Uniform Defamation Law Push Questioned, amid Concerns over Free Speech

The Australian newspaper, in its editorial, agrees that a push for uniform national defamation laws is a step in the right direction, but there are many concerns over where free speech will stand ultimately.

“Federal Attorney-General Philip Ruddock is right to push for a national approach to defamation law. The existing ragbag of legislation is an affront to the free speech democracy depends on. As they stand, defamation laws censor the way news is reported. The problem is compounded by different laws in the eight states and territories, making defamation the legal equivalent of different rail gauges around the country: inefficient and illogical accidents of history. In some jurisdictions damages are decided by judges; in others juries decide. Truth is a complete defence in some states but not others. The existing situation provides lawyers and their clients with a legal bazaar, where they can shop for the jurisdiction that suits and provides prospects of a big payout. What is defamatory in one state may not be in another. And it does not matter where a news report was published. According to the High Court, what matters is where it was read, seen or heard. The internet makes it possible for a person in Perth to claim to be defamed in a local newspaper that circulates only in print in country Queensland, but has a web page. The existing situation is madness and folly, and Mr Ruddock is right to demand the states adopt a co-operative approach for reform by July, lest he use commonwealth powers to do it for them.

But a national law will not be much of an improvement unless it reduces the impediments that prevent the media fairly reporting news they know to be true and commenting on the behaviour of powerful people in public life. And it is not clear that Mr Ruddock’s plan would do this. Any move to revise the defence of “fair comment” would be a blow to free speech. As the states’ laws stand, statements that express an opinion that an individual could honestly hold on a matter of public interest and which is based on stated facts are protected, to some extent or another by this defence. But as The Australian reported yesterday, Mr Ruddock’s plan could outlaw “prejudiced, biased and grossly exaggerated opinions”. Whatever that means. Such vague terms would be a licence to sue, making lawyers the real winners of any such change. The losers would be the rest of us, as the media inevitably trod ever more cautiously. The cost of offending individuals in public life is already steep, as a Sydney newspaper learned on Monday when a magistrate affronted by criticism of her performance won $222,000 in damages. Any move that makes it easy for powerful people to make money when their public performance is criticised is censorship. And no government, state or federal, should encourage it.