The NSW Parliament seems to have missed the whole point of the recent High Court case on freedom of political speech. Last week it passed a defamation “”reform” Act which does nothing to bring NSW law into line with the new case and does precious little to help free speech.
Bizarrely, the NSW Attorney-General, John Hannaford, said the recent High Court case caused him to push the reform.
Under the old NSW law the publisher had to prove truth (ital) and public interest (ital) to get a successful defence of justification.
Under the new law the publisher no longer has to show public benefit; just truth will do.
Big deal. The reform is of absolutely no consequence. I cannot find one NSW case where the publisher has proved truth but has failed to prove public interest. No case has ever turned on the public-interest requirement.
The new law, however, retains the requirement for the publisher to establish truth.
What did the High Court say about truth? Justice Brennan: “”A rule compelling the critic of official conduct to prove truth as a defence to actions in which punitive damages may be awarded does not deter false speech only. It is often difficult to prove the truth of the alleged libel in all its particulars. And the necessity of proving truth as a defence may well deter a critic from voicing criticism, even if it be true, because of doubt whether it can be proved or the fear of the expense of having so to do”.
In other words the requirement of proving truth silences people, it inhibits free speech.
The High Court proposed instead that the publisher should have to prove that the publication was honest, not reckless, reasonable and that the publisher was unaware of the falsity. (The reckless allegations of paedophilia by Deirdre Grusovin, if made outside Parliament, would not met the test, for example, but the long-suppressed allegations of misconduct by psychiatrists at Chelmsford Hospital would.)
The High Court’s essential point is that publishers will not have to chase the expensive and elusive truth, but rather show that their conduct was reasonable.
By comparison the NSW reform, which still insists on truth, has missed the boat. It is another self-serving politicians’ law to keep politicians immune from criticism.
I suspect that the NSW law will be found unconstitutional to the extent that it applies to publication about political matters. None the less, the onerous, free-speech-inhibiting truth test will remain for publications about the professions, business, sport and the arts.
Politicians in Australia are fond of talking about the need to balance freedom of speech with the right to reputation. But if the law requires a publisher to prove truth, it is not a balancing act at all. Everything is weighed in favour of reputation, no ground whatever is given to free speech. This is because if you can actually prove something awful about someone is true, then any reputation they have to the contrary is undeserved, so allowing the publication of it is no leeway in favour of freedom of speech.
If you are balancing free speech against reputation, you have to give free speech some leeway. You have to say free speech is so important that if, despite reasonable efforts, it goes astray and reputations suffer that is the price you have to pay.
The new NSW law does nothing of the kind. It says reputation is so important that no ground whatever will be given for free speech. You will have to prove the truth of what you say. Even if you make every reasonable inquiry and it turns out to be wrong you, will have to pay damages for lost reputation.
The High Court has led the way to (ital) balance (end ital) free speech and reputation. It said if a publisher can prove reasonable conduct, then the publisher will not have to pay damages even if it turns out to be untrue.
Alas, NSW has not taken up the lead. It was important for it to do so because the High Court’s judgment appies only to political communication. It requires state law to apply the same emminently sensible criteria to all publication.
Let’s hope the ACT does not follow NSW’s pitiful lead.
To be fair, NSW made some changes about stopping over-the-top damages awards, but it failed on the fundamentals.