Need to maintain free speech momentum

Regardless of who wins the election, the need for a uniform national defamation law is urgent, argues Brian Walters AS THINGS stand, there are eight different legal regimes covering defamation in Australia. The law of defamation is a state responsibility, and there are limits to the power of the Commonwealth to legislate nationally on the issue. Calls for uniformity have been made over many years. In the past, attempts to unify our defamation laws have run up against the states defending their own systems, often with little regard to the need for national coherence. The Federal Attorney-General, Mr Ruddock, has called for uniform defamation law, stating that he is prepared to legislate nationally if the states cannot agree with each other. Unless the states were to confer power on the Commonwealth, any such legislation could not cover all aspects of defamation law, although it could have wide application. Defamation law is highly controversial. As Sir William Deane said in his judgment in the Theophanous case: the use of defamation proceedings in relation to political communication and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of tax-free profit for the holder of high public office who is defamed and an effective way to ‘stop’ political criticism, particularly at election times There are now several examples of developers using defamation proceedings as a means of silencing their critics. Such proceedings may never come to court - or even be issued - but the mere threat has often been sufficient to stifle public debate on issues of importance. The existence of eight different defamation regimes in Australia makes the law more cumbersome, and uniformity would improve matters. However, uniformity should not be an excuse to entrench bad law. In March 2004, the Commonwealth issued a discussion paper on the issue. Mr Ruddock claimed it was the product of ‘wide consultation with practitioners, academics, and the media’. Perhaps this was political hyperbole: neither Liberty Victoria nor Free Speech Victoria, both of which organisations have been active in this area, were consulted at all. Consultation with practitioners was, for the most part, after the event. The states and territories have now produced their own discussion paper, which was presented to the Standing Committee of Attorneys General in late July. The result is disagreement between the Commonwealth, on the one hand, and the states and territories, on the other, as to which set of proposals is better. Neither the Commonwealth’s paper, nor that of the states and territories, discloses any fundamental analysis of where the law of defamation fits in with the major policy objectives of free speech and protection of harm from powerful media organisations. If we are proposing uniform national defamation laws, surely this would be the time to conduct just such an analysis. The Commonwealth’s position paper The Commonwealth proposes that there should be a right to sue in relation to defamation of persons who have died. At present there is a limited right in that regard in Tasmania. The Commonwealth has not given any convincing argument in favour of such an extension of the right of defamation. Relatives may be hurt when someone speaks ill of the dead, but it is a long move from that proposition to giving them the right to sue. The most controversial aspect of the Commonwealth’s paper is the radical narrowing of the defence of ‘fair comment’. The Commonwealth proposes that the defence should lie only when the comment is both fair and reasonable. What one section of the community regards as reasonable, another may not. This kind of rule works against minorities and people who hold views different from the mainstream. It works in favour of the powerful. The Commonwealth proposal would limit the defence of justification - requiring that the statement made not only be true, but also for the public benefit (as with Queensland, Tasmania and the ACT at present). If something is true, someone ought be allowed to say it. To require that what we say must be for the ‘public benefit’ is an onerous imposition on free speech, because ‘public benefit’ is a vague concept and there will be differences in the community as to whether a particular statement benefits the public. The argument in favour of the Commonwealth’s position is that this would prevent prurient reporting of the private lives of public figures (and others). However, defamation law is not the appropriate vehicle for protection of privacy. The state proposals The key proposal of the states is that corporations should not be permitted to sue for defamation. Historically, defamation laws were about the protection of the reputations of individuals. There are taxation and other benefits in organising as a corporation. Unless people can speak freely about them, corporations are free to operate without regard to community values. So often when corporations sue an individual they outlay a negligible amount of money on a tax-deductible basis, whereas the individual stands to lose their home. If corporations are to be kept accountable, people should be free to speak about them. The need for this change has received added urgency with the corporatisation of many public services. Why should a public transport company be able to sue patrons who criticise the way it provides services? In 2003, Victoria’s Public Transport Users’ Association, a lobby group which promotes the interests of public transport users, was concerned about the removal of seats in trams operated by Yarra Trams. They published a pamphlet which contained a cartoon of a sardine can with ‘Yarra Sardines’ on it. They called for more services, not less seats, and wrote, ‘As a private operator, Yarra Trams is mainly focussed on cutting costs, rather than providing a useful service.’ Yarra Trams wrote to the PTUA saying that these statements expose ‘our company to ridicule’ and were ‘defamatory’, and threatened, unless an undertaking was received within hours that the brochure would no longer be distributed, to take ‘appropriate legal action to prevent the offending pamphlet from being published’. The PTUA obtained legal advice, and refused to buckle. In fact, they called the press and distributed the brochures in front of them. But until they had that advice, they were very worried. Yarra Trams is a company providing a service to the public. It should not have a right to sue to stop the public commenting on its performance. If corporations could not sue, threats like this one would not be made. New South Wales has already changed its defamation laws to prevent corporations suing . The legislation provides that a corporation ‘does not have the right to sue for defamation of the corporation’. This proposal of the states is welcome and should be part of any uniform defamation law. What is lacking Attempts to bring about uniform defamation law have stumbled previously. Accordingly, it is reasonable that Mr Ruddock should have taken a robust approach in trying to achieve this goal, and his threat to unilaterally legislate was one way of putting real pressure on the states. But the uniform law he placed on offer has a number of defects, all of which have, at their origin, the failure to properly consider the principle of free speech. The law of defamation makes a major inroad into free speech. Under our system of law, free speech is a residual right - what is left after all the express rights have been recognised. Given the importance of free speech to our democracy, this is no longer good enough. Lacking from the proposals, and from the papers which support them, is any clear articulation of the principle of free speech or why it is important. Without open speech, there is no real democracy. Votes will be delivered in information blackout, the voters deceived by those who control their sources of information. Citizens will not lobby about some problems, for they will not know of them. Public opinion will be manipulated by the powerful, and the enrichment and greater wisdom that comes from reflection through communication with each other will be lost. Our political system is predicated on the capacity of citizens to contribute. Citizens can vote for representatives. Citizens can themselves stand for election. Citizens can become involved in lobbying over a particular issue or to further the electoral standing of a particular party or community group. The theory is that decisions are not imposed by arbitrary force, but by citizens learning from each other, persuading each other, so that good government may grow from a sharing of ideas. Uniformity of defamation law is all very well, but free speech is better, and national recognition of this right is long overdue, whichever party occupies the government benches after the election. Brian Walters SC is vice president of Free Speech Victoria, vice president of Liberty Victoria and a research associate at the Institute for Social Research at Swinburne University of Technology. His book, Slapping on the Writs: Defamation, Developers and Community Activism, is published by UNSW Press in association with APO. Photo