'Defamation Actions and Australian Politics' by Michael Douglas in (2021) 5 UNSW Law Journal Forum comments
In recent years, politicians have been frequent participants in Australian defamation litigation. Attorney-General Christian Porter’s recent claim against the Australian Broadcasting Corporation and journalist Louise Milligan is a notable example of the weaponisation of defamation in Australian politics. This article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The article also considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the Model Defamation Amendment Provisions 2020 are implemented.
Douglas argues
In recent years, politicians have been frequent participants in Australian defamation litigation. Attorney-General Christian Porter’s recent claim against the Australian Broadcasting Corporation (‘ABC’) and journalist Louise Milligan is a notable example of the weaponisation of defamation in Australian politics. This brief article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The focus is on cases in which politicians are plaintiffs, although some cases mentioned below also involve politician defendants. The article considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the Model Defamation Amendment Provisions 2020 are implemented. It begins by considering the value of politicians’ reputations, which defamation law may protect.
‘Reputation’ is a multi-faceted concept at the heart of defamation law. The value of a person’s is bound up with their honour and dignity, and their standing in society. Australian defamation law protects the value of a person’s interest in their reputation by providing that publication of matter about a person that damages their reputation, is actionable. If reputation is what society generally thinks of a person, then every one of us who is part of the community has a reputation. Politicians are no different. Politicians’ reputations may be different to those of ‘regular people’ in some respects. First, a politician derives an income from their reputation in a way that many (but not all) individuals do not. While impact on a person’s employment may sound in special damages that would be unavailable to a person whose employment was not affected by defamation, the High Court has confirmed that the general test for defamation applies to professional and non-professional reputations alike.
Second, politicians’ reputations are bound up with their work in political institutions. We judge politicians by their ability to deliver on promises, their integrity, and how their expressed values align with their lived values. Our system of representative government depends on politicians’ accountability to the public. Thus, some criticism of public officials is to be expected or even welcomed. Arguably, the public is less likely to take a derogatory comment about a politician to heart; people understand that politicians will be criticised no matter what. However, insofar that Australian law protects freedom of speech in order to keep leaders accountable, its focus is on the subject matter rather than the person. The freedom of political communication implied in the Commonwealth Constitution is narrowly confined to certain political speech. The so-called ‘Lange qualified privilege’ underpinned by that freedom is narrow in its operation, as some of the cases below illustrate.
Third, putting aside their financial incentives, politicians may have a stronger incentive to sue over defamation than other would-be plaintiffs. Perception is critical to a politician maintaining their standing in the system and grip on power. Several Australian politicians have resigned in the wake of allegations of impropriety. Although truth provides the foundation of a justification defence for a person publishing an allegation of impropriety, the mere threat of defamation litigation may be enough to sway some to believe that any allegations were unfounded. The mention of defamation by a politician can signal to the electorate that damaging publications are merely ‘fake news’. The frequency of defamation litigation involving politicians shows that many perceive defamation law as providing a powerful political weapon.
