If Prime Minister Scott Morrison thought that hell had no fury like the people demonstrating for gender equality and justice on Monday, just wait until Attorney-General Christian Porter gets awarded a bucketload of money in his defamation action smack in the middle of next year’s election campaign.
For all its nuances and complications, defamation law in Australia can be boiled down to two simple words: “media loses”.
The law is stacked against the media. And the judges who administer it display a marked distaste for the media.
If you are a betting person, always bet against the media winning a defamation action.
This one is slightly different, in that Porter was not named, and for a defamation action to succeed the defamatory imputations have to be “of and concerning the plaintiff”, but no doubt the judge will find a way of saying the ABC’s report as good as named him, even if it didn’t.
And the judge will no doubt find a way of finding that the ABC report carried the defamatory imputation of rape even though it specifically said that no-one will ever know. And despite the presumption of innocence which should make right-thinking people slow to jump to conclusions of criminal guilt.
I hope to be proved wrong, but the history of defamation actions against media companies in Australia suggests otherwise.
The other thing about defamation actions is that they take a long time to resolve. It is quite likely that some preliminary hearing, the main hearing or the judgment itself will happen around election time (which has to be before June 2022).
The longer this goes on, the more the female vote will drift from the Liberals. For every mining worker they pick up in the bush, they will lose two among women in the cities.
The matter is a hotmix of politics and law which Morrison has quite stubbornly tried to categorise as a criminal-law matter only. The police are not pursuing it, so that is the end of the matter, he argues, quite wrongly and illogically.
It is a matter of setting the level of proof required against the level of consequence that follows.
For a criminal prosecution that carries the penalty of a jail sentence we rightly demand proof beyond reasonable doubt.
This week, death-penalty-supporting former Alabama Attorney-General Bill Baxley said that before the death penalty was carried out there should be proof beyond any doubt.
Mercifully, we do not have the death penalty in Australia, but it illustrates the point about proof and consequences.
Similarly, where the consequences are less, the level of proof is lower. For example, to dismiss someone from their job, an employer would not need proof beyond a reasonable doubt that the employee, for example, abused expenses or whatever. Reasonably sure, might be enough.
The consequences in such a case, of course, are not just to the sacked employee, but also to other employees and the employing company. To demand a higher level of proof would expose them unnecessarily to the actions of the employee.
Again, in dealing with professional misconduct the level of proof might be lower than reasonably sure because the public could profoundly affected by the conduct of teachers, doctors, lawyers and so on.
Where the state is affected, the burden of proof to act against someone might be very low indeed.
In the case of Caesar’s wife, the test was beyond suspicion. Julius Caesar said he divorced his wife because the associates of public figures must be beyond suspicion and not attract negative scrutiny.
One could argue that a similar, or perhaps slightly higher, test applies in the case of government ministers. The public is entitled to expect members of the government to be above suspicion or at least above suspicion that has some factual grounding.
That might be a bit tough on members of the government, but there are consequences to the public as well as the minister’s career.
Coming back to defamation, this case might strike some new ground with what is called the constitutional defence. In 1994 the High Court held that Australia’s system of representative government implied an informed voter which required a free flow of information. To the extent state defamation laws conflicted with that, they did not apply.
It sounds generous, but many conditions have been grafted upon so that it has become almost impossible for a media company to show that it behaved reasonably in publishing the material. One would have thought, however, that voters were entitled to know that the Prime Minister had received a letter outlining allegations against a Minister.
One thing is certain however, the defamation action will only keep the matter in the spotlight as court documents and preliminary legal skirmishes get splashed all over the media.
Worse, the judiciary’s rampant departure from the spirit of the 2006 defamation reforms that capped damages (adjusted for inflation) to what is now around $400,000 means that plaintiffs have sometimes been awarded aggravated damages in the millions.
If that happens in this case it might spur enough public aggravation to drive changes in the law that give the public interest and voters’ rights to be informed higher priority.
This article first appeared in The Canberra Times and other Australian media on 20 March 2021.
About the Author / Crispin Hull BA, LLB (Hons) | Property Convenor | ANU School of Legal Practice Lawyer of the Supreme Court of the ACT, on the Register of Practitioners kept by the High Court of Australia