The Federal Attorney-General, Daryl Williams, clarified the Federal Government’s position last week on freedom of speech. He implied that people had jumped to conclusions on the announcement that the Federal Government supported the reconsidering of the freedom-of-speech issue by the High Court.
The two freedom-of-speech judges, Mason and Deane, have left the court so there may no longer be a majority on the court to support the Theophanous case which said there was an implied right of freedom of speech in the Constitution.
Mr Williams said that while the Government wanted to revisit the case, it had not decided on what side to come down.
That is a good start. Of course, it might be better for the court to reverse its finding so people could realise that there is no right to freedom of speech and we need a referendum for a constitutional change to ensure it.
In the meantime, Theophanous is all we have got to allow people to speak their mind without fear of being sued for huge damages unless they can prove the truth of every dot on every I and every cross on every T.
The very limited right granted in Theophanous says that you do not have to prove what you say about political matters is true, as long as you can show you were careful and reasonable.
Mr Williams talks about the need to balance reputation and freedom of speech.
In that case he need not fear about supporting the Theophanous principle. Because before that case there was no balance whatever. Australian law that said reputation was utterly paramount and freedom of speech was top be given no leeway at all.
You see present law says that unless you can prove the truth of what you say and that it is in the public interest you can be held liable for very heavy damages, unless you are repeating what was said in Parliament or the courts.
Now that is not freedom of speech. It is not giving one iota of leeway to freedom of speech in a balance with reputation. Being allowed to speak the truth (in a way that is provable in a court with the laws of evidence weighted against you) or to repeat what was said in Parliament or the courts is no concession at all.
Theophanous gives us a very slight concession in favour of freedom of speech. You are allowed to be ultimately wrong, provided you have been careful and reasonable. Before, no matter how careful and reasonable you were, if you make an honest mistake you have to pay large damages.
If freedom of speech means anything it is a freedom to be wrong, foolish, stupid and to say things that are against what most people think.
Mr Williams need not fear upsetting the balance between reputation and freedom f speech by supporting the Theophanous case. All that case gives a very slight leeway to freedom of speech in the isolated circumstance of political comment. In all other cases there is no leeway whatever for freedom of speech.
We need to widen Theophanous to all speech not just political communication. People should not have to prove that everything they say and right is true; they should only have to show they were not reckless or malicious.