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Moira Deeming expelled by Victorian Liberal MPs amid potential for defamation lawsuit

Deeming has sat as an Independent Liberal since last month.

After a 2-hour meeting, the Victorian Liberal Party has voted 19-11 to expel Liberal MP Moira Deeming from the parliamentary party.

Deeming, who did not attend the party meeting, will now serve the remaining 3 years and 6 months of her term as a Member of the Legislative Council for the Western Metropolitan Region on the crossbench. Deeming had been serving as an Independent Liberal MP since April 11, and it is currently unclear whether she will remain as an Independent or join another party.

The motion to expel Deeming was brought by 5 Liberal MPs, including former opposition leader Matthew Guy, for ‘discrediting’ the party, after a similar motion failed on March 27.

Renee Heath, an ally of Deeming who had stood alongside her in the Legislative Council, has been also been sanctioned by the party after another 19-11 vote. She has been stripped of her position as the Liberal Party’s Secretary.

The motion to expel Deeming was brought by 5 Liberal MPs, including former opposition leader Matthew Guy, for ‘discrediting’ the party, after a similar motion failed on March 27. They were also responsible for the motion against Heath.

The controversy stems from Deeming’s presence at the Let Women Speak rally on March 18, whose organisers included Kellie-Jay Keen, also known as Posie Parker, and Angie Jones. Deeming says neo-Nazis “gatecrashed” the rally and repeatedly performed the Nazi salute, before clashing with transgender rights’ counter-protesters.

On March 19, Pesutto announced that he would move to have Deeming expelled from the party, although the two reached a compromise after a 2-hour meeting on March 27, with Deeming being suspended from the party.

In response to Pesutto’s comment that Deeming had “associated with far-right extremist groups, including neo-Nazi activists,” which Liberal MP Chris Crewther was “guilt by association,” on May 4th Deeming announced that she would launch legal proceedings unless Pesutto apologised.

Pesutto denies any claim that he was labelling Deeming herself as a Nazi, and the official minutes from the March 27 meeting included an official party statement that she was not a Nazi.

On May 6th, Pesutto announced that 5 Liberal MPs had submitted another motion to expel Deeming entirely, not long after Deeming took to Twitter to state that she was merely seeking legal consultation about the terms of her suspension, rather than threatening legal action.

Less than 24 hours before the second vote to expel Deeming, she served Pesutto with a defamation notice, giving him 28 days to apologise on his website, pay her compensation and pay her legal fees, or else risk having to appear before the Federal Court of Australia in a defamation lawsuit.

Any defamation action brought by Deeming would be governed by the Defamation Act 2005 (Vic) and any relevant common law.

There are three traditionally important elements of defamation:

  1. Are the statements defamatory in nature?

Although this most commonly refers to whether the statements ‘adversely affect’ the reputation of a person in the eyes of the public, it can also refer to exposing a person to hatred, ridicule, contempt, or causing the person to be shunned.

  1. Does the material refer to the victim?

The person bringing the case, ie the plaintiff, must prove that the matter was ‘of and concerning them,’ either by expressly identifying them or by implication.

  1. Was it published?

The matter must have been published to other people, such as by making a statement to the public or publishing it in a newspaper.

The most difficult element for Deeming to prove will be demonstrating that the remarks were defamatory. The primary defence to this that Pesutto can rely on is by proving that his comments are true.

Section 25 provides the defence of ‘justification’ if everything that Pesutto said was “substantially true,” which is also defined in Section 4 as “not being materially different from the truth.” As Acting Chief Justice of the New South Wales Supreme Court Philip Street put it in Rofe v Smith’s Newspapers Ltd (1924), “the presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it,” whereas defamation lowers the reputation beyond its proper level.

The second, and slightly more confusing, form of truth is found in Section 26. This is known as ‘contextual truth,’ and requires part of the statement to be substantially true, and anything that isn’t true must otherwise not lower the reputation of the person.

Section 25 is the more common of the two defences of truth.

If Deeming can establish all this, Section 10A of the Defamation Act 2005 (Vic) requires her to prove that she suffered ‘serious harm,’ or was likely to have suffered ‘serious harm,’ as a result of Pesutto’s actions.

Evidence for serious harm can include the subsequent criticisms of Deeming from other MPs and the general public, and her suspension from the party costing her the role of Opposition Whip in the Legislative Council, which carries an annual salary of $20,000.

The important question for Section 10A is whether the losses she suffered were a result of Pesutto’s actions. In other words, if Pesutto didn’t make those comments, would other people have criticised her, would her reputation have been lowered, and would she have lost the position of Opposition Whip? Only losses that are a direct result of Pesutto’s actions can apply here.

Finally, it is important to remember that the tort of defamation is part of civil law. This means that the standard of proof isn’t the ‘beyond all reasonable doubt’ standard in criminal cases, but only ‘on the balance of probabilities,’ meaning is it more likely than not that it happened.

It remains to be seen whether Deeming will follow through on this lawsuit.

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