Australia’s pathetic judicial defence of free speech
Crikey is panicking about Wednesday night's address to Free Speech Victoria after reading this magnificent effort by Richard Ackland last year when he was awarded the Voltaire 2000 prize. If any of you have any suggestions for Wednesday's talk, have a read of this and then get on the email.
In 1968 there was a man called Maxwell Newton who has set himself up as a publisher in Canberra. He was a brilliant journalist and economist. He had been managing editor of the 'Financial Review' and founding editor of 'The Australian'.
The money for his publishing business came from selling Treasury secrets he had purloined from Billy McMahon to the Japanese. He also got money from a man called Dick Crebbin who's family controlled Marrickville Holdings, a big producer of oil seed margarine.
Crebbin backed Newton and in turn Newton campaigned in his organs against the Country Party and the system of quotas the government had imposed on the production of margarine as a way of protecting from competition the dairy cow industry in yokel electorates.
With Crebbin's money and with the money from the sale of Treasury secrets, Newton started to build his empire.
He had a magnificent vision - to take on the major press publishers, which at that time were the Fairfax and the Herald and Weekly Times Groups.
He bought 'The Daily Commercial News', which was a newspaper that basically contained lists of shipping movements. But Newton injected his guerilla style of economic journalism into it in the expectation that it would soon replace 'The Australian Financial Review' as the preferred reading of the share owning and trading classes.
He started a Canberra give away paper called the 'Canberra Post', and the plan was that the mighty 'Canberra Times' would soon be rolled into a corner under the assault from this snappy, biting alternative.
He had papers called 'The Miner' and 'Jobson's Investment Digest'. They were expected to sweep all before them and open up to readers and advertisers a world never before drenched in so much colour and movement.
And, importantly he bought a small paper in Western Australia called 'The Egg and Fowl'. It was the official organ of the Western Australian Poultryman's Association, and Newton's vision was that it would soon become the opinion leader of the west, with social and political commentary the like of which had never before been exposed to those starved citizens. Ultimately it would knock 'The West Australian' off its perch.
To this end, he appointed me, the recipient of Voltaire 2000, the Canberra correspondent for 'The Egg and Fowl'. The high point in the paper's career, and in my career for that matter, came when we were accredited to the Canberra Press Gallery, and I was able to attend a press conference held by the then Prime Minister, Mr Gorton.
I seem to remember that I asked the Prime Minister a pressingly important question on interest rates. It was probably one of the most tricky questions the Prime Minister had ever been asked and was cleverly designed to confound a government leader who notoriously liked to refresh himself liberally with potations throughout the day.
However, some of the magic of the moment seemed to get diminished as I stood and introduced myself, as was required prior to putting my interrogatory, as "Richard Ackland from 'The Egg and Fowl', Prime Minister".
In a sense 'The Egg and Fowl' has never left me. It embraced the Voltarian qualities of our enlightened, pluralistic democracy.
And if I was searching around for a modern Australian Voltaire, Maxwell Newton would be right up there as one of the candidates.
Act One "Loves' Labours Lost"
The scene is this: A Ford Supervan the back part of which had been converted into a mobile office, with desk, computer chair and telephone was barrelling down Route 1-95 from New York to Connecticut. It was August 1989 and at the computer in the back of the van sat the former proprietor of 'The Egg and Fowl'. Driving the Ford was his latest wife, a former Melbourne brothel owner and prostitute called Olivia. She had interests in establishments such as Pink Orchid in Flinders Street, Honey Suckle and Jools in South Yarra.
Newton was wearing little silver tips on his shirt collar, a string tie and a gold bracelet and a huge fur coat. I assume he had on other garments, although there is no proof of this. He was on his way home from a day at 'The New York Post', and he used this travelling time in the back of the Supervan to whip off a column for 'The Australian'.
Under a headline "Advance Australia Fascist", Newton hammered out a tirade against wages policy in this country, saying that Australian employees are:
"... regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant 'judiciary' in the official Soviet-style Arbitration Commission."
The article went on to describe the members of the Arbitration Commission as "... the corrupt labour judges".
The Ford must have hit a bump at the turnpike because what he was really trying to criticise was the Industrial Relations Commission, under whose establishing legislation there was a provision that made it an offence by writing or speech to bring a member of the commission, or the commission itself, into disrepute.
Don't mock the dignity of industrial judges, was the law.
Upon being prosecuted Nationwide News took the Newton article to the High Court, which struck the restrictive section in the legislation down.
In the process a remarkable discovery was made. Four of the seven judges revealed something that amazingly in the previous 90 years had never been discovered by other people sent to the High Court.
