Richard Ackland
Treasurer for wail

Inside the courtroom time moves slowly. The grinding process of testing witnesses, lengthy submissions from counsel, trolleys laden with lever-arch folders, great bundles of affidavits being submitted, the formality, the flourishes, the order.

Outside, things are more hectic. The economy is in rapid descent, barnacle-scraping is proceeding full steam ahead, revenues are crashing while demands for expenditure are piling up and somewhere in all this a masterpiece of a new budget is supposedly being crafted.

Where’s the federal treasurer when you need him? Joe Hockey has been hunkered down inside Federal Court 18C in Sydney, seeking to have a judge put a dollar value on his damaged reputation and his hurt feelings.

He’s suing over articles published last year by Fairfax Media newspapers and websites saying business interests and lobbyists could buy privileged access to him through membership of a business club in his electorate called the North Sydney Forum.

“Treasurer for sale” is the headline that is causing most of the angst. It means, the treasurer says, that he accepted bribes paid to influence his decisions as treasurer, that he is corrupt, and that he corruptly sells privileged access. There’s even a mention of the Obeids in his pleadings. “He knowingly permitted a Liberal Party fundraising forum with which he was associated to accept money from the corrupt Obeid family.”

Those pleadings were drawn by Bruce McClintock, counsel for Hockey, who also acted for the corrupt Eddie Obeid in successful 2006 defamation proceedings against The Sydney Morning Herald over an article that alleged Obeid was corrupt.

The synchronicity gets better. Hockey’s solicitor, Mark O’Brien, used to be Fairfax’s go-to defamation defender, until he crossed to the other side of the street, with a two-fingered salute to his old client.

Hockey has chosen the most expensive, time-consuming and emotionally draining way of salving his pain. And pain there must be because his daughter wanted to know if someone was buying him and his frail father was upset. As if we need more assurance that this is serious, his wife was there alongside him in the courtroom.

It is not an attractive sight to see, politicians suing for defamation. Almost as unattractive as journalists asking juries and judges to heal their wounds.

Politicians can respond to any contumelious publication by standing up in parliament and, with absolute privilege, defending themselves, countering any assertions and attacking their foes. Journalists have gallons of ink at their disposal to chuck at anyone who says beastly things about them.

Going to the courts, when there are other perfectly adequate remedies, is a sign of a very high order of disturbance. And this from a man whose government has discovered a reverence for freedom of expression.

There are other features of the case that cry out for explanations. Why no jury? Was it because a jury would find it impossible to weigh the competing merits of a senior government politician and a bunch of press reptiles? And why the Federal Court, when defamation cases are traditionally the province of the state courts?

Given that Treasurer Hockey was not an impressive witness, it might turn out to be a mistake that Fairfax did not press for a jury. As the second day of cross-examination wore on he appeared tetchy, smug and arrogant.

The North Sydney Forum publicly flags itself as “business and community leaders supporting Joe Hockey MP”, but apparently that is “clearly misleading”. The forum, with smiling Joe Hockey’s mug plastered all over its website, was something that the treasurer knew little about, but he was certain any money it raised went to the Liberal Party, not to him.

The claim from the forum that it “seeks to build the much-needed financial resources to support Joe Hockey and the Liberal team heading into the future” is, according to the plaintiff, an overstatement.

Membership fees range from $22,000 down to $5500, and corporations who didn’t necessarily see North Sydney as the epicentre of their world forked out: Deutsche Bank, NAB, UBS, Fortune Corporation (poker machines), the Australian Hotels Association, the Financial Services Council, Metcash, Asciano, the Institute of Public Accountants, Servcorp and corporate affairs advisers John Connolly & Partners.

Hockey thought the organisation was “a small business forum which invited politicians to speak”. Apparently he thought they would be content to munch their way through $22,000 worth of rubber chicken listening to speeches from politicians, without putting in a word about their wants and needs.

Meanwhile, the members were being told something different: “the ability to join boardroom lunches with Joe Hockey”. Wisecrackers have pointed out that maybe Hockey wasn’t “for sale”, just for lease by the hour. One Tweet cut close to the bone: “I wonder if the judge will rule that while he didn’t know he was for sale, that he actually was.”

