Australian Civil Liberties Union

Judges have failed us on free speech
Our grim High Court has made it harder to hear alternative voices.

By RICHARD ACKLAND
The Age
3 November 2000

Let me outline a troubling thesis about how shockingly we have been served by our High Court on the fundamental issue of free speech. The principle chain of events looks like this:

In 1992 four of the seven judges of the High Court said something that hadn’t been enunciated from that elevated position in the previous 90 years. In the Nationwide News and ACTV cases they found that our Constitution sets up a system of representative government. Impliedly any Commonwealth law restricting people’s rights to engage in politics or government must be a violation of the principles of representative government and thereby contrary to the Constitution.

Just about the same time as the High Court delivered this judgement, the leader of the Victorian RSL, Bruce Ruxton, in our of his snarling digs, says a few rude things about federal Labor backbencher Andrew Theophanous.

Theophanous’s defamation action eventually went to the High Court where a majority took the finding in the Nationwide News and the ACTV cases the next logical step. If state defamation laws hinder statements about official conduct or suitability for office, then to that extent those laws violate the Constitution. There were of course riders that publishers would lose the protection if their statements were false or reckless.

The basic charge on this was led by Justices Mason, Toohey and Gauldron. Justices Brennan, Dawson and McHugh argued against the implied right of free speech in this manner. It was Justice Deane who lifted the enterprise to a level of philosophical discourse.

He thought people should be free to criticise all holders of public office, including High Court judges, even if the criticism was wrong or wild. Unlike the other judges, he was unable to accept that the freedom should be conditional upon the ability of a publisher to satisfy a court on matters of recklessness.

The plaintiff should be required to prove falsity or recklessness. Nonetheless, to get the extended implied right over the line, Sir William Deane lent his support to the more cautious approach of Mason, Toohey and Gaudron. The Constitution had been changed in a most significant way.

The minority judges were pretty distressed by this bit of judicial activism, or as others would put it in the alternative – this expression of the true potential of the development of the common law.

In subsequent cases, McHugh and Dawson gave out plenty of hints that Theophanous should be relitigated. After all, the composition of the High Court had changed. Mason and Deane were gone and the new arrivals were William Gummow and Michael Kirby.

Putting the narrow viewpoint in a related free-speech case, McHugh said: "…it is not legitimate to construe the Constitution by reference to political principle or theories that are not anchored in the text of the Constitution…"

The outcome was the Lange decision. The High Court said 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.

The great hope of a judicial expression of the Voltarian enlightenment in this country had been dashed by the Lange decision.

Now along comes Free Speech Victoria with a manifesto to reform the law. It says that companies should not be able to sue people for criticising them; that politicians and public servants should not be able to sue over statements made about their performance in office; and in the absence of malice, which plaintiffs must prove, no general damages should be awarded for defamation.

It really is the logical extension of where Sir William Deane’s thinking would have taken us if his reasons prevailed.

Driving the High Court’s narrow, grim view was the idea that already there is too much power in the hands of too few media barons. Yet in trying to limit that power the judges have made it harder for alternative voices to be heard in this country. They have reinforced the need to play it safe.