Peter A Clarke

Bastard Boys was a dreary dramatisation of a very exciting event in our political and industrial history.  The four hours or so of TV could have been pared down by at least a third with some sensible editing, removal of second rate romantic subplots and the help of a script doctor.  The script was at best flacid.  Hardly in the best traditions of Australian docudramas such as The Dismissal.   

In fact the wash up is the most interesting aspect of the show.  Greg Barns, legal commentator for Crikey said virtually nothing when giving his legal analysis of the producers exposure to defamation actions.  Here it is:

Besides being a boring and predictable piece of television, Bastard Boys appears to have taken such liberties with the truth that it might prove a fertile ground for defamation.

• Ok here is a promising lead in……. Talks in generalities all round..

Already, former ACTU Chief Bill Kelty has indicated in today’s Australian newspaper that he might take legal action to protect his reputation.

• So far so good… Kelty threatening to sue.  There is reference in today’s Australian  which actually says something…….

And no doubt, former Patricks chief, Chris Corrigan, will have his lawyers casting a keen eye over the ABC’s much vaunted mini-series, given the lashing he gave the series on Crikey yesterday.

• Why no doubt…… It looks for today’s OZ that he is going to merely exorciate it and move on.  No indication that he is having his lawyers look at anything or if they had in fact been instructed at all.  Very sloppy commentary.  What basis did he have to say that….

The producers of Bastard Boys and the ABC say that the series is merely drama, and not documentary.

•  …… and ….. Perhaps this is a lead into some substantial commentary…..

 No doubt, they had taken some legal advice before running this “defence” against claims that the series may be defamatory in the way it portrayed certain characters.

• This is just trite.  Of course it was legalled.  But so what…….  What are the elements of the “defence” Greg.

But this “defence” appears too cute by half.

• OK, something concrete at long last.  

It would be more accurate to portray Bastard Boys as a docu-drama, in which historical events were played out with actors.

• Talk about getting the point wrong.  OK ABC says it is drama but Barns says it is docu drama.  If a party sues and says he or she can be identified, has standing and words were represented as being said by or about that person or there were dramatisations about that person and his or her reputation were damaged then there is a prima facie claim.  After that it is time for the defences.  Splitting straws over whether it is drama or docu drama is nonsense.  

In fact, in the lead-up to the screening of Bastard Boys, last Sunday and Monday, the viewer was clearly left with the impression that the series was going to retell the events of the 1998 waterfront dispute, and that the lead characters would be portrayed accurately. This was the “inside” story on what really happened on the waterfront.

• Whether a drama or docu drama that is the case……  

While the law acknowledges the right for creators of fiction works, or even works loosely based on facts, to take liberties in their portrayal of individuals and their actions, there is a limit.

• And what is the limit Greg…… Something meaty for a change….  

Why do you think that films and books which portray people in a dastardly light often wait until that individual is dead, before they go to print or roll the film.  

• And he squibs it…again… 

So what might Mr Kelty, Mr Corrigan and anyone else who feels that their reputation or character has been unfairly maligned or impugned in Bastard Boys, do about it?

• You are writing the piece Greg, tell us.

There is now a national defamation law and because Bastard Boys was shown in every state and territory of Australia, the choice of jurisdiction is really in the hands of the person who is suing for defamation.

• Even before uniform defamation laws (not national laws) you could pick a jurisdiction if it was shown nationwide.

Under the national defamation law there are a range of defences available to the ABC and the producers and creators of Bastard Boys. These include truth, fair comment and honest opinion.

• OK……

While it remains to be seen if anyone will sue over the way they are portrayed in Bastard Boys, any legal action brought is likely to be defended vigorously by the ABC and the creators of Bastard Boys.

• Another trite comment

And what a fascinating case it would be –

• And why is that……  

if Mr Kelty or any other plaintiff wins, it will be a reminder that there are indeed limits to freedom of speech

How pathetic!