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Select Committee on the Future of Public Interest Journalism
Impact of search engines, social media and disinformation on journalism in Australia

PEARSON, Professor Mark, Professor of Journalism and Social Media, Griffith University; and Private capacity


ACTING CHAIR: Welcome. Information on parliamentary privilege, the protection of witnesses and the giving of evidence to Senate committees has been provided to you. Is there anything you wish to add about the capacity in which you appear today?

Prof. Pearson : I am appearing not on behalf of my organisation—it was a personal submission—although I am here with my organisation's approval.

ACTING CHAIR: Thank you. I now invite you to make a short opening statement, and at the conclusion of your remarks I will invite members of the committee to ask questions.

Prof. Pearson : Thank you for having me here, and congratulations to the committee on the work that you have done thus far. My submission was relatively narrow compared to many of the other 50-plus submissions, and the reason for that is that my expertise is relatively narrow. My main expertise is in researching and interpreting media law for the purposes of journalists and journalism students—in other words, how they might navigate the law.

For the 10 years until last year I was Australian correspondent for Reporters Without Borders, so a lot of my work does venture into that area of independence of the media and freedom of the press. The point of saying that is to note that there are much better experts than me in particular areas of the law and policy and many of those have made submissions to you.

The thrust of my submission was that I see a very serious shackle upon public interest journalism in Australia which has become more of a problem with the advent of the internet and social media, and that shackle is the number of laws that continue on the books and continue to be passed that impose various conditions, responsibilities and restrictions upon journalists and the enterprise of public interest journalism. Only some of these are within the purview of the federal parliament and only some of them you would have some input into as senators. Nevertheless, the internet, of course, does not work to state, national or jurisdictional boundaries. Journalists now have to operate under a litany of laws from all levels of government and internationally in trying to go about their work. Because some of these do come under your purview and because the federal parliament does have all sorts of important connections with the states, I do believe there can be some system put in place that would offer some encouragement to review the public interest journalism implications of legislation when it is proposed but also to take the initiative to have actual public interest journalism defences built into legislation as it is proposed and retrospectively built back into some of those items of legislation that already exist

That was the thrust of my submission. The key areas of the law that I see as problematic are clearly the suite of national security laws, which, interestingly enough, do have an independent national security monitor as an interface between the public and the parliament on the application of those laws. Other Commonwealth laws include consumer law, privacy law and intellectual property law. Then you start going into state laws like defamation, for which there are uniform defamation laws—not totally uniform. The Commonwealth have played a key role in making them relatively uniform through the former COAG system. Then you get the various areas of the common law that apply to the media as well. I neglected to say two important Commonwealth laws there: the evidence law to do with source protection for journalists, which some of you senators would have been involved with in its more recent iteration; and, of course, freedom-of-information laws, which impact upon journalism—

Senator XENOPHON: And whistleblower protection laws?

Prof. Pearson : Of course—and whistleblower protection laws, which interface to some extent with the journalism source protection laws.

That is my preliminary statement. I am keen to be of any assistance I can be to you.

ACTING CHAIR: Thank you very much. I want to start by focusing on your views of this whole shift away from TV and newspaper journalism to online. What is the impact of that on public interest journalism? That goes to the heart of how we then tackle what kind of systems or mechanisms we put in place to protect it.

Prof. Pearson : As many have told you already, obviously the predominant impact has been on the revenue available to what you might call traditional news organisations for them to fund what we might call public interest journalism—investigative journalism, deeper levels of reporting that require more time and resources. That means that what is essentially a pillar of democracy—a fully-functioning independent media which is able to perform a watchdog role upon other important political and social institutions—is underresourced in both dollar terms and, now, with the demise of major news organisations, people terms as well. We only need to look at both state and Commonwealth level, at the royal commissions and commissions of inquiry that have been conducted over the past few decades to see how so many of them resulted from important work of investigative journalism across corruption, policing, mental health.

