The NSW Council for Civil Liberties is deeply concerned by the tendency of Australian politicians to employ defamation law against journalists and critics. This behaviour has a significant potential chilling effect on freedom of expression, undermining our ability to hold politicians to account.

What is defamation law?

Defamation law principally protects a person (or in some cases, other legal entities) from harm to reputation. The law of defamation has evolved over hundreds of years with the aim of balancing the protection of reputation with freedom of expression. 

Can and should politicians use defamation law?

Politicians are people too. They too have reputations, and have the human right to protection of their reputation (Article 17, International Covenant on Civil and Political Rights). 

However, given the positions held by politicians in our system of representative and responsible government, they can and must expect a higher degree of public criticism than other members of the public. Some of that criticism may be unfair or untrue. That is to be regarded as the natural consequence of vigorous debate about our political leaders and their role as custodians of our country’s institutions. As Justice Windeyer said long ago, ‘a man who chooses to enter the arena of politics must expect to suffer hard words at times’¹. Subject only to those cases in which publications about politicians are outright malicious and cause very serious harm, NSWCCL believes it is incumbent on our politicians to show restraint and respect for freedom of expression rather than use the brute force of a defamation lawsuit to silence public criticism. 

This is especially the case in jurisdictions, like Australia – which, subject to a few exceptions, has a more or less uniform defamation law – that provide plaintiffs and politicians with extraordinary advantages. Politicians know they can use a defamation lawsuit to ‘make issues go away’, or tar an allegation of misconduct as ‘fake news’. Defamation is a very popular tool in Australia, in NSW in particular. Sydney has been labelled by some as the defamation capital of the world; on a per capita basis, defamation law issues were considered by superior courts in Sydney more than 10 times more frequently than in London in the period from 2014-2018. Partly, the reason defamation is so easily resorted to is that it is a plaintiff’s tort, given the plaintiff’s ability to frame the issues in contention, the relative ease with which the tort can be made out, and the onus, nature and difficulty of establishing a defence. 

As Attorney-General Speakman has said recently: 

“NSW is the jurisdiction where the majority of defamation in Australia is run as litigation, and it’s a jurisdiction where some statistics suggest per capita has 10 times the rate of defamation of London. Many commentators suggested that it was stifling free speech at one end, with a lack of defences for responsible journalism, and at the other end, the cost tail was wagging the dog with so many cases that involved small amounts of money”.

Moreover, due to our lack of a 'First Amendment', Australia lacks a ‘public figure doctrine’ which would make it more difficult to succeed in defamation against a journalist. Australians also have no constitutional right to freedom of expression. Rather, the High Court has recognised an implication from the text and structure of the Constitution which may be used to vitiate laws or executive actions inconsistent with freedom of political communication, and which has only had a limited effect on Australian defamation law. 

History of politicians suing for defamation

The use of defamation law by politicians in Australia has a long history. 

A NSW MP, Thomas Mutch, sued a newspaper called ‘Beckett’s Budget’ in the late 1920s. Tom Uren, a Labor politician, successfully sued Fairfax in 1966. John Gorton, Jim Cairns, Bob Hawke and Joh Bjelke-Peterson all made use of defamation law, sometimes liberally. Pauline Hanson succeeded in obtaining an injunction against the ABC in 1998. Tony Abbott and Peter Costello succeeded against Random House in 1999. Joe Hockey succeeded against the Fairfax papers in 2016 in relation to a series of tweets linking to an article headlined ‘Treasurer for Sale’, though the articles themselves were not defamatory. Sarah Hanson-Young finally succeeded against former Senator David Leyonhjelm in 2021. We are not suggesting that these were not cases in which a lawsuit was appropriate. 

In recent years, however, there does seem to be a trend of politicians using or threatening defamation law against journalists or critics. Ex MP Sophie Mirabella succeeded against a regional newspaper, Benalla Newspapers in 2017, winning $175,000 in damages, though the allegations made against her were fairly unserious. Former and wannabee MP Clive Palmer has threatened defamation proceedings against many publishers, including YouTuber Friendlyjordies. He has sued Malcom Turnbull², Mark McGowan, and Cathy O’Toole. Mark McGowan counterclaimed in defamation against Palmer (the case is ongoing). Labor MP Luke Foley threatened to sue the ABC for articles alleging that he sexually harassed an ABC journalist, but later backed down. Peter Dutton is suing Shane Bazzi, a refugee advocate, for tweeting critically about him. Andrew Laming is suing the ABC and Louise Milligan over articles relating to a photo he took of a woman bending over at a Brisbane landscaping business in 2019, and reportedly sent out dozens of threatening letters to other politicians and journalists in respect of the matter. The then Attorney-General Christian Porter sued the ABC and journalist Louise Milligan for defamation in 2021, over an article concerning an alleged historical rape by a senior Cabinet Minister which did not even name him. 

