In pursuit of a free press

Katrine Narkiewicz' thoughts on the 2002 Press Council Address, delivered by the Hon. James Spigelman.

When Australia's oldest, state-run newspaper, the Sydney Gazette, closed in 1842, the Government's influence over the press continued in the form of licensing schemes and stamp duties.

However in more recent times, government measures to suppress free speech and a free press have been displaced by the very real threat of legal action. Sydney is widely regarded as one of the defamation capitals of the world.

Just recently another high profile defamation case reached the High Court. Mining magnate Joseph Gutnick is suing Dow Jones for an allegedly defamatory article published in US financial magazine Barrons. The implications of the High Court's finding are serious, not least of which is that internet publishers can now be sued in whichever country the plaintiff chooses, most likely where the most stringent defamation laws operate. The only proviso is that the plaintiff must have a reputation in that country.

The debate about a free press in Australia is not a recent development. Speaking at the Australian Press Council's inaugural address, NSW Chief Justice, the Hon. James Spigelman, reflected on the foundations of this ongoing struggle for press freedom.

"The effect of the law of libel on freedom of the press has been the subject of debate in New South Wales for over 170 years," said Spigelman. He recounted the first clashes between freedom of the press and defamation in the confrontations of the first Chief Justice Francis Forbes and Governor Ralph Darling.

Forbes and Darling were worlds apart in their conceptions of the fine line between libel and free speech. Forbes once commented, "It is, however the right of the public to discuss the acts of a public officer provided it be conducted within the legitimate bounds of fair discussion, but if on the contrary, it degenerates so as to impute bad motives and wicked conduct, it is then no longer fair, it is libelous." Darling was far less discerning of this distinction, he regarded any hint of opposition as a sign of insubordination.

Spigelman said: "... Chief Justice Forbes felt quite comfortable with a discourse employing the terminology of 'rights'."

Forbes was adamant in his convictions about the underlying democratic principles of free speech and that a right to free speech was conferred to all. "To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man ... It is clear that the freedom of the press is a constitutional right of the subject, and that this freedom essentially consists in an entire exemption from previous restraints."

While it cannot be denied that such rights to free speech do exist, they have not been legally enshrined in Australia and as such have been afforded little protection. Nowhere in the Constitution is there an explicit guarantee of such freedom to the extent that it appears in the US Bill of Rights.

According to Mr Spigelman, the concept of a legal right to free speech can be traced back to the seventeenth and eighteenth centuries and after being discarded for a while, has re-emerged.

"Over the course of the nineteenth century, common lawyers stopped using the language of rights, to the extent that the discourse has only been revived in common law countries in recent times by means of the adoption of international instruments, the provisions of which can be traced back, historically, to 17th and 18th century British texts," said Spigelman.

Chief Justice Spigelman acted as leading counsel in the landmark 1996 Lange and Levy cases. The Lange judgment has been described as a watershed in debates about the recognition of a constitutional right to free speech. The High Court found unanimously that the Constitution gave an implied freedom of speech in political matters which extended to matters of libel.

The then Chairman of the APC described the Lange decision as a positive step in the debate over free speech. "The High Court has struck an appropriate balance between, on the one hand, the aim of defamation law, that is, the protection of reputation, and, on the other, the protection of freedom of communication, at least in relation to government and political material."

This is a relatively recent development in the area of free speech - the case was decided in 1997, following earlier decisions such as Nationwide News and Theophanous, which had established the existence of the constitutional implication. Although it represents encouraging signs of a growing recognition of free speech as an inalienable right, there is still a fair way to go. The implied right to free speech is limited to only political matters- other areas are still fair game for defamation actions.

However legal sanctions are not the only threats to free speech- economic factors have always weighed into the debate. According to journalism academic Stephen Stockwell, the seventeenth and eighteenth century printers capitalised on the concept of a free press for profit gain.

The challenge to a free press today is the high concentration of media ownership. According to the APC, in 1923 there were 21 proprietors controlling between them 26 metropolitan newspapers. Today, one media giant, New Corporation Limited, controls 70 per cent of these papers.

It appears there is still a long way to go before the democratic ideal of a free press, or at least some satisfactory resemblance of it, can be achieved.

Chief Justice Spigelman's address on the foundations of a free press is a reminder that in some ways progress has been made, while in others we still have not advanced further enough.

"It is surprising how many of the issues and arguments were already current in the 1820s. One thing is, however, worth acknowledging. The contribution of the first judges of this Court, particularly of the first Chief Justice, to freedom of the press was substantial and worthy of commemoration," said Spigelman.

So, despite Sydney's dubious honour as one of the defamation capitals of the world, ironically one of the earliest advocates for a free press was NSW's first Supreme Court Chief Justice, Francis Forbes.

Katrine Narkiewicz

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