Our Constitution sets up a system of representative government. The people are represented by elected politicians who expressed their will through the parliament. Stunning!
Implicit in that arrangement, said the majority, was that a Commonwealth law which restricted people's right to engage in discussion about politics or the government must of necessity be a violation of the principles of representative democracy and thereby the Constitution. You can't have a decent system of elected government if there is some inherent danger in fulsome discussion of those seeking election.
The dearly beloved Billy Deane with his brother Toohey were the ones who elevated this to a decent discussion about representative government and representative democracy.
It was ringing stuff:
"Freedom of political discussion necessarily involves freedom to maintain and consider claims and opinions about political matters notwithstanding their unpopularity among either the general populace or those in government or that they may ultimately be shown to be mistaken."
This revelation in Australia came 28 years after the American Supreme Court had laid down its landmark decision on freedom of speech in New York Times v Sullivan. And 200 years after Francoise-Marie Arouet, aka Voltaire, was scribbling much the same subversive stuff.
Act Two "A mid Summer's Night Dream"
Bruce Ruxton, the fearless leader of the Victorian RSL who some have accused of being a former army cook, sits in his office draped with Australian and British flags. There's a picture of The Queen and framed certificates with something to do with an OBE and an MBE. There's also photos of the Borneo campaign and the Beaumaris Returned Services League Club and lots of old medals and ribbons.
It is November 1992 and he dictates a letter addressed to the editor of the 'Sunday Herald Sun'. It says:
"If reports coming out of Canberra are true about the alleged behaviour of Dr Andrew Theophanous, then it is high time he was thrown off parliament's immigration committee.
"I have read reports that he stands for most things Australians are against.
"He appears to want a bias shown towards Greeks as migrants.
"Let me say at the outset that the Greeks who have come to this country have been a splendid example to everyone. They are hard working, honest, delightful people, and they would agree with me, I'm sure, that right now too many immigrants are being allowed in.
"There are just no jobs for newcomers - or those who already live here.
"It has been reported that Dr Theophanous wants the British base of Australian society diluted so that English would cease to be the major language.
"What is this man on about? And what language would he suggest we use to replace English?
"I'm grateful there's an election in the wind. I hope the people of Calwell give Dr Theophanous the heave.
"Poor Arthur Calwell must be spinning in his grave at the idiotic antics of the man in the seat named after him.
"Calwell was a great Australian and the architect of this country's post-war immigration policy."
Signed, Bruce Ruxton.
Dr Theophanous' lawyers formulated some imputations as the basis for defamation proceedings against the publisher of the newspaper and Mr Ruxton, pleading that the article meant:
* the plaintiff showed a bias to Greeks as migrants;
* the plaintiff stood for things that most Australians were against;
* the plaintiff was an idiot and his actions were the antics of an idiotic man.
One would have thought that the defendants would have an ample defence of truth for the third imputation.
The second imputation was also surprising - that the plaintiff stood for things that most Australians were against - as one could have thought that such a proposition might be a badge of honour, not an injury to reputation.
But the first imputation - that Dr Theophanous showed a bias to Greeks as immigrants - was clearly a brutally damaging thing to say of someone subsequently charged with running an immigration racket.
Two years after Mr Ruxton's letter from RSL headquarters the Theophanous case was decided by the High Court, and the implied right of free speech that had earlier been discovered was extended to private defamation actions.
If there had earlier been discovered an implied right of communication of political and governmental affairs, arising out of the Constitutional expression of representative government, then it did not seem an illogical step to say that the right flowed to the defence of private defamation actions that sought to stymie communication on those topics.
If State defamation laws render citizens liable for damages for the making of statements about official conduct or suitability for office, then to that extent those laws were in breach of the Constitution.
The basic charge was led by Mason, Toohey and Gaudron, with Brennan, Dawson and McHugh arguing against the extension of the implied power to assist free discussion.
Again the unsung hero of the day was Billy "The Kid" Deane. It was he who lifted the enterprise to a level of imagination and passion rarely if ever expressed on this court. He thought people were free to criticise all holders of public office, including High Court judges.
Mason, Toohey and Gaudron found that the implication only exists if the publisher can establish that it was unaware of the falsity of the communication and it was not published recklessly.
Deane was unable to accept that the freedom should be conditioned upon the ability of the publisher to satisfy a court on matters of recklessness or reasonableness.
In other words, he wanted a reversal of the onus of proof. The plaintiff should prove that the citizen or the publisher was reckless , malicious or unreasonable.
He said this "would go some way towards reducing the liklihood that the citizen might be unjustly penalised for honest and well founded criticism".
Nonetheless, Deane lent his support to the more cautious freedom postulated by Mason, Toohey and Gaudron.
