ACT Lawyer Helps The Government
Sunday 2 Dec 2001
ACT wants to help ensure this week's debate on criminal defamation leaves us with the best law we can get in the circumstances, Justice Spokesman MP Stephen Franks said today.
"I attach a redraft which I think the Greens will support".
"I should not have to be assisting the Government like this. I know, as a careful lawyer, that even with the attention this provision is getting now, unintended bugs will remain. We aren't having the Select Committee submissions designed to pick these things up.
"And I am flabbergasted at how bad the Attorney General is as a lawyer, even with all the officials to help her.
"If I were her I would now be too ashamed ever again to offer law lessons, as she has, several times, to the other lawyers in Parliament. It should be just too embarrassing to have sprung a clause, claiming that it would prevent false claims about election candidates, and wasn't a threat to free speech, when it:
· Didn't touch lies at public meetings, however disgraceful, and however many people heard them;
· Didn't touch lies on radio;
· Didn't touch lies on television;
· Could criminalize innocent journalists with no reason to think they were reporting false statements;
· In many circumstances would let the originating liar off scot free, while the media were liable;
· Arguably allowed prosecutions for statements of opinion.
"If I were a former law professor I wouldn't want to show my face again if - after two weeks of controversy, and time to think about the problems - my patch up replacement clause had a glaring new error and didn't fix the most serious of the old ones. That is what has happened.
"The new error is in using `recklessness'. As well as outlawing radio talkback and other reporting where the reporter can't practically take care to avoid broadcasting callers' false statements, it probably criminalizes internet service providers who don't censor the chat rooms and email traffic of their customers.
"And the old error not fixed is that it still seems to allow prosecution for expressions of opinion. Even a cursory comparison with the clause I promoted should have warned her of that. My clause 199A is confined to false statements of fact.
"I hope my draft SOP will help the Parliament to get where the Attorney General might have wanted to go in the first place.
"It is seriously worrying that our Attorney General may lack the basic legal skills needed for the Crown's Chief Legal Officer and guardian of the Bill of Rights. Proficiency in Political Correctness 1,2 and 3 may get promotion in academia, but it does not help much in drafting or applying real law," Mr Franks said.
ATTACHED: ACT Select Order Paper showing the Attorney General's proposal, with ACT's changes.
Supplementary Order Paper
Electoral Amendment Bill (No. 2)
Stephen Franks, in Committee, to move the following amendments:
Clause 51B New section 199B Defaming candidate at election time
That the proposed section 199B to be inserted in clause 51B by the amendment moved by the Hon Margaret Wilson be further amended as shown below by omitting the words struck through and by adding the words underlined.
"199B Defaming candidate at election time
Every person commits an offence and is liable on summary conviction to a fine not exceeding $5000 or to imprisonment for a term not exceeding 3 months who, knowing a statement to be false [DEL: in a material particular :DEL] [DEL: or being re :DEL] [DEL: ckless as to whether the statement :DEL] [DEL: is false in a material particular :DEL] publishes or exposes the statement to public view, or causes the statement to be published or exposed to public view, or broadcasts the statement, or causes or permits the statement to be broadcast, at any time in the period commencing on writ day and ending with the close of the poll, if[INS: and to the extent that :INS] the statement is -[INS: :INS]
[INS: (a) of fact; and :INS]
[DEL: (a) :DEL] [INS: (b) :INS] defamatory of any candidate; and
[DEL: (b) :DEL] [INS: (c) :INS] [DEL: calculated :DEL] [INS: intended and :INS] likely to influence the vote of any elector."
Threats to free speech and robust election coverage are very serious. Parliament should not leave avoidable uncertainty. Among other reasons, test cases are very expensive, and until uncertainties are resolved free speech can be chilled by a simple prudent news media desire to avoid any risk. This amendment deals with two elementary issues, and one technical matter. The first must be fixed. The other two should be fixed.
`Recklessness' as a ground for criminal prosecution must be deleted to protect the reporter or broadcaster who faithfully conveys what is said by public figures. Often there is no reasonable likelihood or means of checking the facts, or the circumstances make it ridiculous to expect the journalist to check. But `recklessness' can mean in legal terms, not taking any precautions. Precautions are often unrealistic. TV1 for example, broadcasting a debate live, would have to try to censor the debate in case one of the candidates said something untrue. For radio talkback this is the constant condition.
The public should be allowed to know what candidates are saying. If they lie, the public can judge character. Free speech is chilled if the journalist is forced by fear of prosecution (or the cautious editor's instructions) to censor anything they think might be questionable.
2. Only statements of fact are actionable in ordinary defamation. It is quite unclear whether the criminal defamation clause is similarly restrained. If prosecutions could be started for wrong opinions the police would never have the resources to deal with all the potential claims in political debate. We must ensure there is no uncertainty on this point, by restricting the claim to statements of fact.
There should be no risk of criminal proceedings over statements of opinion. Whether opinions are right or wrong is the heart of political debate and the police should be nowhere near those issues.
The word `calculated' in common usage means `intended'. A legal meaning is `likely'. Now knowledge is being inserted as a requirement for liability, the purpose of the word `calculated' should be put beyond debate.