Barilaro v Google LLC
[2022] FCA 650
•6 June 2022
FEDERAL COURT OF AUSTRALIA
Barilaro v Google LLC [2022] FCA 650
File number(s): NSD 484 of 2021 Judgment of: RARES J Date of judgment: 6 June 2022 Catchwords: DEFAMATION – where matters complained of were videos uploaded on YouTube – where respondent became liable as publisher after being notified of their defamatory content – where respondent belatedly abandoned all defences – where respondent had no belief in truth of matters complained of or imputations – where respondent failed to take down matters complained of and other videos uploaded by creator knowing that they contained defamatory and offensive attacks on applicant and his lawyers – where matters complained of contained racist, hate speech and cyber-bullying material – where matters complained of were part of creator / former respondent’s campaign using multiple videos uploaded on YouTube against applicant – where applicant former Deputy Premier of New South Wales – where respondent’s campaign drove applicant prematurely from public office
DEFAMATION – where creator uploaded matters complained of on YouTube before respondent became aware of them so as to be publisher – where many views of matters complained of in period before respondent became liable as publisher – whether damages discounted because of earlier publications when respondent not publisher
DAMAGES – compensatory and aggravated damages – where defamation a most serious case – where matters complained of were racist, hate speech and cyber-bullying – whether publisher’s conduct improper, unjustifiable or lacking in bona fides – where respondent published and failed to take down further racist, hate speech and cyber-bullying videos in campaign against applicant despite maintaining that it had policies against such publications – where publisher persisted in hopeless defences until commencement of trial – where publisher failed to apologise – whether cross-examination of applicant unjustifiable – Held: aggravated damages awarded
CONTEMPT OF COURT – contempt not in the face of Court – where respondent and former respondent published videos calculated to bring improper pressure to bear on applicant and his lawyers to abandon proceeding
Legislation: Evidence Act 1995 (Cth) ss 8 and 56
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG 37M and 37N
Racial Discrimination Act 1975 (Cth) ss 7, 18, 18C and 18D
Federal Court Rules 2011 rr 10.42 and 10.43
Defamation Act 2005 (NSW) ss 10A, 12A, 25, 29A, 30, 31, 34, 35
Defamation Amendment Act 2020 (NSW) Sch 1 ss 12A and 12B and Sch 2 ss 14B and 14C
Imperial Acts Application Act 1969 (NSW) s 7
Independent Commission Against Corruption Act 1988 (NSW) s 37
Kosciuszko Wild Horse Heritage Bill 2018 (NSW)
Limitation Act 1969 (NSW) s 14C
Surveillance Devices Act 2007 (NSW) s 7
Bill of Rights 1688 (Eng) Art 9
Defamation Act 2013 (UK) s 4
International Convention on the Elimination of All Forms of Racial Discrimination Art 4
Cases cited: Austin v Mirror Newspapers Ltd [1986] AC 299; (1985) 3 NSWLR 354
Barilaro v Shanks-Markovina (No 1) [2021] FCA 789
Barilaro v Shanks-Markovina (No 2) (2021) 393 ALR 417
Barilaro v Shanks-Markovina (No 3) (2021) 393 ALR 469
Broome v Cassell & CoLtd [1972] AC 1027
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
Carson v John Fairfax & SonsLtd (1993) 178 CLR 44
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36
Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554
Cornwall v Rowan (2004) 90 SASR 269
Crampton v Nugawela (1996) 41 NSWLR 176
Crime Commission (2010) 240 CLR 651
Dingle v Associated Newspapers Ltd [1964] AC 371
Economou v de Freitas [2017] EMLR 4; [2019] EMLR 7
Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Harkianakis v Skalkos (1997) 42 NSWLR 22
Hearne v Street (2008) 235 CLR 125
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254
Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Jones v Dunkel (1959) 101 CLR 298
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Ley v Hamilton (1935) 153 LT 384
Nationwide News Pty Ltd v Rush (2020) 380 ALR 432
Praed v Graham (1889) 24 QBD 53
Saunders v Mills (1829) 6 Bing 213
Serafin v Malkiewicz [2020] 1 WLR 2455
Stead v Fairfax Media Publications Pty Ltd (2021) 387 ALR 123
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Walton v Gardiner (1993) 177 CLR 378
Webb v Bloch (1928) 41 CLR 331
Y and Z v W (2007) 70 NSWLR 377
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 407 Date of hearing: 21–24 March 2022 Counsel for the Applicant: Ms S Chrysanthou SC and Mr N Olson Solicitor for the Applicant: Mark O’Brien Legal Counsel for the Respondent: Mr J Hmelnitsky SC and Mr D Hume Solicitor for the Respondent: Ashurst ORDERS
NSD 484 of 2021 BETWEEN: JOHN BARILARO
Applicant
AND: GOOGLE LLC
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
6 JUNE 2022
THE COURT ORDERS THAT:
1.Judgment be entered for the applicant in the sum of $715,000, inclusive of $40,000 prejudgment interest.
2.On or before 14 June 2022 the applicant and respondent file and serve any evidence and written submissions limited to three pages if he or it seeks an order in respect of costs other than that the respondent pay the applicant’s costs, and, in default of any such application, it be ordered that:
2.The respondent pay the applicant’s costs.
3.If either party makes an application pursuant to order 2:
(a)on or before 21 June 2022 the opposing party file and serve any evidence and written submissions limited to three pages in response.
(b)on or before 28 June 2022 the applying party file and serve any evidence and written submissions limited to one page in reply.
4.The conduct of the respondent and Jordan Shanks-Markovina in the evidence admitted at the trial and Court’s reasons for judgment delivered today be referred to the Principal Registrar to consider whether to institute proceedings against each for what appear to be serious contempts of court by bringing improper pressure on the applicant and his lawyer not to pursue this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
INTRODUCTION
[1]
The matters complained of
[3]
Procedural history
[7]
Mr Barilaro’s background
[12]
Mr Barilaro’s experience with friendlyjordies
[22]
The Koalakiller 2 video
[27]
THE BRUZ VIDEO
[33]
Mr Barilaro’s reaction to the bruz video
[64]
The bruzboard video
[77]
THE SECRET DICTATORSHIP VIDEO
[81]
Mr Barilaro’s reaction to the Secret Dictatorship video
[92]
The Super Barilaro Kart video
[101]
The Italian Job video
[104]
GOOGLE AS A PUBLISHER
[112]
YouTube’s policies or guidelines on allowable content
[112]
Google becomes aware of friendlyjordies attacks on Mr Barilaro
[129]
Google becomes a publisher of the matters complained of
[137]
The bruz: eternal video
[146]
Google’s delay in removing the adverse reviews of Dungowan Estate
[174]
Mr Barilaro files this proceeding
[176]
The He’s Destroying Australia video
[187]
Google files its defence
[194]
Mr Shanks settles the claims against him
[200]
The bruz: withdrawal video
[204]
The impact on Mr Barilaro of strangers’ online abuse linked to Mr Shanks’ YouTube campaign
[208]
Further steps leading up to the hearing
[216]
The 22 December 2021 video
[220]
The cross-examination on the 22 December 2021 video
[231]
Google offers to settle
[241]
Google progressively drops its defences
[248]
The extent of publication
[254]
Google’s earnings from the matters complained of
[261]
THE REPUTATION EVIDENCE
[262]
RELIEF
[279]
The legislative context
[279]
Google’s liability for harm suffered before it became liable for defamatory character of videos on 22 December 2020
[282]
General damages
[291]
Aggravated damages
[310]
Aggravated damages – principles
[311]
The initial, ongoing and recent inaction issues
[314]
The general conduct issue
[350]
The apology issue
[391]
The cross-examination issue
[395]
Should there be injunctive relief?
[400]
CONCLUSION
[402]
INTRODUCTION
John Barilaro, the applicant, was the Deputy Premier of New South Wales and leader of the State Parliamentary National Party from 15 November 2016. He is known by the English equivalent of his actual name, Giovanni. On 5 October 2021, he resigned as Deputy Premier, announced his intention to retire from politics and, on the next day, resigned from his other Ministerial offices. For over a year preceding his resignation as Deputy Premier, Mr Barilaro had been the subject of a relentless, racist, vilificatory, abusive and defamatory campaign conducted on YouTube, a platform operated by Google LLC, the respondent. The creator of that campaign, known as Jordan Shanks and online as friendlyjordies, was formerly a respondent in this proceeding. YouTube is the second most visited website in the world after Google.
Over the two weeks immediately preceding the second day of the trial, Google progressively abandoned all its defences. Some of those defences were obviously hopeless, such as Google’s denials that the matters complained of conveyed the imputations that Mr Barilaro pleaded.
The matters complained of
The matters complained of were two YouTube videos, bruz, first uploaded on 14 September 2020, and Secret Dictatorship, first uploaded on 21 October 2020.
Mr Barilaro pleads that the bruz video, in its natural and ordinary meaning, conveyed the following five imputations, or imputations that do not differ in substance (when I refer to imputations in these reasons I intend to include ones that do not differ from them in substance), that were defamatory of him, namely (statement of claim, par 9):
(a)Mr Barilaro is a corrupt conman;
(b)Mr Barilaro committed perjury nine times;
(c)Mr Barilaro has so conducted himself in committing perjury nine times that he should be gaoled;
(d)Mr Barilaro corruptly gave $3.3 million to a beef company; and
(e)Mr Barilaro corruptly voted against a Royal Commission into water theft.
Mr Barilaro pleads that the Secret Dictatorship video, in its natural and ordinary meaning, conveyed the following three imputations that were defamatory of him, namely (statement of claim, par 15):
(a)Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors;
(b)Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money; and
(c)Mr Barilaro has pocketed millions of dollars which have been stolen from the Narrandera Shire Council.
Mr Barilaro contends that Google is liable for publication of both matters complained of on and from 22 December 2020, being the date on which he served it with a concerns notice.
Procedural history
Following a hearing on 23 July 2021, on 13 August 2021, I declared that Mr Shanks’ proposed defences of justification to imputations 9(b) and honest opinion relating to a matter of public interest based on proper material within the meaning of ss 25 and 31 of the Defamation Act 2005 (NSW) would amount to questioning or impeaching proceedings in Parliament in contravention of Art 9 of the Bill of Rights 1688 (Eng), as applied in New South Wales by force of s 7 of the Imperial Acts Application Act 1969 (NSW). Google had not been served at the time I heard that issue and played no role in that decision. I also found that there were several deficiencies in Mr Shanks’ proposed defence that required substantial amendments and ordered him to pay costs: Barilaro v Shanks-Markovina (No 2) (2021) 393 ALR 417.
Despite its very substantial, continuous online activity in Australia as part of its worldwide business, because it has no physical presence in this country, Mr Barilaro had to serve Google in California in the United States of America pursuant to order 1 made on 9 July 2021: Barilaro v Shanks-Markovina (No 1) [2021] FCA 789.
After Google entered an appearance on 10 August 2021, it filed a defence on 25 August 2021 in which it pleaded that each of the bruz video and the Secret Dictatorship video was published on an occasion of qualified privilege at common law, under the implied constitutional freedom of communication on government and political matter, or under s 30 of the Act or, in the case of the bruz video only, it was a statement by a commentator (Mr Shanks) of his honest opinion based on proper material under s 31(3) of the Act. In addition, Google pleaded a defence under the new s 29A of the Act in respect of publications, on and after 1 July 2021, that each video concerned a matter or issue of public interest, the publication of which it reasonably believed was in the public interest.
On 31 August 2021, I refused Mr Shanks’ application, that Google supported, that there be a trial by jury and ordered them to pay Mr Barilaro’s costs: Barilaro v Shanks-Markovina (No 3) (2021) 393 ALR 469.
On 28 October 2021, Mr Barilaro and Mr Shanks agreed to settle the issues in this proceeding between them. The settlement involved, among other matters, Mr Shanks taking down to edit each matter complained of so as to remove those parts that conveyed the imputations, making an apology that his senior counsel read in open Court on 5 November 2021, and paying $100,000 in respect of Mr Barilaro’s costs of his unsuccessful applications for a stay of the proceeding and a jury trial.
Mr Barilaro’s background
Mr Barilaro was born in 1971. In the mid-1960s, his parents had migrated to Australia from Calabria, in Southern Italy. They settled in Queanbeyan. Naturally, Italian was his parents’ first language and to this day his mother’s English is not good. His father was a joinder/carpenter, who died in 2020, and had learnt to speak English to be part of the local workforce. Mr Barilaro’s father worked for a Queanbeyan joinery business for two or three years after arriving in Australia and then started his own business with two partners called Little Joinery that became very successful. Later, his father founded his own company, Ryleho Mouldings and Timber, with a different partner. His father invented, and won a design award, for a pre-hung door system to facilitate fitting doors in a residential home. Mr Barilaro’s mother looked after their four children at home and worked for a company assembling flyscreens. Later she worked as a cleaner at Queanbeyan High School, before and after school hours. Mr Barilaro went to that school until his final two years which he spent at St Edmund’s College in Canberra. He began studying accounting at the University of Canberra but did not enjoy that, despite his parents’ ambitions for him to have a tertiary education. He persuaded his father to let him take a gap year working in the family business. Mr Barilaro said that he started at the bottom and his father worked him very hard, but he loved everything about the work.
