High Court Seeks to Raise the Quality of Journalism

Evan Whitton, a member of the Council's Freedom of the Press Committee, contributes to the debate on the High Court's Lange judgment.

Democracy is a product of the 19th century; libel law as we know it is a product of corrupt 18th century oligarchy: a presumption of guilt still obtains for anyone seeking to tell the truth about politicians.

William Murray was a leading politician 1742-84 and a member of corrupt Cabinets 1757-1765. As Lord Chief Justice Mansfield 1756-88, he invented the brazenly ridiculous dictum, the greater the truth the greater the libel, presumably to prevent a new institution, the Press, from exposing either himself or his oligarch colleagues.

In Australia, democracy may be seen to start with Theophanous (1994). Chief Justice Sir Anthony Mason and Justices Sir William Deane, John Toohey and Mary Gaudron took the view that those who wrote the Constitution (1901) were trying to invent a democracy and hence must have believed in free access to information about politicians. Justices Sir Gerard Brennan, Sir Daryl Dawson and Michael McHugh did not agree.

In 1996 the court revisited libel law in Lange and various governments submitted that Theophanous should be overturned. I suggested (The Australian, October 14, 1996) that precedent tends to deprive judges of excessive knowledge of the law's origins and to bind them to decisions of judges who may have had a secret agenda. It would thus be useful to be apprised of the way libel law was used to protect a corrupt oligarchy.

In Lange (1997), Justices Brennan, Dawson, Toohey, Gaudron, McHugh, Bill Gummow and Michael Kirby unanimously overturned Theophanous and removed the constitutional guarantee of free expression on politics. They seem to have largely restricted their research to that monument of ambiguity, the 1974 NSW Defamation Act, brought down, as it happens, by the government of an allegedly corrupt elected oligarch, Sir Robin Askin.

From the NSW Act they imported the notion of "reasonableness"; there might be a defence if it was reasonable for a libel defendant to believe the offending material was true. This concept has serious difficulties for the common law and justice.

The law says it is not reasonable for libel defendants to proceed with reckless indifference to the truth, but it is for lawyers. Judges, not jurors, are to decide what is reasonable but, as every juror learns, nobody, including judges, knows what reasonable means: are 30 telephone calls reasonable, but not 29? And libel lawyer Richard Coleman noted that in 'hundreds' of NSW libel cases since 1974 judges effectively found the defendant's conduct was 'reasonable' in only four cases.

In a Lange seminar put on by Minter Ellison, a Melbourne libel lawyer, Peter Bartlett, said it retains the previous presumptions of libel law. But the seven presumptions are all false, as may be seen by inserting, say, organised criminal Lennie McPherson as the object of the slur in the list of presumptions:

• A slur is always false.
• The author of a slur is always guilty.
• The subject of a slur is always innocent.
• A slur always causes damage.
• Appearance (reputation) is always preferable to reality (character).
• The private right to reputation is always to be preferred to the public right to information.
• The seventh false presumption is that a slur is always deliberately intended to cause damage. Any libel lawyer knows that at least 80 per cent of alleged libels are inadvertent.

Was it 'reasonable' for the High court to leave those false presumptions in libel law? When will those accused of libel mount a defence on the basis that, apart from preventing disclosure of important information, the false presumptions make libel law unfair and unjust?

Bartlett said the High Court judges will be really pleased with Lange; they will believe their unanimous decision has settled libel law in Australia for 50 years. In my view, this means they have set back democracy for 50 years.

I asked him who would gain from Lange, apart from libel lawyers, corrupt politicians, and organised criminals. He said it would mean more work for lawyers, but did not address himself to the others.

Bartlett also said that in Lange the judges were trying to raise the quality of journalism. We can all drink to that, but the more pressing question, with very great respect, is surely: how can we raise the quality of the law? Not to mention the Court.

Evan Whitton is a member of the Council's Freedom of the Press Committee. This article was adapted from his new book, The Cartel: Lawyers and Their Nine Magic Tricks ($A29.95, Herwick Pty Ltd, Locked Bag 2018, Glebe 2037).

see also
Index on defamation material

Return to APC News 1998 Index

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