This week’s ding dong in the arts community has provided a splendid practical illustration of the effect of last year’s High Court’s decision on freedom of communication.
It means you in Readerland get a better idea of what’s going on in the world. The decision has come in for a lot of bucketing. Some _ including journalists, lawyers and the intelligent lay reader _ haven’t yet grasped the large practical difference the decision will make.
On Wednesday, Roger Woodward, an internationally renowned Australian pianist, got stuck into the Australia Council in a speech to the National Press Club. The Australia Council dishes out public money to artists.
Woodward said there were “”persistent rumours of substantial areas of corruption” about the council’s work. He described a rotation of grant giving. Artists got themselves on to funding committees gave their favoured few grants and then went off the committee to be recipients the following year from last year’s beneficiaries who had got on the committee. Sometimes committee members gave themselves grants.
In answers to questions he also asserted that the council itself was corrupt. This is very heady stuff. It is enough to make any newspaper editor choke. What would have been the position before the High Court’s free-speech ruling? The newspaper or broadcaster would look at the old libel law.
That law says if you repeat someone’s else’s libel you are just as liable as if you said it yourself. And you are liable for damages accordingly. So if a busy, credible metropolitan newspaper repeats something nasty said about someone over a dinner table, the dinner-table gossip-monger pays $20 in damages and the newspaper pays $75,000. Usually the original gossip-monger does not get sued at all. Let’s go back to the arts ding-dong.
Woodward’s words carry the imputations that the people on the council, or certainly the leading lights on the council, are:
. Incompetent administrators because they do not know about corrupt administration going on in their organisation.
. Corrupt administrators because they know about and are doing nothing about corrupt administration in their organisation.
. Corrupt administrators.
. Incompetent administrators because they are allowing the misuse of public money by directing it from worthy artists to mates.
Lawyers usually provide a range the imputations from the very wicked to the merely sloppy.
The newspaper then asks: Can we prove the truth of these imputations? Answer, no. We do not publish.
Or the newspaper might say, let’s try and gather together the evidence to support the imputations. Reporters are sent out to gather statements. The result usually is that it gets hopelessly costly and while many people are willing to talk off the record, no-one will come into court with a sworn statement. Nothing gets published.
Or the newspaper might find that there appears to be nothing in the allegations. Perhaps Woodward is disgruntled because he missed out on a grant and he has blown out of all proportion an isolated case of a former committee member getting a grant. Nothing gets published.
See the problem? Whether the Australia Council system is rotten from top to bottom or squeaky clean the usual result is nothing gets published.
On isolated rare occasions under the old system a newspaper might gather enough evidence to write a tame story that scratches the surface. Under the old system truth is the essential test. If you can’t prove it, forget it.
Lawyers love that system, because it is a very long and costly exercise to find and prove the truth. The Royal Commission in Perth is spending $3.5 million trying to answer the simple question: Did Carmen Lawrence know about this wretched petition before it was tabled? That is a huge chunk of even a busy metropolitan newspaper’s editorial budget.
The High Court acknowledged the problem. It said forcing the media to prove the truth of everything they say on pain of large libel damages will result in self-censorship. And if people cannot be free to communicate on political matters they will not be in an informed position to make a judgement on election day. Given the Constitution presumes an informed vote, it must strike down state libel laws that prevent free political discussion.
But the High Court did not permit the repetition of any old tittle tattle that comes across a newspaper’s desk. It laid down some ground rules. How do they apply in the Australian Council case?
Here we have a distinguished pianist with long involvement in the arts and arts funding. He is at a fairly public forum _ the National Press Club. He makes assertions about the administration of public money and a system set up by a Labor Government and supported by the present Labor Government with the active interest of the Prime Minister.
Now, people may not vote according to how they see the administration of arts funding, but it is part of a sum of things.
So the newspaper says, our readers should know about what Woodward said. We don’t necessarily believe it is true. We don’t know it is false. But we have to behave fairly and reasonably. We certainly have to ask to people at whom the allegations have been made what their view is and publish that too. And this is ultimately what this paper and others did.
The general-manager of the council, Michael Lynch, made several pertinent points: Woodward’s charges were unsubstantiated; if there were detailed allegations of corruption he would happily investigate them; there was a great deal of invective in the attack.
This is a far better result than the old libel law which would have intimidated the media into not publishing the core of Woodward’s allegation.
The result is public knowledge of the following:
. An allegation of corrupt or bad administration.
. No specifics to back it up, but one made by a distinguished artist.
. A forceful challenge by those accused to the accuser to put some detail to his allegation.
The disquiet among people affected by the public funding of the arts is now properly in the public domain. The public and politicians will now expect some results _ not just a wimpish “”there is no evidence of XYZ”, but a definitive clean bill of health or, if there is malpractice, the weeding out of it. So the truth will out.
The enormous irony of the old rule is that in insisting upon proof of the truth it resulted in the suppression of the truth. Under the new system we forget the elusive chase for the truth and concentrate on things that can be established more easily: was there a public interest in the publication and did the publisher behave reasonably _ the main test being fariness or right of reply. You no longer have to prove the truth of what someone like Woodward says; you only have to show you recorded him accurately and gave the other side a right of reply.
It will take some time for the public, media and the players to adjust. It means that the public will have to learn to treat allegations with reasonable scepticism; smoke does not mean fire. It means the media will have to learn to act reasonably because the High Court’s ruling demands reasonable and honest conduct, especially getting both sides of the story (that will be a novelty for some journalists). Editors will get very demanding on this because they will want to take advantage of the High Court’s ruling. Lastly, the players will not be able to hide behind the libel law with a response to media requests like: “”Print a word of that and I’ll sue.”
That said, the new system has a major drawback. It applies only to political discussion _ discussion involving public money and elected officials. The professions and the sport and business worlds continue to run under the old rules _ the ones that the malefactors of Chelmsford, Fitzgerald and Tricontinental hid under for so long.
But I have a sneaking suspicion that now the political world is subject to a reformed law, the biggest impediment to general libel law reform _ politicians personal benefit _ is gone. The pollies will say if it is good enough for us to be exposed to greater scrutiny under a Constitution we cannot realistically change, it is good enough for everyone else. The quicker the better.