Saturday 4 September 2010

Saturday SoapBlog: Cairns Council must not fund Councillor Blake’s legal action against CairnsBlog - Bryan Law

Veteran community activist and anti-war protester, Bryan Law, has launched a scathing attack on Cairns Regional Council for considering funding Councillor Alan Blake’s legal action against CairnsBlog and it's author, Michael Moore.

Here's an OPEN LETTER that Law has sent to Cairns Regional Council CEO, Lyn Russell, and Mayor Val Schier.

For the issue to be “currently under legal consideration”, you must be contemplating the exercise of your delegated powers to “expend Council resources to indemnify Councillors for the cost of pursuing legal advice or proceedings”.
I am extremely concerned that you are considering such a course of action.

As a ratepayer and a citizen I believe that any Council support for a defamation action against a fellow citizen is anti-democratic, and amounts to dereliction of duty and irresponsible waste. Alan Blake threatens not only one citizen, Michael Moore, but also the scores of “commenters” who’ve been critical of his political performance.

I have some personal experience of defamation. Over the past 15 years I have been subjected to one actual suit of defamation - by five journalists from The Cairns Post - that actually spent a little time in the Court. I’ve also received four solicitors’ letters threatening defamation action -including one from then Mayor Kevin Byrne’s “Unity Team” in 2004, of which Councillor Alan Blake was a member. The whole lot were nonsense that was withdrawn eventually, but not without effort and expense.

I insist you to consider the following points when you are making your decision:
  • 1.0
    - When conducted by a practitioner of politics, defamation is most commonly a tool used either to moderate political criticism, or to silence some critics altogether.

    This is particularly true when the Plaintiff has substantial means, and the defendant has more limited means. One needs quality legal advice to defend oneself against any allegation of defamation.

    The fear of costs plays a role in minimising both the incidence of defamatory publication, and the conduct of frivolous suit.

    If Council were to pay the costs of this civil matter for the Plaintiff, then you would be ensuring that Blake can act without fear of costs and consequences. You will be effectively undermining the principle of equality before the law. Don’t do it!
  • 2.0
    - Defamation is a personal matter

    Until recently there was in Queensland a criminal statute that was occasionally used against the harsher critics of politicians and bankers. “Publish Insulting Words” was a charge under the Vagrancy, Gaming and Other Offences Act. If Councillor Blake could convince a Police officer that he had been socially maligned by a pauper, they could have charged the offender with a criminal offence.

    Unfortunately for Councillor Blake the High Court of Australia found in 1997 an implied right of free speech in that section of the constitution that guarantees free and fair elections (for what election could be fair unless citizens have the right to freely discuss matters of government and politics?). The Supreme Court of Queensland applied Lange v ABC to the Vag Act to render the criminal defamation section inoperable.

    The other consequence of Lange v ABC is the now established principle that politicians have to be prepared to cop a bit in public discussion. More than any other citizen. ‘Cos of what they do (contest elections).

    Against this cultural expectation, Councillor Blake has launched this action as the result of his own subjective judgement about his standing and reputation in the community, the damage done to that reputation by the words complained of, and the real value of any cost or suffering he has experienced as a result. I would suggest there has been no real damage to a reputation already under wide challenge.

    The Cairns Regional Council cannot possibly act on such subjective decisions, made by a single Councillor, about how much puffed up vanity he is entitled to enjoy without challenge. It is not Council’s job to support or affirm a Councillor’s personal vanity.

    Nor is it Council’s job to collect and examine evidence, or purport to make any objective decisions about the strength or weakness of Councillor Blake’s character, reputation, or claims.

    Councillor Blake has made the decision to sue for defamation as a private person, and it is for the Court to decide, using due process, whether or not his claims have merit. Councillor Blake is not entitled to the use of public resources to pursue this private matter. Do not give any to him.

  • 3.0
    I do not believe that Councillor Blake is entitled to “indemnity” for a decision he makes to launch a defamation action against a citizen.

    It would be a different matter if Councillor Blake was being stalked, or unduly harassed, and this was a likely consequence of his performance as a Cairns Regional Councillor. I would be more than happy to see legal costs paid for the Councillor to seek Apprehended Violence and/or other remedies to that kind of situation.

    But that is not the case here. Councillor Blake is being criticised. Councillor Blake doesn’t like it.
    During each election campaign in which Councillor Blake has stood, he makes public representations about his character, record, policy, and desires for achievement. He does that to solicit votes and get elected. As an institution of government, Council cannot be involved in electioneering, or be seen to be condoning or approving any political/personal arguments. Blake’s election campaign is a political matter for Councillor Blake.

    Michael Moore, through CairnsBlog, is interested in the very same questions, from a slightly different angle. CairnsBlog is part of the political landscape. Moreover the blog is a significant part of the political landscape, read by thousands, and contributed to by dozens.

    If Council were to pay Alan Blake’s costs you would be improperly entering the political debate. You would be seen to be taking sides with Alan Blake’s opinion of himself, against a wide variety of citizens and ratepayers who hold a different view. Don’t do it.

