It is more than a quarter of a century since the Australian Law Reform Commission embarked on the quest to reform and unify Australia’s eight state and territory defamation laws.
And here we go again. Last week the eight state and territory attorneys-general agreed to draft legislation put by NSW. They only did so because they had been prodded into action by the Federal Attorney-General Phillip Ruddock.
Ruddock quite rightly points out the absurdity of have eight different laws applying to media that broadcasts over or circulates in several states.
That madness was highlighted in 1973 when Justice Russell Fox of the ACT Supreme delivered his judgment in the defamation action brought by Prime Minister John Gorton against the ABC and journalist Maximillian Walsh.
It was over a fleeting comment on an Australia-wide current affairs program that suggested Gorton had ordered a denial to be issued to a story he knew to be true in order to discredit his Defence Minister, Malcolm Fraser.
Gorton sued in six of Australia’s eight jurisdictions: in the ACT and five states. Justice Fox held that Gorton had been libelled in three of those jurisdictions but not in the other three.
All attempts at uniformity since have failed.
Individual states have clung to pet elements of their law. Further, the media industry, other states and the legal profession have said there is no point in a uniform law if it is to be a bad uniform law.
That was the reaction in March this year when Ruddock put forward Commonwealth proposals for a uniform law. He said then that unless the states moved to uniformity he would push ahead with a Commonwealth law based on the Commonwealth’s corporations and media powers – which embrace all significant defamation actions as it would cover all actions against all broadcast media and virtually all press. State laws would govern only the crumbs: actions between individuals.
With a Coalition Senate majority looming, the eight Labor state and territory Attorneys- General, led by NSW, responded with their own draft. It moves much more in the direction of free speech than the Ruddock plan in at least six different ways.
But in any event both the Ruddock and the states’ plan seem to miss a crucial point about defamation – media conduct. More of that anon.
The first of the six differences is that Ruddock seems stuck on the idea that relatives of the dead should be allowed to sue for defamation and that the estate of a dead person should be allowed to continue any action the dead person had begun.
But surely defamation should be about the reputation of the living – people having to live with a lie. Let history deal with the reputation of the dead.
The states should hold firm on this. There is perhaps a constitutional question here. Maybe a law allowing the representatives of a dead person to sue a corporation or broadcast media organisation is a little too remote from the Commonwealth’s constitutional powers over corporations and the broadcast media.
Next, the states are now happy to allow truth alone to be a defence, without any requirement for the publication to be related to a matter of public interest. Ruddock makes much of this, saying it is likely to affect privacy.
Ruddock has a good point, but the media should not worry too much about being required to show that their publication related to a matter of public interest. That is what the media is there for. Grubby television shows and red-top tabloids have no business prying into the private lives of non-public figures. Further, cases where a media defendant has proven the truth of a publication but failed the public-interest test are extremely rare. Good journalists should have no fear of a public-interest test.
Incidentally, English common-law had no such requirement. Legislatures imposed it in Australia because people feared their convict past could be dragged up for publication. The public-interest requirement is applied mainly in the states with a significant convict past – NSW (and through it the ACT), Tasmania and Queensland.
Next, the states want to abolish the right of corporations to sue for defamation. Good idea. Commercial entities suing over publications should be restricted to trade practices actions for proven commercial damages, because the reputation of a company is a commercial, not a personal, matter. The whole personnel of a company can change while the company keeps its formal name. The company’s reputation is only as good as its most recent commercial performance.
The states also want damages capped at $250,000. The merit of capping damages is that it says what a lot of plaintiffs say (even if they do not mean): defamation actions are about restoring reputation, not about money.
The states’ proposal provides a defence of offer of amends. If the publisher makes a reasonable offer to compensate by money and a reasonable correction and the complainant refuses to accept, it is a defence.
The states’ plan, unlike Ruddock’s, does not allow courts to order corrections. You could argue the toss on this. Publishers say they should not be forced to publish corrections of things they know to be true but have not got enough admissible evidence to prove in court under our strict evidence rules. But if we are talking reputation and not money, it seems a reasonable remedy.
Lastly, the states’ plan will allow juries to remain in those states that have them.
Both proposals require people to take action within a year.
The states’ proposal is better for freedom of speech, but most of the differences between it and the Ruddock proposal are not fundamental. Both proposals retain much of the technicality of defamation law. Under either plan, we will still see protracted fights about what defamatory imputations arise, if any, out of a publication and expensive exercises in getting evidence in an admissible form to prove the imputations.
It would be better for the law to direct its attention to the publisher’s behaviour, especially media behaviour.
Plaintiff lawyers rightly say that negligence law helps improve society. A finding of negligence against a doctor or other professional or against a corporation makes them lift their game. It makes them improve conduct so people do not get injured.
But negligence is not the test for journalists. It should be.
Under existing law, journalists subject to a successful defamation suit can shrug and say, “We were right but just could not prove it.”
If, however, the test was whether a journalist was negligent in publishing, a successful defamation action would signal lack of professional standard. Such a regime would encourage journalists to be more careful in checking their facts; to be more diligent in ensuring the other party got a reasonable chance to put their view; and to be more willing to spike a story that did not check out.