Mr Barilaro married Deanna and they have three daughters aged 25, 21 and 6 at the time of the trial. His children went (and the youngest daughter still goes) to school in Queanbeyan. Mr Barilaro’s father was an active member of the Queanbeyan community, President of the Multilingual Centre, a board member of the Queanbeyan District Hospital and the Marco Polo Club. Mr Barilaro was inspired by his father’s example.
After his father retired in about 1997, Mr Barilaro and his wife bought out the other partner and he became managing director of Ryleho. Mr Barilaro changed the product line to focus on innovative building products including energy efficient windows and doors. He was proud of the success the business achieved.
Mr Barilaro said that he followed in his father’s footsteps. He started the Monaro Panthers Soccer Club, involved himself in coaching young persons and sponsored many community groups. He spent a lot of time volunteering to assist in running the Monaro Panthers, in coaching, and he was on the executive in several capacities including as its President. It grew to having about 900 junior players, and about 200 senior ones. There were not enough grounds in Queanbeyan to accommodate the Monaro Panthers’s needs so the Queanbeyan City Council told the club to take the young players to Canberra to train. Mr Barilaro decided to stand at the 2008 Council elections as an independent to remedy the situation. He secured the second highest vote at the election and remained on the Council till 2012. He came to realise that there were limited opportunities at council level for him to deliver what he thought the community needed. He had an interest in State politics “because it was still local”. After approaches by both the Liberal Party and Nationals, he decided to seek preselection in about 2010 as a Nationals candidate for the local state seat of Monaro, then held by a locally popular Labor Government Minister, the Hon Steve Whan MP. He was preselected, campaigned for 12 months and won the seat by 750 votes with a swing of about 8.3% which was lower than the average for the incoming Government because of Mr Whan’s popularity in the 2011 State election.
In his maiden speech he referred to his father as his superhero, because he was a migrant who came to this country and “showed courage and sacrifice”. He recalled in his evidence his father’s pride in his being elected. Mr Barilaro held several Parliamentary Committee positions between 2011 and 2014 and was Temporary Speaker from November 2011 to May 2014 when he was appointed as Parliamentary Secretary for Small Business and Regional Development until being made Minister for Regional Tourism, Minister for Skills and Minister for Small Business in October 2014.
In mid-2014, Mr and Mrs Barilaro acquired Dungowan Estate, a large rural property, near Queanbeyan. Mrs Barilaro ran that property as an Airbnb style business and the family also used it as a second family home and spent holiday times there.
Mr Barilaro won the 2015 election, again against Mr Whan, with a 6.3% margin, being more than the previous margin and a 2.5% swing, despite an unfavourable redistribution and a state-wide swing against the Government of over 9%. In the new Cabinet, Mr Barilaro was appointed Minister for Regional Development, Minister for Skills and again Minister for Small Business.
On 15 November 2016, Mr Barilaro became leader of the Parliamentary National Party and Deputy Premier of New South Wales. In a reshuffle in January 2017, he retained the Minister for Skills and Small Business portfolios and also became Minister for Regional New South Wales.
In the 2019 state election, Mr Barilaro was re-elected with a margin of 12%, winning every booth. He said this had never been done in State politics by either side. He said Monaro traditionally had been a bellwether seat which the government party had only failed to win twice in 29 elections. He was proud that, despite his Ministerial responsibilities, his enthusiasm for being a local member had made his seat a safe one, saying “It was the most humbling experience and an endorsement by my community that… I cherish forever”. From April 2019, he was Minister for Regional New South Wales, Industry and Trade.
After he entered State Parliament in 2011, Mrs Barilaro agreed to run Ryleho’s business until the 2015 election when they could reassess matters, given the narrowness of his 750 vote win. After winning the 2015 election, with the birth of their youngest daughter, Mr and Mrs Barilaro decided that she should be at home with the young child. They also decided to sell the Ryleho business, which occurred in 2016. In late 2020, Mr and Mrs Barilaro separated.
Mr Barilaro’s experience with friendlyjordies
In about the first half of June 2020, a journalist with The Daily Telegraph newspaper, James O’Doherty, approached Mr Barilaro’s director of communications and enquired whether he was aware of an online comedian who was imitating, using strong accents, the then-State Premier, the Hon Gladys Berejiklian MP, and Mr Barilaro. Both politicians are children of migrant parents whose first language was not English. This is how Mr Barilaro first learnt of Mr Shanks.
Mr Barilaro asked for a link to the video to which Mr O’Doherty referred and then watched it. Mr Barilaro concluded that the video was “a low attempt at comedy, but it’s just racist and disgusting and I wanted to call it out”. He prepared a response that was given to Mr O’Doherty who then published a story in the Daily Telegraph. He gave this evidence:
You know, Gladys’ story is a great migrant story as well, and … and as a Deputy Premier you feel protective of the Premier, so … I was happy to be … the one that called it out, and I called it out. And that’s exactly what I did. I called out racism, and we gave the response to James O’Doherty [of] the Telegraph and, the day after, he printed the story with my comments.
The Daily Mail also reported on this issue in an article posted on 22 June 2020. It noted that Mr Shanks had posted a YouTube video that had been viewed more than 204,000 times in which, the article stated, he “used a heavily exaggerated Italian accent when impersonating both politicians, before calling the deputy premier a ‘triggered little bitch’”. The article reported that Mr Barilaro had taken offence to that video on behalf of the then-Premier and quoted him as saying:
I don’t mind taking the mickey out of myself, but this is actually very offensive. It’s a low attempt at comedy and full of racist undertones.
Mr Barilaro told The Daily Telegraph:
To imitate both myself and the Premier with such obvious distaste for our backgrounds is unacceptable. Our migrant story is actually the Australian success story, one this nation is proud of.
The article noted that as at June 2020, friendlyjordies had 420,000 YouTube subscribers. It also said that Mr Shanks had told his viewers to post his nickname for the Premier, #koalakiller, on every update she posted on social media until she was “booted out of office” because “we also live in the age of Twitter pile-ons”.
The Koalakiller 2 video
On 13 July 2020, Mr Shanks uploaded to YouTube a video entitled “#KoalaKiller 2.0 Meme Review” (the KoalaKiller 2 video).
Mr Shanks tells viewers that his campaign against Ms Berejiklian and Mr Barilaro will involve this: “we are going to come up with memes to push the nicknames that we know for a fact now you don’t like” while showing pictures of her and Mr Barilaro with the expressions “#KoalaKiller” and “Super Barilaro Bruz” superimposed on their photos.
He then says that if the viewer needs more context, he or she can look at earlier videos, including one that appears to be his response to being called out for racism by Mr Barilaro. He then displays and reads a rewritten Wikipedia entry for Mr Barilaro which refers to him as “Bruz Barilaro” and states “His preferred name is ‘Bruz’ and his favourite video game is Super Mario”. Mr Shanks then expatiates on what he calls “Italian food related memes”. The video super imposes Mr Barilaro’s face over frames with a character from an episode of The Simpsons which Mr Shanks describes as “Jesus, see, his face fits on the fat Cayman Islands guy more than the fat Cayman Islands guy’s face actually does” before he reads, with bursts of laughter, the captions on the frames below in a mimicked Italian accent reminiscent of Marlon Brando’s voice as Don Corleone, the Mafia boss, in the film The Godfather:
The video then attacks the Premier on Mr Shanks’ koala killer theme, displaying a photoshopped image of Ms Berejiklian’s head looking at the superimposed heads of Mr Barilaro next to Mr Shanks. Mr Shanks reads the caption “I’m seeing double here, four wogs!” and then reads typed quotes in a parodied Italian accent from Mr Barilaro that appear on screen in which he denounced Mr Shanks’ racism and offensive conduct.
At the end of the video, Mr Shanks tells viewers that Friendlyjordies has printed a second set of limited edition Super Barilaro Bruz tee-shirts costing $40 and promotes their sale, before inviting them to share and comment on the video.
As I will describe, Mr Shanks’ publications of the matters complained of and other YouTube videos criticising Mr Barilaro provoked thousands of abusive, denigratory statements in response to Mr Shanks’ usual sign off inviting comments from his viewers.
THE BRUZ VIDEO
The first of the matters complained of is the bruz video. I have attached a transcript of the bruz video annexed to the statement of claim as annexure A to these reasons. The words in italics in annexure A appear onscreen as the bruz video plays.
However, the transcript does not convey the many skilful visual, aural and animated depictions that form part of the bruz video. The presentation, as with other videos that Mr Shanks and his “friendlyjordies” production house published that are in evidence, appears to be professionally produced. Mr Shanks speaks both eloquently and with numerous, apparently well mimicked voices and accents. No doubt his presentational scripting and writing skills, and those of the persons involved in these productions, have enabled him to build a very large online following. Each video asked the viewer to post comments, usually at its conclusion, and thousands did.
At the commencement of the bruz video, par 3 attributes Mr Barilaro’s denunciation of Mr Shanks’ earlier “racist behaviour” towards Ms Berejiklian to a report by News Corporation, the publisher of The Daily Telegraph. Mr Shanks then portrays Mr Barilaro as a parody or meme of the well-known Nintendo video game characters, the Mario Bros or Super Mario Bros, Mario and his brother, Luigi. Mr Shanks mocks Mr Barilaro before telling the viewer, as he is lying in a bath with a cigar in his hand, that “we’re not here to talk about my big fat wog cock, we’re here to talk about another big fat wog cock” and then the word “bruz” appears on the screen (pars 11, 12). Mr Shanks then uses an Italian accent to imitate the statements made by a photoshopped head of Mr Barilaro atop a The Simpsons cartoon body to mock him before telling viewers (pars 13–16) “Bruzamia! He’s a conman to the core, powered by spaghetti”. Mr Shanks then tells viewers that he intends to upset Mr Barilaro by referring to him as “Giovanni” and relapses into the parodied Italian accent to mock Mr Barilaro before calling him (par 24) “you ball of grease”.
Next, Mr Shanks criticises Mr Barilaro’s absence in London on holiday during the late 2019 bushfires before using a photoshopped image of Mr Barilaro’s head on a depiction of a man next to a lyre as an adjacent city burns below him, saying “Looks like the Julio-Claudians weren’t wiped out after all”. The allusion is to the Emperor Nero fiddling while Rome burns (par 39).
Mr Shanks then tells the viewers that he is now focussed on “water theft” and displays a screen shot of the headline “Barilaro’s backing of Federal Murray-Darling Basin royal commission muddies waters” (emphasis added) and the first two paragraphs of an article that appeared in The Sydney Morning Herald on 31 January 2019. The screenshot remained visible for only four seconds (pars 42–52).
Next, there appears a screenshot of a post made on 8 August 2019 by the Shooters and Fishers Party. The post quotes that party’s Helen Dalton MP, condemning what she terms as Mr Barilaro’s “rank hypocrisy”. In a feat of twisted (il)logic, Mr Shanks tells the viewer “seriously though, I think he’s corrupt” because he did not vote to support a royal commission. This segment (pars 42–52) clearly conveyed imputation 9(e).
Then, the bruz video presents the viewer with a screenshot of the tweet that Mr Barilaro sent Ms Dalton, 8 months earlier on 4 May 2020. Again, this tweet appears for about three seconds (at pars 47–49). Mr Shanks presents the tweet as if it were a direct response to Ms Dalton’s statement made 8 months earlier, before telling the viewers (par 50) “I told you he was a dumb fuck. It was like a caveman wrote that tweet” before reading it in a parodied Italian accent.
The video then presents a screen shot with a headline from The Northern Daily Leader published on 25 May 2020 about Mr Barilaro defending allegations that he and the former Arts Minister had used favouritism to allocate regional cultural funds being “pork-barrelling” before quoting Mr Barilaro responding to the criticism “when we do, its pork-barrelling. Well my name is John Barilaro. Call me Pork-Barilaro and I have no apology, because at the end of the day I will stand up and fight for our communities” (yellow highlight in original video). Mr Shanks asserts that “he wears his corruption as a badge of honour”.
Then, the bruz video compares Mr Barilaro with the Mario Bros game, juxtaposed with his Italian heritage, images of the game, him and other persons eating spaghetti by the mouth from plates with hands behind their backs in a spaghetti eating competition with a superimposed Super Mario cap. The screenshot below refers to Mr Barilaro’s June 2020 criticism of Mr Shanks’ racist comments:
Mr Shanks tells the viewer that this is the Deputy Premier adding disparagingly “Oh fuck, that’s tasty. Migrant success story! Obviously he’s trying to spin his pork-barrelling as John Barilaro AKA Greasy Ned Kelly” (emphasis added) captioned with a photoshopped image of him with Ned Kelly’s metal helmet (pars 56–61). The epithet “greasy” was racist.
However, the viewer would not have been able to see detail of the two screenshots dealing with the royal commission issue and relate them to Mr Shanks’ unfounded assertions that Mr Barilaro acted corruptly or broke a promise. First, there was no indication in the bruz video of what could be categorised as “corrupt” in this episode and, secondly, the newspaper screenshot stated that Mr Barilaro supported a federal, not a State, royal commission.
