Eels Blogs

Michael Bachelard

Some of the biggest alleged free speech champions on the right of Australian politics have used the defamation law to protect their own reputations even though they are trying to remove the "insult and offend" protection in the Racial Discrimination Act.

And Attorney-General George Brandis has argued that people should be able to get a court to stop a story being published if they thought it might defame them – despite the free speech implications.

Cases under section 18C of the Racial Discrimination Act against a group of QUT students and cartoonist Bill Leak have prompted conservatives in parliament to push for the controversial section to be repealed or amended.

Prime Minister Malcolm Turnbull has agreed to set up a parliamentary inquiry into the law.

Former prime minister Tony Abbott said on Friday that 18C was "bad, bad law" administered by a "pretty crook organisation" (the Human Rights Commission) which made people "feel un-Australian because they've spoken their minds".

Defamation lawyer Matt Collins, QC, who defends media organisations against defamation claims by often rich and powerful plaintiffs, said he agreed section 18C needed to be amended to better protect free speech.

However, "defamation is a much graver risk to freedom of speech and freedom of expression that 18C," he said.

Judges were awarding big damages for "hurt feelings" under defamation law, which had turned it into "a de facto remedy for 'offend and insult'," Dr Collins said.

"You get to trial and often the evidence from the plaintiff is mostly about how upset they were when they saw the material about them," he said.

Even though it was supposed to protect reputation, Dr Collins said that, unlike in Britain, plaintiffs did not have to prove their reputation had in fact been damaged.

NSW district court judge Judith Gibson has said the 2005 defamation law did not address issues relating to social media, and was "struggling to maintain the necessary tension between freedom of speech and protection of reputation".

Despite this, there is no current move in any Australian parliament to amend the law.

On the contrary, Australian politicians, including "free speech" advocates, use it when they feel they have been misrepresented.

Mr Abbott himself won a defamation case in 1999 against late author Bob Ellis over false statements about him and Treasurer Peter Costello. He won $66,000 in damages, and his wife, Margaret, won $47,500 in damages.

Senator Cory Bernardi, who moved the recent Racial Discrimination Act Amendment bill to omit the words "offend and insult" has taken or threatened defamation action against The Saturday Paper over false claims about his business dealings, and Fairfax Media over false claims about his parliamentary disclosures.

One Nation senator Rod Culleton, a co-sponsor of Senator Bernardi's bill, recently sued 18 people and sought $250,000 in damages "for defamation and injury to his reputation" over comments that they had written on the Facebook account of Channel 9's 60 Minutes.

Pauline Hanson has won two settlements: one after an eight-year fight against the ABC for her satirical alter ego, Pauline Pantsdown's satirical song Backdoor Man, and the other over semi-nude photographs that The Sunday Telegraph newspaper claimed, falsely, depicted her.

And Queensland conservative George Christensen urged farmer groups to sue Animals Australia over an anti-live exports campaign, saying the animal-rights body was "engaging in a crime against truth".

Senator Brandis now styles himself as a free speech advocate. But as a barrister in 1991, he argued it was "almost absurd" that people who thought they might be defamed in a forthcoming media story weren't able to get an injunction to stop that story being published.

It was "almost absurd that not only should an interlocutory injunction not be granted, but that the justification for its refusal should lie in the noble rhetoric of liberal democratic values", he wrote in an article in Queensland Law Review.

"Freedom of speech ... is neither a principle of general application to the grant of interlocutory injunctive relief, nor is it the only interest to be considered," he wrote.

Asked if he still held that view, a spokesman for Senator Brandis replied: "In the course of his career at the Bar, Senator Brandis contributed numerous conference papers, articles and book chapters on various legal topics.

"An article which he published in a law journal in 1991, on the subject 'Interlocutory Injunctions to Restrain Speech', was subsequently cited by two Justices of the High Court in ABC v O'Neill."

Mr Abbott and Senator Culleton were approached for comment.

The publisher of the Gazette of Law and Journalism, Richard Ackland, said defamation law had "descended into this terrible dead end of technicalities and complexity" and decisions that had "wiped out whole areas of defence, such as comment or opinion".

Dr Collins said that, "the fact that journalism needs to be legalled at all, and gets edited by lawyers, demonstrates there's a chilling effect on free speech".

Former free speech commissioner Tim Wilson, now a Liberal MP, has said defamation law restricts free speech, and the test should be set "higher around explicit harm and material loss".

Disclosure: The author is currently being sued for defamation by the Plymouth Brethren (Exclusive Brethren) Christian Church Limited, and Fairfax Media is being sued, or threatened, by more than 20 plaintiffs including former Leighton chairman Wal King, Chinese businesswoman Helen Liu, Primary Health Care CEO Peter Gregg and West Indian cricketer Chris Gayle. We have recently settled cases with colourful Melbourne identities Mick Gatto and Antonio Madafferi.