Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The common convenience and welfare of Australian society are advanced by discussion — the giving and receiving of information — about government a political matters.
With these words the seven High Court judges laid down once and for all yesterday a constitutional guarantee of freedom of speech in Australia. It is not absolute, but it is constitutional and it is a guarantee because the court ruled that no state, territory or federal parliament can take it away.
It is an historic moment for freedom of speech.
It will not end costly and complex defamation proceedings in Australia, but this judgment, consolidating and refining several less decisive and conclusive earlier judgments, will have a significant effect on reportage of major matters of public interest in Australia. It should also improve the way the media behave.
To understand the extent of the change we need to go back to before 1994.
Then all the state and territory defamation laws placed a great onus on publishers. Aside from a few exceptions the general principle was that publishers had to prove the truth of everything published. That may seem a fair thing. But it is not.
A publisher may be fairly sure of something, but not be able to prove it to the level required by the law and in any event be concerned about the cost of proving it in court. So publishers withheld things that they honestly believed to be true and had good grounds, but not provable grounds, for believing to be true. When publishers presented their beliefs to the person concerned, the typical response was: “”Publish and I’ll sue.”
There was a self-censorship which was not good for public debate.
There was a further problem for publishers. The law did not, and still does not, take much account for the level of accusation. It required the same degree of proof for the most damning accusation as it did the smallest.
Before 1994 we had many defamation cases where plaintiffs were suing because a publisher said something that suggested they were not very good at their job; or they favoured one employee over another; or did not discharge the functions of director of a company or minister of the crown with impartially; did not give full attention to the game of rugby league according to their contract or cooked a burnt lobster and so on.
Still publishers were put to the burden of proving it true, or not publishing for fear of the huge costs.
Most people not familiar with the issues picture defamation in terms of unfair accusations of murder, theft and adultery. Not so.
Then in 1994 the High Court decided Theophanous case. In that case the plain-speaking Victorian RSL chief Bruce Ruxton wrote a letter to the editor of the Melbourne Herald Sun about Federal Labor MP Andrew Theophanous. He saw Theophanous’s role on a parliamentary immigration committee as part of some ethnic push to undermine (white, Anglo) Australian values. Theophanous’s lawyers extracted the usual exaggerated lawyer-type imputations from the letter that Theophanous misused his position on the committee, did not conduct himself properly as a parliamentarian etc etc and sued, presumably hoping for substantial damages.
Normally, state defamation law would deal with the issue. Under that law the publisher has to prove the truth of what was published. It sounds easy, but with our laws of evidence it is very difficult and very expensive. In the Theophanous case it was going to be impossible to prove truth. So the publisher took the case to the High Court and successfully argued that the Australian Constitution provides for a freedom of speech that does not require the proof of truth.
The argument ran as follows. The Constitution sets up a representative democracy. That can only work if you have a free flow of information and ideas. People should be allowed to make political comment without having to prove truth if they act reasonably, not recklessly and honestly believe in the truth of what they are saying.
Further, media organisations should be allow to republish those statements to the world, provided they are not aware the statements are untrue and that they do not act with malice. The High Court accepted that argument four judges to three. Though one of the four, Justice William Deane, now Governor-General, ran a separate argument, putting the whole reasoning of a constitutional guarantee that much more shaky.
After both he and the then Chief Justice Anthony Mason retired from the bench it was thought the case would ultimately get overturned, particularly as in the interim a couple of judges make strong hints in later judgments that they did not like the reasoning.
At most it was thought the court might extend the common law to give a similar protection. The trouble with that is that the common law can be over-ridden by state and territory parliaments passing laws. And given the way politicians like to protect their own, this would be highly likely.
Yesterday’s judgment, therefore comes as somewhat of a surprise.
First, it held that the Constitution required that state and territory defamation laws had to yield to a wider the constitutional requirement permitting the free flow of political information.
Secondly, it was a joint, unanimous judgment. It carries enormous authority for free speech.
The court affirmed the core part of the Theophanous case, but refined the reasoning behind it.
It acknowledged the great extent to which ordinary Australians are dependent of large number of functions and powers exercised by a vast legal and administrative apparatus funded by public money. Exchange of information about that was of vital concern.
It said that in discussing those political matters, which could include state, local and even international matters, publishers did not have to prove the truth of everything they published or reported. Rather that because the broad mass of Australians had an interest in receiving this information, it was published on an occasion of qualified privilege. Under old common law rules all this meant is that the publisher had to have a honest belief in its truth (as distinct from proving it to be actually true) and not to publish out of malice. But the common law provided protection only to publication to the one or two people who had a legal interest in receiving the information — perhaps an employer, parent or partner — not to the whole world.
Under the constitutional protection, however, the publisher had to prove in addition that he acted reasonably. This is because the potential for damage is that much higher in the case of a mass audience.
Yesterday, the court ruled that a critical test for reasonableness was the taking of steps to verify the accuracy of the material, and that would usually require seeking a response from the person defamed and publishing that response. This is slightly more onerous that Theophanous, but the media should be able to live with it.
The reasonableness test is critical. It swings the legal battle away from the elusive chase for the truth and puts it squarely where it belongs: testing the conduct of the journalist. Did the journalist behave reasonably and fairly?
That is far easier to establish. More importantly, in political cases, gone is the excuse, “”We knew it to be true but we couldn’t prove it.” In those days, a lost defamation action was a badge of honour, not disgrace. Under the new test a lost defamation action in a political case reveals the conduct of a journalist wanting. It should act as an incentive to improve journalism. Editors, ever fearful of defamation actions, should now inculcate an ethos of reasonableness and fairness to attract the new protection.
This judgment can only improve Australian journalism. Provided, the details are worked out with a practical regard to the pressure of daily publication.
Moreover, it may be that politicians will by statute law extend the test to apply in all defamation cases to include professionals, sportspeople and entertainers on the feeling that why should politicians be any worse off under the law than footballers.
Incidentally, the facts of the Theophanous case bear out the fairness of having a constitutional protection for political comment. Theophanous was re-elected in the 1996 election with a huge majority despite the swing against Labor. Ruxton’s letter clearly did not affect his reputation one iota.