned a report into allegations of racism.  It got a former Richmond player who is indigenous to ‘report’.  I do not know what qualifications the reporter has or what were his terms of reference.  But parts of his report have been made public.  They are what the press calls ‘bombshell’ allegations resulting in what the press calls a ‘pile-on.’  Journalists who should know better have been pontificating on everything under the sun.  Everyone has got it wrong – except for them.  Allegations of prior offences are aired.  As a direct result, two very respected figures in football have had to stand down.

What is amazing is that the allegations have not been put to those who stand accused.  That is elementary to any notice of due process or procedural fairness.  That has been part of our law since 1215.  It is just common sense and basic decency.  As is not blaming people because of their past offences – which have in this case been plastered all over the press by the overly unctuous reporters.

According The Age yesterday, the author of the report said: ‘It was very strict. We had a very narrow laneway to stay in and we had no access to non-Indigenous past players, coaches or staff.’  That statement requires explanation, but plainly the author was saying he was not encouraged to speak to the those against whom the allegations were being made.  That is, he was saying that his inquiry was infected from its start by an inability to act fairly or sensibly – and that infection was of precisely the same order as the cause of the allegations in the first place – the notion that indigenous players could or should be treated differently to non-indigenous players.

As a result, the bystander is left to ponder.  Who has been most wronged – the indigenous players making the allegations – or the people against whom those allegations are made?

In the absence of any decent explanation, the author of the report, and those who commissioned it, should apologise publicly to Alister Clarkson and Chris Fagan.  This flawed process has, I fear, set back the cause it was meant to serve.  Its whole premise looks to be that the differences between black and white are not reconcilable.

All of the above looks obvious to me.  But this nation’s moral police – the local press – are oozing self-righteousness in a dreadful display of the herd mentality.  That’s not good.  It’s what we expect from the America of Donald Trump.  Or Rupert Murdoch.  Or his preposterously litigious son.

AFL – Racism – Hawthorn Football Club – Press – Clarkson – Fagan – Lachlan Murdoch