The Federal Government decided this week to support the reopening of the High Court’s controversial Theophanous freedom-of-political-communication case. This has caused outrage, or at least concern, by various freedom-of-speech advocates.
Incidentally, we do not know what approach the Government might take in court because the Federal Attorney-General, Daryl Williams, has exercised his freedom of speech not to say anything. We will have to wait till the case opens next year.
The Theophanous case arose when Bruce Ruxton wrote a stinging 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. It is easier to stay silent.
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 4-3. Two of the majority judges, Anthony Mason and William Deane have now retired from the bench, hence the idea that the case should be reargued.
A new majority might find no such implied freedom of political communication.
At first blush that would be a terrible set-back for free speech in Australia. Since Theophanous, libel lists in Australian newspapers have shrunk. Cases have been withdrawn. The boot is now on the other foot: the costs of running an action against a newspaper and the risk of losing are now so high as often not to be worth it. And we know that no great injustice has flowed from it. It is not as if some real social or economic damage is being done to the people who might otherwise have got a swimming pool from someone publishing something they do not like.
Take Theophanous himself, for example. Did this letter to the editor of the Herald Sun have any real affect on his reputation? No, absolutely none. He was re-elected last election. Indeed, he got 67 per cent of the vote in his electorate, a swing of only 1 per cent against him in an environment of bigger swings against Labor. Moreover, he was promoted to secretary of the shadow ministry.
As a practical matter it did not matter what Ruxton said about him and he should not get a swimming pool for it.
That said, freedom of speech might be better served in the long run if Theophanous were overturned.
There are several reasons. First, Theophanous deals only with political comment. It means people’s freedom of speech to comment about the conduct of sport, the professions, entertainment and other fields of human endeavour remain within the ambit of the old restrictive law. The truth requirement is especially capricious in its ability to crush discussion about medical matters.
Secondly, the case smacks of the High Court legislating, which is Parliament’s job. It is very important for liberty that powers be separated. The courts should deal only with individual matters before it and not attempt to lay down new law for all future cases. The reason is that judges are not accountable to public opinion at periodic elections. This creeping legislation by judges has resulted in the court inviting all sorts of busy-bodies in to be heard in cases that they have no direct concern in. This was seen in the recent medical negligence case when the Catholic Church was invited in and in the case that sparked the Theophanous reopening, media companies, the journalists’ union and others have applied and may well be heard … as if the court is a parliamentary committee.
The Constitution says the court should deal with matters (between parties), not engage in social debate.
Thirdly, it would be better for the public to see the Constitution as it is: a 19th century document that virtually ignores individual rights (other than rights to trade). This is better than the court straining the meaning of the words to extract half-baked freedoms which half-way application. Once the defects in the Constitution are recognised they can be remedied in a much more effective way: through constitutional amendment approving a full Bill of Rights, Item One of which would be freedom of speech. It could also include a few items about freedom from arbitrary search and seizure and fair trials. If necessary it could specifically exclude any right to bear arms. Further, it would be a good idea to take away federal politicians’ monopoly on instituting constitutional change and allow state parliaments or the people through petition to put amendments.
Fourthly, if Theophanous is overturned it may get people thinking that in the time it was in place the roof did not fall in and no injustice was done. The exercise will also highlight the selfish and dangerous attitudes of governments to freedom of speech and may be the catalyst for a more comprehensive formal constitutional or legislative change that would be wider than Theophanous.
The essential point is that while legislatures fail to make reforms to meet changing circumstances, the courts will attempt to fill the vacuum. The modern information age demands a genuine balance between reputation and free speech, not the present lop-sided law that totally favours reputation.
Theophanous was partially the right result, but done in the wrong way. The fact that it has been around without any harm for a few years … a few people have missed out on richly undeserved swimming pools because someone said boo to them … indicates that our society can bear a full-scale all-embracing protection for free speech.
If this small taste of freedom is suddenly rolled back it should be the catalyst for a better overall result later.