The proceedings arose out of publication by Bauer's Zoo Weekly - a lad's magazine - of an article that Hanson-Young claimed conveyed imputations that
- was not a politician to be taken seriously,
- her pro-asylum seeker stance was ridiculous,
- was not competent and
- was too immature to make a serious contribution to the political debate over asylum seekers.
Bauer argued that the matter complained of was incapable of being construed as other than a joke. The judgment notes that
The article appeared under the headline "Zoo's Asylum Seeker Bikini Plan". It was illustrated with a photograph which, as both parties agree, any reader would plainly have realised had been photo-shopped. The photograph shows Senator Hanson-Young's face superimposed on the body of a young woman in underwear standing at the open door of a motel room. In case the message was too subtle for some readers, the accompanying article was further illustrated with an inset close-up of the woman's breasts.McCallum J notes that
The defendant objects to imputation 4A on the basis that it is incapable of arising and incapable of being defamatory. As the second point was developed in oral submissions, the objection appeared to extend to a complaint that the imputation is bad in form.
On the question of capacity Mr Richardson, who appears for the defendant, submitted that the article was clearly facetious and would not be taken literally. He submitted that it is not to the point that some readers may find the photograph offensive. It was submitted that, because the article was plainly intended as a joke, the imputation that the plaintiff is not a politician to be taken seriously can only be derived from it on a strained, forced or unnatural reading.
Those submissions assumed that there is a dichotomy between jokes and damaging statements. Implicitly, the proposition was that if a publication can be characterised as a joke (as opposed to a literal statement) it will be incapable of being defamatory, even if it is facetious or offensive.
I do not think a definitive statement of principle can be made in those terms. As noted by Ms Amato, who appears for Senator Hansen-Young, the critical question is what the joke says about a person and whether what is said is defamatory. Humour is notoriously subjective, a proposition captured in the quote attributed to the comedian, Mel Brooks:
Tragedy is when I cut my finger. Comedy is when you fall in an open sewer and die.
It may be doubted whether articles published in Zoo Weekly magazine reflect a sense of humour shared by the community as a whole but that is quintessentially a question for the jury. Whether any particular publication can be characterised as a joke which is incapable on that account of being understood in any defamatory sense is essentially an evaluative judgment and one very much informed by community values.