Paul Keating likes to break new ground. He was at it again on Sunday night. There he was on Kerry Packer’s television station accusing Packer of stealing from the Australian taxpayer about seven or eight billion dollars through lowering the value of Telecom with his Optus pay-TV deal. He likened this “”scam” to a scam by convicted former NSW Chief Magistrate Murray Farquhar’s reported attempt to take the gold reserves from the Philippines National Bank.
Why was this breaking new ground?
Well, it is grossly defamatory and every newspaper in the country reported it without having to think twice. I’ll leave aside for the fact that Keating was talking on Packer’s own station and Packer is unlikely to sue himself. But as a general principle if you call someone a grand-scale thief on national television you could expect to go down in a defamation action for lots of money. Also any newspaper that repeated the report would also go down, so newspapers would be wary of repeating the defamation.
Any decent defamation lawyer would have extracted the imputation that Packer was a thief from what Keating had said, especially as Keating had likened Packer to Farquhar. The new ground is that the imputation was published widely and nothing will come of it.
This is because of last year’s High Court ruling that the Federal Constitution carries an implied freedom of political communication. The court said this was because the Constitution set up a parliamentary democracy and for that to run properly the people have to have freedom of political communication. It meant, in the case before the court, that Bruce Ruxton could make some fairly barbed remarks about a Federal MP in a letter to a Melbourne newspaper. It meant the West Australian could make some barbed remarks about MPs going on overseas trips.
The new ground Keating is breaking is when the comments go the other way _ from the MP about other people.
A lot of discussion over the years about free speech has been about public figures. In America the constitutional written guarantee of free speech centres around a public figure test (though it is weaker now than it was). The basic theory is that you can say things about public figures if you have an honest and reasonable belief they are true, even if they turn out later to be false or unproved. Australian politicians have shied away from that approach. After all, they are public figures and they would not want to be singled out as a special defamation target. So we have had the strict approach of “”prove it’s true or pay up” _ until last year at least when the High Court gave us this freedom of political communication.
Thinking about Keating’s remarks, I suspect that the freedom of political communication runs to the republication of anything the Prime Minister says. Any fair and accurate report of what he says would be immune from a defamation action. So if you accurately report his defamatory utterances about Kerry Packer, or John Smith, you cannot be sued, even if they turn out to be false _ and we can presume here that Packer is not a thief on a grand scale. And it is too bad for Packer and John Smith.
It may well be that the High Court’s freedom rule runs to the communication by the media of anything any MP. The rules outside the Parliament may be about the same as the rules inside. Of course, logic and commonsense would have dictated that this should have been the case, but it has taken a long time coming.
A further point about the High Court’s ruling is its practical on-the-ground effect. While the academics await the next round of judgments from various courts to see how far it runs, media organisations and their lawyers are dealing with it on the ground.
One of the big factors in weighing up whether to publish something you “”know” is true but would not be able to prove under the common-law’s asinine evidence rules is the hurdles (practical and legal) that might face the person suing you. If you add to those hurdles the possibility of a “”freedom-of-political-communication” defence _ laced as it is with uncertainty and expense _ it moves the balance towards publication and away from self-censorship. The Keating exercise on Sunday _ calling Packer a thief and getting away with it _ raises the height of that hurdle and the cause of free speech.
It is about time Paul Keating did something useful with his big mouth.