Lawyers from nearly every state and territory are arguing the heady constitutional questions of freedom of speech in the High Court this week. At question is whether the 1994 Theophanous case should be overturned.
On the sidelines states rights and the role of the High Court and the Constitution are being debated.
But there is more at stake: the way journalism is practised in Australia.
If Theophanous case is substantially retained, it has the potential to improve journalism substantially. The relationship between the law and the practise of journalism is subtle and complex, but let me try to explain how and why the extra freedom of speech in Theophanous will force journalists to be more responsible and not be a licence for the cavalier.
First, to explain the pre-Theophanous law. Essentially, publishers had to prove the truth of what they published. With minor exceptions this was the core defence.
Proving truth, however, is a very difficult and expensive. This has three effects. The first is a high degree of self-censorship by the media _ they know things which they cannot prove and therefore do not publish. The second is that people in high places under media scrutiny tend to clam up and threaten defamation actions because there is no obligation or incentive to explain themselves. The third is the effect on journalists.
Journalists rarely if ever feel chastised if their work is subjected to a defamation action. They remain self-righteously indignant that it was only the stupidity and unfairness of the law that caused the case to be lost. Sometimes they are right. But it is not helpful for Australian journalism to have journalists always being able to say: “”Of course I was right; it was just that we could not prove it to the satisfaction of the courts and the lawyers.”It is also not good for Australian public affairs that people in public life or who conduct professional practices, like medicine, architecture, engineering and so on, can hide behind a wall of silence and put the media to a high and expensive burden of proof.
So how can the Theophanous defence help?The old law provides some defences other than truth, notably that the publication was made on what the common law calls “”an occasion of qualified privilege”.
These occasions are of limited use, but the Theophanous case widens them substantially. The occasions include when the media fairly, accurately and without malice report proceedings of courts, parliaments and some public meetings and company meetings.
This means, for example, the media can report that the Prime Minister told Parliament that Bill Bloggs rorted travel claims without having to prove the truth of the assertion that Bill Bloggs actually did rort travel claims. All the publisher has to do is prove that the Prime Minister actually said this in Parliament.
The defence of publication on an “”occasion of qualified privilege” requires a duty to publish the material and a right for the recipient to receive it. And, until Theophanous, the court have interpreted that duty and right very narrowly. In short they have denied a right to the public at large to receive information unless the information first came out in a place where the public at large had a right to be: Parliament, the courts and public meetings.
Theophanous widens this by saying the general public has a right to be informed on political matters and the media and others have a corresponding duty to publish political material.
The Theophanous case was about a Letter to the Editor of the Sunday Herald Sun by Bruce Ruxton asserting that Andrew Theophanous as a member of a parliamentary immigration committee was showing bias towards Greeks as migrants and was engaging in idiotic antics in undermining English as the main language of Australia.
(Incidentally, how silly of Theophanous to sue over this exaggerated twaddle that no-one would take the slightest notice of, and indeed did not take the slightest notice of because Theophanous was re-elected with his usual thumping majority at the next election and obviously was not harmed in the slightest by it.)
The High Court held two things. First, that implied in the Constitution is a freedom to publish material discussing government and political matters. Second, that when this material is published it is published on an occasion of common-law qualified privilege.
So we have a constitutional protection for the publication of original commentary and assertion (for Bruce Ruxton, for example) and a common-law protection for those who report on the original matter (for the Herald Sun’s publication of Bruce Ruxton’s letter). But both the constitutional and the common-law freedoms are subject to constraint.
To attract the constitutional protection, the court said a publisher must satisfy three requirements. He must not know that the matter is false; he must not publish recklessly (with indifference to truth) and he must not publish unreasonably. (Lawyers love double negatives; it gives them a later escape root.)To attract the common-law protection, a publisher must show the report is a fair and accurate report of the original commentary or assertion and that it was published without malice.
Bear in mind these protections are only for political matters. They do not apply to commentary about the conduct of people in the street, the professions, sportspeople or artists.
The nature of these protections is very important. Notice how they do not require the proof of truth. Rather they focus on the conduct and state of mind of the publisher and the journalist.
The requirement of reasonableness is very important. The court said this depended on how extensive an inquiry was made about the assertions and the standards and expectations of the community about what sort of investigation was needed before publication.
In short, the repetition of any sort of political tittle tattle will not be tolerated. Rather, the court will look at what work the journalist did to investigate the claims. In particular, it is likely courts will not tolerate journalists publishing things without giving the person impugned a reasonable opportunity to explain or without publishing fully and fairly their explanation.
It changes the way journalism is practised. Editors do not ask: how can we prove this? Rather they say to the journalist: Have you done your homework; have you given Bloggs a chance to explain; are we being fair?Editors will get into the habit of doing this because they want to attract the constitutional protection, rather than rely on the uncertain and costly defence of truth.
The new environment is one of: we were told X, Y and Z; we gave Bloggs and chance to explain and this was the explanation; it is not such a comprehensive rebuttal to make publication unreasonable or reckless; so it is for the reader to decide.
The important points are the insistence on a reasonable opportunity to respond and the loss of the defence if after the response a reasonable person would think there to be no substance to the assertions.
It should be a very welcome development. Courts should scrutinise journalists’ behaviour. Courts (at least in political matters) will no longer go on what usually are expensive and inconclusive chases after the truth. And who can tell where the truth lies? And the public wins because the media are not scared off publication through fear of the cost of proving truth or not getting across the threshold of truth even though there are good grounds for suspicion. Further, people whose conduct is under scrutiny get the chance to put their view and cannot hide behind the strict truth requirement.
Even if the challenge now under way causes the court to abandon the constitutional implication, it is important that the defamation law (either as common law or state statute law) develops along the Theophanous lines, and not just for political matters but all cases.
It is the best way to keep journalists on their toes.
*Crispin Hull, is Deputy Editor of The Canberra and is admitted as a barrister and solicitor in the ACT.