The Constitution had been changed in a most significant way.
As a result Australia had a golden moment. Defamation actions by politicians and public servants of all ranks shrunk in a year to less than a quarter of the number witnessed in previous years.
The cynicism of the whole enterprise of gold-digging defamation actions by political opportunists was laid bare. We thought the landscape would bloom with a thousand fresh bold thoughts and expressions.
But dark forces were mustering.
The minority judges Dawson and McHugh were seething. What had exploded under their feet was a complete assault on their grim, constructionist approach. For their minds, too big a ferret had been let out for a romp.
They would have none of it. The text of the Constitution was what mattered. Implied powers simply could not be allowed to run rampant. While there were certain freedoms that flowed from the idea of representative government, they could not flow in a way that was not enunciated in the words of the Constitution itself.
Shortly after, Sir Anthony Mason retired from the High Court and Bill Deane became Governor General. The two new entrants were William Gummow, an equity lawyer from Sydney and a confirmed bachelor who had lived with his mother for longer than is usual, and Michael Kirby, a reformer who cast himself in the Lionel Murphy mould, but a man whose secret life of thirty years informed his enmity to an enlarged idea of free speech.
Act Three - "The Tempest"
Lawrence Nathan Levy is a man obsessed with the protection of ducks. At the drop of a hat he climbs into waders and plunges into ponds to hinder shooters in their plans to bag a brace of Khaki Campbells.
In doing so he was in breach of the Wildlife (Game) (Hunting Season) Regulations of Victoria, 1994. Under the regulations you could hunt for ducks during the appointed season if you had a licence. A person without a licence could not approach closer than five metres of any permitted hunting area.
Mr Levy thought this regulation limited his freedom of political expression and his belief in this was so intense that he went to the High Court.
It was during the special leave hearing that we saw the depth of McHugh and Dawson's resentment about what had happened in Theophanous.
Their anger was palpable.
In Mr Levy's special leave application Brennan Dawson and McHugh were telling all and sundry that Theophanous was wrong and dangerous.
Brennan went so far as to say that:
"The text of the Constitution can be illuminated by reference to representative government, but the concept neither alters nor adds to the text (of the Constitution)."
According to the transcript Dawson said:
"The concept of representative democracy or representative government does not have any necessary characteristics other than an irreducible minimum requirement that the people be governed by representatives elected in free elections by those eligible to vote."
That is the base definition that could just as well fit the North Korean or Zimbabwean models of democracy.
McHugh added for good measure that it:
"... is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution..."
With Mason and Deane gone and the two new boys in attendance one a dry and the other deeply nervy about the media, it was only a matter of time before the Constitutional defence for defamation was finished. The signals to relitigate Theophanous were flagged with all the subtlety of hookers in Voltaire's favourite stretch of the Bois de Boloigne.
The moment came when the rotund and pompous former Prime Minister of New Zealand David Lange sued the ABC over a 'Four Corners' program that cast doubt on the integrity of his government.
Lange was so cynical about this action that his lawyers wrote to all the other major media organisations in the country asking them to contribute towards a massive settlement. He would then withdraw his action and the media could keep their Constitutional defence for defamation actions unperturbed by a New Zealand interloper.
Some might say this generous offer was a bit of raw boned blackmail, but Lange just thought it made good commercial sense.
The offer was not accepted.
It was a unanimous decision. Toohey and Gaudron must have been locked in a room without food and water until they flipped.
Out went the notion that the freedom to communicate political ideas was a personal right. The freedom protected by the Constitution is not a freedom to communicate, it is simply a freedom limited by whatever the Constitution actually says about representative government which actually is surprisingly little.
Nothing further could be implied beyond that.
Secondly, the High Court set out a test that defamation defendants had to meet before they could be successful. It was the reasonableness test, the same test which is implanted in NSW law.
I suspect that Justice Michael McHugh had a huge hand in the preparation of the reasons, because he is a judge who due to a strange aberration of nature believes that the NSW law is better for journalists than the First Amendment of the United States Constitution.
This delusion flies in the face of the thousands upon thousands of defamation cases brought in NSW over the 26 years since the Act came into force, and where only five have been successfully defended using the statutory principles of reasonableness.
Of course, the Lange defence has never worked either, not was it the intention of the judges that it ever work to change the balance more towards free speech.
No journalist, no publisher is ever reasonable in the eyes of a judge. It is the Bar and the Judges who basically missed out on the Enlightenment, such as it was in England in the eighteenth century, and this is one of the legacies of it.
