Australia’s eight different sets of defamation laws are a crazy
throwback to pre-Federation days but as this series of recent
subscriber-only sealed section items demonstrate, the proposed national
defamation laws by Federal Attorney General Phillip Ruddock are not
exactly a giant step forward.

Ruddock launches his new big idea

November 17, 2003

Attorney-General
Philip Ruddock has launched a fresh push for the introduction of
uniform defamation laws at a meeting of the Standing Committee of
Attorneys-General in Hobart on Friday.

“Everyone agrees
that the present situation is untenable,” said Ruddock. “No one thinks
that it’s sensible to have eight different regimes for defamation in
the age of television and the Internet.”

Too right, Phil.
But before we declare that all is forgiven, we’d need to see the
legislation. Afterall, if we’re doing free trade agreements with
Singapore let’s hope we don’t borrow their defo laws.

Ruddock
said uniform defamation laws between the States and Territories had
been on and off the SCAG agenda since 1980 and still nothing had
happened. Politicians of all persuasions have abused the defamation
laws over the past 23 years whilst hypocritically enjoying the benefits
of complete parliamentary privilege to defame whoever they like in
Australia’s Parliaments.

Ruddock also warned that if the
States and Territories did not act the Government would have to
consider using the Commonwealth Parliament’s constitutional powers to
enact a national defamation law.

A better option would be to enshrine free speech into the constitution as the Americans did with the First Amendment.

Ruddock
said the States and Territories were aiming to have draft provisions
ready for the attorneys-general meeting in March. We’ll be following
this one closely.

Check out the Ruddock release here: Government pushes for uniform defamation laws

Ruddock defo scheme leaked to the Fin Review

March 17 2004

So,
why is Federal Attorney General Phillip Ruddock unveiling his national
defamation law reforms today? Could it be to derail the defamation
discussion at the Standing Committee of Attorneys General meeting on
Norfolk Island tomorrow?

However, we use the term
“defamation law reforms” advisedly because this appears to be a game of
legislation by press release. If Ruddock was serious he would release a
draft bill for discussion, not some woolly discussion paper which is
selectively leaked and briefed around the place and still not on his
website for general access.

The Ruddock discussion paper
was released today after being comprehensively leaked to Fin Review law
reporter Chris Merritt this morning.

Check out the AAP report of Ruddock’s launch here: http://theage.com.au/articles/2004/03/17/1079199270467.html

There
is absolutely no question that Australia needs national defamation laws
like most civilised countries have. It is one of the glaring examples
of our failed federation which left far too much power with the states.

However, we don’t want bad national laws and we suspect this is what the Howard government will be offering up.

Ruddock
says he is concerned about forum shopping whereby a plaintiff can
choose between eight different sets of laws. The ACT has no juries and
this is why politicians and journalists, two of the least respected
groups in the community, often sue in the ACT Supreme Court.

We
wonder if Ruddock has asked Tony Abbott, Peter Costello and Malcolm
Turnbull what they think about defamation forum shopping as they have
all profited nicely from actions taken in the ACT Supreme Court in
recent years.

Crikey is already amending its Rupert Murdoch
obituary after reading in the AFR that relatives of the dead will be
able to sue under Ruddock’s grand plan.

Whilst Crikey has a
rigorous corrections policy and believes the mainstream media does
itself a disservice by not diligently correcting errors, the proposal
that courts could order corrections would be a retrograde step.

Forcing a publisher to publish something against their will is tantamount to censorship.

Interestingly,
Terry O’Gorman’s Civil Liberties Council appears to be in favour of the
Ruddock plan. He’s obviously had one too many run-ins with The Courier
Mail over the years. Check out the ABC story here: http://www.abc.net.au/news/newsitems/s1067611.htm

Is this incompetence or a conspiracy?

March 18 2004

Crazy defo law reforms

Crikey
accused Attorney-General Phillip Ruddock of leaking his defamation
discussion paper to the Fin Review earlier this week but now we’re
hearing out of Canberra that he was annoyed that it got out as it
changed their launch strategy.