The bruz video proceeds to discuss the approval process under the New South Wales Government’s Go Equity Fund in respect of two investments, Australia’s Oyster Coast (par 70) and Stone Axe Pastoral, a wagyu beef company (par 80). Mr Shanks described Mr Barilaro as “a man who looks like a Mafia don” and parodies his voice again with an adaptation of the invitation to viewers to post comments that usually appears at the end of his videos, namely 2 photoshopped images of the heads of television presenter, David Koch, as a turtle and President of the United States of America, George W Bush, riding a horse. The adaption here was to superimpose, on the horse rider, Mr Barilaro’s head wearing a Mario Bros baseball cap. Mr Shanks then states what formed the basis for imputations 9(b) and (c) accompanied by several screenshots (pars 74–78):
When Mr Shanks tells viewers “I think you can see where this is going” a screenshot of part of an article published on 16 October 2018 in The Sydney Morning Herald appears for three seconds followed by a screenshot lasting five seconds of a part of a Ministerial Briefing Paper by Jobs for NSW to invest over $3.3 million in Australia’s Oyster Coast that Mr Barilaro signed as Deputy Premier on 5 April 2018. Earlier, there is a brief depiction of part of a press release made on 17 October 2017 entitled “Go NSW Equity Fund to invest in high growth companies”. It stated that the fund was “to buy a stake in companies with potential to create new jobs in NSW”.
The full article in The Sydney Morning Herald recounted that Mr Barilaro had told question time that the investment decisions were endorsed by the independent board of Jobs for NSW but he had no role in the decision-making process. “Then they come to me for sign-off on the final decision”. The article said that this was in answer to the excerpt of the accusation by the then-leader of the Opposition, Luke Foley MP, that earlier, Mr Barilaro had misled an estimates committee of Parliament. The screenshot highlighted Mr Foley’s statement “Nine times he told the Parliament that he had nothing to do with the decision to spend $3.3 million on an oyster company… yet now we learn he sighted the document which approved it”. The screen shot of that document showed:
The bruz video then gave a description of what it claimed was the decision to invest in the beef company in which the private equity fund, ROC Partners, had advised the CEO of the Equity Fund to make despite ROC Partners having a majority interest in Stone Axe Pastoral (in pars 79–81) as follows:
Then get ready for the second whammy that makes your mum say, oh no, that’s horrible. Because also $3.3 million was given to a beef company that just 10 months earlier ROC Partners bought a majority “stake” in. Ha. Do you get it? No?
Okay, let me make this as simple as possible. ROC Partners advised that the NSW Government give your money to ROC Partners. When Labor found about this they tried to force Giovanni to refer the deals to the Independent Pricing and Regulatory Tribunal but would obviously find what you would assume on hearing that, that that is blatant corruption and, wouldn’t you guess, Giovanni says what he says whenever someone makes a plausible accusation of corruption perpetrated by him.
[IN PARODIED ITALIAN ACCENT]: Fuck off.
This voice-over rehearsed what appeared in the accompanying screenshot of part of an Australian Broadcasting Corporation (ABC) news post made on 4 September 2018.
Mr Shanks omitted any reference to the ABC post’s statements that Mr Barilaro had told the budget estimates that ROC Partners had disclosed its interest to the board of Jobs for NSW when it considered the proposal and that its decision was that of an expert at arm’s length from the Government. Despite this, Mr Shanks told viewers that the approval was “blatant corruption”.
Significantly, all the screenshots of media reports to which I have referred were of articles that were accessible by a Google search and the full documents were in evidence. Since Mr Shanks’ reporting of those matters made no reference to Mr Barilaro’s published responses or any part of his side responding to the accusations, no defence of qualified privilege under s 30 of the Defamation Act or under the implied freedom in accordance with what Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ held in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571: see Barilaro (No 2) 393 ALR 417 at 430 [37]. That is because of the conduct of a publisher, such as Google, in publishing the bruz video could not be reasonable in the circumstances since it omitted any reference to Mr Barilaro’s known responses and it made no enquiry of him as to his response.
Later, in par 95, in discussing the apparently disproportionate allocation of grants to Coalition Government members’ seats including his own, Mr Shanks says of Mr Barilaro:
Not to draw attention to his Italian heritage, because I know he hates that, but that’s a spicy meatball, in fact, he looks a bit like a meatball doesn’t he”.
(emphasis added)
Mr Shanks adds in a parodied Italian accent “Five star pork mince, stooge”.
Then, in discussing Mr Barilaro’s decision to promote the Kosciuszko Wild Horse Heritage Bill 2018 (NSW), Mr Shanks says of Mr Barilaro at par 103:
Scientists and National Parks proposed a cull. Giovanni, the greasy little scrotum, refused.
(emphasis added)
Mr Shanks later engages in further mockery of Mr Barilaro’s and Ms Berejiklian’s heritages (at par 111).
Next, the bruz video discusses the Dungowan Estate. Mr Shanks sought to question Mr Barilaro’s ability to afford the property by alluding only to what he could earn in his public office. Mr Shanks, falsely, suggested that Mr Barilaro’s ownership was evidence of some corrupt conduct linked to his Italian heritage (at pars 115–131). She also stayed there with their daughter.
Mr Shanks then tells viewers that Mr Barilaro intervened in the legislative process to regulate holiday accommodation suppliers such as Airbnb and Stayz. A screenshot of part of an article in The Sydney Morning Herald of 24 November 2016 appears for about four seconds with the headline “Deputy Premier John Barilaro under fire over undeclared Airbnb business”. The screenshot recorded that Mr and Mrs Barilaro had “been hiring out a palatial $2 million holiday home” on those platforms “for thousands of dollars a night”. The screenshot also stated (but Mr Shanks did not) that Mr Barilaro had declared his ownership of the Dungowan Estate to Parliament for the previous two years. The screenshot stated that Mr Barilaro only had declared the business use by an amendment to his register of interests on the preceding Wednesday, after Fairfax Media (the newspaper’s publisher) had raised an issue about it.
Mr Shanks accuses Mr Barilaro of having an undisclosed conflict of interest in the drafting of laws regulating Airbnb. In part of the article in The Sydney Morning Herald, that Mr Shanks neither displayed nor read out, the reader was told that a government report published the previous month had looked at regulating the online accommodation platforms. The article reported that Mr Barilaro had not been involved in that inquiry and that if the Government were to consider a response he would raise any likely conflict in Cabinet. The article stated that Parliamentary rules required members to disclose any additional income, including from a partnership, such as the business Mr and Mrs Barilaro ran. The business had registered the Dungowan Estate website on 20 June 2014 with an Australian Business Number. The article reported that Mr Barilaro’s spokesman had said that because the partnership had made a loss in the return periods, the partners had interpreted the rules as not requiring any declaration but that, in the interests of full disclosure, Mr Barilaro had then lodged a “discretionary return”. Again, this article was available on a Google search.
The bruz video continues with Mr Shanks saying:
[119] They actually argued that, as well as, [IN PARODIED ITALIAN ACCENT]: “Bruz, what possible conflict of interest is there in me owning an extremely expensive property that I just admitted I want to maximise the value on as quickly as possible.”
[120] He’s declaring his conflict of interest in his own argument as to why he doesn’t have a conflict of interest.
[121] What repercussions were there for this blatant display of corruption and regulatory tailoring made to fit John Barilaro’s very specific waist? Nothing. Still do the job, still got to shape the laws, just another chapter in a long, distinguished career of rorting the system as much as he possibly can for the benefit of no one but la famiglia. His view of governing exactly what it was in ancient Rome. No vision for improving the state, no skills to govern, just a fat, decadent conman that by the grace of the gods was put in his position to ransack the Empire for all its worth.
[122] And yet he’s offended by being portrayed as an Italian stereotype.
[123] Well Giovanni, if you find that comparison deeply offensive, same offer as to all your other discrepancies, show me the evidence that you’re not a stereotype. I’ll stop. Show me how a man on a state minister’s salary could afford an estate, as not even your first house, your second house; a second house that’s so big it has a second and third house on it, like Mars’ two moons that just got attracted into its gravitational pull.
(emphasis added)
The pun on “la famiglia” was a crude reference to the Italian Mafia. As Mr Shanks says on screen “And yet he’s offended by being portrayed as an Italian stereotype”, The Daily Mail extracts from 22 June 2020 again appear on screen (see [41] above).
Mr Shanks continues in the bruz video to allege that Mr Barilaro “ostensibly afforded on a public servant’s salary” the acquisition of the Dungowan Estate (par 127), before accusing him of having shaped the laws to justify an extortionate cleaning charge of $750, about which he assures viewers, while breaking a glass bottle there, “I’ll make sure I get my money’s worth” (par 129-130). Mr Shanks then takes viewers on a tour of the property placing “some Super Mario Brothers paraphernalia around the house at points that really tick us off”.
Mr Shanks invites viewers to “make sure you press ‘like’, subscribe and chuck us a couple of bucks”. He mocks the coffee provided in the pantry of Dungowan Estate as “AbruzzoExpressis” placing a Mario doll inside the packet.
Mr Shanks tells viewers to use a handle “#SuperBarilaroBruz” and to buy a Super Barilaro Bruz shirt from the friendlyjordies website. He then does various stunts with a large Mario doll including as he describes (in par 145):
And finally, we’re going to put the Big Mario in the big bed, purely because I’m imagining that Super Barilaro bruz, will wake up one morning only to discover…
This occurs with the camera panning over a double bed with the sheets covering occupants as Mr Shanks lifts the bed covers to parody the well-known scene from the movie “The Godfather” in which a horse trainer awakes to find his prize horse’s severed and bloody head in the bed next to him. Mr Shanks screams as he “discovers” that the big Mario doll is in the bed with him.
Mr Barilaro’s reaction to the bruz video
Mr Barilaro said that he was aware that Mr Shanks had engaged in commentary on his calling out of the racism in earlier videos. Mr Barilaro said that he learnt of the bruz video when his staff asked whether he had seen it. He obtained the link and watched it. He said that he “realised it was a… disgusting video in retribution”. He testified that his reaction then and when it was played in the hearing was that “It’s just raw, it’s disgusting, it’s vile… It was complete racism. The accents … the terms that he used … and the total violation of my privacy”. Mr Barilaro’s concern about the violation of his privacy was because of the use of the Dungowan Estate house which was not only used in his wife’s running of the Airbnb business but also as the second home for his family.
Mr Barilaro accepted that, as a politician, he was open to public scrutiny for his public conduct and policy stances. He noted that, ordinarily, when the media wanted to make “a story on you, they will put to you questions, they will put… issues, they will put to you an opportunity to respond”, but the bruz video “came out of nowhere”. Mr Barilaro was deeply hurt by that publication and broke down watching it in Court the day before he gave evidence and did so again in the witness box. He gave this testimony which evinced the emotional scar that he experienced:
that was just a vile attack on me using racism and claims of corruption … I would assume he thought it was funny, but it wasn’t. And, to this day, … I just can’t let it go; I’m traumatised by it; have always been. And I know, you know, people say, “You’re a politician; you’re used to this stuff”, but you’re used to the banter in the bear pit. You’re used to the banter. You get questioned by the media, you get a fair run, and, often, there’s two sides to the story. They… write the response, but not … with Friendlyjordies. This was clear it was retribution because I had the guts to call out racism, and ... that’s all to it; that’s ... at the heart of this.
(emphasis added)
Mr Barilaro’s expression “the bear pit” is a well-known epithet for the chamber of the Legislative Assembly of New South Wales.
Mr Barilaro realised as he watched the bruz video that Mr Shanks’ references to news media and other material in it “clearly don’t justify the attacks”. He said, and I find, that there has been no formal allegation of corruption made against him. He testified that although he and his officers had submitted all their documents in relation to the perjury allegations “nothing came from it”. He was hurt because Mr Shanks “picked the headline and not the content” of news media publications and amassed “an online community to believe the garbage that I was a conman or corrupt, that I perjured myself … and did it through racism”. And, he found very offensive the Mafia undertone in the mock bedroom scene based on The Godfather, connected to his Calabrian heritage, which he also saw as a threat. He felt the unfairness of Mr Shanks’ false accusation in the context where, unlike the mainstream media, who ask the person accused of wrong doing for his or her version, Mr Shanks “was judge and jury; he just declared I was corrupt and he used those videos for that purpose. But it was all in retribution because I called him out”. Mr Barilaro felt disgusted by the allegations saying “I didn’t get into politics to be corrupt.” He said that he had spent the previous 20 years in securing his financial position through his success in business before entering public life. He said that “you get called names in politics, but no one has had the guts to call you [scil: me] corrupt or a conman… I think it was the… start of breaking me”.