Senator XENOPHON: That includes The Moonlight State from your state.

Prof. Pearson : Of course, it was a landmark investigative work. We are left with mainly the ABC, some elements of the other traditional newspaper media and some elements of new media, like The Guardian, conducting what we might call 'investigative journalism'.

In my own sector of journalism education, there has been some great work done there too in collaboration with some of these organisations, with journalism lecturers and student journalists contributing to that sort of work. While that is very good for us and our students, it would be very sad if most investigative journalism was left to: students who are just at the start of their career; academics who are doing it on the budget of the universities they work for; and, as one colleague recently suggested, retired journalists who do it for a hobby. We really do need this rich vein of dedicated journalism for this public interest journalism enterprise.

ACTING CHAIR: Looking at your submission, I was thinking what international examples there might be that Australia can turn to for guidance in some of the approaches you have suggested.

Prof. Pearson : Unfortunately there aren't enough. One of the reasons there are not all that many is because most comparable democracies, if not all comparable democracies, actually have free expression or free press enshrined in their constitution or, as in the United States, as the first amendment to the constitution. So what happens in that situation, depending on the particular country, is that by being there in the constitution, it is already front and centre in any legislative proposal and in any appeal on such grounds in the court cases. Australia, as an exception to that, needs to have some of the devices that operate that way, because I do not see in the foreseeable future us having any constitutional change in that regard. The High Court's very limited implied freedom to communicate on matters of politics and government, which it has developed over the past couple of decades, is not enough. Firstly, not all journalism is about politics and government and commentary on that; secondly, it has been read down significantly since its first few decisions in the early 1990s.

Senator XENOPHON: Do you mean since the David Lange case?

Prof. Pearson : Yes.

ACTING CHAIR: You talk about this public interest journalism defence.

Prof. Pearson : Yes. Again, I am not an expert in drafting such legislation and I accept that any such defence or any such wording would be dependent on the context in which the particular laws are proposed. But in my submission, I do mention a couple that are a reasonable example of that. One is the uniform defamation laws. There are enormous problems with what is called the 'qualified privilege defence'. It has a reasonableness component which courts can have read down. Nevertheless, it is an attempt to allow for situations where overwhelming matters of public interest might be excusable in defamation terms because there is such public concern that the matter should be reported upon.

The other big area, of course, is the shield laws at the Commonwealth level, where you invite a court to essentially weigh the importance of the confidentiality of sources—that relationship between journalists and their sources as an example of important public confidence—and weigh that against other interests that might be at play in a particular case. That's what most shield laws try to do in one way or another. There is another great example of where state and Commonwealth laws differ in their wording and in their application, and it is so difficult for a public interest journalist or any journalist operating in the modern environment where their work transcends borders, but all of these different kinds of laws, restrictions and permissions or exemptions apply at different levels to their work as their work is published in these different jurisdictions.

ACTING CHAIR: As well as applying to different types of media—for instance, different regulations that apply to print media versus broadcast media.

Prof. Pearson : Yes, and even when you get down to something as simple as the court's interpretation of what might be sub judice contempt of court. We have seen the recent example of the federal politicians being warned over their so-called potentially scandalising comments. That law operates differently for journalism and traditional media than it does for commentators in social media. The reason for that, and particularly in the sub judice area, is that it hinges on whether there is a tendency, as a matter of practical reality, to influence an upcoming trial. What the courts in Victoria have found is that a mainstream media outlet using its social media account or publishing something in its traditional product does have such a real and definite tendency to influence the future jurors, whereas any ordinary person using social media would not have the reach to do so. This does not account for the fact that things are—

Senator XENOPHON: Can you say that again? You are saying that traditional media outlets such as The Herald Sun or the SMH's website can reach lots of people—

Prof. Pearson : And therefore they are more likely to be charged with contempt of court in that sub judice format of prejudicing the trial because they stand to prejudice the upcoming trial because of their reach.

