Defaming the dead

The decision by the giant Tasmanian woodchippers Gunns to sue green groups and protesters highlights the woeful state of Australia’s laws of defamation.

Gunns is suing sixteen individuals, including Green MPs Bob Brown and Peg Putt, and four groups, including the Wilderness Society, for $6.3 million damages. Tasmania’s largest private employer claims protesters damaged the company’s reputation, vandalised machinery and delayed logging and chipping operations in a campaign of almost five years. Greens groups see the defamation move as an attempt to prevent them discussing Gunns’ proposed $1 billion pulp mill as a public consultation phase nears. (For a full account of the Gunns writ, see John Collins’s article in New Matilda here )

People sue to get damages for a damaged reputation and because of their hurt feelings. As we saw in the case of James Hardie and its dread asbestos, without any media or public interest a corporation is free to almost operate as it likes, with little or no regard for community values. When a corporation does sue someone it costs the business little because of tax deductions, but the person sued may lose everything.

Trading and business corporations are especially concerned to protect their good reputation because a defamatory attack can injure them in their pockets. NSW has removed the right of corporations suing for defamation, but left it open to a corporation employing fewer than ten persons at the time of publication and having no subsidiaries to sue. Further hope for reform, however, is mired in the Canberra-and-the-States bickering.

The galloping corporatisation of public services makes the case for reform even more urgent. One example in 2003 was when the Public Transport Users’ Association publicised its worries about the removal of seats in Melbourne trams with a pamphlet that included a cartoon of a sardine can labelled ‘Yarra Sardines’ and seeking more services, not fewer seats. The tram company, Yarra Trams, reacted by saying it had been ridiculed and defamed and would take legal action unless the pamphlets were quickly withdrawn. On legal advice the association stuck to its guns and even publicly distributed the pamphlets as a media stunt, but it had been deeply concerned.

When sitting on the High Court, Sir William Deane famously said: ‘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.’

So, clearly change is needed, not least because Australia ranked dismally in a global index on media freedom from the Paris-based watchdog Reporters Without Borders (RSF). Australia was in 41st position in RSF’s third annual index, lagging behind some former Eastern bloc nations, including Hungary (28), Czech Republic (19) and Poland (32). New Zealand was 9th and was one of only three nations outside Europe to rank in the top 20.

Perhaps only supine politicians, their eyes on possible defamation payouts, and detail-crazy lawyers could have come up with the present bizarre defamation system. Consider the 1973 case when Justice Russell Fox of the ACT Supreme Court delivered his judgment in a defamation action brought by Prime Minister John Gorton against the ABC and journalist Maximillian Walsh over a fleeting comment on a current affairs program suggesting that 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.

By the time the case ended Gorton was no longer Prime Minister. What Walsh said was not remarkable, but Gorton sued in six of our eight jurisdictions: in the ACT and five states and Fox had to rule that Gorton had been libelled in three of the jurisdictions, although not in the other three. Gorton was awarded about half a year’s pay. Of course a simple correction and apology at the time would have been the intelligent way to settle this.

After the torpor of summer, Canberra will await what it calls the efforts by the States to refine their proposals on fixing our appalling system of defamation. The next meeting of the inelegantly titled SCAG (Standing Committee of Attorneys-General) is not until March and then we will have a chance to see whether Phillip Ruddock, Federal Attorney-General, prevails or the states come up with a scheme that is acceptable to him.

We suffer under eight different sets of defamation laws in Australia. Because the States are responsible for these laws, Canberra’s powers are restricted, and so the calls for uniformity have gone on and on. These calls did, however, take on a new note of urgency when Ruddock threatened to legislate if the states didn’t agree. Legislation by the Howard Government would not, however, cover all aspects of defamation.

The insistence by Canberra of the right to sue in relation to defamation of the dead has given rise to a number of bleak jokes about Ruddock’s cadaverous appearance. Newspaper revelations soon after the death of former NSW Liberal Premier Robin Askin that he was a bagman certainly revived calls for a sue-from-the-grave law, but as defamation expert Bruce Donald has pointed out, it’s illogical. ‘Defamation,’ says Donald, formerly head of the ABC’s legal department, ‘is about hurt feelings and reputation.’ The dead are unlikely to be concerned, and if there is political fallout in the attack on a recently deceased politician, business or civic leader, so be it.

Under the proposed changes, a representative of a dead person or a surviving spouse, parent, child or sibling would be able to launch the action, but only within three years of the person’s death. There would be no damages available, just a correction order, declaration and/or injunction.

Mind you, the whole idea of a judge being able to order a correction order in a newspaper about a dead person is laughable, yet Ruddock seems serious, even proposing that the court have the power to make correction orders, including the prominence to be given to the correction. Hold the front page!

Ruddock also suggests that a legal defence be that comment is fair and reasonable. One person’s idea of reasonable is another’s perception of outrage. As Donald says, ‘A robust democracy has to have scope for the ratbags, too.’

