It would not have happened a year ago. Gary Sturgess would not have been able to get published in a leading daily _ The Sydney Morning Herald _ a detailed article carrying the clear imputation that the NSW Police Commissioner, Tony Lauer, is incompetent and should be sacked.
Gary Sturgess was an adviser to the Greiner Government and helped frame the legislation on the Independent Commission Against Corruption.
Sturgess argued yesterday that, though he had no concerns about Lauer’s integrity, he thought he should go because he was warned about systemic corruption in the NSW force and did nothing about it.
(Incidentally, the NSW Royal Commission has uncovered it where other inquiries failed by the simple expedient of excluding any NSW police from “helping” in the inquiry so they could tip off their mates. Instead, the commission called in the Feds _ a bit like calling in Elliott Ness to deal with Chicago police corruption.)
Before the High Court’s ruling in October last year most newspapers would have been very fearful of running the Sturgess article for fear of being sued for defamation. The High Court ruled that the Constitution sets up representative government and that implies a freedom of communication about political matters. Part of that freedom is a freedom to pass on political matters to the readers.
The great change in circumstances is this concept of being able to “”pass on”. In the past the courts always held that a newspaper had not business passing on information or opinions. It was called repeating the libel. The newspaper had to prove the truth of what others said, or worse prove the truth of what lawyers asserted were the imputations carried in what other people said, or pay large damages. Many newspapers most of the time would prefer not to publish for fear of not being able to fulfil that burden and being hit with a huge damages. A year ago, Sturgess’s article would have met that fate.
Today it is published. The newspaper has to show that it is giving an accurate portrayal of Sturgess’s view (in other words it is not giving a dishonest truncation or dishonestly edited version) and that it is reasonable to publish it. This test of reasonableness prevents the mere repetition of tittle tattle from the gutter.
Here we have a lawyer, framer of the ICAC legislation in a detailed article outlining why he thinks Lauer should get the boot. In the old days the newspaper would have had to prove that Lauer is incompetent. He would have got an orderly queue of subordinates and all Police Ministers (bar Ted Pickering) to say what a marvellous cop he is and the newspaper would be facing a huge damages bill. Nowadays, the newspaper has to show it behaved honestly and reasonably. The result is that the public gets the benefit of an informed opinion.
Another example was the publication of an opinion poll about whether Carmen Lawrence is telling the truth about her knowledge in the Penny Easton affair. About 60 per cent thought not. A year ago a newspaper would not bother conducting such a poll because you could not publish the result. Publishing the result carries the imputation that Lawrence is a liar and you would be hard pushed proving that.
Under the new High Court guidelines the newspaper has to show only that its report of the poll was honest and accurate and reasonably to publish. In other words it does not have to prove that Lawrence is in fact a liar; only that 60 per cent of people polled think she is a liar.
It is a critical difference.
In reportage of political matters, the High Court has done the Australian public a great service. In the old days there was a search for some elusive truth of some imputations craftily extracted from published material. It was a very hit-and-miss affair that gave an undue emphasis on protection of reputation over the public’s right to know and right to communicate. Now, the test is properly focused on whether the newspaper and its journalists acted honestly and reasonably.
From a newspaper’s internal perspective its seems within less than a year of the High Court’s judgment there is a slight but healthy change: greater freedom for contributors (including the public writing letters to the editor); greater concentration on journalistic conduct; and less despondent self-censorship for fear of libel suits.