Federal Attorney-General Daryl Williams has put form over substance on the question of freedom of speech. Last week he committed the Commonwealth Government to intervening in a case before the High Court to argue that the court’s historic 1994 decision on freedom of speech should be overturned. That decision gave much greater freedom for discussion of political matters without the fear of an expensive defamation action. Mr Williams said the Commonwealth agreed with the practical result of the decision, but did not agree with the legal and constitutional basis of the decision … namely that it arose out of an implication in the Constitution that for a representative democracy to work political communication must be freed of the burden of the requirements of state defamation law that the defendant prove the truth of everything he or she says. Mr Williams argues that defamation laws are properly matters for state parliaments and the common law rather than for the High Court to extract out of the Constitution. He said he would urge the standing committee of state and federal attorneys-general to take up the question of defamation law reform, in particular uniformity.
That idea is a cop out. Every attempt at getting uniformity in the past two decades has failed. Every attempt at putting even a scintilla of balance into the law in favour of greater freedom of speech in the past two decades has failed. Mr Williams is wasting his time in urging his state colleagues to do anything about defamation law reform. Self-interested politicians, who are among the greatest beneficiaries of strict defamation laws, will not change the law. They benefit from it because it shields them against tough criticism and because it provides them with monetary pay-outs if a media organisation oversteps the mark.
Further, uniformity is not a significant issue. The practical effect of all state and territory defamation laws at present is the same … a heavy onus of proof upon a publisher to prove the truth of everything published under the very high standards of evidence required by the courts. That burden frightens publishers into self-censorship. It is a mistake to worry about uniformity if the resultant law will be uniformly bad. Moreover, uniformity achieved in 1996 can quickly become eroded if any state decides to change its laws later. Now that NSW has done away with jury assessment of damages and courts have been given greater power to transfer cases to other states where appropriate, the quest for uniformity carries less importance.
So Mr Williams’s offer to rally the state attorneys into a quest for uniformity is a pitiful offset against his assault on freedom of speech by throwing the powerful weight of the Commonwealth’s legal efforts into over-turning the Theophanous case.
Mr Williams says the Commonwealth has no objection to the practical result of the Theophanous decision. Its practical result is that publishers are not longer required to prove the truth of everything they publish in the course of political communication; rather they must show that they acted reasonably and did not in fact know the matter was false. The latter is a far better test because it focuses on the conduct of the publisher, in particular the conduct of journalists, rather than the expensive and elusive chase after the truth. As we know from experience, it often takes time for the truth to come out.
Mr Williams hopes to achieve the practical effect of the Theophanous case while at the same time seeking to have its basis in the Constitution overturned. It seems he wants the High Court to somehow arrive at the Theophanous conclusion without using the Constitution, perhaps as some sort of Australian common law, like the Mabo case. The trouble with this approach is that the common law can be overturned by state parliaments. (Unlike Mabo where the state run into the Federal Racial Discrimination Act.)
Mr Williams ran away from any idea of federal legislation to help the cause of freedom of speech. He rejected a Bill of Rights based upon the foreign affairs power. He also rejected any federal foray into defamation law itself arguing a lack of constitutional power for a complete federal law.
Mr Williams’s latest foray into the freedom-of-speech debate invites a comparison with the Coalition’s earlier contributions. In 1992 it applauded the High Court’s overturning of Labor’s objectionable ban on political advertising on television based on the same constitutional implication of freedom of political communication that Mr Williams finds so unsound now. More generally, Mr Williams and the Coalition are objecting to a freedom of speech based upon constitutional grounds that might impinge upon the reputation of individual politicians so shortly after Prime Minister John Howard applauded what he called a new climate of freedom of speech without the chiding of the “”politically correct”. The latter, of course, has meant freedom for sweeping generalised defamations of Aborigines and Asian migrants, who have neither the money nor the law on their side to fight back.
If the High Court reverses its Theophanous ruling at the behest of this government it will at least bring home to Australians that they do not have any right to freedom of speech. If the court reverses its earlier welcome trend to protect and enhance individual rights through implications in the Constitution that is the framework of our evolving democracy, then perhaps Australians need to debate more widely whether those rights need to be stated specifically in the Constitution.