THE Federal Attorney-General, Michael Lavarch, appears to be a brave man. The Malaysian prince and chauvinist judges aside, he has now called for uniform national defamation laws. Good luck.
Defamation law reform is like the road to hell: paved with good intentions. An Australian Law Reform Commission attempt faltered in the mid-1980s. In 1990 an eastern-states attempt begun by the Queensland Attorney-General, Dean Wells and the then NSW Attorney-General, John Dowd, has faltered.
Mr Lavach’s call makes sense. He said all the obvious things that people have being saying for two decades without anything being done. The absence of a uniform law made it “”very difficult” for the media, he said. Australia had a national media and should have national laws. It was strange that a statement could results in a damages payout in one state and be allowed in another.
However, he said constitutionally it was a state matter, so “”unless the states see the advantage themselves in having a national approach then it will get nowhere”.
This approach is defeatist. If left to the states, they will squabble and argue and there will be no uniform law. Worse, each will stand its ground on some peculiar element of its own law (usually one that make life easier for plaintiff politicians) and the result might be a uniform law, but a uniformly bad one _ one that picks the most restrictive elements from each state.
The important point is freedom of speech in a democratic society. Yes, there is a balance with reputation, but at present the balance is almost totally in favour of reputation. Damages are too high. Costs and delays are notorious. Restrictive defamation laws have already done enough damage in permitting the covering up of skulduggery for long after it would have been exposed and cleansed with a more balanced law: Chelmsford and the Fitzgerald matters are just the two most notorious examples.
Mr Lavarch is wrong to do a Pontius Pilate on such an important issue. History has shown the states have failed. The Commonwealth must now act. It can use its broadcasting and corporations power and perhaps the foreign affairs power and the implied freedom of political communication in the Constitution to fix the defamation laws.
The Commonwealth clearly has power to grant immunity to corporations it has issued broadcasting licences to. It could make them, and their employees, immune from state defamation laws and instead make the liable under a more liberal Federal one. It could perhaps do it for corporations in general. That would take care of 95 per cent of Australian defamation actions.
Mr Lavarch need not bother with an inquiry or calling for submissions. There are truckloads of submissions and reports from previous attempts, and the issues have not changed.
In general people want a right to privacy against intrusive media; they want quick processes to get errors corrected and apologies published; and they are sick of people walking away with bundles of cash while people with personal injury or work injury get far smaller sums for real injury.
Once the big cash awards go, the big-name lawyers will go to. That will result in cheaper, speedier decisions, perhaps in the magistrates court or in a special low-cost division of the Federal Court, if it is to be a Federal law.