Mr Barilaro was particularly hurt by the bruz video deprecating his Italian heritage by the use of the slurs “fat wog cock”, the word “bruz”, the Mario materials and the implication of Mafia connection with his Calabrian background. He understood the epithet “greasy” to refer to his ethnicity because, as he said:
Grease-ball, or being a greasy wog. I mean, they were terms that I grew up with, so he knew exactly what he was saying. So if you’re called a meatball or a greasy scrotum or anything like that, … that was just racist. But there was an undertone of also criminality or, you know, again defaming… but, I mean, just have a look at the way he used the word wog. I grew up with the word wog; wog and dago. You know, I used to go to school when I was in primary school and could start the morning in a punch-up because I was a wog. Now, I can recall those days where there was even a week of it. Every morning, go to school, end up at the back oval and going you end up in a fight for 30 minutes before school because you were a wog. It was the only reason that you had a fight. And so anyone that wants to use the word wog and believes it doesn’t offend, wogs was not used as a term of endearment; it was actually to offend. I grew up with that. And if you’re a comedian in a comedic show or you can take the mickey out of yourself and I don’t mind taking the mickey out of myself every so often as well, but this wasn’t. This was vile. This wasn’t comedy. It was vile. It was to attack me, to offend me. I think in these videos he also admits how upset I get from being called these names and my heritage. You know, he refers to that I’m embarrassed of my heritage because I’m called John. Well, you know, John was just the name at school. You know, I use the name Giovanni where I can. And the term wog I mean, this is I know I’m not you know, this is the part I get really angry with Google, because they talk they’re this corporate citizen that talks about minority groups and they look after all of them, but they can’t even accept that wog is a term that is so offensive for migrant Australians, and it’s offensive. I make it absolutely clear: it’s bloody offensive, and the way Jordan Shanks used it, it was vile, not just offensive.
(emphasis added)
Mr Barilaro correctly described the deeply offensive nature and unacceptable use of the term “wog” in Australia today. Migrants from Southern Europe and their children who were of Mr Barilaro’s and his parents’ generations were, as he said, called “wogs” and “dagos” to signify abuse or denigration.
Mr Barilaro said that some nationalities used the word “bruz” as a term of endearment but that was not the sense in which he understood Mr Shanks to use it. He said that it became a tagline for Mr Shanks’ campaign against him.
Jeffrey McCormack had known Mr Barilaro for over 10 years. He was formerly Mr Barilaro’s deputy chief of staff. He gave evidence that Mr Barilaro was very challenged, physically and emotionally, by the videos, as were a number of the other members of his staff. He said that the toll that the bruz video took on his boss became very apparent and that Mr Barilaro was considering self-harm and discussing resignation from his office because he thought that the video “had gone beyond the pale of the offence that it had caused to him and his family”.
Mr McCormack gave this evidence about the impact of the bruz video on Mr Barilaro:
Yes. I think that the bruz video and the fact that it had gone into a residence that his family so while it was a business, it was also the primary residence of his young daughter and wife, and the safety concern and the being away from the family you know, the perception that there could have been cameras placed in the building; all of the things that were alluded to in the commentary of the video created a deep unease around safety, and the comments that were made in the bruz video led to a lot of commentary locally and within colleagues within the Parliament questioning as to whether, you know, the comments were true and whether the statements were true, and I think that was one of the things that probably placed that toll on John for the bruz video.
(emphasis added)
The Hon Bronwyn (Bronnie) Taylor MLC, who was as the time of the trial Minister for Regional Youth, Minister for Mental Health, Minister for Workers and Deputy Leader of the Parliamentary New South Wales National Party, also gave evidence of the significant impact that the bruz video had on Mr Barilaro. She spoke to him about it and observed his demeanour and mood to be “terrible; sad; violated; wounded. It was a really terrible time for him and for those of us who had a genuine concern for him… I will never forget that time and what that did to him and how it really changed the person that he was”. He told her that he had had enough and was cut to the core because of the racism and the significance that his Italian heritage had for him in his life. He said to her, “I thought this was over in the country that we live in today. I didn’t think that this could happen anymore.” He also told her of his thoughts about self-harm and how he might accomplish that outcome, which she found of special concern, because of her background as a clinical nurse consultant.
On Friday, 18 September 2020, Mr Barilaro announced that he was taking four weeks mental health leave, which received wide publicity. Soon after the bruz video appeared tweets and Facebook messages on the friendlyjordies home page such as those below appeared:
On 4 October 2020, Mr Shanks tweeted the following tweet in response to commentary on the bruz video by the well-known journalist Emma Alberici, that is indicative of his deliberate racism:
The statement “How very Italian” was patently racist. Although Google may not have been aware of this tweet before Mr Barilaro gave discovery in this proceeding on 19 November 2021, it has been aware of it since about that time in combination with the content of the balance of his discovery and videos that I describe in these reasons.
The bruzboard video
On 20 October 2020, Mr Shanks uploaded to YouTube a video entitled bruzboard. His opening line, delivered with a picture of Mr Barilaro onscreen is “Bruz, welcome back you fat little meatball”. Mr Shanks mocks Mr Barilaro’s “mental health sick month”, asks “You good? You all refreshed? That’s great. Anyway, here’s a fresh allegation of you doing illegal shit”. Next, Mr Shanks foreshadows that there is “an upcoming video about National’s corruption”, being a reference to the next day’s publication of the Secret Dictatorship video. He tells his viewers that “It’s going to be an hour long, depending on how much we have to butcher out of it for legal reasons. The point is we are not letting John Barilaro get away with any of his shady dealings. If you have any knowledge of it [sic] I want you to drop me a link via my… email” (the address of which appears on screen) (emphasis added). Later, Mr Shanks tells the viewers that “we’ve been informed by an anonymous source who started the email with ‘As you’re well aware John Barilaro has a penchant for ‘dumb little annoying crimes’’ nice little references to bruz”.
Mr Shanks shows viewers the fence of a country property with corflute election signs that display Mr Barilaro’s photo and name. Mr Shanks asserts that Mr Barilaro has posted those signs on the fence for the past two State elections in contravention of State electoral laws. That was because, Mr Shanks tells viewers, a politician is not allowed to receive from a property developer any monetary or non-monetary gift or provision of a service at no, or a discounted, charge. Mr Shanks states the land is owned by a developer which later got a favourable development approval for it. Mr Shanks tells viewers “You know what that means? Unless he’s bought or leased the land, he’s broken the law [any law] Ok… How’s that in substitution for a welcome back gift basket, John? Here you go, Brand new allegation of illegal activity, Slap!” Soon after, Mr Shanks tells viewers, “Look, the point is, John Barilaro fucked up. In fact, not only has he fucked up… he’s currently f…ing up in the process of the last 8 years of a continued f… up”. He invites viewers to use Google maps to see the corflute signs still being displayed.
He compares Mr Barilaro to disgraced United States President Richard Nixon, whom he tells viewers was known as “Tricky Dick”. “Vote for me, vote for me”, Mr Shanks says to his viewers using his parodied Italian accent as he tells viewers that the signs are still there and calls the fence “the Bruzlin wall”. Mr Shanks gleefully states:
I really don’t think he can use the defence [at which point Mr Barilaro’s photo appears on screen and Mr Shanks says in the parodied Italian accent]. “Bruz, how was I supposed to know about this shit? It’s just minutes away from my house on a major road. Dozens and dozens of pictures of myself. You can blink and miss that shit”.
He invites viewers to view the corflute signs on the fence if they have not already and also uses the parodied Italian accent at more than one point in the video.
THE SECRET DICTATORSHIP VIDEO
The second matter complained of is the Secret Dictatorship video that first appeared on YouTube on 21 October 2020, being the day on which Mr Barilaro returned to his duties after taking one month’s mental health leave. It has a run time of about 40 minutes and relates to Narrandera, in the Riverina area in southern New South Wales. Mr Shanks opens this video saying:
[3] One day we put out a call on Twitter for dirt on John Barilaro. Our friend Stuart said come on down to the town I live in, it’s a Nationals stronghold so many people have had their lives ruined by that party, I’ll line you up with a bunch of interviews.
[4] So we went down to that little town in the Riverina. We were looking for maybe a handful of dirt but, Jesus Christ, we got a wheelbarrow of National Party corruption dirt shovelled right in our mouths.
[5] And seeing as it’s John Barilaro’s first day back, it’s time to shovel that dirt right on the top of John Barilaro’s virtually buried career.
(emphasis added)
The video then presents a list of grievances that Mr Shanks discusses with a couple and their friends who claimed that their land was affected by sewerage that their neighbour allegedly pumped onto their land from the local treatment works run by the Narrandera Council. They claim that the Council and Environmental Protection Authority failed to act due to, among other causes, the Council allegedly providing the Authority with falsified and selectively edited documents.
Mr Shanks’ informants assert that they have been subjected to police harassment (at par 48). Mr Shanks endorses this, saying that his producer, Kristo Langker, had been breath and drug tested by the police, who had been “tipped off” that he was coming to Narrandera.
Mr Shanks tells viewers:
[70] It seems the man who poisoned [the couple’s] land is good friends with many councillors, past and present, as when even the EPA pointed out that Judy Charlton had selectively edited government documents in order to skew the Council vote to then Mayor, Neville Kschenka, he refused to do anything about it. Anyway, off topic. Here’s a picture of [the neighbour] and Mayor Kschenka having a nice time together. In fact, Mayor Kschenka is friends with a lot of important people. Here’s a picture of him receiving a grant with State Nationals MP, Steph Cooke. Here is with Federal Environment Minister, Sussan Ley, and Steph Cooke. And here he is with Bruz.
(emphasis added)
The Secret Dictatorship video then discusses issues about whether the Council has dealt properly with Government grants that it has received and raises several allegations of misuse. Mr Barilaro is not named in this part of the video. To make his point Mr Shanks asserts (par 117):
You might be thinking stealing grants is just a mere case of larceny but, in fact, the Nationals and Narrandera Council’s misuse of grant money seems to be directly responsible for some of the worst environmental catastrophes in living memory.
Mr Shanks then instances a blue-green algae bloom in the video. He states that it had been released from the Council’s sewerage works into the Murrumbidgee River causing it to be polluted. Mr Shanks’ principal informant, the husband in the couple, asserts that another Council’s waste is also polluting the river. Mr Shanks summarises his thesis (par 153):
So in your opinion, fish kills are a direct result of a bunch of local councils controlled by the Nationals that are skimming as much of the sewerage treatment grants off the top as they possibly can. So they’re obviously using the cheapest way possible to get rid of the sewerage and that was the result of the fish kills.
He continues discussing pollution of the local water system and its impacts on wetlands. Next, the discussion turns to the 2017 by-election for Cootamundra at which the Nationals’ party candidate, Steph Cooke, was elected.
Imputations 15(a) and 15(b) are respectively that Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors and that Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money. The subject matter for imputations 15(a) and 15(b) appears to be pars 198–225 of the Secret Dictatorship video transcript. There, Mr Barilaro is alleged to have supported Ms Cooke’s campaign and promised to fund a feasibility study about the possible reestablishment of a disused rail line between Narrandera and Tocumwal. The Secret Dictatorship video asserts that after the Government received the report of the study, Mr Barilaro did not release it publicly but said that it was confidential.
Mr Shanks tells his audience that, immediately after a local councillor, Wes Hall, had accused the Government of hiding the report, Mr Hall was “fired from his role as the rail spokesperson” by the mayor, Neville Kschenka. Mr Shanks interviews Ms Dalton MP who says that Mr Hall was “sacked from that committee because he asked a question”. He puts to Ms Dalton “you can assume that for the very fact that they’re not releasing this, that there is not a good answer. Otherwise they would release it, if it supported their argument”. He and she speculate on why this has not occurred. After that interview, Mr Shanks tells his audience that he has a letter from the mayor to Mr Hall which he then appears to begin summarising. He tells the viewers that the mayor wrote that Ms Cooke had told him of Mr Hall’s interviews and the questions he was raising. He went on (at Secret Dictatorship pars 221–225):
[221] What’s more interesting about this is I have a letter from Neville [Kschenka] to Wes [Hall]. Oh, it says State Nationals MP Steph Cooke informed Neville of some polite interviews Wes undertook which Neville then told Wes were jeopardising Narrandera’s chances of getting grants from Deputy Premier John Barilaro and Steph Cooke. You know what’s super interesting about this letter, Callum Foote from Michael West Media put questions to Barilaro, Cooke and Kschenka and got zero responses.
[222] Furthermore, everyone we spoke to in Narrandera thinks Neville is a bit slow, almost slow enough to let someone else write the letters for him. I’m just going to read a section of this letter out in some voice I’ve done before. See what you think.
[223] [In voice previously attributed to John Barilaro]: I am extremely concerned at the impact your action is having on council’s relationship with the local member, the Minister and the Deputy Premier and with the government as a whole, noting that the Deputy Premier’s controls the Restart NSW Grant Programs, the “poles and wires” money and the money flowing from Snowy Hydro2.
[224] And on an unrelated note, did you know blackmail’s illegal? I wonder how illegal it is to use taxpayer money as blackmail to shut your critics up. If this is who I think it is, and I do think that, he’s such a scab he doesn’t even use his own money to blackmail.
[225] Is it a wonder John was so happy to shut down any chances of the Narrandera to Tocumwal rail line being built? After all, that would create jobs and economic stimulus, and from what’s been described to me, another role of the Nationals in Narrandera is to keep the town in a permanent economic depression.