What the High Court was saying is that you can flush your Voltaire down the toilet. The media is stitched up well and truly. Or as Paul Keating said to the man from the ABC, "... We've fucked Fairfax, now you're next."
Anyway, we are stuck with this ruling from a nervous, small High Court, anxious about giving the robust expression of facts and opinion too long a leash.
On numerous occasions the High Court has said it will decline to overrule itself too hastily, but it took less than three years for Theophanous to be dumped in favour of the throttled, punitive approach of Lange.
It is interesting that the decision by the US Supreme Court in New York Times v Sullivan was decided by a bare majority, but there was no attempt to subvert it because of that.
And what was the intellectual justification for doing over Theophanous? Dishonestly the High Court said in Lange that Billy The Kid was not really part of the Theophanous majority, even though he said he accepted their reasons. The fact that he wanted to go further magically underwrote the fraudulent proposition for unscrambling it all and going backwards.
What has happened since this?
In a word the effect of the High Court's decision has been terrible.
Take Appeal Justice Mahoney, happily departed from presiding on the NSW Court of Appeal. In a case called Nugawela case he upheld a defamation damages verdict of $600,000 by a jury against a doctor who said something vaguely rude about one of his colleagues at a meeting attended by 22 other people.
$600,000 divided by 22 is $27,000 per person. This was justified according to Mahoney because Dr Nugawela was a professional man and his reputation was everything. There should be no flinching by judges when it comes to awarding stupendous damages to professional men, he said.
A year later in the 1998 case of Chakravarti the High Court again showed its colours.
Articles in the 'Adelaide Advertiser' about the Royal Commission on the collapse of the State Bank were sued upon. The articles were correct in their factual detail, but it was thought that one of the headlines and a caption were "excessive".
Kirby came into his own of this one. He said that it cannot be assumed that readers actually read the article. They may have only looked at the headline and that was enough to ground the plaintiff's success.
Moronic readers, who only look at headlines and can't read the body of the article are thereby elevated to the stature of the ordinary reasonable reader.
Until Justice Kirby's intervention in this area it was widely understood that headlines are encapsulated, attention seeking pointers to what lies underneath. They are not necessarily spelling out the finer details of the text.
The only consequence of a High Court finding like that is the further blandification of the media, the toning of any pizzazz, spice or naughtiness.
It is precisely the same sort of thinking that infects judges when they come into contact with anything that remotely resembles satire.
This is a particularly depressing vista on the Australian judicial landscape, and arises for no other reason than our judiciary generally are such po-faced conformists, such prisoners of orthodoxy.
The Pauline Pantsdown case was the high point of the climate of blandness decreed by our retentive High Court.
Pantsdown as we know is the grotesque drag figure who lampooned the former member for Ipswich and leader of all One Nationites with among other things a song called "I'm a backdoor man" - a cut and paste of the speeches and interviews of Pauline Hanson compiled into a dance beat tune.
On one level the splicing and dicing minces the words into nonsense, but the nonsense emerges as a pretty biting comment.
Now some with difficulty may recall verses from "I'm a Backdoor Man." It would be hard to do so because Pauline Hanson commenced defamation proceedings against the ABC for playing the song on Triple J and she obtained an injunction against further airing of this delightful ditty.
According to Queensland Court of Appeal transcript, the song had Ms Hanson saying:
"I'm a backdoor man. I'm homosexual. I'm proud of it... I'm a backdoor man for the Klu Klux Klan with a very horrendous plan. I'm a very caring potato...
"Please explain. Me. Me . Me. Thank you."
A bald slice of the words does not do justice to the infectious, boppiness of it all.
What Ms Hanson's lawyers were able to do was persuade four Queensland judges that this could give rise to imputations that the Member for Ipswich was a homosexual, a prostitute, involved in unnatural sexual practices with the Klu Klux Klan, a man and a party to sexual activities with children.
That body of fine minds, the Queensland Court of Appeal, went so far as to say that if any jury didn't find at least some of those meanings, then the appeal judges would regard such a finding as perverse and overturn it.
The High Court just muttered something about it being a pity that the ABC had been denied the opportunity of having a jury determine the major issues in the case, but no doubt a jury would hear Ms Hanson's defamation case, and if she was unsuccessful then the injunction could be lifted.
Sorry, costs against the ABC.
So three years since the defamation action was commenced by Pauline Hanson, how's it going?
Sad to report, it's not going anywhere. It's still on the books, but Ms Hanson is not pressing the matter. Why would she, since she's got what she wanted - the banning of the naughty song from the airwaves on the basis that it gave rise to defamatory imputations which have never been tried.
Part of the intriguing reasoning of the Queensland courts was that listeners would have had to have taken the words literally, or not realised that this was a cut and paste job on the One Nation leader's speech.