Senator XENOPHON: I read somewhere that entertainers like Taylor Swift have many millions of Twitter and Facebook followers and would have a bigger reach than some of these media outlets.

Prof. Pearson : Keeping it within an Australian context, it is basically the explanation as to why your colleague Senator Derryn Hinch was found in breach of the disobedience contempt law but not found in breach of the prejudicial publicity law because of his blogging a few years ago on that high-profile case. The court found that he did not have the reach through his blog and Twitter account to have the potential impact on the trial, whereas on the other element—

Senator XENOPHON: Of his disobedience of the suppression order—

Prof. Pearson : the court found that he had actually disobeyed the court order. My point is this: that there is two-speed kind of system at play where the traditional media are at a disadvantage with that kind of law—at a disadvantage against social media users. Even in somewhere like Victoria no single individual using social media or retweeting something that someone else has posted that might damage a trial, no single individual would be charged with contempt of court, but the traditional media providers would be and so they have to step back. They can't actually publish something as racy or as potentially interesting to the public about the matter as is doing the rounds on social media.

ACTING CHAIR: I want to ask you about the fact that Australia does not have a constitutionally entrenched right to freedom of expression in the same way as the US. We also have one of the most concentrated media markets. What do those facts mean for journalism and our democratic system?

Prof. Pearson : I heard the previous panel speaking about the internet and the under 50s. When you talk about the concentration of media, it is very much broken up into those sorts of demographics. For those who are internet users or regular social media users, the concentration of traditional media ownership is much less of a problem. The concentration of global media platforms is a different issue, of course, but the concentration of our traditional media—the old Murdoch-Fairfax kind of problem we have had over the last few decades—is less of a problem for those demographics, but is still as much a problem for the audiences whose main diet is the traditional media. Typically, that is the older newspaper buyers who may well think they are getting three different kinds of news when they buy the Gold Coast Bulletin, The Courier Mail and The Australian, which share a lot of the content and, many would argue, have a similar perspective or world view. I'm sorry if that sounds as if I haven't answered your question directly, but I think it's a lot more complicated now than bemoaning the concentrated media because the demographics of it mean that some have more media available to them than ever on an age basis. You also have to look at the location basis and what is available to people in regional and provincial areas as well.

Senator XENOPHON: The issue of contempt laws is an impediment to free speech and there is a debate about where the line for the respect for the courts should be. Lord Denning said in that 1968 judgement—I do not have the citation in front of me—that courts shouldn't be too precious and they can justify what they do through their judgements and their decisions. There is also the issue of section 70 and section 79, where we had the celebrated case of former Senator Conroy's offices and staffers being raided by the federal police—which I would imagine would have been quite an awful event for them—in relation to NBN leaks. Many in the community would say that if a public servant gave information to a politician in relation to problems with the NBN rollout, that would have been very much in the public interest. You are talking about a suite of measures to have a strong framework for public interest journalism, is that correct?

Prof. Pearson : Yes. I do not have all the logistics of it in place. As I have said, there are people who could do this. I see two elements to it. One would be that you need to be notified in some way or to be aware when the media might be impacted by an upcoming law. That's a problem in itself because the traditional media used to put a lot of resources into submissions to various legislative proposals and so on, but I fear they are not doing it as much now because of fewer resources. Another factor is that the sector is not as tightly bonded as it used to be, because of various ownership changes.

Senator XENOPHON: Other evidence we have heard today really goes to the changing media landscape and effectively there is less money for public interest journalism, but your submission, in my view, takes a different tack in that you look at the legal impediments to public interest journalism. You look at a framework in which we are making it more difficult for journalists to do their job, but that is all part of the same jigsaw puzzle.

Prof. Pearson : Yes, it is. I am sure there are all sorts of incentives that many of my colleagues have suggested for sponsoring new models of journalism and all of that kind of thing—

Senator XENOPHON: Or bolstering existing models.