If Hockey thought the trial process would be a way of restoring any damage to his reputation, the Twittersphere has other ideas. The hashtag #HockeyFairfax is a stream of running commentary about the case and an opportunity for the public to unload on the treasurer, untouched by concerns about defamation. It’s the first time social media has hooked into a defamation trial of national significance with the aim of debunking the plaintiff’s character.

According to one social media pundit, the case boils down to Fairfax being misled about the purpose of the North Sydney Forum while the forum was misleading its members. Another said, “Things are crook when even Treasurer reckons you’d be mad to believe a word the Liberal party says.”

On and on it went and it hasn’t dried up yet.

Another feature of the proceedings is that it has put back on the front pages the murky issue that politicians like to keep in the cupboard – donations and what corporations and people who stump up money for politicians get in return. As Fairfax’s counsel Dr Matt Collins, QC, said, this goes to the heart of the operation of the democratic process and is precisely the issue that should be responsibly reported.

Since the Independent Commission Against Corruption has gone forcibly quiet on its investigations into political donations, it’s good to see the issue regaining acreage in the press.

Collins told Justice Richard White on Tuesday that Hockey v Fairfax “is the most perfect example of a Lange case”. Lange is the dear departed former prime minister of New Zealand who sued the ABC for defamation over the rebroadcast of a program alleging that the governing NZ Labour Party had come under the influence of big business as a result of receiving donations to fund the 1987 election campaign.

Among other things, would you believe, Lange pleaded that the program conveyed the meaning that he was corrupt. The High Court got hold of it and in the process further developed an implied constitutional freedom of communication. In certain circumstances, it is permissible to publish defamatory material about governmental or political affairs if it is reasonable to do so in the circumstances.

Reasonableness will depend, among other things, on whether the publisher believed the story to be true, took steps to verify the accuracy of the material, and sought a response from the person affected by the publication.

Fairfax contends that it has jumped through all of those hoops with flying colours. It sounds terrific; the only problem is that for journalists the defence rarely, if ever, works.

On the other hand, the Lange principle works splendidly if someone wants to strike down state legislation restricting who could make political donations. It’s important that money be allowed to talk, even if everyone else is muzzled.

There is another hoop for Hockey’s defendants to jump through, and that is the issue that defamation lawyers call malice. Even if the journalists and the publisher have behaved reasonably in researching and writing the story, their defence can be defeated
by malice.

Hockey’s lawyers contend the “Treasurer for sale” story amounted to petty spite, revenge for having to publish an apology for an earlier story that claimed Hockey had paid back a donation of $10,000 to Australian Water Holdings, whose links to the Obeids have been held up to scrutiny before ICAC. Hockey said that it was the forum that received and returned the money.

There are also text messages between the editors of The Sydney Morning Herald and The Age expressing anger and frustration with Hockey and his office. Bruce McClintock for Hockey will say these messages go to malice.

“Hockey has a fuckin’ hide,” wrote the Herald’s Darren Goodsir in one message. Age editor Andrew Holden replied, optimistically, “Fuck him – there’s a million defences in defamation.”

Fairfax CEO Greg Hywood allegedly warned Hockey to “be careful” because if he went to court he may end up like the hapless Craig Thomson, whose defamation case against Fairfax collapsed in a heap of embarrassment.

While reasonableness and malice are hurdles for the defenders, for Hockey it’s whether the meanings he ascribed to the articles are overegged.

But it would be much harder to get to first base if the treasurer had brought his case in England or the United States.

The US has First Amendment protections for the media, which place the bar very high for a defamation action by a public figure to succeed. In Britain, the law gives journalists and publishers a much firmer defence of “responsible journalism”, where they are not going to be torn apart if they made a real effort to research the story thoroughly, yet made some peripheral mistakes. Importantly, there’s a “serious harm” threshold that plaintiffs have to climb over.  

Hockey is a member of a government that trumpeted both the cause of free speech and how it was being throttled by section 18C of the Racial Discrimination Act. It wanted to do away with the provision that prohibited offence, insults and humiliations being hurled at people on the grounds of race, colour or ethnic origin.

Yet here’s Hockey standing up – in court 18C, no less – asking for damages because he’s hurt.

It’s not tinkering with the Racial Discrimination Act that will bring us freedom of expression. What’s needed to remove Australia from being a free speech backwater is liberating defendants from the bonkers artifice of the Defamation Act.

This article was first published in the print edition of The Saturday Paper on March 14, 2015 as "Treasurer for wail".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes 500Words.com.au.

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