Federal Attorney-General Daryl Williams said yesterday that the Commonwealth would take a more active in defamation law reform if the states did not act.
Mr Williams said. “”Defamation has traditionally been an area of State responsibility.
“”However, the laws of defamation set the parameters for public discussion and determine how debate in the Australian community is conducted. Defamation laws are an issue of national significance. Australian [state] Governments have attempted unsuccessfully to achieve uniform defamation laws for decades. While the Coalition believes it is undesirable to intrude into areas that are traditionally the responsibility of the States, the Commonwealth must take a firm leadership role. Where issues of national significance are at stake, and consensus appears impossible to achieve, more may be required. I have asked my department to consider the Commonwealth’s constitutional power in this area and intend to consult further with my State colleagues.”
Mr Williams was responding to assertions that the Commonwealth was anti-free speech because it intended to ask the High Court to overturn the Theophanous case which found freedom of political communication to be implied in the constitution. Mr Williams said he objected to the constitutional foundation of the case, but not its practical effect.
He supported that publishers should not have to prove the truth of statements published in the course of political communication , but only that they acted in good faith, but thought that was best achieved by state laws which should be uniform.
That position has been attacked, especially by media commentators, as being naïve because the states have attempted reform and uniformity without success for 20 years.
Yesterday’s statement indicates Mr Williams might be prepared to pass federal law if the states do not act, though Mr Williams has acknowledged that the Federal Parliament does not have constitutional power for a comprehensive law.
The Commonwealth has general power over the electronic media and could use the corporations power to deal with newspapers. And the High Court has suggested there is a general national-interest legislative power. So a federal defamation law could be fairly extensive, if not complete as far as the media is concerned. Theoretically it could go wider than just political discussion, and include publication about the professions, sport and entertainment, but Mr Williams has only mentioned political discussion to date.