Uniform defamation laws are long overdue but will face stiff opposition

Federal Attorney General Philip Ruddock flexed Commonwealth muscle this month in a worthy cause – uniform defamation laws.

He issued a discussion paper outlining Commonwealth proposals to use the broadcast, corporations and territories powers to pass a nationwide defamation law. Hitherto, the area had largely been seen as one for the states. With a Commonwealth law, the states would be left with only defamation by individuals; all the major media players would be brought within the uniform Commonwealth law.

The madness of the present defamation laws has long been apparent, most markedly in 1973 when Justice Russell Fox of the ACT Supreme Court delivered his judgment in the defamation action brought by Prime Minister John Gorton against the ABC and journalist Maximillian Walsh.

It was over a fleeting comment on a current affairs program suggested that Gorton had ordered a denial to be issued to a story he knew to be true in order to discredit his Defence Minister Malcolm Fraser.

Gorton was no longer Prime Minister by the time the case concluded.

It was standard political stuff that should not have raised an eyebrow in a society that respected freedom of speech. But Australian defamation laws by and large require people to prove the truth of everything they publish at such vast cost in lawyers’ fees that chills even the richest media organisation. That law remains unchanged and its general anti-free-speech approach is likely to remain unchanged for the indefinite future.

The exceptions to the general proposition that you must prove the truth of all you publish are technical and uncertain in their application and vary from state to state.

Therein lies the other appalling result in the Gorton case. It was an Australia-wide broadcast. Gorton sued in six of Australia’s eight jurisdictions: in the ACT and five states.

Bizarrely, the law required Justice Fox to rule that Gorton had been libelled in three of those jurisdictions but not in the other three.

Everyone pointed to the absurdity of Australia having eight sets of laws to govern defamation when radio and television was broadcasting to the whole nation and newspapers were circulating nationally.

An additional absurdity in the Gorton case was the uselessness of the remedy. Gorton was awarded damages – about half a year’s pay. But it was too late. The damage had been done and he later lost the Prime Ministership. A correction and apology at the time would have been a better remedy.

Gorton’s case showed something had to be done, but nothing has been achieved for 30 years. A reference was made to the nascent Australian Law Reform Commission. In 1979 it recommended a uniform law including court-order corrections but the proposal died because it recommended also a new remedy for privacy violations. The media would have none of it.