Prof. Pearson : That's right. The legal impediments are so important and occupy so much time. You have someone like the former Four Corners journalist Chris Masters who spoke to students and said that he was spending—I forget the percentage he said—a large percentage of his time dealing with lawyers trying to navigate all these different laws for important parts of journalism. He would have created much more public interest journalism if he hadn't had to deal as often with lawyers and spend as much time there, let alone the times he was having to appear in court to defend his work.

Senator XENOPHON: There are contempt cases as well.

Prof. Pearson : Yes. I see two elements at play. One would be: ideally, there should be something like the independent national security monitor—some kind of public interest journalism advocate.

Senator XENOPHON: How would you see that working?

Prof. Pearson : It hasn't worked well enough to have the different industry sectors sponsoring these sorts of things. It is ad hoc because of their resources and time. Even if it is a part-time government post—

Senator XENOPHON: What role would it play?

Prof. Pearson : They would be on the alert to identify and make submissions on public interest defences for forthcoming legislation and combing the existing legislation and by referring to experts and industry people to find problem areas within the existing laws. Inconsistencies across state and Commonwealth laws that are there but rarely used against the media—where there is not really a problem but there is some publishing restriction. I have just done piece of research that's being published internationally showing all of the different restrictions on mental health reporting across the different states and territories. That's the sort of place where such a monitor would be able to encourage the various attorneys-general of all jurisdictions to come together and say, 'Look, hold on, a piece of public interest journalism works across these borders, so why are there all of these different restrictions on this area of reporting?' You get the same thing with the reporting on juveniles, sexual offences, prisoners. There are eight or nine different laws in each of these areas.

Senator XENOPHON: Can we just explore that? In the old pre-internet days, I was told by some old hands in the journalism trade that if there was something that was subject to a suppression order in one state, the other state could publish that. The Herald Sun could run a story that couldn't be published in South Australia and The Herald Sun would make sure that they wouldn't physically get several hundred copies distributed to South Australia—probably more to the south-east of South Australia. There might be two or three editions of the paper—the early edition and the metro edition—and a particular edition wouldn't go interstate. You can't really do that online, can you? You can't actually put up or wall that says that, if you're from South Australia, don't access this article that's on a Victorian based website. So, in effect, it nullifies those sorts of safeguards that they used to have where you could physically stop the publication of something or physically stop the distribution of a publication in a jurisdiction where there was a suppression order, for instance. So how do we deal with that in the internet age?

Prof. Pearson : Suppression orders are a whole different kettle of fish. My colleague at the University of Melbourne, Jason Bosland, has done a lot of really important work in the area of suppression orders and their ineffectiveness under that principle of open justice. One device that is used to get around that now is that, if a person is an international celebrity in some way, the suppression order is broken internationally rather than nationally. I do not think it is necessarily a good thing that those devices are used to break suppression orders. But you are quite right about the analog days. I recall one with a senior Queensland political figure on sexually related charges where the newspaper was on sale in Tweed Heads in New South Wales, with his photo on the front page, but you just walked a few hundred metres into Queensland and you were not allowed to—

Senator XENOPHON: It would be too purulent for me to ask you who that was and it is not relevant, so I will not ask you the name of the politician.

Prof. Pearson : But then you have other devices being used. I use the example with my students of a South Australian political figure who two or three years ago was on charges related to accessing inappropriate material to do with children. The Advertiser's device was to run a political story on the front page but on page 18 or something have a story about 'a' political figure facing these sexually related charges. So there are still devices.

Senator XENOPHON: That is right. I think the front page said that this particular politician had stepped down from their ministerial post and then it was buried in the paper a story about an unnamed politician facing charges.

Prof. Pearson : Yes, and I think that was a sensible device to use, because it was very much in the public interest that the South Australian community knew that a senior minister had stood down. They had to know that. And it was much less important—with this separation—that a particular politician was facing such charges.

