THE centenary celebrations of the Corowa constitutional convention recently a couple of speakers bemoaned that Australia did not get a Bill of Rights in its early nationhood, like the US.
They rejected, of course, the one aberration of the US Bill of Rights the right to bear arms. Its other elements are: freedom of speech, assembly, religion, trial by jury, no deprivation of liberty or property without due process of law and freedom from unreasonable search and seizure.
The Australian Founding Fathers smugly thought that there was no need to state the obvious in our Constitution. The common law respected all those things and it was unimaginable that the legislature would take them away. Ho-hum. By and large, the basic common-law freedoms have been upheld in Australia, especially compared with other countries, but there is always room for improvement. The important one is freedom of speech.
One of the Corowa speakers, journalist Peter Costigan, pointed out, however, that in the unlikely event that our politicians would put a Bill of Rights to a referendum, the people would probably reject the freedom-of-speech clause while ever the media misbehaves in the way it does.
I suspect his point could be made about judges. Judges will not ease the defamation burden while the media behaves the way it does.
The tragedy of present remedies against media misconduct is that they are only available to those in positions of power and influence. There are precious few, if any, defamation actions successfully concluded by ordinary punters. They are all politicians, sports stars, top bureaucrats and people at the top of show biz and the famous-for-being-famous crowd.
The average mugs who get abused by television cameras intruding into their grief have no remedy. The person who is misquoted or whose balancing view is not even sought and made look a fool gets nowhere. This is because invasion of privacy and mere misquoting have no legal remedy and secondly, because average mugs cannot afford the astronomic costs of lawyers to bring a case.
To encourage judges to give more weight to freedom of speech in defamation actions (and perhaps one day to encourage the people to vote for a freedom of speech clause in the Constitution) the media has to smarten up. It has to provide remedies on its own accord more freely. When did you last see a correction and apology on television? Voluntary, generous corrections in newspapers are improving, but still err on the side of less prominence and niggardliness _ with some honourable exceptions.
The media has to reconstitute the Press Council to include all media and to give it a professional-conduct role to scrutinise the conduct of individual journalists as well as publishers. The present union-based ethics-complaints system is a closed shop. We need a complaints body in which the public can have confidence. That is, one made up totally of public membership, with perhaps one journalist and one legal adviser _ just like the calls media people have been making about the legal profession.
Then politicians and judges might be more willing to change the defamation laws. They need a revamp. Damages should be limited to $10,000 unless you can prove actual loss. This in itself would take all the big-name expensive lawyers out of the game, and with them most of the delay and excessive costs. There should be a $10,000 remedy for breach of privacy. Courts should be able to order corrections and apologies, just like the Trade Practices Commission did with Optus recently.
The test should be reasonable inquiry and absence of malice, not the near impossible burden of proving the truth of extravagant imputations extracted out of published words by crafty lawyers.
In that climate, the high and mighty who are corrupt, incompetent and foolish would no longer be able to hide behind oppressive defamation laws. That they can still do so is as much the fault of the media themselves as the fault of the law, judges and the politicians.
The tragedy is that Australia is pretty well-served by its media. In the manic daily scramble to publish the media get such a high percentage of it right. The rest, human frailty dictates, can never be got right, but the media can be more honest about acknowledging it.