Legal talent wasted on speech cases

In the past few months staggering millions of dollars in costs have been run up in cases of people complaining about what publishers publish or twits Tweet.

The Roberts-Smith was costly enough, but the Lehrmann case metastatised into multiple defamation actions with lawyers on thousands of dollars a day applying complicated defamation law to the entrails of what was said or published on multiple platforms.

No plaintiff’s bones were broken. There was no blood on the floor. No plaintiffs died.

Meanwhile, penniless battered women get next to no legal help. And bones are broken and lives ended. Small businesses and individuals are smashed by big corporations and get no legal recourse.

Whoever pays the piper calls the tune. The lawyers file their cases according to where the money flows and the courts are bound to hear the cases where the money has flowed, not where pleas for legal protection against real physical danger and financial ruin lie.

And now we have this bizarre case in the Federal Court tying up some of the best legal talent Australia has to offer in a case where no physical injury has occurred and no one’s business has been being ruined.

The costs have run up to hundreds of thousands of dollars over a tweet by Pauline Hanson telling Greens Senator Mehreen Faruqi to “piss off back to Pakistan”. It was in response to Faruqi saying upon the Queen’s death that she could not honour the Queen because of all the sins of colonialism.

Really. A court case with senior counsel tying up valuable court time and resources over a Tweet. Grow up, senators, grow up.

I would be honoured if Senator Hanson told me to go back to a republic because I detest us having an hereditary Britisher as our monarch and detest the Union Jack in the corner of the Australian flag that Hanson drapes herself in.

Hanson has spouted so much poisonous racist and demonstrably false rubbish in her political career that no-one with an ounce of brain or sense would take the slightest notice of anything she said.

Yet Senator Faruqi has taken action under the infamous Section 18C of the Racial Discrimination Act. It provides: “It is unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

Note, there is no mention of religion.

It was not a wise thing for Faruqi to do because it has every chance of back-firing.

Hanson loves to engage in caravan-park patriotism full of Australian flags;  tribal loyalty to football teams; and the denunciation of any suggestion that Australia is not perfect as contemptible treason. 

It usually harks back to a mythical, wonderful world of white-picket fences, stay-at-home-mums, and an education of reading writing and arithmetic. It is akin with “Make America Great Again” and Brexit’s “Take Back Control”. 

So, the legal problem for Faruqi is that Hanson’s tweet could be described more as a generalised attack on anyone who has the temerity to attack any of the elements of what Hanson would describe as being “Australian”.

She once told Senator Derryn Hinch to “piss off back to New Zealand”. In short, she has an argument that her tweet had nothing to do with any particular race, colour, nationality or ethnicity but a condemnation of anyone for being (in her eyes) unAustralian.

There is a further complication. Within the Constitution there is an implied freedom of political communication. The High Court implied it because apparatus of representative democracy laid out in the Constitution would not work without it.

Defining what precisely is “political communication”, of course, can expend a lot of legal resource. It could be anything from Thomas Mann’s “everything is political” to being restricted to just policy discussion at election time.

So, the danger here is that Hanson could well win the case, setting back the cause of multi-cultural harmony – the very cause that Faruqi presumably wanted to champion.

It is messy. The political communication test does not require truth or good taste, but it does require reasonableness. The judgments since the High Court first ruled on freedom of political communication and its application in 1992 can at best be described as a confused muddle but more accurately as an “omnishamles” – a word which has quickly entered the Australian lexicon following the judgement of Justice Michael Lee in Lehrmann v Ten.

Incidentally, Senator Linda Reynolds’s defamation case against Brittany Higgins may also come up against the political-communication defence, given that Justice Lee’s findings would most likely make a truth defence untenable.

If these cases get argued in the High Court, let’s hope the court widens the freedom considerably. Meanwhile, the Roberts-Smith and Lehrmann cases might have the benefit of scaring a few plaintiffs away.

The lesson in these cases should be that the greater the latitude given to free speech, the less scope there will be for expensive, resource-draining legal bun-fights.

To that end defamation law should severely restrict monetary damages and replace them with court statements about a plaintiff’s reputation (good or bad). Once you take the money away, the lawyers will go with it and attend to more useful things.

Also, the Parliament should be very careful about crafting discrimination law. To date it has done more to give megaphones to the likes of Andrew Bolt and Pauline Hanson rather than promoting its aimed-for harmony. 

Maybe if the Hanson case runs to the High Court, it might give the Government an argument to put off religious-discrimination legislation, and rely instead on attaching conditions to government grants to religious institutions: you can be a private club if you want, but if you take government money you have to apply community standards to admissions and employment.

Giving people a right to sue over allegations of religious insult will only give a platform – millions of dollars later – to the very religious bigotry it hopes to end.

Crispin Hull

This article first appeared in The Canberra Times and other social media on 7 May 2024.

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