Senator XENOPHON: I want to go to the issue of defamation law. While we have broadly uniform defamation laws, a common complaint from both plaintiffs and defendants—having practised for both plaintiffs and defendants and having been both a plaintiff and a defendant in defamation matters—is about the costs involved if you are defending or bringing an action of a defamation and the other side has deep pockets and the primary thing that you want to do is clear your name or to show that in fact you did not defame anyone, depending on what side of the fence you are on. I note your comments about the need for reform but would there be anything to stop a particular state saying, 'We will have a different cost jurisdiction for defamation and it will be fast-tracked, still using the framework of the uniform defamation laws, the rules of qualified privilege et cetera. If you bring an action in this state, you may not get the same damages but you will be able to get a fast-tracked low-cost resolution to the matter one way or the other, whether you are a plaintiff or a defendant'? Is that something that could potentially work, or do you think there will be forum shopping?

Prof. Pearson : There is always the opportunity for forum shopping, which was one of the reasons for those uniform laws being introduced anyway, because most of the higher profile defamation cases concern people with substantial reputations in different jurisdictions. I think in principle that could work. Court costs are an important issue. Lawyers' fees are also an issue, but with defamation you may well get lawyers taking on cases on a contingency basis.

Senator XENOPHON: Yes, but, having been one of those lawyers who does things on contingency, the issue is that, if the plaintiff loses the case, they could end up losing their home because of the court costs—

Prof. Pearson : Yes.

Senator XENOPHON: and defamation cases are notoriously expensive to run. If there were a statutory regime whereby the laws were the same—were still relatively uniform—but the procedure were different, in the sense that you could fast-track a case at low cost, so that, if you were a plaintiff and you elected to go in a particular jurisdiction, the damages might be less but then your risk for costs would be much less, do you think that could show a way forward?

Prof. Pearson : It could, but surely the better way is to work with the various attorneys-general to get some agreement on that approach, and then it is a level playing field and you are not going to have forum shopping. I have often thought that a solution to defamation would be to have some kind of public trust established where the plaintiff agrees that any damages awarded go back into the trust, and it would only take on the most clear-cut cases and be self-perpetuating through that device.

Senator XENOPHON: So if you're a plaintiff and you win an award, part of the damages would go back into the trust?

Prof. Pearson : Part or all, because most people, I would suggest, want their reputation cleared; they are motivated either by clearing their reputation or the revenge factor—

Senator XENOPHON: or getting a new swimming pool—

Prof. Pearson : or getting the damages as compensation, but if, in the clearest cases, you had it going back into a public trust then you would have this body that was only taking on the most clear-cut cases but would sit there basically as a fake-news combat vehicle—

Senator XENOPHON: Fake news is different from defamation, though, isn't it?

Prof. Pearson : I am more concerned with the fake news that is defamation—the fake news that really does set out to damage someone's reputation, which does exist in the new media but I think has always existed in certain elements of the traditional media.

Senator XENOPHON: How would you deal with that, though? So you have a public trust. Do you think that there is more fake news that ends up defaming people or that is used as a vehicle to defame people's reputations?

Prof. Pearson : I have not researched the number of stories that are to do with people's reputations, but we do know that there is a whole lot of fake news that is in the realm of celebrity gossip, and we have seen a prominent example of that in the courts recently.

Senator XENOPHON: The Rebel Wilson case?

Prof. Pearson : Yes. We saw a similar one a few years ago with Lleyton Hewitt's wife.

Senator XENOPHON: Which would no doubt have been very distressing to the Hewitts. They are subject to lots of magazine stories about their marriage, and I imagine that would be—

Prof. Pearson : You could take that as a prime example—

Senator XENOPHON: I imagine that would be very distressing. Can I just put on the record that both Hewitts have been quite distressed by that and have said so publicly.

