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Thursday, 13 October 1983
Page: 1752

Mr McGAURAN(4.35) —I want to speak in this debate on a matter of grave concern which has the most profound implications for our democratic society. I refer to the proposed uniform law of defamation, an outline of which has recently been circulated by the Attorney-General (Senator Gareth Evans). It is my view on studying that precis-I might say that it is a view shared by a number of journalists-that the proposed uniform law may cause severe restrictions to the existing freedoms of the Press and speech in Australia. The proposed law requires careful consideration by all sections of the community before any step is taken by the Government to implement its provisions.

In particular, there are three areas of potential risk to those freedoms. First , the existing defence of qualified privilege will no longer be available to the Press or other media. This appears to be an extraordinary development in the law . The Press may be liable in defamation for reports published in good faith upon matters that it considers, upon reasonable grounds, the Public has an interest in knowing.

Secondly, it would no longer be a defence to defamation to prove that the report was true, or true and published in the public interest. According to the precis circulated by the Attorney-General it will be necessary to establish that the report was true and for the public benefit. In practice, public benefit has proved impossible to prove. Under New South Wales legislation which contained a similar public benefit provision it was held that a true report exposing racketeering in the greyhound racing industry was defamatory. A newspaper can often prove that the publication of a controversial matter was in the public interest but cannot prove it benefited the public. Again, one has the undemocratic situation in which a newspaper, quite properly, might expose racketeering and it cannot establish that the public benefited from it. Therefore, it has no defence in a defamation action.

Thirdly, at present reports by the media of statements made in parliament or in a court of law are immune from a suit for defamation. Under the proposed uniform law that defence will continue except that, if a person allegedly defamed seeks a statement in reply, the newspaper will be required to publish the reply or else lose the right to utilise the defence. One pragmatic result of this proposal, which the Attorney-General terms 'fair report', may be that the media will stop publishing reports of parliamentary and court proceedings rather than risk being forced to publish statements in reply. The public may be deprived of its principal source-if not its only source-of knowing what its elected representatives and the judiciary are doing. I do not for one moment believe that Australians will tolerate this Government interfering with the freedom of the Press in this Orwellian manner. Never before, to my knowledge, has a government in this country sought to compel newspapers to publish, or other media to broadcast, statements or other material. The absurdity of the requirement of the media to publish a reply by a person allegedly defamed is highlighted by the fact that if that reply is defamatory in itself the newspaper which must publish that reply appears to have no defence whatever.

Let me illustrate this stupidity by way of a simple example. During the course of a speech in the Parliament an honourable member accused Mr X of a wrong-doing and a newspaper publishes that report. The newspaper does not have a complete defence to a defamation action by Mr X unless it publishes his reply. In the course of his reply Mr X states that it is not he who is guilty of wrong-doing but the honourable member. The newspaper must publish that reply. If the allegation is totally false, the honourable member will sue the newspaper and under the proposed uniform law I do not see it having any defence. It may also be the case that a published reply may place a newspaper in contempt of court. In such circumstances the newspaper is condemned if it does not publish the reply and condemned if it does.

It needs to be said that the Fraser Government commenced the movement seeking consensus upon a uniform defamation law. It is notable and praiseworthy that a government seeks to bring some uniformity in regard to this difficult and complicated area of law. However, the present Government's proposal will not be acceptable to the community as an alternative to the existing defamation law. The Press not only has a commercial interest in publishing news but it also accepts a duty to publish much which is of no commercial advantage to it but is on matters of public concern. The public perceives the Press as having such a duty and expects it to perform this duty. If the Government, by the proposed uniform law, interferes with the freedom of the Press with respect to reporting of such matters, it does so at grave risk to the form of democracy we enjoy. This potential is particularly sinister when the legislation is being proposed by the Prime Minister (Mr Hawke) and a government which have already manifested their willingness during the Hope Royal Commission on Australia's Security and Intelligence Agencies to use the laws of defamation and contempt to suppress criticisms by the Press of their policies and actions.

Honourable members will recall that in the South Australian Parliament on 17 August Mr Peter Duncan attacked Mr Laurie Matheson's role in the Combe-Ivanov affair and referred to Mr Matheson's evidence given in camera. The Attorney- General sought an opinion from his Solicitor-General, Sir Maurice Byers, as to whether Mr Duncan was protected by parliamentary privilege and whether his speech constituted contempt of the Hope Royal Commission. The Attorney-General released a legal opinion which concluded that, whilst Mr Duncan was protected by parliamentary privilege, the media could be prosecuted for publishing reports of his speech. The freedom to report parliament is unmistakably threatened by the advice obtained by the Attorney-General.

Honourable members will also recall that the Prime Minister sought to muzzle and intimidate the Leader of the Opposition (Mr Peacock) on 3 August after the Leader of the Opposition commented on the Prime Minister's admission to the Hope Royal Commission that it was he who leaked Mr Combe's name to Mr Richard Farmer. The Prime Minister sought to instruct counsel for the Commonwealth to submit to the Royal Commission that the Leader of the Opposition was in contempt and ought to be dealt with accordingly. This was despite the fact that counsel for the Commonwealth, Mr McHugh, QC, on 18 July in a statement to the Commission on the circumstances surrounding Mr Young's resignation inter alia said:

Your Honour will appreciate that during the course of the royal commission there are ongoing matters of government which have to be dealt with notwithstanding your Honour's inquiry. The resignation of Mr Young has been such a matter.

Mr McHugh continued:

Your Honour, the Government does not claim that the appointment of a royal commission suspends the discussion of any matters of public interest.

By the very own criteria of the Government's counsel, the Leader of the Opposition properly commented on a matter of public interest. Yet the Prime Minister sought to intimidate and muzzle him. To his credit, the Leader of the Opposition was not so intimidated. The Prime Minister has shown a propensity for the use of defamation actions to stifle criticism. In answer to a question from the Deputy Leader of the Opposition (Mr Howard) on 15 September the Prime Minister informed the House that he had three defamation actions on foot arising out of media reports to the Hope Royal Commission. Furthermore, the Prime Minister, I am led to understand, is the first Western leader to sue Time magazine. Unlike his predecessors in the office of Prime Minister, this Prime Minister is not able to take vigorous and often penetrating criticism on the chin. He seeks to influence the freedom of the Press.

The CHAIRMAN —Order! The honourable member's time has expired.