As Michael Douglas, an expert in defamation law, has written, the Porter case is:

“a paradigm example of how politicians use defamation litigation in contemporary Australian politics: to attack opponents while appealing to the base. The media reporting of Porter’s defamation claim may rally certain members of the public to a certain account of the truth; an account that is compatible with his political ambition.”³

Thus, a politician in an uncomfortable position may find that a defamation case provides a convenient shield against having to answer any further awkward questions.

Reform?

Australia's defamation laws require further examination. 

Recently, the NSW Attorney General, Mark Speakman has been leading the charge to reform defamation law across Australia through a process that has taken over two years. A set of Model Defamation Amendment Provisions have been created, which have been introduced in NSW and it is expected that Victoria, Queensland, South Australia and the ACT will follow suit, leaving only Tasmania, WA and the NT to adopt them.

Relevantly, the changes will introduce a new public interest defence and a new defence for peer-reviewed matters published in academic or scientific journals. In addition, there will be a serious harm threshold for defamation cases and some changes to give greater clarity on the operation of the cap on non-economic damages. 

The new public interest defence, based on a pre-existing defence in English law, would exculpate a defendant if they can show that the matter concerns an issue of public interest and they reasonably believed that the publication of the matter was in the public interest. Such a defence was recommended by many of the stakeholders providing submissions to the Attorney-General during the consultation process. It would protect publishers who publish information that is squarely in the public interest, but of which they cannot yet prove the veracity to the requisite standard in court. On the facts of the Porter case, the ABC would likely be able to successfully establish this defence, given how plainly in the public interest were the allegations against Porter. 

However, NSWCCL watches with interest to see whether this transplant from English law will take in Australia. There are potential technical issues with the defence, including that it encourages judges to undertake the same patterns of reasoning as they did in relation to qualified privilege, a defence designed to help journalists, but which did not avail them. Given the defence requires reasonable belief of the defendant that publication of the matter was in the public interest, and reasonable belief is an objective inquiry, the test seems to incorporate a requirement that publishing in the circumstances was reasonable, just like in qualified privilege; otherwise who could believe publication was in the public interest?

In any case, more can be done. A statutory ‘public figure’ doctrine, for example, would give more protection for freedom of speech. The defendants in Porter’s case made arguments to the effect that the implied freedom of political communication may extend to modify defamation law such that a Minister bears the onus of proving that publication was unreasonable for the purposes of the qualified privilege defence, which prior to the recent changes, was the main defence for media organisations not pleading truth. Whether this change is done through parliament or the courts, NSWCCL would favour it. 

Moreover, as the defendants additionally argued, where the publication goes to the heart of the implied freedom, and publication is urgent lest the public be denied the opportunity to hear the allegations, it makes sense that this be given decisive weight when reasonableness is considered.  

NSWCCL hopes that the recent reforms stem the tide of politicians using defamation to attack their critics, but our lawmakers should always look for ways to enhance protections for journalists.

It ought to be asked why so many Australian politicians are so eager to employ the tactic of defamation litigation rather than use their own considerable platform and power to engage in expression in reply, thereby staying truer to the often-professed desire to promote freedom of speech in this country.

More information:

• Christian Porter’s fight highlights flaws in Australian defamation law Sydney Morning Herald 19 Mar '21
• Defamation nation: why are Australian politicians so quick to sue? The Guardian 13 June '21
• Michael Douglas, ‘Defamation Actions and Australian Politics’, UNSW Law Journal Forum [2021] No 5 2021
• Nothing to write home about: Australia the defamation capital of the world, speech delivered by Dr Matt Collins AM QC, President of the Victorian Bar at the National Press Club, Canberra, 4 September 2019.
• Politicians suing for defamation is usually a bad idea: here’s why, The Conversation 19 March 2019

Footnotes

1. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 210.
2. Palmer v Turnbull [2019] 1 Qd R 286
3. Michael Douglas, Defamation Actions and Australian Politics UNSW Law Journal Forum [2021] No 5