Prof. Pearson : Yes, and that would be an example of where, possibly, the plaintiffs would be happy to have the case contested and replenish the fund of the public trust that is combating—

Senator XENOPHON: But does that go to the issue of a tort of privacy? I am not suggesting we do that here in Australia, but in France the rules, in terms of celebrity journalism, are quite constraining because of torts of privacy, but the argument is that that actually protects politicians as well, when it ought not to protect them, in terms of their private lives.

Prof. Pearson : My problem with torts of privacy has always been that all of the other countries that have them do have a constitutional protection or a human rights instrument operating in their region which equally protects freedom of expression and a free media, and so you get this contest in the courts on an equal basis.

ACTING CHAIR: So you are saying that, to have something like a tort of privacy, we would need to have a human rights charter or some other—

Prof. Pearson : Not necessarily, because you could also have this strong public interest journalism protection. In other words, the two elements of my proposal are that you have some advocate who's putting to committees like yours the need for public interest journalism protection, and the second element is that you have that built into these proposed legislative instruments as they're put forward—and, retrospectively, those that already exist there. You have such an advocate, in a secret way, in the metadata legislation, don't you? You have—

ACTING CHAIR: Yes. There's an advocate.

Prof. Pearson : a journalism advocate there, operating in secret, reviewing metadata applications for journalists. Why not have a transparent one operating for the sake of public interest journalism nationally, but feeding down to the states through the Attorney-General?

ACTING CHAIR: Do other jurisdictions have such a thing—a public interest advocate?

Prof. Pearson : Not that I know of, no.

Senator XENOPHON: I have a couple more questions. In the context of defamation laws—having a public interest exemption or defence—you've actually gone into some detail in respect to that. You've made reference to the uniform defamation act, which offers guidance on qualified privilege. Do you have any other specific wording that you think could be useful to a framework of public interest?

Prof. Pearson : Within defamation?

Senator XENOPHON: Yes, within defamation, and more broadly as well.

Prof. Pearson : Part of your ambit is fake news, and one of the ironies of this particular defence is it's essentially set up to defend material that can't be proven as true but is overwhelmingly in the public interest that it be published. That's why it gets so precise in its wording as to the sorts of things the court might look at to demonstrate that, while it can't quite be proven as true, it's overwhelmingly in the public interest. Our problem is that it goes to things like the credibility of the journalist's sources, and so it may not be used in—

Senator XENOPHON: And they need to protect those sources as well.

Prof. Pearson : That's right. They need to protect the sources, but the court is meant to take into account the calibre of the sources that are being used. If an investigative journalist's hands are tied with an obligation of confidentiality, then they are not going to be able to use this defence if the court is looking closely at the credibility of their sources. The second traditional problem with it has been the aspect of reasonableness and the extent to which the publisher acted reasonably in the circumstances.

Senator XENOPHON: Should there be a separate tort of fake news? Should there be a separate action for fake news, because there is a distinction—or you could argue that there is a line—between defamation and fake news? Or do you just look at the effect on an individual? Sometimes fake news may not be targeted at an individual, but it propagates a falsehood that many could regard as being corrosive to a democracy and needs to be corrected.

Prof. Pearson : I would be very, very reluctant to propose any new torts in that way, given the fragility of media freedom in this country anyway. I would defer to your suggestion that we would look at the actual impact upon people. If it is actionable in Australia anyway, I don't see why a lot of it couldn't be dealt with under Consumer Law. If it's a corporation creating the fake material—and they're doing that as part of their business model—one would think that that was misleading and deceptive conduct in the course of business.

Senator XENOPHON: I'll go back a step, though, because defamation law is about individuals. I'll word this carefully: if there was fake news about people of a particular belief system or religion, where a media outlet would say—I suppose it goes to vilification laws, doesn't it?

I suppose the most awful example is what happened in Nazi Germany to people of Jewish faith, where they didn't mention people particularly, but they built up this awful hatred of people of Jewish faith, which paved the way, many would say, for the Holocaust—the mass murder of people and the genocide. Would defamation laws cover that or would we need to look at other statutory protections in terms of racial and religious vilification and hate speech?