(italics emphasis in original, bold emphasis added)
Next, the Secret Dictatorship video turns to developing the new topic, being the husband’s suggestion that the supposed permanent economic recession is the result of the National Party wanting to drive young people from Narrandera so as to leave “mainly old people and they all vote Nationals” (par 234). Mr Shanks endorses this saying (pars 271–277):
[271] There’s a grand plan from the Nationals which is to rid this town of any youth voters, i.e. get rid of the young people in town, so there’s only oldies here, so that they vote in an election to get Michael McCormack, who is the leader of the Nationals federally, in power and maintain that his seat is safe, and the only way that they can do that is by making rural Australia so sparsely populated, destroying the economy mind you. By doing that, you are completely turning this place into like a special region depression zone. It’s just permanently in a depression and I mean [LAUGHS] look around you.
[272] You have to come here on a Saturday because that’s really when Narrandera goes off and boy howdy were they right. There actually is people in town today. This is all by design and, look, I’m not the biggest fan of McDonalds, I’m a huge fan of KFC though, so I’m pretty fucking angry about that, but they didn’t let in any, any - this is a fairly big town - any McDonalds, any KFC. Obviously those things are going to do amazingly in a country town because until I came here I thought that their diet was fried chicken and burgers.
[273] Where do they even get them here. So my point is, not letting in any investment at all. Why? Because they want people to fuck off, so they just have a safe seat with a tiny, tiny population of oldies that basically have dementia going oh, I’ve met Pat before, he’s got a nice handshake. It’s all... It starts here.
[274] The rot is here, they’re the ones that are enforcing this. They are systematically destroying the lives of anyone who speaks up about this, trying to drive them out of town or put them in jail or we’ve even heard cases of people going missing, and this is all part of the plan to keep the Nationals in power, which is pretty much what we were discussing on the way here. This is a secret dictatorship. Rural Australia has become a secret dictatorship. There’s no democracy here anymore. Maybe there wasn’t.
[275] This is the other thing. When we were talking to the people in there, there was debate — think about this — debate for people that are in their 40s and 50s as to whether the local Council has ever worked in the benefit of the local community. It’s always been to keep a couple of fucking cunts at the top, at the top, so that they can control Australia on a federal and state level and basically rape and pillage the environment for their own enrichment. This is the other thing that we learnt.
[276] People like John Barilaro might be worth hundreds of millions of dollars. All these people that you assume are getting $100,000, $200,000 a year for being a public servant, this is garner wage to them, they don’t care about it. It’s the same thing as what happens with Putin where he’s just like, “l am just President, yes I get a little bit more than the American President.” Yeah, on the books. Off the books he’s richer than fucking Bill Gates.
[277] We’re quite certain that this is what’s happening to these towns because you tell me where the money goes. Council has close to $50 million sitting around in its accounts. Where is it now? Where did that money go? Certainly not going here. [LAUGHS] Oh I don’t know, yeah, that must have cost about 30 bucks.
(emphasis added)
Mr Shanks then interviews John Sullivan, a retired former mayor of Narrandera, federal member for Riverina and State member for the seat of Sturt. Mr Shanks tells viewers that Mr Sullivan was elected to the Federal Parliament in 1974 “by defeating Al Grassby with the help of preferences from the high profile mafia murder victim, Donald Mackay” (par 278). Mr Shanks asserts that “[i]f any one was going to know anything about State and local government corruption, it’d be Mr Sullivan ‘cause he served Narrandera on every level”. Progressing from this bizarre logic, Mr Shanks claims that Mr Sullivan has been trying to avoid an interview but he and his team secure one by turning up on his doorstep. Mr Sullivan obliges, but, unsurprisingly, does not confirm Mr Shanks’ preconceived conspiracy theory. As they leave Mr Sullivan’s premises, Mr Shanks and his companions in their vehicle assert that a mysterious vehicle followed them (pars 278–296). Mr Shanks tells viewers that he had heard of drug running in Narrandera but cannot discuss that issue to protect his sources (par 298) before concluding the video thus (pars 299–300):
[299] So in summary, if you want your town to be run by crooks who apparently commit blackmail, voter fraud, forgery, environmental destruction, police and other public service manipulation, steal grant money, poison your land and, on top of all of that, put your town in a permanent economic recession, I think I know the party for you, the National Party. If you don’t want any of that, maybe think about voting for your local Shooters and Fishers candidate next election.
[300] And since Bruz is back in Parliament, let’s start asking him if he’s ever used his position to blackmail councillors he doesn’t like. Perhaps we can even refer him to ICAC with his good old mate, Gladys. Either way, subscribe, like the video, ‘cause we’ve got plenty more information coming out on Bruz. See you next time.
(emphasis added)
Mr Barilaro’s reaction to the Secret Dictatorship video
Mr Barilaro watched the Secret Dictatorship video shortly after it was first published. He had been told about it by his staff, members of the public and Ms Cooke MP. He felt “completely dumbfounded” and angry and thought that it was “a whole heap of crap”. He noted that the last 10 or 15 minutes attacked him and asserted that he or his party were driving Narrandera “into the ground so that old people remain, young people leave… they will vote for the party … that I was making millions of dollars of grant funding from councillors. Again, it was disgusting, but I was more worried about Steph Cooke.” He was upset and felt that “it’s never going to end with this guy. It’s just going to be video after video, story after story, claim after claim, and at the heart of it is always just an attack on me”. He described watching the Secret Dictatorship video as “an hour of my life I will never get back”. Mr Barilaro was upset that in the Secret Dictatorship video “there were no facts whatsoever to make any claim of corruption or blackmail as everything that he had said”.
And, as Mr Barilaro said, every time that Mr Shanks uploaded a video, Mr Barilaro was attacked in the appended or related comments, on social media, websites and in phone calls. He said that every time a video was posted “it ramped up so hard and so harsh” and he was traumatised by the videos as well as accompanying reactions from the viewers. He thought that Mr Shanks was “very callous” in the Secret Dictatorship video because most people were aware that he had taken a month’s mental health leave (which Mr Shanks told his viewers about) and Mr Barilaro had lost his father that year and was struggling with other issues in his life. As he said, Mr Shanks waited to launch this new attack on him on his first day back at work and “hit me when I was most fragile”.
Mr Barilaro testified, with some justification:
No sane person would watch that video and say, “This is credible”. I’ve got to say this. It’s just impossible that anyone would go, “This is credible”, but the reality is because what he does he twists and turns everything and he attacks you. I mean, the idea the comment there that people have gone missing. Of course he says that because I’m Italian. We’re talking about the Riverina. Griffith’s down the road. You know, my wife’s family is actually from Leeton, half an hour outside Narrandera. I mean, the reality here is that it’s all done deliberately in a way to attack your credibility, to defame you, and there’s always an undertone of something, and that’s at the heart of everything he does. And the video is the video; the comments are the comments. But the problem for me was it just sparks hatred.
(emphasis added)
Mr Barilaro referred to Griffith’s association with people going missing, the Mafia’s murder of the anti-drug campaigner, Donald Mackay, there in 1977, and the television series “Underbelly” that was set there. Mr Barilaro was visibly upset when he added:
You know, often four or five, six thousand comments. That’s directly on the YouTube site. But what happens to our Facebook, our Insta, our private messages? You know, the messages that I got are disgusting messages, revolting messages:” Go kill yourself.” “ You should be dead. You’re corrupt. You’re a piece of shit. Your daughter should be tied to a pole and raped in front of you, and then we’ll kill you.” I mean, that’s the stuff that comes off the back of these videos, and so I hate Google. I’m sorry to say that today, the way I’m saying it, because if they can’t see these videos for what they are, well, then there’s something bloody wrong with corporate Australia or corporate America or corporations.
(emphasis added)
As will appear, I agree with Mr Barilaro’s assessment of Google’s behaviour. He referred to the Facebook message below that was particularly vile:
Rory Cunningham, in his role as Mr Barilaro’s social media advisor, became aware of the bruz video soon after Mr Shanks uploaded it on 14 September 2020 because he noticed that “people were tagging John on Twitter and Facebook with links to that video”. The process of “tagging” involves a person posting, tweeting or messaging (depending on the social media platform) a statement such as “look at this video” with a [hyper]link to the video. Mr Cunningham had a similar experience when Mr Shanks uploaded the Secret Dictatorship video.
Mr Cunningham said that there were a lot of social media comments about the two matters complained of “really just mirroring what was said in the videos: ‘John’s corrupt’; ‘changes legislation to help his corruption’; ‘wears his corruption as a badge of honour’”; as well as name-calling. Mr Barilaro’s social media accounts received thousands of messages in direct response to the matters complained of, so much so that Mr Cunningham eventually turned off Mr Barilaro’s Facebook inbox. Mr Cunningham said that he was up all night on several occasions hiding comments and deleting items from inboxes “because I knew that John was struggling sleeping at the time and I knew that he would see them”. He made a record of these comments before deleting them so that Mr Barilaro would not see them. That was because the two matters complained of probably “were worse than the others, but it was very stressful for John”. Mr Cunningham observed that Mr Barilaro was “very anxious about the videos” and the volume of social media comments that they had provoked, much of which Mr Cunningham said that he knew Mr Barilaro would see.
Soon after the Secret Dictatorship video was uploaded onto YouTube tweets like those below appeared:
The post on the left hand side “tagged” the Secret Dictatorship video because it enabled its readers to view the video directly.
The Super Barilaro Kart video
On 23 October 2020, Mr Shanks uploaded a video entitled “Super Barilaro Kart”. This video begins with Mr Shanks impersonating Mr Barilaro, dressed in a Mario outfit and with a fake moustache driving his car. He is shown being approached by Mr Shanks, now dressed as a policeman, who stops the Mario character for talking on the phone while driving. Mr Shanks again uses the parodied Italian accent, making statements about looking for “bush tucker” which he then says is “ragu ravioli, just like mama used to make. The witchety grubs of Griffith”. Mr Shanks, as Mario, proceeds to try to bribe the policeman to not fine him. He says, using the accent, “As head of a conservative party I’m not a great fan of money going to the government so how about I just slip you some cash?... Come on, this always works in Monaro. We don’t even call it a bribe there … we just call it ‘the man from Snowy River’” while holding up to the camera Banjo Patterson’s depiction on the back of a $10 note. He complains that the fine “is like one fifth of a night at my Airbnb I can’t afford that shit”. Mr Shanks, still impersonating Mr Barilaro, then drives off and complains: “why is everyone picking on me just because I’m doing illegal shit?” The policeman pulls him over again and asks whether he knows why he has been stopped to which Mr Shanks replies:
Because you’re a racist and you have it in for the most persecuted people on earth, Italians, stooge.
Soon after Mr Shanks, impersonating Mr Barilaro, offers a term of abuse, the policeman character tells him he has to fine him again for that and, Mr Shanks, as Mr Barilaro, complains in the parodied Italian accent “No this is bullshit … Only in Sydney bro. If I was back in my seat I’d say ‘officer my chicken is getting cold’, he’d escort me, and put the zinger right in my mouth, but here…” and he pretends to faint.
This video is plainly racist in its depiction of Mr Barilaro.
The Italian Job video
The Italian Job video was uploaded on 25 November 2020. Mr Shanks begins by saying:
Bruz, first off how are you? Second off I don’t think you’re going to be well after this because after releasing a week’s worth of dirt on you and going to your house and using your toilet … we’ve got something else that we assume added to you buying your big mansion. Ladies and gentlemen, I present to you [switching to the imitation Italian accent of Marlon Brando’s Don Corleone] “The Italian Job”.
Mr Shanks continues narrating in that accent about the Barilaro family (with the obvious pun on “family” as a synonym for a Mafia family) connection to the Marco Polo Clubhouse in Queanbeyan, that he says “was going to require some … aggressive business tactics”. He says in his usual voice “Man, I feel good that we’ve established that you’re allowed to pay out Italians again” (emphasis added). He points to a map of the Adriatic, Italy and the Balkans saying “That’s where they’re from; that’s where I’m from … oh, oh ethnic immunity. Besides if anyone likes messing with Italians more than me it’s John Barilaro”. The video depicts a team of Italian soccer players and Mr Shanks accuses them of seeing how many fouls they can get away with by fake crying. Then, Mr Shanks uses his parodied Italian accent for Mr Barilaro, while displaying a screen shot of an article in The Sydney Morning Herald of 18 September 2020 headlined “NSW Deputy Premier John Barilaro takes a month of mental health leave” and says “and I took my lessons of fake crying into Parliament”. Mr Shanks says:
now I know what you’re wondering. It’s hard enough to steal a Twix [a chocolate bar] from Coles; how do you steal a building? You can’t even fit that in a backpack. They found a way. And believe me it would be a lot easier if they just built a building in the first place [switching to the Marlon Brando accent] but Calabrian habits die hard.
(emphasis added)
The next segment takes about 34 seconds. A screen shot briefly appears of an Italian flag with the words “The Plan” superimposed on it and in small print at the foot “This is a just a theory based on documents we’ve discovered, the following contains exaggeration for comedic effect”.
