In 1964 Justice William Brennan of the United States Supreme Court summed up the grievous flaw in the English and Australian laws on the people’s right to free speech.
He said: “”Erroneous statement is inevitable in free debate . . . it must be protected it the freedoms of expression are to have the breathing space that they need in order to survive. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions _ and to do so on pain of libel judgments virtually unlimited in amount _ leads to a comparable self-censorship. . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true, and even though it is in fact rue, because of doubt whether it can be proved or fear of the (legal) expense of having to do so.”
English and Australian libel, of course, has the rule that compels the critic to prove the truth of everything he or she asserts.
Justice Brennan was ruling on the US constitutional provision that guarantees freedom of speech and freedom of the press. There is no such provision (nor such freedom) in Australia.
However, last year the High Court ruled that the Australian Constitution had an implied guarantee of political expression because it was part of representative democracy.
Quite soon the court is expected to bring down decisions in two libel cases where the publisher has pleaded that the new implied freedom prevents what would otherwise have been a standard libel action under state law, or at least provides a defence.
In the case last year, the High Court ruled that the Federal Parliament could not pass a law preventing the screening of political advertisements or a law making it a criminal offence to say rude things about the Arbitration Commission.
How this affects state libel laws has been left to conjecture. It may be that a blanket ban on political speech is unconstitutional but a mere regulation of such speech through the libel laws is okay.
The two cases have the potential either to push the frontiers of free speech further or, in the words of author Robert Pullan, show that the High Court’s implied guarantee was still-born.
Pullan’s book Guilty Secrets. Free Speech and Defamation in Australia is to be launched in Sydney today (Wed). Perhaps re-launched is a better word because it is an update and rewrite of a book he published under the same title a decade ago.
Alas, speech is no more free now than it was then. Pullan, however, is optimistic.
“”I don’t believe the High Court would say in one case here we have a constitutional protection and in the next case say the protection does not have legs,” he said this week.
The two new cases will test the waters.
One is over a publication about a Federal politician during an election campaign. The issue here is whether ordinary voters who write letters to the editor or go on talk back radio during elections are required to prove the truth of everything they say, as state libel law requires, or will they only be required to have an honest belief in what they say is true.
The second case is over a newspaper article attacking some state politicians for going on a “”junket”. The issue here is whether the new constitutional guarantee extends to state politics.
Incidentally, isn’t it pathetic politicians suing over an accusation of taking a “”junket”? Haven’t our courts got better things to do? We are incessantly told by judges how strained the court system is. Do not listen to a word of it while ever there are silly defamation actions over things like rugby-league players’ genitals, politicians’ “”junkets”, burnt lobsters and paintings called “”yuk” on the list.
And do not listen to politicians saying they are doing something about court waiting times while this nonsense goes on.
Pullan rightly says this nonsense goes on because politicians think they gain by the present law.
Another issue about the High Court’s new implied guarantee of political expression is: what precisely is üpolitical@ expression? Pullan argues for the widest interpretation of “”political”. He says that virtually everything we do in the public arena and much in the private is political. He cites the new sexual politics as an example. Consumer rights is another. Thus he argues that comment about the conduct of business is political and should attract the guarantee.
There is scope for a very large protection indeed. But he is not optimistic on that.
“”The High Court is not going on a reckless adventure in fleshing out the protection of expression,” he said. “”It has already taken a bashing on Mabo. That might inhibit a robust interpretation.”
However, the High Court is at least showing some inclination to step in where the legislature has manifestly failed provided the Constitution gives them some leg in.
And the legislature has manifestly failed on defamation.
Pullan argues that nothing has happened in 20 years of serious trying among publishers, law reformers and the concerned public. He puts that down to the fact that politicians feel they have so much to benefit by the present system.
They can get a supplement to their retirement fund; they often have grudges and want revenge upon the messenger; and defamation inhibits the media from making comments that make politicians look silly.
Attempts to reform the law have foundered on the greed and vanity of the very politicians in whose power the reform lies.
There is some irony in this because if the defamation law is to protect reputation, then it has done a singularly bad job with politicians.
Incidentally, notice how Paul Keating, the man who sued a senator for libel before the last election, thought it imperative for the Federal Parliament to legislate to give the High Court’s Mabo decision further force, but has done nothing about the High Court’s free-speech cases.
They both broke new ground; they both created widespread uncertainty; they both deserved extension and development; both affected the rights of many Australians; and the Commonwealth Parliament had power to do something about both. (It has corporations and broadcasting power to do something about defamation if it really wanted to).
Pullan wants publishers and speakers to be in the same position as anyone else in society: surgeons, architects, surveys, solicitors and the like. These professionals are not required by the law to prove that everything they do is right. Rather they are required to show that they have exercised reasonable care in going about their business.
So it should be with free speech. The person making the speech should be required to show that he or she exercised reasonable care, that they were not reckless or malicious. Journalists, soap-box orators, talk-backers and letter writers would have to show they made reasonable inquiries and that they held their opinions honestly, but would not have to prove the last iota of truth about what they said.
More importantly, they would not have to prove the truth of what the lawyers for the defendant say is imputed by what they say, as current law demands.
Let’s take an example. I say: “”The Department of Roads make a mess of the MacKennal Street by-pass.” The lawyer for the head of the department says that that carries the imputation that he is incompetent at his job. I then have to prove he is incompetent at his job. The US system, on the other hand, requires only that I honestly believe the by-pass to be a mess and that I gave the department a reasonable opportunity to put its view.
Pullan’s book traces the history of unfree speech in Australia from convict days. He argues that the convict origins have had a profound effect on the culture of speech in Australia. It is a culture of “”it’s not for me to say.” Australian society has paid dearly, he says, citing Fitzgerald and Chelmsford as powerful examples of wrongs that were long allowed to go unremedied under the cloak of secrecy woven by the strict requirements of our defamation law.
He said the whole culture was one of making it hard for people to express their views. Judges and juries, especially, had an attitude inimical to free speech. Even with changes to the law, judges would still interpret the new law in such a way to make free speech more difficult unless there was a cultural change.
That would be difficult in the current climate. Ordinary people who sat on juries were fearful of journalists. They did not recognise that free speech was their right, not the right of the Murdoch-Packer empires to say what they liked. The concentration of media ownership in Australia made the cause of defamation law reform more difficult.
Judges, too, were under the misapprehension that journalists were only interested in circulation and the commercial profits of their employers. Most journalists, however, could not care less about their proprietor’s profits.
Pullan, however, hopes that the High Court’s finding of an implied guarantee of free speech can change the culture, that we can shake of the authoritarian, inhibitory traditions brought from England “”and create an Australian voice with new things to say about the world”.