Opinion

Bri Lee
The uneven justice of Australia’s defamation laws

This week it emerged that Andrew Laming used his staff to send out correspondence to the non-profit advocacy organisation Older Women’s Network NSW, warning them that a Facebook post they had shared from October was potentially defamatory. If they did not remove the post by Laming’s deadline, the email said, it could amount to “aggravating” circumstances and cause “additional costs”. After the group agreed to take down the post, Laming had a bouquet of flowers delivered to their offices. This is not standard practice, but neither is Laming’s usual sense of appropriateness.

Laming has available to him parliamentary privilege to make his case and defend his position against these supposedly slanderous advocates, but he must feel that forum is insufficient. Clearly also he believes it is the work of office staff to help him defend his reputation and to use legal threats in doing so.

Peter Dutton is of a similar view. He has argued that taxpayer funds should be available to members of parliament who intend to launch or defend defamation actions. He said these funds should be seen as a “workplace entitlement”. He made clear that the law has become prohibitively expensive but instead of reform proposed that politicians be added to the class of people who might afford to exploit it. “There are many members, as I look around, who don’t have those deep pockets to defend a defamation trial, in some cases costing over a million dollars,” he said. “That’s the reality.”

Dutton made the comments in the context of former attorney-general Christian Porter using a blind trust to cover his legal fees in an aborted defamation case against journalist Louise Milligan and the ABC. Dutton, of course, has his own horse in this race. He has mounted a defamation suit against refugee advocate Shane Bazzi for a tweet he alleges was defamatory. Bazzi crowdfunded $157,088 to pay Sydney-based firm O’Brien Criminal and Civil Solicitors to run his defence of honest opinion and fair comment. The case is yet to be decided.

When a citizen criticising an elected official can be sued by that official and potentially bankrupted by an adverse finding, the effects on democracy are profound. When politicians are seeking to use government money to expand their tactical litigation arsenal, or in the case of Laming using the resources of their office to send out legal threats, we must consider it a threat to democracy itself. Laming’s actions this week are the latest symptoms of a deep sickness: a lack of transparency and accountability in federal politics.

Crowdfunding is increasingly a necessity and core component in these fights, and is a further testament to the debasement of our democratic process. If even an attorney-general can’t afford to launch a defamation action, what hope is there for the rest of us? On October 27, author, academic and abuse survivor Gemma Carey received an email from lawyers at the firm Company (Giles) with three legal letters attached, one each from: politicians Christian Porter and Andrew Laming, and political editor Peter van Onselen. Rebekah Giles is the same lawyer Porter retained in his attempt to sue the ABC. Interestingly, van Onselen has strenuously denied knowledge of his letter being joined with those of Porter’s or Laming’s. Carey has withdrawn and apologised for the remarks she made about all three men, but they have not withdrawn or retracted their letters, which include demands for payment of legal fees.

In response to the three letters of demand a crowdfunding campaign called “#Enough: Defamation Defence Legal Fund” was co-ordinated by Nina Funnell, campaign manager of #LetHerSpeak, with money held in trust by Marque Lawyers. The money was to defend Carey’s position, not to pay the three men’s demands. Within 24 hours it had gathered more than $100,000. At the time of printing its total was more than $200,000. According to an update from Funnell, the surplus in funds will now be made available to the “14 individuals or organisations who have been threatened with defamation by either Christian Porter, Andrew Laming or Peter van Onselen (or a combination there of)”. Marque is officially representing five clients.

It doesn’t matter whether someone’s defamation suit is strong or weak, the cost of launching an action is prohibitively expensive for most and devastatingly expensive to defend. This is referred to as a “general deterrent” effect. Dutton suing Bazzi doesn’t just deter Bazzi specifically, it sends a message to everyone: if you don’t think you could crowdfund like this, then don’t criticise a powerful man. By defending his reputation, Porter’s proceedings against Milligan and the ABC sent a message of caution to all journalists and news outlets.

My interest and expertise is in the new “public interest” defences to defamation proceedings, but unfortunately even when these laws are put to the test by the courts and we know how they might be interpreted, for most individuals and outlets it is simply so expensive to defend a defamation action that the result is still a “chilling effect” on free speech, even with a case that would likely end up righteous and defensible.

The firm representing Bazzi, O’Brien solicitors, has announced it is also representing Nyamal man Terry Flowers, who the Seven Network wrongly identified as the suspect in the abduction of Cleo Smith. Flowers rushed to the local police station for help when his saw his picture circulating, and was so distressed he had to be hospitalised for a severe panic attack. The situation seems to be a spectacular example of someone who has a right to defend their reputation against reckless and unfair damage.

I asked O’Brien solicitors if they were running this one pro bono and they confirmed they’re acting on a “no-win, no-fee” arrangement. In their press release they have drawn attention to one of their other recent justice-driven defamation suits: “The firm previously took action against the Seven Network after its Sunrise program aired images of members of the Yirrkala community, who were filmed for a health campaign, as overlay for a panel discussion about the abuse and neglect of children.” When litigation itself is a big-ticket news item, the PR for a lawyer or firm can easily turn into a goldmine of future briefs.

What keeps me up at night, and keeps me angry, is the question of access. Years ago, I learnt that it was common in the United States for people to have to crowdfund for necessary medical procedures. At the time, I pitied them their dystopia. In Australia I have seen and given money to people forced to crowdfund for gender affirmation surgery – something that should obviously be covered, along with dental and mental health. These things are not luxuries, they are basic human entitlements that our government is far and above wealthy enough to provide. Now, increasingly, I am seeing people crowdfunding for access to the law.

There are two sides to the defamation coin: it can be understood as offering both a “freedom from” being defamed and, when defended well, a “freedom to” speak. If the law is working, everyone should sit at the nexus point of the healthy tension between the two. Everyone should be free to speak and also free to defend their reputations. That is not the current state of affairs in Australia.

As with most areas of the law – both criminal and civil – the way it looks and feels depends on your cash and power. On the one hand, it is frightening to think of what would happen if every single Australian could actually afford to launch a defamation suit. We are a notoriously litigious, pearl-clutching colony. On the other hand, the ability to sue for defamation right now is exclusively the domain of the rich or the few whose stories make the news. Defamation law isn’t more fair simply because fewer individuals have the opportunity to misuse it. If we’re stuck with shitty laws then we should all have equal access to them. Let the Lamings and the Porters get emails with three attachments. Let the Bazzis and the Flowers sue every time their feelings are hurt by a tweet.

The people involved in these matters are directly connected to democracy itself – they’re politicians, political staff, members of the fourth estate, citizens punching up and advocacy organisations. If the effect of these laws is that only a select few can defend their freedom of speech or their reputations, what are we left with? It’s difficult to crowdfund if you don’t have a platform or a following, and I don’t want to live in a country where popularity determines our legal freedoms. It’s also plainly wrong for secret donations to fund an MP’s litigation against the national broadcaster. We all know the saying justice delayed is justice denied; but when justice is this expensive, it is not only denied but dangerous.

This article was first published in the print edition of The Saturday Paper on Nov 13, 2021 as "Uneven justice".

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Bri Lee is a legal academic and the author of Who Gets to Be Smart.