Prof. Pearson : It would be more the latter. One of the classic cases in that area of the Racial Discrimination Act was actually to do with a Holocaust denier from South Australia many years ago.

Senator XENOPHON: Sadly, I'm familiar with him, yes.

Prof. Pearson : But the defamation laws aren't of much use with that kind of thing unless it's targeted at a small enough group of individuals or named individuals. Defamation may have been an alternative mechanism available in the Bolt case, for example, because there was named individuals and certain imputations in the article about those individuals. But it was pursued more on the basis of the racial discrimination class of people involved.

Senator XENOPHON: I actually introduced a bill which was taken up by the then government on journalist shield laws. The South Australian government seems reluctant to go down the same path. How important is that in terms of protecting sources of journalists, because it does have that effect of—

Prof. Pearson : Any stop towards source protection is valuable, and the fact that that came from the Commonwealth parliament was particularly encouraging. It was a very positive step. That said, all shield laws have an exemption. They have a balancing process involved in them, which is typically balancing the protection of sources as a public good against other rights and interests at play. When it's in the court, typically it's to do with the interests of justice that are being balanced against that. So, while it was a very positive step, there are all sorts of examples where you would see a court erring on the side of the other public interests, such as national security or the interest of justice if it was a high-profile enough criminal trial, for example, where it arose.

A problem that the Commonwealth parliament can address, at least through its negotiations with the states, is the varying wording across the different jurisdictions on shield laws and the fact that, as you mentioned with South Australia, so many do not yet have them. That would be a really positive development—

Senator XENOPHON: So a recalcitrant state Attorney General.

Prof. Pearson : Pardon?

Senator XENOPHON: It's because of a recalcitrant state Attorney General.

Prof. Pearson : They said that for many years about defamation, but they managed to get the right moment where all the stars aligned and it went through as a relatively uniform act.

Senator XENOPHON: To wrap-up, effectively your thesis is that it's not just about having a number of journalists do their work. The Chris Masters example that you've given is that many good journalists are being tied up by—'red tape' isn't quite the right phrase—legal tape. That impedes their ability to do their work. If you get rid of that, you'll be getting more bang for your buck, if you like, out of investigative journalists the country over.

Prof. Pearson : Absolutely.

Senator XENOPHON: What's to stop a state from saying, 'We're going to make it easier; we're going to have fast-tracked, low-cost defamation resolution in our state'? You're still using uniform defamation laws. Is it your understanding that, if there was a public interest journalism exemption or defence that was strengthened, a state can't do that because that would break the agreement between all of the states that have uniform defamation laws? What's your understanding of the Constitution?

Prof. Pearson : I'm not an expert on court costs and jurisdiction—

Senator XENOPHON: No, leaving aside court costs.

Prof. Pearson : As far as a public interest journalism defence goes, I think that would need to be done uniformly because of the uniform nature of those defamation laws. While defamation law has all sorts of faults and shortcomings, it is at least one major area of the law concerning journalists that is relatively uniform as it stands, unlike contempt and court reporting restrictions on children, sexual matters and mental health. All of these others represent seven, eight or nine different laws in the different states and territories and at Commonwealth level.

Senator XENOPHON: But there is nothing to stop a state, from a procedural perspective, leaving the uniform defamation laws intact to make it simpler, quicker and cheaper for matters to be resolved.

Prof. Pearson : Nothing that I know of.

ACTING CHAIR ( Senator Xenophon ): Thank you very much for your submission and evidence today. You will be sent a copy of your evidence so you can make any corrections to transcription errors, which are very rare because of the quality of Hansard. If there are any other matters arising out of your evidence that you wish to add, I invite you to make a supplementary submission.

Proceedings suspended from 12 : 56 to 13 : 58