There has been much wringing of journalists’ hands since Federal Attorney-General Daryl Williams announced the Government would argue before the High Court that the court should overturn its 1994 freedom-of-speech ruling.
The 1994 ruling came in the Theophanous case which dealt with a letter to the editor of a Melbourne paper from a very plain-speaking Bruce Ruxton who accused Andrew Theophanous, a member of a parliamentary immigration committee, of favouring non-English speakers.
It is worth setting out what the High Court ruled because it is crucial to Williams’s position, which has been demonised through over-simplification.
The court ruled:
BB The Constitution provides for representative democracy.
BB That can only work if people have an informed vote.
BB This implies a right to freedom of political communication.
BB State defamation laws, on most occasions, require publishers to prove the truth of what they publish.
BB Proving truth is usually very expensive so publishers might self-censor, therefore these state laws breach the constitutional freedom.
BB Instead, all a publisher of political material should have to do is prove he or she was not reckless, did not actually know the material was false, and that the publication was reasonable.
BB And lastly, if a publication attracts the constitutional freedom then it is published on what lawyers call “”an occasion of qualified privilege”.
This last point, often called the second leg of the Theophanous defence, is most important. “”An occasion of qualified privilege” means the publisher has a duty to publish the material and the receiver has a legal interest in receiving it. And it follows that the publisher does not have to prove the truth of the substance of what is published, only that it is published without malice, without actual knowledge of its falsity, published reasonably, and that if it is a re-publication that it is a fair and accurate summary.
Until Theophanous the common law had a very restricted view of “”an occasion of qualified privilege”. For the purposes of the media it was restricted to reports of parliament, the courts and some public and company meetings.
Publishing details of documents that fall of the back of a truck asserting skulduggery and waste of public money in the Department of Works, for example, was not (before Theophanous) an occasion of qualified privilege. The courts ruled the public at large never has an interest in receiving this material, so the media has no duty to publish it. The courts said the media should hand it to the police or back to the department for investigation.
It was always naïve and partly explains why we have so much corruption in Australia.
The Department of Works example is a good one to explain why the Theophanous case is so important in Australian public life.
Before Theophanous, the top managers at the department could sue saying the report about the documents imputed they were incompetent and cheats. Any pre-publication media inquiry to the department about the documents could be met with a stern warning: “”Publish a word and we will sue.” The newspaper would have a pretty good idea that there was skulduggery in the department but could never prove the truth of the imputation of incompetence and cheating against all of the senior management of the department, so it would have to self-censor.
After Theophanous, however, there is no need to prove truth. The newspaper only has to show it acted reasonably and not recklessly. It would have to show, for example, that it made reasonable other inquiries and gave the department managers a reasonable chance to respond.
This is a far better way of dealing with defamation. It focuses on media conduct, not on some elusive and expensive chase for the truth. That chase, under our legal system with its complicated evidence rules is a hopeless one. It is so hard that the media prefer pontification to investigation.
But there is a worse effect. Journalists whose work is subject to defamation action have a ready-made excuse: we knew it was true but could not prove it. Among their colleagues they get hero status or at worst a comment of that was bad luck. And that is what pre-Theophanous defamation was: the luck of the draw.
But if defamation focuses on journalists’ behaviour (was publication reasonable), in the long term it should improve journalism. Editors will demand journalists behave reasonably to attract the protection of Theophanous.
Also, the people subject to the publication can no longer get away with a reply of: “”Publish and I’ll sue.” If they do that, the journalist will go a long way to satisfying the reasonableness test. It means under Theophanous, people who deal with public money and other matters of political importance will have to respond to the public through the media.
So it will be bad for public administration if the Theophanous defence is taken away and not replaced with some other equivalent.
Now Williams says he does not mind the practical effect of Theophanous, but he does not like the fact it is founded in a constitutional implication. He would be more happy if a Theophanous-type defence were provided by Parliament. That is all very well in theory. But we know that state parliaments, full of self-interested politicians, will not change their laws. Twenty years of attempts have failed. It is naïve of Williams to think they will. Or it is a cop out, unless he moves in the Federal Parliament to force the issue, even if it only means reform for the electronic media which comes under the Commonwealth’s jurisdiction.
Williams said the Commonwealth would argue before the High Court that the practical effect of the Theophanous ruling should be achieved through the development of the common law, rather than through constitutional implication.
There are two things wrong with that. The first is that state parliaments can overrule the common law. They do this very often. A good example is the way that legislative schemes have replaced common law car-accident damages claims. However, there is some murky legal water here. Is there is such a thing as federal common law which no state parliament could override? It may be that the federal common law of Australia might grant a second-leg Theophanous defence that the states could not override. If Williams is going down that track he will become a free-speech hero rather than a demon.
My opinion for what it is worth (say two-thirds that of Williams, who is, after all, a QC) is that this is a hopeless cause.
In Theophanous, the court ruled: “”A publication that attracts the freedom implied in the Constitution can also be described as a publication on an occasion of qualified privilege.”
This means the common-law (second-leg) freedom is based upon the constitutional freedom. Without the latter, the former fails. Nor can there be a state-based common law qualified privilege for political speech unless state courts are willing to sweep aside hundreds of years of precedent.
No; if Williams is fair dinkum about freedom of speech he either has to forget the purity of his constitutional principles and support Theophanous or legislate, as far as he can federally, or move for a proper written Bill of Rights that includes freedom of speech.
The last two approaches have the added value of freeing up not just political communication, but all communication, including that about the professions, sport and entertainment.
A more radical alternative would be to reform the fatuous adversary system and the ludicrously strict rules of evidence that make proving truth such an impossible business in our courts … look how many crooks and charlatans get off because there is “not enough evidence”.
In the meantime it would help if the profession of journalism made itself more accountable. At present, ordinary people have little recourse against bad journalism. Defamation is only for the rich and powerful; the press council does not include many newspaper publishers or the electronics; Stuart Littlemore is effective but selective; and the journalists’ union’s complaints system is a closed shop as bad as the worst legal and medical professional bodies. In that climate, the Pauline Hanson equivalents in the media militate against any popular call for more liberal defamation laws.
Incidentally, spare a thought for poor Andrew Theophanous. His reputation was so badly damaged by the Ruxton letter that he was returned to Parliament this year with 67 per cent of the vote in his electorate, a swing of only 1 per cent against him in an environment of large anti-Labor swings. And he was promoted to secretary of the shadow ministry.