This week the boot was on the other foot in the long-running tussle over freedom of speech.
First, to some history. Let’s rewind to 1994.
Labor was apoplectic. The High Court had just delivered its judgment in Theophanous v Herald Weekly Times.
The court held that the Constitution required freedom of political communication. It meant that strict state defamation law would not apply to comments in a letter to the editor of the Melbourne Herald by then RSL leader Bruce Ruxton. Ruxton said that the Federal Labor MP and chair of parliamentary immigration committee, Andrew Theopanhnous, had been favouring Greek immigrants.
We now know that Ruxton’s comments were mild and that Theophanous was a corrupt spiv who ultimately went to jail.
But in 1994 Labor circled to his defence against Ruxton who was seen as a voice for the rough right. Labor was not going to have a bar or this “freedom of political communication” rubbish.
Ministers (Labor was in government) called for the appointment of “black-letter law” judges, in much the same way that then Deputy Prime Minister and Nationals leader Tim Fischer called for the appointment of Capital C Conservative judges after the High Court’s native title Wik decision got in the way of his supporters’ interests.
Hell hath no fury like a politician whose wings have been clipped by a court.
Before the Theophanous case, the media had to tread very carefully when talking about politicians. They were a fragile and greedy lot. They sued frequently. Even a Prime Minister – John Gorton – sued the ABC. Shades of Singapore. Some boasted of a Fairfax swimming pool, a Packer tennis court, and even a new 4WD named “Winnie”, after WIN television.
Sure, some were justified, but the large amounts of damages and costs were not.
The Theophanous case has been watered down somewhat, but some freedom of political communication remains. More importantly the 2006 uniform defamation code further widened the media’s capacity to report political and other matters with less fear of being sued.
So the situation has changed.
In the bad old days, the media got sued regularly and paid out millions in costs and damages – much to politicians. But under the new regime the media can report a lot of nasty things without having to prove the truth of them. The code, for example, allows the media to publish fair and accurate reports of public documents without having to prove the accuracy of what the document itself actually asserts.
For example, if a media organisation accurately summarises a public document’s contents that Bloggs is a spiv, it does not have to itself prove that Bloggs is a spiv – as the old law demanded.
Better still, as this week’s case suggests, it is the politicians who will be liable for defamation pay-outs while the media will escape.
This week’s case is over Treasurer Peter Costello and Workplace Relations Minister Joe Hockey slagging off at research done by the Australian Workplace Research Centre at the University of Sydney. That research showed that the unskilled masses are worse off under Work Choices. Costello and Hockey said, “What would you expect from a lot of union hacks?” The research was tainted, contaminated and lacked academic rigour, they said.
Trouble is, in these grim days of government cuts to university funding, researchers have to get whatever money they can. The centre got money from unions and others for this research. And it also gets money from business and, indeed, government. The important point is that this research was properly vetted and met proper standards.
The centre’s director, John Buchanan, is threatening legal action if he does not get an apology.
“To accuse academics of concocting a story is probably the most vile thing you can say about somebody who prides themselves on the truth,” he said.
Wonderful stuff. For so long politicians have referred to mild criticisms of them in the media as “vile” accusations warranting the payment of thousands of dollars in defamation damages.
So the real joy in this week’s case (and the changes in the law which preceded it) is that the politicians might now be liable for defamation damages and the previously hounded media will escape. In this week’s example the reportage of the “vile” things uttered by Costello and Hockey would probably protected either under the constitutional defence or probably under the public document defence if the politicians put it on their public websites.
As it happens, I have long thought that the law is far too strict, and even with the 2006 changes remains so. You should not be able to sue over statements like those of Costello and Hockey, even if they are demonstrably wrong. They are all part of the public debate.
But it is terrific that politicians are now on the receiving end. Go Dr Buchanan. Sue the pants off them. Run up a lot of costs and hope they have to pay out of their own pockets.
Let’s encourage lots of people to sue politicians personally. Who knows, we might even see a change of heart on their part. We might even get a Bill of Rights with a freedom of speech clause.
Hitherto, the politicians have been the beneficiaries of strict defamation laws and have not been great supporters of freedom of speech – particularly Costello who was happy to crush the spirit of the Freedom of Information Act to deny access to some potentially embarrassing documents on housing policy ostensibly because it might chill bureaucrats from giving fearless advice.
With the boot on the other foot, though, the politicians might have a rethink.