Mr Shanks then says:
First up, assemble a crack team of wogs. [A screen shot of a man’s face appears] “John’s dad, Domenic Barilaro; aka “The Don”, the brains, the cash, the leader of the operation. Francesco Barilaro… John’s mysterious brother; skills … er he’s Italian; next, you know him, baby brown eyes, Giovanni Dominico Barilaro; aka Super Barilaro bruz; aka fat Italian meatball; aka stupid fat idiot; or in this operation as he’s known, the muscle.
(emphasis added)
At this point Mr Shanks uses his parodied Italian accent while a screenshot of Mr Barilaro appears saying “There’s a lot of muscle under this fat stooge”. Mr Shanks then says “and some other Italians called Luigi or something. I don’t know, they’re not that important to the story”. Reverting to the parodied Italian accent, Mr Shanks says “Put on your Gucci gloves boys, this is going to be a classic Italian debt trap”. The video displays edited footage of Mr Barilaro with a cap, long side burns and dark sunglasses saying, again in the parodied Italian accent “Dad help, what do we do?”
Mr Shanks then purports to lay out a supposed scheme of “The Don”, whom he has identified as Mr Barilaro’s father, joining and assuming control of “the operation” to take over the land owned by the Marco Polo club after it is supposedly forced into insolvency. Further into the video, Mr Shanks refers to Mr Barilaro as “Codename: fat meatball” (emphasis added) and accuses him of having “done the damage”.
At the end of recounting the story of how the club came to be evicted for non-payment of rent, Mr Shanks reverts to the parodied Italian accent and says:
In summary, this is how the debt trap worked: you join the club, you get it into debt from the inside, you buy the asset for pennies on the lira, you force the club to close down so you can sell it for an insane profit: that’s how you steal a building.
(emphasis added)
At the conclusion of the video, Mr Shanks spruiks a “new bruz design” tee shirt which he invites viewers to buy.
GOOGLE AS A PUBLISHER
YouTube’s policies or guidelines on allowable content
YouTube had a set of internal policies, called “Community Guidelines” that were expressed to “outline what type of content isn’t allowed on YouTube”. Initially, Google sought suppression and non-publication orders in respect of the parts of those policies that applied to hate expressions that were available only internally within YouTube. However, after I queried how such orders could be necessary to prevent prejudice to the proper administration of justice to warrant any order under s 37AF of the Federal Court of Australia Act 1976 (Cth), Google abandoned that application. It was entirely without merit.
The introduction to those policies asserted that their aim was “to make YouTube a safer community while still giving creators the freedom to share a broad range of experiences and perspectives” (emphasis added). The policies covered, among other matters, vulgar language, harassment and cyber-bullying, and hate speech.
The harassment and cyber-bullying policies stated that:
Content that threatens individuals is not allowed on YouTube. We don’t allow content that targets an individual with prolonged or malicious insults based on intrinsic attributes. These attributes include their protected group status or physical traits.
…
What this policy means for you
If you’re posting content
Don’t post content on YouTube if it fits any of the descriptions noted below.
•Content that features prolonged name calling or malicious insults (such as racial slurs) based on someone's intrinsic attributes. These attributes include their protected group status, physical attributes…
(emphasis added)
However, the policies are also subject to exceptions, including:
•Debates related to high-profile officials or leaders: Content featuring debates or discussions of topical issues concerning individuals who have positions of power, like high-profile government officials or CEOs of major multinational corporations.
•Scripted performances: Insults made in the context of an artistic medium such as scripted satire, stand up comedy, … Note: This exception is not a free pass to harass someone and claim “I was joking.”
(bold emphasis added, italicised words appeared bolded in original)
The policies give examples of content said not to be allowed on YouTube.
In some rare cases, we may remove content or issue other penalties when a creator:
•Repeatedly encourages abusive audience behaviour.
•Repeatedly targets, insults and abuses an identifiable individual based on their intrinsic attributes across several uploads.
(emphasis added)
As Lord Griffiths said in Austin [1986] AC at 317 in relation to the issue of reasonableness for a defence of statutory qualified privilege:
When a journalist wishes to make such a trenchant and potentially damaging attack it is in the interests of society that he should be expected to take all reasonable steps to ensure that he has got his facts right. The media has enormous power both for good and ill and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slip-shod journalism that would provide no defence of comment because the facts on which the attack was based were not true. Where the defence of comment has failed because the jury has found the facts to be untrue, a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them.
(emphasis added)
Of course, s 29A creates a defence with different criteria to qualified privilege under s 30 of the Defamation Act or in exercise of the implied freedom, and s 29A(3) specifies a non-exclusive set of circumstances that a court may take into account. Those circumstances include the seriousness of the defamatory imputations conveyed, the extent to which the matter complained of distinguishes between suspicions, allegations, and proven facts and whether it contained the substance of the side of the story of the person defamed (s 29A(3)(a), (b), (g)).
The bruz video made no attempt to set out Mr Barilaro’s side of the story. It mixed suspicions and allegations together with an occasional proven fact in a way that did not enable a viewer to separate which was which, while conveying very serious false imputations about Mr Barilaro.
It is important to appreciate that the defence under s 29A can apply where a publisher cannot establish other defences under the Act or at common law. The bruz video conveyed serious false imputations that Google could not defend as being published under qualified privilege or as honest opinion for the reasons above. That raises the question as to how Google reasonably could have believed it was in the public interest to publish it after Mr Barilaro’s staff and solicitors had raised their concerns about it with Google.
It was common ground that s 29A is based on s 4 of the Defamation Act 2013 (UK). In Serafin v Malkiewicz [2020] 1 WLR 2455 at 2476 [74], Lord Wilson, with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed, discussed s 4 of the United Kingdom Act. It is differently worded from s 29A of the Defamation Act. His Lordship’s analysis identified three elements to the defence which are helpful here. Allowing for the differences in statutory language, it seems that s 29A(1) requires that:
(1)the matter concerns an issue of public interest;
(2)the publisher must believe that the publication of the matter was “in the public interest”; and
(3)the publisher’s belief must be reasonable.
Lord Wilson emphasised that the circumstances in the analogue to s 29A(3) are not “requirements” that must always be met, but are matters that the Court can consider (at 2475 [69]). He suggested that a failure to invite comment from the claimant, or I would add, as s 29A(3)(g) provides, put the substance of his or her side of the story, will usually be considered and “may contribute to, perhaps even form the basis of, a conclusion that the [publisher] has not established that element [viz. the analogue of s 29A(1)(b)] of the defence” (at 2477 [76]).
I reject Mr Barilaro’s submission that the Supreme Court in Serafin [2020] 1 WLR at 2473–2477 [67]–[78] endorsed the decisions of Warby J and the Court of Appeal in Economou v de Freitas [2017] EMLR 4 and [2019] EMLR 7 respectively. Lord Wilson criticised both judgments. He said (at 2476 [73]): “The concept of qualified privilege is laden with baggage which, on any view, does not burden the statutory defence”.
Nonetheless, here it is impossible to discern how, as at 22 December 2020, Google could have believed that (continued) publication of the bruz video was reasonably in the public interest. Google did not intend to convey, and had no belief in the truth of, the very serious and false imputations (see [359]). It either made no examination of its contents, including doing a Google search of the excerpted documents, such as news articles, that Mr Shanks put on screen as his source for his assertions, to ascertain what were allegations, suspicions or proven facts or, if it did, it could not reasonably have concluded that the gross distortions in which Mr Shanks engaged in misrepresenting the facts were in the public interest. And, it is as plain as day that the bruz video made no attempt to put Mr Barilaro’s side of the story or its substance.
The apology issue
Google failed to apologise. As it noted in its submissions, mere failure of a publisher to apologise, without more, is insufficient to amount to an aggravation of damage: Carson 178 CLR at 66. However, Google did not merely fail to apologise to Mr Barilaro. It deliberately continued to publish matters complained of and other videos, along with the associated denigratory comments posted on the YouTube platform, knowing of their defamatory content including Mr Shanks’ hate speech, racism and cyber bullying campaign. That added to Mr Barilaro’s hurt to feelings, public attacks on him and the injury to his reputation. Google chose to continue publishing Mr Shanks’ malicious, racist rants and false imputations conveyed in the matters complained of, rubbing salt into Mr Barilaro’s wounds: Sutcliffe [1991] 1 QB at 170D–E; Stead 387 ALR at 179 [273]. It cannot ignore the character of his splenetic campaign in its decision to continue publishing the matters complained as the same as having no belief in or intention to convey the false imputations: Webb 41 CLR at 364–365.
As Mr Barilaro said, had Google made any check of Mr Shanks’ allegations using the excerpts from news media publications that he put on screen, it would have seen a balanced story and said: “‘Hang on, there is a problem here.’ But the crack team at Google somehow missed all that”. It was obvious that the imputations of corruption levelled at the Deputy Premier in both matters complained of were extremely serious. They were not comedic content; they impugned the honesty and integrity of Mr Barilaro in a sustained assault, yet Google chose to keep them online without any belief in their truth or, worse still, without conducting any inquiries to see if there was a basis for its decision to publish them.
Mr Barilaro gave the following evidence as to how hurt he was by Google’s failure to apologise:
I just thought Google will be the first to come to us to settle to end it because … they will realise because they’ve got professional experts that understand it. It’s their rules. They set the guidelines. I can’t believe we actually settled with Friendlyjordies, and we haven’t settled with Google. I can’t believe that even on Friday when they’ve withdrawn their defences, they never sought to give me an apology. I assume that they’re not defending it, that they’ve actually accepted that I’ve been defamed. But I haven’t received an apology. There has been no apology. There’s no effort by Google and, at every step, they’ve just defended and defended, and … it has cost us thousands and thousands of dollars and hundreds and hundreds of hours, and, you know, I just can’t understand it. I mean - - -
Have they ever even offered you an apology? --- No. I’ve never ever never, never have been offered an apology because that would have gone a long way. We may not be here today.
(emphasis added)
I share Mr Barilaro’s incredulity at Google’s unjustifiable persistence in failing to apologise to him for publishing indefensible imputations that it never had any basis to allow Mr Shanks to publish or keep online. Accordingly, I am of opinion that Google’s failure to apologise has aggravated the damages substantially.
The cross-examination issue
Mr Barilaro argued that Google’s cross-examination of him in asking whether Mr Shanks’ allegation that he had lied in his evidence to ICAC was improper and unjustifiable (see [236]–[237]). Google retorted in its closing written submissions that Mr Hmelnitsky SC was not putting the allegation to Mr Barilaro that he had lied but, rather, that he was asking “whether Mr Barilaro understood that the video was putting an allegation against him (not whether the allegation was true or false) and Mr Barilaro was resisting the proposition that the video was in fact making an allegation” and that senior counsel had expressly stated that he was not putting that allegation.
It is difficult to understand Google’s argument. The question that was put conveyed what I understood was the tenor of the cross-examination as it was proceeding. Indeed, when Ms Chrysanthou SC objected to Mr Hmelnitsky SC’s question she elicited his response that he “absolutely” was not putting to Mr Barilaro that he had lied in his evidence to ICAC. He then withdrew the question, and commented that “The only matter that’s relevant for your Honour is the question of aggravation and –” to which I interjected “Well, this might be contributing to it”.
In my opinion, the question was improper and unjustifiable. The general rule is that evidence cannot be elicited, even for the purpose of mitigating damages, whether in chief or in cross-examination, which if proved would be a defence, unless such a defence has been pleaded: Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 529–530 per Jordan CJ. Google had no defence.
The question was at best anxious to wound but afraid to strike. The only basis that Mr Barilaro could be questioned about being “a bit cute” was, as the question was put, namely, to challenge his “attempt to avoid a question about whether that allegation [by Mr Shanks] is true or false”. Thus, the question inferred that Mr Barilaro was evading answering a further question that had nothing to do with the harm done, of which he complained, resulting from Google’s publication and refusal to take down the 22 December 2021 video. The truth or otherwise of Mr Shanks’ allegation had no possible relevance to Mr Barilaro’s complaint. It just rubbed salt into the wound.
Google did not explain how an answer, that Mr Barilaro admitted the allegation, was relevant or could make any difference to his claim that the 22 December 2021 video was an improper attack on his lawyers and aggravated the damage.
Should there be injunctive relief?
Mr Barilaro argued that I should also enjoin Google from publishing the same or similar defamatory matter that Mr Shanks created.
In my opinion, such an injunction is not appropriate. First, Mr Barilaro did not seek such an order in his pleaded case, secondly, the imputations of which he complains are no longer online as a result of Mr Shanks’ editing of the bruz and Secret Dictatorship videos and, thirdly, if the Principal Registrar brings proceedings for contempt, the propriety of Google’s publication of the rest of Mr Shanks’ obsessional campaign against Mr Barilaro is likely to be considered and the Court will be able to make any appropriate orders in a properly constituted proceeding.