That said, the proposal is a
catastrophe. It looks like the worst, most restrictive bits of the
existing state defamation laws have simply been cobbled together by
someone with no understanding of what they are doing – which is not
surprising because the federal AG’s department would have zero
experience in defo.

The only positive aspect is that
Ruddock has now told the media and media lawyers he is willing to take
submissions. However the entire thing needs a radical overhaul. It
would also encourage more litigation, which is out of step with
government policy.

Some of the specific problems include
the adoption of section 22 of the NSW defamation act as the template.
This has never been successfully used as a defence in the 30 year life
of the act.

The other crazy element is the complete
stripping away of all the qualified privilege defences built up over
the years through common law, right up to the High Court.

Crikey
suspects this is not part of a government plot to get the media, but is
simply the result of massive incompetence among the government lawyers
who assembled the proposal. Would Ruddock and the government really
intentionally pick a fight with the media proprietors in the run-up to
an election?

The editorial in today’s Australian supports
the push to nationalise defamation laws but stated that the national
laws won’t be 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.”

Read it all here.

And the SMH reports that the states are expected to resist Ruddock’s plan:
http://www.smh.com.au/articles/2004/03/17/1079199294116.html

National defo laws under attack

March 21 sealed section

The
Howard Government is quickly finding out how unpopular its proposed
national defamation laws are with powerful media companies.

Check out this strong editorial in today’s Herald Sun.

The
Age also had an editorial on defo giving cautious support for a uniform
defamation law, but not one which curbs free speech even more then
existing laws: http://www.theage.com.au/articles/2004/03/21/1079823237594.html

Meanwhile,
as Attorney-General Phillip Ruddock buries himself in this mock
terrorist attack PR stunt, it appears he is taking a very
Sydney-centric approach to defamation reform as this non-Sydney defo
lawyer explains:

“On the one hand Ruddock wants all states
to agree to the national defo laws, yet on the other he will only
‘brief’ and discuss the issue with Sydney media and Sydney media
lawyers. Ahem, what about the rest of Australia? At the moment there
are no plans for him to talk about this anywhere else.

The big fish of Australian defamation

March 22 sealed section

If
there was an Olympics for defamation payouts, who would the medals go
to in terms of highest tax-free cash received in Australia over the
years?

Crikey’s punt at this question is as follows:

1. Sir Joh Bjelke Petersen

2. Bob Hawke

3. Kerry Packer

And
what about the flipside – which individual journalists get the medals
for being responsible for the biggest cumulative cost to their employer
and payouts over the years?

1. Alan Jones

2. Mark Westfield

3. Piers Akerman

It
is possibly a little unfair to single out individual journalists when
we should look at programs or titles so here is a first crack at
ranking this category as well.

Programs:

1. A Current Affair

2. 4 Corners

3. Today Tonight/Witness (remember Marsden)

Finally,
here is a stab at the media companies which have incurred the highest
cumulative costs and damages over the past 30 years.

1. ABC

2. News Ltd

3. PBL

4. John Fairfax

5. Seven Network

We’re
quite confident about the first list but the rest are just
guesstimates. However, this should be an interesting debate so please
send your feedback and suggestions to [email protected].

Read the lightweight discussion paper and other contributions

We
haven’t seen too many more lightweight contributions from a government
than the substance of its defo discussion paper. Read it in full here. It only takes a few minutes.

If
you want an excellent rundown on the recent history of Australia’s
laughable defamation laws, check out this fabulous Richard Ackland
speech in 2001: http://www.crikey.com.au/media/2001/11/18-acklandvoltaire.html

Check out our great defamation list here as we’re always looking to expand it: http://www.crikey.com.au/media/2002/12/26-defolist.html

And don’t forget to look at our list of famous international defamation actions here: http://www.crikey.com.au/media/2003/01/06-globaldefolist.html

Peter Fray

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