The ACT Attorney-General, Terry Connolly, is hoping to serve the ACT community by standing and waiting on defamation law reform, despite the fact that the three eastern states have gone into an advanced state of farnarkling over proposals first put by the Queensland Attorney-General, Dean Wells, in June, 1990, for a uniform law.
Mr Connolly said yesterday that, the ACT had not given up on uniform defamation laws, despite the delays in NSW and Victoria.
“”There are enormous advantages in uniform laws for the ACT,” he said, bravely taking the John Donne approach. Just as Donne recognised “”no man is and island”, Mr Connolly said the ACT was as island in NSW and nearly all publication and broadcasts in the ACT were also publications and broadcasts in NSW.
One might well ask when the bell might toll for uniform defamation laws, or significant reform in favour of free speech at all, given that it has been on and off the agenda for more than 20 years. He had hoped Mr Wells’s move would have resulted in a swift eastern states reform which the other states would have had to follow.
Mr Wells began his push for reform with the then NSW Attorney-General, John Dowd. It was hoped that a bipartisan approach by two large states would be more effective than the cumbersome all-state and Commonwealth approaches of the past. Mr Wells is Labor and Mr Dowd was Liberal from the small-l wing.
A spokeswoman for the new NSW Attorney-General, John Hannaford, said yesterday that the draft uniform proposal had gone to a parliamentary committee.
The committee had to report before December 31, so the Bill could not come before Parliament before its February sitting.
The defamation pot is over the back-burner in Victoria, too. Defamation is an insignificant even as a media issue in Victorian politics, let alone as a general issue. In that state the main media issue is the question of political bias. The Herald-Sun newspaper is being accused of running a campaign against the Kirner Government and Labor supports have been urged to boycott the paper.
The argument over the bias issue has not only put defamation on the back-burner, it has sapped any political desire in favour of a greater freedom of the press. Indeed, the relations between the Herald-Sun (Victoria’s largest circulating newspaper) and the Labor Government are now at such a low ebb that perhaps it is better that defamation law reform not be discusses, let alone acted upon in such a poisonous environment.
Normally the press has a symbiotic relationship with politicians, or at worst a love-hate relationship. However, whatever the rights and wrongs of the dispute in Victoria, there can be little doubt that it has not put any politician in the mood to grant the media any relief against restrictive defamation laws, high costs and high damages. If anything, they have been aggravated into wanted tighter controls on the press.
Mr Wells began with the honourable intention of seeking a better result for the community: greater freedom for the press to present issues of public importance and greater protection for the individual against unwarranted intrusion into private affairs. He also sought to eliminate the artificial differences between the states.
Noble intentions, indeed. The differences between the states, however, remain very large. It seems absurd in these days of modern communications. Why should someone be able to get damages in NSW and be thrown out of court in Victoria or Queensland over the same broadcast or publication.
The differences between the states are largely historical, but they remain great hurdle.
The personal differences among the Attorneys-General is significant, though they would downplay it.
The Victorian Attorney-General, Jim Kennan, had a bad experience with a Victorian country newspaper. The newspaper treated him very badly and repeated its mistake. He has a right to carry some suspicion of the media cries for greater freedom.
Mr Wells, on the other hand, as a student, was a leading civil libitarian.
Mr Connolly’s experience would also make him opposed to the defamation law and the stop writ. He was presented with a writ by the Young Liberals in South Australia as he entered the examination room for a law exam.
Brad Hazzard, who is on the NSW committee dealing with the defamation Bill, has been subjected to media treatment over the Metherell affair and its wash up that might make him less disposed towards media desires for greater freedom.
No doubt each Attorney and committee member is capable of putting these experiences aside and will do so, but they illustrate an essential uniqueness about defamation law reform. In nearly all other areas of reform (automotive emissions, human tissue transplants, treatment of animals on farms, and so on) the debate is carried on by pressure groups and politicians in the media. But in defamation, the two most significant pressure groups are the media and the politicians themselves.
Not many politicians have any financial interest in automotive emissions or human-tissue transplants. One or two might have an indirect interest in the treatment of animals on farms, but it would not play any significant part in their deliberations (if any) on the subject other than to make it more informed.
Defamation, however, is different. Every media outlet is usually a defendant, and is certainly a potential one. Every politician is a potential plaintiff and many are plaintiffs. They form one of the single largest group of defamation plaintiffs.
Moreover, lawyers, who usually have a significant part in law reform, have a personal interest in defamation, too. They make pots of money out of it. Thus, whereas most other areas get fairly objective treatment, defamation tends not to. It is no surprise that Mr Wells’s proposal has not had smooth passage.
In Queensland, the Bill is sitting on the parliamentary table.
Mr Connolly, however, is still hopeful. He says the proposed uniform Bill is a great step forward, and is not dead yet. He hopes the NSW committee will not bury it.
“”However, if it does collapse, we will change the reference to our Community Law Reform Committee and we will seek the ideal law for the ACT.”
There were better ways to deal with defamation than awarding damages, he said. The present law and procedure meant that ordinary citizens had not redress because of high costs and delays.
The law reform committee was looking at procedural matters. Mr Connolly said procedural changes could be made separately from the substantive law, but it would not be advisable to muddy the waters now while the uniform Bill was still under consideration.
The uniform Bill was the best opportunity for decades and it should not be given up. While discussion on it took place it highlighted weaknesses in the law, so even if uniformity was ultimately not achieved the process would be worthwhile.
But Mr Connolly thought the key to it lay in NSW. If NSW got through the committee stage and passed the law, Victoria and Queensland would have to follow immediately and the other jurisdictions so after.
The uniform law will make people begin actions within six moths, instead of the present six years; it widens the defences for statements made about matters of public interest; it makes damages a matter for the judge, not the jury as in some states; and it widens the categories of proceedings and documents that attract privilege. (Privilege means that the media defendant has to prove that it reported the document or proceedings fairly and accurately, it does not have to prove the truth of what is said in the document. For example, if a report tabled in the New Zealand Parliament says “”Bloggs is a twit”, you do not have to prove that in fact Bloggs is a twit, only that the report said that.
In short the Bill should widen the scope of public debate. However, many lawyers have said it has hidden traps for the media because of some of its wording.
As commentator said at the seminar at which Dean Wells launched his proposal more than two years ago, it is no good having a uniform law, if it is a uniformly bad one. But the way things are going, we might have to wait a long time for the uniformly bad one and put up with eight appalling ones in the meantime.