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.

Many conferences and proposals later, uniformity was seen as an impossible goal.

The main battleline ran between the convict states and non-convict states. Non-convict states like Victoria and South Australia thought truth alone should be a defence which was the old English common-law position. But states with a convict history had also had an additional requirement that the matter must be published in the public interest. This was to stop people digging up someone’s convict past or ancestry.

You would think that such history could be put aside. For media practitioners whether you have an additional public-interest requirement is of no moment. Hardly a case has ever turned on it.

Ruddock’s proposal seems a fairly good starting point in the absence of any hope of a US-style guarantee of freedom of speech. The proposal runs in the general mould of English-Australian defamation law that is harsh to the media, restrictive on free speech and makes it easy for the rich and powerful to sue. But it must be better to have a uniformly restrictive law than eight slightly different restrictive laws. The latter just adds unnecessary costs and inconvenience to the overall restrictive regime.

The proposal has several significant changes. First, it would abolish juries for defamation trials. NSW should leap at this. NSW made a complete hash of the use of juries in changes it made four years ago. Juries hear the first part of the trial on the legal-technical issue of whether something is capable of being defamatory and is in fact defamatory and the second part of the trial on defences (like fair comment and fair report) and the level of damages is heard by a judge alone.

In Victoria juries are optional so Victoria might object, especially as the Labor government would remember the then Liberal Premier Jeff Kennett losing a major defamation action in front of a jury that he had opted for. In the ACT and South Australia juries are not permitted.

Second, the proposals would require people to take action within one year, which is the position in the ACT. Most states have six years, which is ridiculous given the action is supposed to be about reputation which requires immediate action. Reducing the limit is not necessarily good for the media. With the six-year limit cases often just faded away after the initial anger. With a one-year limit plaintiffs are often pushed into action.

Third, the proposals require a public-interest test. This might upset Victoria.

The proposal also includes a right-of-reply and correction provisions and some defences for honest opinion and reasonable publication. These are new and the detail will cause argument, especially if the honest-opinion and reasonable-publication provisions are more restrictive than existing provisions. The present draft of the proposal admits that its suggested honest-opinion defence is more restrictive than the common law. Its reasonable-publication test also appears to be unavailable to the media because it suggests that unduly wide publication would defeat the defence. It seems to suggest the audience must be people with a special interest in the matter.

In the information age new provisions should free up communication, not restrict it. Without changes to these provisions it would be a moot point whether the new restrictive environment would outweigh the value of uniformity.

Alas, under the Ruddock proposals there is no cap on damages. This is a serious weakness. Doctors squeal and get changes to tort law. Media organisations (and their readers and advertisers to whom the costs are ultimately passed) still have to cop open-ended damages.

Unfortunately, the proposals retain injury to a person in their occupation, trade, office or financial credit under defamation law. They more properly belong in trade practices law where some proof of damage is required. Defamation should be about general esteem and reputation.

The ACT should have the most objection to the Ruddock proposals. Under changes steered through by Gary Humphries when he was Attorney-General, the ACT has the most pro-free-speech defamation laws in Australia – and the sky has not fallen in. In an ideal world the ACT’s laws would be the model. But given politicians are unlikely to give anything to the media this is a hopeless cause. Nonetheless, the Ruddock plan picks up at least some of the ACT reforms.

ACT media has less to lose with the Ruddock proposal than it would seem. Any leeway given by liberal ACT laws can be simply counter-acted by plaintiffs taking action in NSW.

With any luck the states and territories will object like crazy and needle the Commonwealth into doing what it should have done in 1973: passed a uniform law that would cover all broadcast and corporate media and all of their individual employees and contractors (very important), leaving it open to the states to apply it for all cases.

And with any luck, when the Bill reaches the Senate, the detail can be negotiated more in favour of freedom of speech.