CONCLUSION
Google made a considered decision to keep the bruz and Secret Dictatorship videos available on YouTube from 22 December 2020, knowing of their content and Mr Barilaro’s complaints. Google had no defence to Mr Barilaro’s claim that each of the matters complained of conveyed the defamatory, very serious and false imputations on which he relied. It dragged the litigation out by pleading defences that had no prospect of succeeding, causing Mr Barilaro added distress, damage to his reputation, and delay to his vindication. Google encouraged and facilitated Mr Shanks in his vitriolic, obsessional, hate filled cyberbullying and harassment of Mr Barilaro both before and after Mr Shanks settled the defamation claims against him: Voller 392 ALR at 548 [32], 563–564 [104]–[105]; Rush 380 ALR at 517–519 [431]–[434]. It did so with a view to its commercial profit.
Google sought to put itself forward to the public as having policies governing the use of YouTube that it would use to protect individuals, including public figures such as senior politicians, from being subjected to racist attacks, harassment, hate speech and cyber bullying. However, despite multiple breaches of those policies that were evident in each of the matters complained of and the other videos in Mr Shanks’ campaign described above, Google chose to continue publishing that material. It published the bruz and Secret Dictatorship videos without any belief in their truth or attempt to ascertain if there were any basis for them, knowing of their wide dissemination on YouTube and their connection to Mr Shanks’ obviously obsessional campaign.
Google’s publication of the matters complained of drove Mr Barilaro prematurely from his chosen service in public life and traumatised him significantly. Google cannot escape its liability for the substantial damage that Mr Shanks’ campaign caused: Webb 41 CLR at 364–365. He needed YouTube to disseminate his poison. Google was willing to join Mr Shanks in doing so to earn revenue as part of its business model. It did so without regard to acting as a responsible or reasonable publisher, which actually intended its policies to be applied to Mr Shanks’ campaign, would have acted.
Having regard to all of the evidence, the gravity of the imputations, the harm to Mr Barilaro’s feelings and reputation, Google’s significant aggravation of the damage and the need to vindicate Mr Barilaro’s reputation, I consider that he is entitled to judgment in the sum of $675,000. He is also entitled to prejudgment interest from 22 December 2020 of $40,000.
Having regard to my findings on aggravated damages, my preliminary view is that Mr Barilaro may wish to seek a special order for costs. I will make orders that allow the parties to address on costs.
I propose to refer the conduct of Mr Shanks and Google to the Principal Registrar of the Court to consider whether to institute proceedings against each for what appear to be serious contempts of court by bringing improper pressure on Mr Barilaro and his lawyers not to pursue this proceeding.
I certify that the preceding four hundred and seven (407) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 6 June 2022
ANNEXURE A
Transcript of the first matter complained of, being the bruz video, published on YouTube on or about 14 September 2020
1.
Friendlyjordies has been routinely exposing the corruption and misdeeds of the NSW Coalition Government.
2.
Naturally, mocking the premier and deputy premier in the process.
3.
Barilaro condemned Jordan’s use of the word “bruz” with an Italian accent as “deeply offensive” and “racist” — news.com.au
4.
And thus, a new nickname was born for the proud Italian.
5.
Jordan Shanks: Oh what the f**k
6.
[Picture of John Barilaro with Super Mario hat and caption: “Super Barilaro Bruz” with voice over saying: “Oh what the fuck!”]
7.
Welcome to the history of Super Barilaro Bruz
8.
Celebrated French writer, de Balzac once said, that behind every great fortune lies a great crime. I didn’t know he said that, I just remember Chris Rock misquoting it once.
9.
The point is, it’s very easy to look at plutocrats like Gina Rinehart, Rupert Murdoch, Maxmoefoe who’s clearly gotten away with public mutilation, and come to that conclusion. But, asterix, Behind… fairly impressive fortunes lie many, many dumb little annoying crimes perpetrated by dumb little annoying people, aka ‘The Italian Stallion’ or Shetland pony rather, Giovanni Domenic Barilaro.
10.
Now you might be thinking: [SUPPOSED TWITTER COMMENT FROM SAMANTHA]: “Oh no, he’s in a bath naked. Can’t you make something that isn’t crude so I can show my mum?”
11
Ah, don’t you worry, we’re not here to talk about my big fat wog cock, we’re here to talk about another big wog cock.
12.
bruz
13.
[SITTING DOWN ON A THRONE-LIKE CHAIR] Aaahh. Now that we’re comfortable, John Barilaro is a man whose expediency seeps right down to his very genetics, as not only do his political convictions turn on a dime but so does his ethnicity. Proud Italian where he thinks he can score pity points.
14.
Rinky dink Johnny from the Bush when he thinks he can score a national seat.
15.
Willing to change his entire identity, right down to his name, surely distressing his inner child who would wonder, [IN PARODY ITALIAN ACCENT]: “Hey Giovanni, whatsa matter, you no talka with your accent no more?”
16.
Bruzamia! He’s a conman to the core, powered by spaghetti.
17
As such, I’ll be referring to him from now on as Giovanni. And not just because that’s his name but also because he’s just such a Giovanni. Plus it pisses him off and [SMELLS CIGAR] I really like the thought of that man being upset
18.
IN PARODY ITALIAN ACCENT]: “Oh what the fuck! Another video. Bruz, as if the joke isn’t old already.”
19.
No, no, wait, I’ve got new material for you. You ready? Your response to the Berejiklian bushfires.
20.
Giovanni’s actions during the bushfires were like all his other actions in life, stupid as fuck, and very funny. Like the rest of us, he didn’t know exactly what to do but knew that the first step was to get mad at the people who had been attempting to warn him about the fires for the last decade.
21.
[IN PARODY ITALIAN ACCENT]: “Oh but bruz, I’m a visual learna, they shoulda turned what was going to happen into a movie, then I woulda paid attention.”
22.
He blamed the National Parks. One of the men most responsible on earth for the Black Summer Bushfires blaming the people least responsible for it, claiming that they were ideologically opposed to hazard reduction burns.
23.
[Inserted clip of John Barilaro saying “Ideologically don’t like the concept of hazard reduction, but we give them the responsibility.”]
24.
No, you ball of grease, the reason they’re not doing hazard reduction burns is because you cut their funding by 27%.
25.
They’d been begging, specifically fat lips here, for the funds so that they could do the hazard reduction burns. But you cut the number of rangers by 100, and you cut the number of people who make the plans for hazard reduction burns from 36 under Labor to 10 under the Coalition.
26.
Bruz, you’re into cooking.
27.
[Inserted clip of John Barilaro saying “Today I’m going to do something simple, a veal scallopini.
28.
Of course he eats veal. [IN PARODY ITALIAN ACCENT]: “Yeah, it’s tasty” What you did to the National Parks and Wildlife Service is like not adding water to minestrone and saying, [IN PARODY ITALIAN ACCENT]: “This minestrone is ideologically opposed to being a soup.”
29.
I mean it’s obvious when you look at Giovanni’s decisions and comments that he’s a moron, but I at least thought he’d be smart enough to come up with an excuse that is a little better than, [IN PARODY ITALIAN ACCENT]: “Bruz, it’s not the government’s fault, it’s the uh, um, government’s fault.”
30.
You’re in charge of the National Parks you idiot! Anyway, look at this: Uh, uh, trust me it’ll be funny later.
31.
John, like the rest of us remembers the bushfires as a time of great anguish as he was forced to take time out of his London holiday to moralise to all us city slickers in Sydney.
32.
Don’t worry though, he didn’t bother coming home to do it, he still continued on with his holiday to say, [IN PARODY ITALIAN ACCENT]: “You city slickers in Mount Druitt don’t understand the struggle of us fair dinkum bush battlers, like myself.”
33.
Oh, interesting, and where are you?
34.
[Image of John Barilaro on top of Big Ben]
35.
“Big Ben stooge! Gong!”
36.
Claiming that he’s battling for the bush.
37.
What part of sitting on your fat worthless arse in merry old England while the bush was burning, blaming the people who were putting out those fires, that you practically lit, screams battling for the bush to you.
38.
[IN PARODY ITALIAN ACCENT]: “Cos bruz, I make the battles and then I fight them, understand?”
39.
Looks like the Julio-Claudians weren’t wiped out after all, were they. It’s just they got so inbred that the only musical instrument they can play is that big horn at Canberra Raiders matches.
40.
If you’re battling for the bush, John, then I’m protecting the moon from having an atmosphere and every night it looks down and thanks just me.
41.
[John Barilaro as Man in the Moon]: I’d read him a bedtime story too if he wasn’t so far away
42.
Anyway, let’s look at water theft.
43.
Giovanni promised a royal commission into water corruption.
44.
Then when it came to crunch-time voted against it.
45.
There’s only one possible explanation for that, he switched heads with Jennifer Coolridge and no one noticed.
46.
Seriously though, I think he’s corrupt.
47.
Shooters and Fishers legend, Helen Dalton, asked why he so blatantly broke his promise.
48.
All he had to do was vote yes. Man of discipline, Giovanni, responded with — this is true, this is the actual message he sent:
49.
[IN PARODY ITALIAN ACCENT]: “Helen, you are disgusting human.”
50.
I told you he was a dumb fuck. It looks like a caveman wrote that tweet.
51.
[Image of John Barilaro as a caveman in front of a computer]
52.
[IN PARODY ITALIAN ACCENT]: “Helen, you are disgusting human!” He calls himself Pork-Barilaro.
53.
He wears his corruption as a badge of honour. Which you’ve got to admit: Boss
54.
I’m sorry, but we’re going to have to appreciate that set of photos. I’m not making this up. He was the Spaghetti Eating Champion for 25 years.
55.
And yet he gets offended when I point out he’s Italian.
56.
[Image of John Barilaro with a Super Mario Bros hat and text: Mario Level Boss]
57.
[IN PARODY ITALIAN ACCENT]: “Mario Level Boss.”
58.
Ladies and gentlemen of New South Wales, I present to you your Deputy Premier.
59.
Oh fuck, that’s tasty. Migrant success story!
60.
Obviously, he’s trying to spin his pork-barrelling as John Barilaro AKA Greasy Ned Kelly.
61.
[Image of John Barilaro as Ned Kelly]
62.
Stealing from the rich and giving to the battlers of the bush so the battlers of the bush can have what they desire most, fucked fish and chip shops.
63.
Do you have calamari?
64.
What’s capitani?
65.
Oh he pork barrels all right. He porks harder than your pork gets looking at Judith McGrath from All saints.
66.
Now that’s hard!
67.
In case you’re wondering what pork-barrelling is, it’s simply giving government money for seats that don’t need it.
68.
And the problem with Giovanni is, he only gives it to his friends, not even to electorates. For example, he announced a government fund called the GO NSW Equity Fund aimed at investing in small businesses in the bush.
69.
And to help him decided where to invest, he got a private equity fund called ROC Partners to help pitch in. Always a good start, when a politician privatises even their ability to make decisions. What confidence the people of Monaro must have in their Member when even he thinks the free market can do a better job than him but still wants our checks to not do it.
70.
Have a look at who ROC and Giovanni — wink — decided to invest in, Australia’s Oyster Coast. I wonder what they produce, coasts? Nup, oysters. Oh, sorry boys.
71.
Now why would Barilaro and ROC decide to invest $3.3 million into a company that loses money? There are perfectly good smaller oyster farms running at a profit. Could it have anything to do with the fact that Australia’s Oyster Coast is chaired by David Trebeck, ex-director of the Liberal Party’s Policy Unit and member of HR Nicholls Society, a thinktank created by Peter Costello.
72.
Surely a man who looks like a mafia don wouldn’t knowingly hand out millions of taxpayer dollars to a failing oyster farm just ‘cause his mate ran it. Gifting that enterprise taxpayer money would be shameless, almost as shameless as me asking you to like this video, which to put a new twist on an old classic, [IN PARODY ITALIAN ACCENT]:
“Come on, I’m liking here.”
73.
[Image of John Barilaro wearing a Super Mario Bros hat while riding a horse]
74.
Just to be sure though, New South Wales Parliament asked him over and over, did you give tax money to Australia’s Oyster Coast because your friend ran it? To which he repeatedly said [IN PARODY ITALIAN ACCENT]: “It wasn’t me. I didn’t have shit to do with this. Fuck off!” Or words to that effect, nine times over under oath.
75.
I think you can see where this is going. Labor got the documents, and would you look at that, Barilaro personally signed off on the deal. NSW Labor then said maybe you should step down for at least being, you know, slimier than me. Yeaaahhh! [SLIDES OVER SLIPPERY FLOOR]
76.
You know what he said? [IN PARODY ITALIAN ACCENT]: “But sir, it was an accident, I didn’t mean to do it bruz.” And that was that.
77.
Not only did he use the public’s money to prop up a friend’s failing business, he perjured himself, nine times over.
78.
You usually go to jail for committing perjury once. Let that sink in and then do what your mum does when she hears something that she doesn’t like on the news which is, owww.
79.
Then get ready for the second whammy that makes your mum say, oh no, that’s horrible. Because also $3.3 million was given to a beef company that just 10 months earlier ROC Partners bought a majority “stake” in. Hal Do you get it? No?
80.
