The High Court’s judgment this week on freedom of speech is a welcome one on several grounds.
First, it clears away the uncertainty of the past three years arising from the Theophanous case. That case asserted a right to free speech arising directly out of the Constitution, but only on a 4-3 majority. Its authority was undermined when two of the majority left the court, a newcomer questioned its validity and a member of the minority invited the case to be reopened.
Secondly, it asserts a basic right of Australians to receive and disseminate political information. It recognises that in modern Australia government enters so many areas of life that every one has an interest in receiving political information and a correlational duty to disseminate it.
Thirdly, it asserted that state, territory and federal parliaments cannot legislate in a way to fetter the right to receive and disseminate political information, particularly with onerous defamation laws.
And fourthly, it struck a balance between free speech and reputation that should lift the burden on publishers that previously had the effect of self-censorship. In the past the media had a very onerous requirement of proving the truth of everything they published, with some limited exceptions. Under the new arrangement the requirement will be to prove they behaved reasonably, though the court did not spell the new requirements out in any detail.
The result will be a good one provided it is interpreted in a way that takes account of the practicalities of the way the media disseminates information in Australia and does not replace the previous onerous requirement of proving the truth of everything published with an equally onerous requirement of “”reasonable” conduct where the courts construct a meaning of “”reasonable” conduct that takes little or no account of the pressures of daily print and broadcast journalism.
The court has recognised the right to disseminate and receive information of a political nature; it should also recognise that for those rights to be effective it must mean rights to receive and disseminate reasonably speedily.
That said, the most important consequence of the court’s judgment will be to swing the emphasis in defamation cases away from a search for the truth, which is invariably expense and often futile, to an emphasis on the conduct of the publisher. In particular, the court referred to a the need for a publisher to give a person being defamed an opportunity to respond and to publish the response. This failure on the part of journalists that forms a considerable portion of complaints against the media.
Technically, the court has taken away the direct constitutional individual right and replaced with a more indirect constitutional protection for free speech through the devise of a common-law defence that the Constitution will not allow to be watered down by state and territory parliaments. In practical terms, though, it amounts to a constitutional guarantee. The way the court has posed the “”reasonableness” test might make it more difficult for the media than the Theophanous defence, but it is something the media should be able to live with if courts do not graft too many hurdles on to it.
If this regime works in the political context, the states and territories should apply it by statute to all speech and all defamation cases, not just the political ones.