This is what can happen to satire when it ends up in the hands of judges.
We are just stuck with a gruesome little episode of censorship, with the High Court which had the opportunity to do something about the Queensland decision and declined to lift a finger in a special leave hearing.
Later the same artist created a character called "Little Johnny", and various statements of the Prime Minister were chopped up so that he said:
"I'm sorry - sorry I'm so enormous
I'm sorry - sorry I'm so big.
I'm sorry - my head is full of bacon...
I'm sorry, I just lost my hairpiece.
I'm sorry, you gotta see my stunning face..
I'm the biggest, baddest man around
I got no harmony, got no sound...
"Where's my Christmas present?
I want to pluck a pheasant.
Sounds unpleasant - better pluck a cow."
The Prime Minister is a much more skilled politician than Ms Hanson and he is unlikely to sue over the "Little Johnny" lyrics.
However, if he did, and he brought proceedings in Queensland he would be able to plead with perfect solemnity that the song meant that he: wears a hairpiece, his brains consist of bacon, he is unattractive, he is bad person, and he has sex with animals.
Even though there could be a defence of justification to some of those meanings, the courts would then grant him an injunction because no jury in its right mind would consider that those meanings did not arise, the song would be banned, and he need not proceed any further with defamation proceedings.
And the High Court would sit by and do nothing to prevent this most amusing outcome.
I have time for one more illustration of the merry circus.
A South Australian newspaper recently published what it thought was a racy little take on a gentleman called Michael Brander, the leader of a group called Australian National Action, which had idiosyncratic views about race. Maybe it wasn't a terribly witty or sophisticated attack on Brander because the article said:
"How did little Mikey Brander get to be leader of the racist gang National Action?
"Did he beat all the other, bigger NA chaps in a peeing contest or something?
"It is hard to imagine how you can piddle higher than everyone else if you sit down to take a pee...
"And why does he look so miserable all the time? Do you have regular bowel movements at the same time every morning Mikey?
"Or perhaps you are taking your medication in the wrong order..."
And on an on in a similar vein.
The important thing is that when this went to the South Australian Supreme Court, Justice Wicks said the newspaper was in some trouble. This was not a matter of satire, there was no defence of comment, where are the facts, he demanded.
Justice Wicks said:
"There are no facts supporting the references to the peeing contest and bowel movements. The reference to a 'delicious green leotard' is not a matter of fact, nor are the references to attention seeking and being tucked up at night with a mug of Horlicks."
The courts expect the media to produce a factual substratum to underpin satire.
Brander is permitted to call for the sinking of "disease ridden" Chinese boat people, but the courts will award damages for anyone who satirises such a person.
Compare this with the rapturous, bold language of the English courts as they embrace the new world of the Human Rights Act and the application of the European Convention on Human Rights.
The recent Shayler case before the Court of Appeal in London is a shining example of where the Brits are heading. Basically they are leaving us in the dust.
Shayler is the former MI5 officer, whom the government accuses of being a spy. The Observer and The Guardian had been digging around to find a mass of information about him.
The government wanted that information and sent the police into the newspaper officers to seize their records, notebooks, and documents.
Not on your nelly, said the Court of Appeal in a leading judgment written by the eponomously named Lord Justice Judge.
Justice Judge said that the principle of press freedom was already deeply ingrained in English common law, even without the additional flourish of the Human Rights Act and the European Convention.
Freedom of speech and protection against self-incrimination were "bred in the bone of the common law and indeed in some instances at any rate, the folk understanding of the community as a whole," he declared.
He conjured up the magnificence of every philosophical inspiration he could muster. Albert Dicey, Voltaire, Pitt the Elder, a distant relation of that other great Sydney civil libertarian, Roderick Pitt Meagher. The Elder, you may recall, said:
"The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the king of England cannot enter - all his force dares not cross the threshold of the ruined tenement."
Inconvenient or embarrassing revelations should not be suppressed, the judge said.
When was it you last heard an Australian superior court justice conjure up such a magnificent, inspiring, flourish. You simply cannot discover such a moment.
It is hardly surprising that Voltaire was enamoured of the English and their Constitution. He would have thought Justices McHugh and Kirby were ideal Bourbon judges, handing over insurrectionists to the thought police of King Louis XV.
But a note of caution, lest we become intoxicated with indignation.
Australia is a small country, with a small, tightly controlled and legislatively protected media. There is too much power in too few hands, too few voices, too few ideas.
What has motivated our courts is a fear of the power of the barons. But in trying to limit that power the judges in the process aided strangling of alternative voices. They have reinforced the need to play it safe.
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