  • 4.0
    Councillor Blake’s suit goes well beyond Mr Moore. It threatens dozens of commenters (mostly residents and Ratepayers of Cairns) who use the blog as a political discussion forum.

    In both his statement of claim, and in subsequent media comment, Councillor Blake makes known his intention to pursue any liability by those who comment corrosively about him on the CairnsBlog.

    Because of this, the matter, if it proceeds, is likely to gain fairly wide-spread attention in media around Australia, and may create precedent around emerging legal principles of the “new” New Media. E-media, social media, parasitic media, Murdoch media. Where do the boundaries lie in social media?

    I wonder where Cairns Regional Council would prefer to see such a discussion go? I doubt that it would be to “Impose a legal compulsion against criticism of establishment figures. Bolster the establishment figures with public money”. Urk! That’s what supplying Alan Blake with public resource to support a defamation suit would be saying. Don’t do it.

I most strenuously object to any proposal that Cairns Regional Council support Councillor Alan Blake’s defamation suit against Michael Moore.

I insist that you raise this idea for public discussion at a Council meeting before granting Councillor Blake access to any Council resources, and I insist that you take community values into account when you consider the matter of funding.

I understand you’re taking some kind of legal advice. While I accept that advice might be subject to legal professional privilege, I’ve got no idea why you would be constrained from discussing the actual and policy issues concerning Council support for defamation actions.


Jude Johnston said...

Hear Hear Brian.

Sammy Jaye, Freshy said...

personally, I'm looking forwrad to seeing this all exposed before the public courtroom.... if anmd when it gets there....

The council - and bl;ake - must be brain dead if they dont relise what will be able to exploered and put before a judge and jurg - every phone record, complaint anmd and everything that Blake has done... anincludign the activites includied in the $17K Henry report which i hope moore's team (does he have one!!!??) get out of Council.... and he will have the full right to - to expose the real blake and what';s been going on since he was (re)elected in March 2008.

Bring it on!!!!!!!!!!!! IO bet Council will soon advise blake to realise the damage and potential embrassement that he ois about to wreak on not only council but any remaining credibility he has... zip!!!!!!!!!!!!!!!!!

gabba gabba said...
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pearly white said...
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Elke said...

BTW, it can cost close to $40,000 just to chase one commenter down.

Bryan Outlaw said...

Citizens have no right to defame others who've chosen to serve the community. Politicians don't give up their rights just because they've entered the public arena.

What's been said by Blake is in my view well over the line of civility, taste, and I'm happy to let the courts decide if this level of defamation can be allowed of a public figure like a councillor.

And council has a duty to protect all its employees, elected or not.

On the other hand, convicted criminals should lose all their rights especially when they keep delaying paying their court-imposed penalties.

smithfield watch said...
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Thaddeus said...

Really Bryan Outlaw? Funny, you have said some pretty defamatory things about Brian Law in this blog, as well as about the current mayor of Cairns. So let's see, there's one rule for some, and another rule for others hey???

pearly white said...

Why anyone thinks they can get away with ANYTHING in Cairns, needs their head read -there are only two degrees of separation between EVERY citizen.

gabba gabba said...

A thoughtful, balanced and well-written piece of advice of advice to a council that appears to be headed for yet another foray into public ridicule of Cairns in the national media.

This matter does not involve the reputation of the council, no more that the already frequently inappropriate behavior of one of its councilor's already does, and therefore does not warrant a private defense funded by the public purse.

Quien Sabe said...

Quite apart that it is not a "defence". Mr Blake (not Cr Blake) initiated this action. He is the plaintiff, Mr Moore is the Defendent.

Bryan Law said...

Actually BO, old stinky stick, truth is a required element of any defence to defamation, but by itself is insufficient. The publisher of any defamatory material also needs to show that publication was in the public interest.

How would you go trying to show anyone that your misinformed, ignorant dribble was even remotely interesting?

I can stay relaxed around your defamations, because you are a figment of your own imagination. No-one believes a word you say.

kate said...


Take a closer look at the 2005 Act!!

You are mixing up your defences. Truth is sufficient for one (Justification), and public interest is not required. And the rest have differing reqs - as set out in the Act.

greenbottle said...

Boys, boys! Try and act with the decorum and restraint of true gentlemen. It behoves me to issue a sententious warning that either Brian could be grievously traumatised by this evil character assassination. Yes, either Brian could be a broken man this morning, a pitiful, soggy, limp heap crying unconsolably this morning. Several pairs of wet and grubby jocks also thrown on the bathroom floor for the missus to pick up also testifies the sheer trauma of this wicked exchange on cairnsblog. Yes, the traumatised Brian may need to visit the old family doc for various anti-depressant prescriptions to help him cope with the daily pain of being alive. Let's all remember that love will keep us all together. Smile on your bro folks, everybody get together right now.....

Bryan Law said...

Thanks Kate!

I hate reading legislation. Even when I think I understand it, I'm pretty sure I'm missing something.