Ruddock’s April 2004 proposal for reform of the comment defence met with howls of (justified) outrage from the defamation bar and as a result Ruddock made modifications in his revised July 2004 proposal. Even so, the latest proposal seeks to tinker with the existing law in a way which will narrow the defence and make lots of work for lawyers.

Ruddock’s claim is that the present defence protects prejudiced, biased and grossly exaggerated opinions. The discussion paper states that the new defence would only protect opinions and comments that a reasonable person might have formed. Broadly, the defence of fair comment is available where a fair-minded person could express the defamatory opinion, even if it is exaggerated, prejudiced or obstinate. What worries those interested in freedom of speech is that any proposal to narrow this defence has the potential to significantly cut this, because under the Federal Government’s model it will be a judge rather than a jury who will decide whether an opinion is ‘reasonable’. The sort of rock hard conservatives now sitting on the High Court who are happy to keep children in detention centres are unlikely to have what many would call a reasonable view of what’s reasonable.

There is also an argument that such a law discriminates against people whose views are not those of the mainstream and so favours the powerful.

Queensland, the ACT and Tasmania require that to defend an alleged defamatory statement a person not only has to show that it is true but also that it is for the public benefit. This is known as the defence of justification and Canberra wants this applied nationally. But public benefit is woolly and about as difficult to prove as whether something said is reasonable. Lawyers in Melbourne have spent years arguing with legal bureaucrats about the meaning of the word reasonable when debating just how much public money should go to their lobby group-cum-professional association.

The president of Liberty Victoria, Brian Walters SC, has succinctly noted: ‘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.’ For Walters, the central element missing from proposed changes to the laws is any clear articulation of the principle of free speech or why it is important.

A federal government discussion paper, released in March 2004, proposed having defamation trials without juries. This, it was suggested, would restrict the defence of fair comment, giving judges the power to order corrections and replace the common law defence of qualified privilege. Lawyers were quick to note the problems, although to a non-lawyer some of the objections seem strange. For instance, Clayton Utz litigation partner Norman Lucas told Lawyers Weekly: ‘If the judge has to decide everything, a judge has to justify the decision. That takes time and also the reasoning is subject to appeals.’

In Victoria juries are optional and there is a keen memory of Liberal Premier Jeff Kennett deciding to have a jury and then losing a major defamation action.

Ruddock next dropped the idea of not having juries (the situation in South Australia and the ACT) but instead proposed them for some cases in the Federal Court. There will be a place for juries ‘in deciding whether a publication is defamatory and whether a defence is available’ in those states and territories which now use them, the proposal states. Juries would not have a say in awarding damages.

The revised outline also envisages further ways to speed proceedings (always good for a laugh, where the law is concerned) and puts greater emphasis on restoring the reputation of someone who sues and less on money.

In lawyers’ language the meanings in a publication are called imputations. In most cases at common law, all meanings make up a single cause of action. In NSW, however, each imputation is a separate cause of action and that State has the craziest of all set-ups. Juries hear the first part of a trial issue of whether something is in fact defamatory and the second part of the trial on defences (such as fair comment and fair report) and the level of damages is heard by a judge alone. Two hearings, two lots of costs, delay and confusion, but much money for the legal club.

Ruddock has threatened that if SCAG can’t come to an agreement the Howard Government will act unilaterally to the full extent permitted by the Commonwealth Constitution. A defamation code would be brought into force for most defamation proceedings, except those between individuals. Canberra rules. OK?

Attorney General’s department: Revised outline of possible national defamation law: www.ag.gov.au/agd/WWW/rwpattach.nsf/personal/5AF3DB5EDB149F99CA256EF5000A0292/$FILE/0+0+defamationV5+19+August.PDF

The Communications Law Centre: Submission to Attorney-General Concerning Proposals for a National Defamation Law:
www.comslaw.org.au/publications/pub61.pdf

Electronic Frontiers Australia: Defamation Laws & the Internet: www.efa.org.au/Issues/Censor/defamation.html

The Communications Law Centre – Free speech and defamation: www.comslaw.org.au/main_ver4.asp?inputCategoryID=33

Parliamentary Library: Free Speech and the Constitution: www.aph.gov.au/library/pubs/rn/2001-02/02rn42.htm

Gazette of Law and Journalism: Richard Ackland www.lawpress.com.au/

Free Speech Victoria: www.fsvonline.org/

Combined media defamation reform group submission paper: www.astra.org.au/content/pdf/DefamationSubmissionMay04.pdf

Australian Press Council “ position on reforms: www.presscouncil.org.au/pcsite/fop/fop_ar/ar04.html#defam

Radio National “ The National Interest “ March 2004, presented by Terry Lane www.abc.net.au/rn/talks/natint/stories/s1070448.htm

Whistleblowers Australia: www.whistleblowers.org.au/

‘The Cadaver explains to Crikey why the dead should be able to sue for defamation:’ www.crikey.com.au/media/2004/08/05-0006.html

Life without reputation by Margaret Simons
www3.griffith.edu.au/01/griffithreview/article_content.php?id=181

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