Okay, let me make this as simple as possible. ROC Partners advised that the NSW Government give your money to ROC Partners. When Labor found about this they tried to force Giovanni to refer the deals to the Independent Pricing and Regulatory Tribunal but would obviously find what you would assume on hearing that, that that is blatant corruption and, wouldn’t you guess, Giovanni says what he says whenever someone makes a plausible accusation of corruption perpetrated by him.
81.
[IN PARODY ITALIAN ACCENT]: Fuck off.
82.
Anyway, Labor introduced an order to call for Giovanni’s GO Equity documents to be released.
83.
The Libs unsurprisedly[sic] voted not to show those documents. It only passed ‘cause of the crossbench, meaning basically only the NSW Government voted against the NSW Government being properly scrutinised.
84.
Another time Mr Barilaro awarded this man called Andrew Stoner. [IN PARODY ITALIAN ACCENT]: “Oh bruz, stoner! Do you think he is one?” See for yourself bro. Definitely a real photo.
85.
He has given 98 grand of your money for cutting grass.
86.
Didn’t know it cost that much. And I wonder what makes Andrew Stoner so special? Maybe it’s that Andrew Stoner is the former leader of the Nationals.
87.
And Super Barilaro, bruz, owes his entire political career to Andrew Stoner.
88.
So just remember, when Giovanni proudly touts the nickname Pork Barilaro, it’s not pork-barrelling for you, unless your name is Andrew Stoner, in which case you’re probably watching this saying, “Mate, you just said he is, idiot!”
89.
Sometimes he throws his constituency a bone, Barilaro and NSW Arts Minister, Don
Harwin, Jesus, I wonder what he does in a day, “Ah, anyone could make that. It sucks.”
90.
They had a $47 million arts grant program to dole out, conveniently as always, just before an election. Guess how much of that $47 million went to Coalition seats. $44 million. Jesus, who says the Coalition doesn’t support the arts, eh?
91.
Guess how much went to Labor seats? Four grand, $4,000 out of $47 million. Surely if this was Iraq, even the Kurds would have gotten a bigger slice. Labor got 0.0085% of the money. Out of every $11,750 dollars allocated, Labor seats got a buck! Fuck!
92.
The Nationals actually think the point of being in government is to rort funds, don’t they? This is just prototype sports rorts. Instead of wearing helmets, they’re wearing berets.
93.
On the plus side, it did force Barilaro to exercise his decision making muscles. If only it was his actual muscles he exercised. He pushed for the funding of eight projects that he was explicitly told not to fund as, heaven forbid, Labor got more than one in every $11,750.
94.
Barilaro’s own seat, Monaro, marginal seat, received nearly a thousand times more funding than all the Labor seats combined.
95.
If that wasn’t enough, it just came out that he personally approved $4 million in council grants for his own electorate. Not to draw attention to his Italian heritage, because I know he hates that, but that’s a spicy meatball. In fact, he looks a bit like a meatball, doesn’t he. [IN PARODY ITALIAN ACCENT]: “Five star pork mince, dude.”
96.
And now we get to my pet peeve, very peculiar I know as barely anyone in the press seems to care that Mr Barilaro was responsible for trashing a national treasure that is easily as iconic as Uluru, the Great Barrier Reef, Gosford.
97.
Kosciuszko National Park, degrading tens of thousands of hectares of wilderness, pushing 27 native species to the brink of extinction, and he did it for like ten grand. Nice to know he values his second-hand Kia so highly. But how’s he doing all this?
98.
Well, shut up bozo and I’ll tell you.
99.
He championed the Kosciuszko wild horse heritage bill.
100.
If he’s stupid enough to pass that he’d be stupid enough to pass a bill preserving the lice on his head. Brumbies are basically majestic rabbits. They should be murdered as quickly and inhumanely as possible. Oh no wait, sorry, I’m thinking of people from Newtown.
101.
The point is, our alpine ecosystems haven’t evolved to accommodate hoofed animals.
102.
The topsoil in this region is extremely delicate and when it’s dug up it’s permanently degraded. As a result, due to them destroying land, trampling animals that live in the grass, fouling up the water, there are dozens of native species going extinct.
103.
Scientists and National Parks propose to cull. Giovanni, the greasy little scrotum, refused.
104.
It’s a decision so stupid that New South Wales became a global laughing stock, which we completely deserve, as we elected a Deputy Premier whose highest qualification is a Cert IV in Housing that isn’t even from a TAFE. Think about that. He couldn’t graduate TAFE, an institution where if you fail, they let you look at the answers and redo the test immediately.
105.
A guy that couldn’t even do that is in charge of some of the most delicate ecosystems on earth that not even scientists properly understand. [IN AN ITALIAN ACCENT]: “Yeah, but I understand sumfing that they don’t, how to get $10,000.”
106.
All this carnage for what? To allow a bunch of inbred hillbillies to tie a frightened mother up to a tree, wait for her to give birth, steal the baby and leave her there to starve to death. That’s preserving the dignity of this “cultural icon” is it, Giovanni?
107.
It couldn’t be that you got ten grand in donations and then pretended to care about the cultural significance of a vermin that is destroying the most culturally significant national park to this nation’s heritage, all for the price of a pool table you are perfectly happy to commit ecocide just to go, “Yeah!” [SHOOTS AT POOL TABLE] “Shot. Want to play again?” “Nah.”
108.
That’s what he’s willing to sacrifice 27 species for.
109.
As usual, Labor demanded an investigation and that the bill be suspended until a conflict of interest was clear but nup.
110.
Good old moderate Gladys Berejiklian declared that the accusations were “grubby” and that even questioning the bill was “inappropriate” and that the bill was based on facts and community views.
111.
That’s odd because the bill made New South Wales a global laughing stock amongst scientists. Everyone at National Parks supported the cull. I didn’t know a donor’s opinion was fact and that he represented the community view alone. [IN PARODY ITALIAN ACCENT]: “Well now you do. If I could pass a bill protecting myself as a cultural icon, I would. Gladys, Gladys, can I be a protected species?” “Oh for the last time John, no!” “Oh but, miss, you look so pretty today.”
112.
So in summary, can everyone stop asking me what happened to Yilmaz. Clearly he’s the Deputy Premier now and... No, wait, that’s unfair. Yilmaz at least graduated TAFE.
113.
I think with the evidence provided so far, it’s been pretty well established that the constituency Barilaro truly represents as Deputy Premier of New South Wales is not New South Wales, nor is it the bush. No, no, Giovanni represents the electorate of Giovanni.
114.
And although he’s wide enough to be an electorate, I really don’t think even he needs all the resources he’s personally consuming.
115.
Take, for instance, when the NSW Government decided it was time to draft up laws regulating digital businesses like Airbnb and Stayz, Barilaro couldn’t stick his pudgy little hand up quick enough. [IN PARODY ITALIAN ACCENT]: “Pick me miss, pick me miss, please.”
116.
Why was Barilaro all of a sudden interested in this industry? Because it pertained to the oh so important seat of Giovanni.
117.
Four months prior to becoming Regional Tourism Minister he bought not just a mansion but an estate, equipped with a mineral pool, tennis court, boatshed, lakes, seven bedrooms, which he decided to let out via Airbnb and Stayz. Didn’t occur to him once to register an Airbnb’d estate as a potential conflict of interest when shaping the law surrounding Airbnbs and Stayz, he and his cronies arguing, [IN PARODY ITALIAN ACCENT]: “Bruz, the estate only makes around $160k a year.
118.
Yeah, just to be two and a half times the salary of the average Aussie in just one of the investments that he owns, that’s all. [IN PARODY ITALIAN ACCENT]: “Yeah but cuz, it’s still [19:25 UNCLEAR] in the negative, so it’s not an asset. Haven’t you read Rich Dad Poor Dad bruz?” “No.” “Me either, stooge.”
119.
They actually argued that, as well as, [IN PARODY ITALIAN ACCENT]: “Bruz, what possible conflict of interest is there in me owning an extremely expensive property that I just admitted I want to maximise the value on as quickly as possible.”
120.
He’s declaring his conflict of interest in his own argument as to why he doesn’t have a conflict of interest.
121.
What repercussions were there for this blatant display of corruption and regulatory tailoring made to fit John Barilaro’s very specific waist? Nothing. Still do the job, still got to shape the laws, just another chapter in a long, distinguished career of rorting the system as much as he possibly can for the benefit of no one but la famiglia. His view of governing exactly what it was in ancient Rome. No vision for improving the state, no skills to govern, just a fat, decadent conman that by the grace of the gods was put in his position to ransack the Empire for all its worth.
122.
And yet he’s offended by being portrayed as an Italian stereotype.
123.
Well Giovanni, if you find that comparison deeply offensive, same offer as to all your other discrepancies, show me the evidence that you’re not a stereotype. I’ll stop. Show me how a man on a state minister’s salary could afford an estate, as not even your first house, your second house; a second house that’s so big it has a second and third house on it, like Mars’ two moons that just got attracted into its gravitational pull.
124.
And might I just say, those spare houses are real nice, Giovanni. Yeah, I’m talking directly to you now, because as you probably gathered, or haven’t because you’re that dumb, I’m filming at your estate and I want you to be the first to know that I fucked in both your guesthouses.
125.
What is it your mate Bed Fordham always says, politics is a dirty game. Hey Barra, even with my track record of what I’ve done in your houses still nowhere near as dirty as what you’ve done to get them. Surely you should know that you make a lot of enemies in politics. Would have thought you’d at least check who’s booking your houses, as someone might want to have a little snoop.
126.
Remember when you chucked a tanty when the Arts Minister, Don Harwin, broke lockdown rules and visited his holiday house and then weeks later you did exactly the same thing and said, [IN PARODY ITALIAN ACCENT]: “No, but mine’s essential. I need to feed the chooks and mow the lawn. I’m a farmer.”
127.
You know, for a long time I thought you were lying you had chickens. This place is so big they’re hard to find. We checked the butler’s pantry, the mineral pool, your private fucking lake that you ostensibly afforded on a public servant’s salary. How did you afford to run this place at a loss, John?
128.
Ah, there they are. [POINTING TO CHICKEN COOP] Nice breed.
129.
We paid the obscenely lavish amount of money he charges to stay here so, if you could help us out by signing up to Patreon, that’d be great because this hurt. I mean there’s $750 clean-up bill to give you an idea. Whoo-hoo-hoo! Anyone would think someone shaped the laws to legalise that level of extortion. But don’t worry, I’ll make sure I get my money’s worth.
130.
oops. [DROPS GLASS BOTTLE ONTO FLOOR BREAKING IT]
131.
Seeing as we’re here though, I thought we’d give everyone a nice tour of this beautiful maison, just so everyone could really appreciate how spacious this place is and how much stuff Giovanni must have done that we don’t even know about to earn it. And, just as a little bonus, I felt that we’d place some Super Mario Brothers paraphernalia around the house at points that really tick us off. So, Giovanni, while you’re picking these up and you’re pissed that they’re there, that’s how I feel that you own this house in the first place.
132.
You might be wondering, [IN PARODY ITALIAN ACCENT]: “Oh my god bruz, how could he do this! Is this even legal?” Don’t worry Johnny B, I got permission to film here for my birthday, for my socials, and can I just say, Giovanni, this is the best present I’ve ever received.
133.
Make sure you press like, subscribe and chuck us a couple of bucks on Patreon. What a birthday! [THROWS SUPER MARIO TOY INTO THE AIR]
134.
[CLOSING MUSIC/SCENES]
135.
[IN PARODY ITALIAN ACCENT]: “Bruz, what do you think of the decoration that I made for you up there?” [POINTS TO SUPER MARIO TOYS HANGING OFF CHANDELIER]
136.
[CLOSING MUSIC/SCENES]
137.
This is how much Barilaro loves Gladys Berejiklian. [HOLDS UP MINIATURE SUPER MARIO TOY WITH ARMS SPREAD OUT TO EXPANSE OF LANDSCAPE]
138.
I’ll tell you what does get you going in the morning though, Abruzzo Expressis! [POINTS
TO COFFEE PACKAGING]
139.
I think we’re going to get him going in the morning. [DROPS SUPER MARIO TOY INTO COFFEE PACKAGING]
140.
[CLOSING MUSIC/SCENES]
141.
This is my impression of John Barilaro going down the stairs. [IN PARODY ITALIAN ACCENT]: “Letsa go! Wee! Whoa! Whoa! Whoa! Whoa!” [SLIDES A SUPER MARIO TOY DOWN STAIR BANISTER]
142.
[CLOSING MUSIC/SCENES]
143.
144.
[CLOSING MUSIC/SCENES]
145.
And finally, we’re going to put the Big Mario in the big bed, purely because I’m imagining that Super Barilaro, bruz, will wake up one morning only to discover…
146.
[THEME MUSIC FROM THE GODFATHER PLAYED / RE-ENACTMENT OF BED SCENE FROM THE GODFATHER]
147.
Bruz!
148.
[WOMBAT GRAZING]
149.
*He didn’t scare the wombat away. We were chilling with it all day
150.
[CLOSING SCENE - SHOWS NARRATOR PLAYING SUPER MARIO GAME ON HANDHELD DEVICE]
10
4
14