Mike is looking for some quality legal advice, pro bono.

My inclination is to lodge multiple defences, including qualified privilege, contextual truth, and Blake's capacity to respond at will and at length.

Fay Graig said...

Greenbottle, Thanks! Now there's another pair of wet undies on the floor from laughing! :-)

Lillian at Yorkeys said...

Go Kate - hope you can support Mike in this.

The question remains as to whether Blake is running his defamation as a Councillor or as a citizen. So far it would seem that Alan Blake (citizen) feels defamed by Mike Moore (citizen). Therefore I cannot see why us ratepayers have to cough up for Alan's hurt feelings.

I've been off having small hols the last week, & it is indeed disappointing that in a week the CEO, Lyn Russell, has not seen fit to come forward with the information as to whether Council is or is not financially supporting Blake in this lunacy action, & in fact has seemed to go into some kind of lock-down about it.

Surely all the bloody Council rules & regs & occupational health & safety & LGA legislation could cough up an answer, & especially as Russell has mucho prior CEO experience. Sad. Transparency indeed, eh Val?

And Bryan O - citizens do not have the right to defame other citizens or politicians, but they bloody well do have a right to lay witness to incompentence, negligence, not listening to their electorates & acting on those wishes/needs, wasting the public funds, laziness, working to destabilise elected governing bodies etc. In short - crook politicians.

Blake seems to have dabbled somewhat in all of the above during his career, and the strong comments from Blog respondents that have accompanied many Blake stories would attest to this.

And just before you crawl back under your rock Bryan O, there's a great saying in AA (Alkies Anon) that:
When you are pointing your finger at another person, in fact three fingers are pointing back at yourself (your own).

So where are you on the scale of "a manipulative, lazy, stupid fat fuck with no friends and fewer brains"?

Bryan Law said...

To up-date everyone... I sent the letter on Friday 3 September, and have received the following replies to date:

From Val Schier:

Thanks for copying me in to this Bryan. I have to say that I share your views.



From Rob Pyne:

Thanks for emailing me. I asked the CEO and she advised that (to date) no expenditure has been committed or agreed to in relation to Cr. Blake's action.

I shall continue to monitor this issue with great interest.

Warm Regards,


From Lyn Russell:

Hello Mr Law

Thanks for your correspondence. Your input and comments are acknowledged.


Lyn Russell PSM FAIM FLGMA | Chief Executive Officer

I expect that what will happen now is that the CEO will soon exercise her delegated authority. The right decision will be that CRC does not make Council resources available to Councillor Blake to pursue his defamation case. If that’s the decision it ought be an end of CRC financial support.

In any event, the CEO’s decision will be reported to Council, and Council may decide to exercise its authority directly. Given the level of public interest in this matter, and the engagement by the Mayor and Councillors, I would expect a challenge to any attempt at providing public resource for Alan’s private vendetta.

KitchenSlut said...

" Bryan Outlaw said...

You should know the truth is always a valid defence to an accusation of defamation."

"The truth will set you free."

Do you have a reference link for that Outlaw my understanding is that you are wrong and truth is not necessarily always a valid defence in defamation in Australia as you have claimed?

Australia is renowned for the most repressive defamation laws in the western world i believe but happy to be proven wrong?

Ahh never mind truth will set you free! Now who said something like that before i wonder?

Destiny said...

If we the rate-payers fund the action - do we get the proceeds if Blake wins, and does the council pay Michael Moore's expenses if he wins?

muggles said...


Note section 25 of the Defamation Act 2005:

s 25. "It is a defence if the defendant proves that the defamatory imputations which the plaintiff complains are substantially true."

(Substantially true means true in substance or not materially different from the truth.)

greenbottle said...

Why, thank ee Fay. Kind, I'm sure.
I try to bring some eloquence, intelligence and gravitas into this uncouth cesspit of a public discussion board. There are baboons here, Fay. Baboons! And some with the social graces of a pack of attack Orcs. But I drift in with my usual sang froid and straighten them all out. The other night whilst lurking in the blog corridors I chanced upon this woebegone, sobbing little creature. What a pitiful sight of lachrymose and misery it was with its tear smudged and snot encrusted face. "Everyone is so crooooooool to me," it sobbed as a long rope of snot hung down its chest.
I tried not to shudder and nudged it with my boot up its rear end whereupon it sort of somersaulted a few times and disappeared.
So you see Fay, I'm a bit like the old school master here. I keep it all orderly like.

KitchenSlut said...

Thanks muggles!

I note that Qld may have changed in 2005 when defo laws were more unified federally by Ruddock as Attorney-General and seemingly a defence in Qld changed from being "truth and public benefit" to "truth"?

I had thought issues such as public benefit and malice could in some circumstances over-ride "truth" alone.

muggles said...

Hey KS,
Try these links instead.

The one you have there is more about discussing the recommendations for reform of the old defamation legislation - which led to the current 2005 legislation.

Much simpler - and less confusing - to just read about the current defences.

Muggles said...

Oops. The other link is: