The unaddresed issues in the Greens NSW part 3: Defamation
FREEDOM OF SPEECH AND DEFAMATION LAW — IN THEORY
Defamation law in Australia is notoriously repressive. As former High Court Justice Deane explained at length in Theophanous, defamation laws really mean that most people just can’t afford to criticise wealthier public figures
Quite apart from liability in damages, the direct and indirect costs involved in defending defamation proceedings in a superior court are likely to represent a crushing burden for the citizen who is unable to obtain legal aid from some government source. The result is that the informed citizen who is not foolish or impecunious will inevitably be deterred from making, repeating, or maintaining a statement which causes injury to the reputation of another if there be a perceived risk or actual threat that the publication or further publication of the statement or a refusal to retract it will give rise to defamation proceedings. And that will be so even if the defamatory statement is known or believed to be true.
Indeed, our laws are so repressive, that “there will inevitably be cases where problems of proof by admissible evidence result in a defendant being held liable in damages for publishing a statement which was in fact true.” As US Supreme Court Justice Brennan observed,
would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone’.
Justice Black warned of his ‘doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials.’ Justice Deane, recognising the crucial importance of the freest political debate possible, adopted the comments of the Judicial Committee of the Privy Council:
In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.
Deane J consequently wanted to ‘preclude completely the application of State defamation laws to impose liability in damages upon the citizen for the publication of statements about the official conduct or suitability of a member of the Parliament or other holder of high Commonwealth office.’ US Supreme Court Justice Goldberg likewise held that ‘To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect “the obsolete doctrine that the governed must not criticize their governors.”’
Whilst these sentiments haven’t been legally institutionalised in Australia, they are more or less the standard view of civil libertarians. Indeed, a similar position was advocated by none other than Jeremy Buckingham:
FREEDOM OF SPEECH AND DEFAMATION LAW — IN PRACTICE
Jeremy Buckingham’s media adviser Max Phillips threatened to sue someone on twitter for critical comments that person made about Buckingham (tweet not linked). Buckingham threatened to sue an 18 year old teenager who called him a “massive fucking hypocrite” in a private group for Greens members, with about 600 people there.
As seen, once the investigation by WorkDynamic wrapped up, Buckingham said he would pursue a “number” of civil actions to “restore my reputation”. He threatened to sue Tom Raue for defamation, seeking $75 000 in damages. Raue said “I offered to delete certain parts of my comments, issue a clarifying statement and pay Buckingham’s reasonable legal fees up to that point but Buckingham refused my offer and continues to demand $75,000.” The defamation threat related to comments Raue made critical of Buckingham, and supporting the complainant Ella Buckland. It should be stressed here: Raue sought to defuse the situation with an apology, and even to pay legal costs. Buckingham rejected this offer, demanding damages which Raue — a young man — is not in a position to pay.
Buckingham also threatened to sue Albert Santos. Santos is a former member of the Greens, who responded to the allegations against Buckingham by making critical remarks about Buckingham. Buckingham seeks damages of $45 000. Santos has about 1100 followers on twitter. Despite the threat of being bankrupted, Santos has continued to post critical comments about Buckingham on social media.
New Matilda (where I write a column) reports that there are two other former or current Greens members facing legal threats from Buckingham. There are also two media outlets Buckingham has threatened with legal action.
The effect of these actions is to make it hard for ordinary people to discuss the allegations, particularly if their reflections would reflect negatively on Buckingham. Most people are not in a position to pay the enormous legal costs of a legal action associated with being sued for defamation by a member of Parliament on a generous six figure salary, especially given how draconian Australian defamation laws are. The effect of these threats is to chill discussion. If you see that someone can face a defamation threat for criticising Buckingham — even if the discussion is before a few hundred members of the Greens — would you feel confident criticising him? Could you afford tens of thousands of dollars in legal fees? Or would you grow depressed and frustrated, and give up?
There has been an exodus of some 200 members of the Young Greens over the last year. That’s about a third of the Young Greens, and shortly before a Federal and State election next year. These are enormous costs the party has paid. Buckingham was elected to Parliament off the backs of members volunteering time, effort and energy to support him. He has used that support, the money, wealth and privilege granted to him to chill discussion of his behaviour.
In October, the Greens NSW co-convenors commented to New Matilda: “We are perturbed that a Greens member would seek to take legal action against another member,” Rochelle Flood and Sylvia Hale wrote in a joint statement. “The Greens have a long history of campaigning against slap suits whose purpose is to intimidate. It is inappropriate for people of wealth and influence to use the courts to silence and intimidate those who do not have the same resources or platform.”
People of wealth and influence using the courts to silence and intimidate members of their own party is particularly egregious. Whilst representatives are meant to be accountable to members, it appears Buckingham is more concerned that members be accountable to representatives. This kind of behaviour should be unacceptable in any political party, and certainly any party that has even a pretence of valuing basic principles like freedom of speech and democracy.
It should be noted — when Luke Foley threatened defamation action — it was unclear whether it was against Ashleigh or the ABC — the reaction was horror. Indeed, the backlash was so strong, Foley has decided to drop the action. The Australian reported that “Labor focus groups have detected disgust from voters in recent weeks at the way Mr Foley handled his sexual harassment scandal, hurting the Labor brand.” That is, most people regard defamation threats in those circumstances as unacceptable.
Whilst the ALP successfully prevailed on Foley to drop his defamation threat, the Greens have not similarly prevailed on Buckingham. He has not been held accountable in any way for his defamation threats. The account above shows four people who have been threatened with defamation action by Buckingham. New Matilda reports two additional people threatened, who have remained anonymous. That’s six people who we know of. It’s possible there are others we do not yet know about.
Even if it is only six people, that is a lot of people for one elected representative to threaten. Each of those people would learn from that experience that it is a hazardous business to criticise Buckingham. And their close friends would naturally inherit a similar reluctance. This kind of chill in a political party, among its own members, discussing their own representative, in my view is totally unacceptable. This crisis is compounded where the chill sets in, in relation to discussion of allegations of serious wrongdoing by that representative. Even if he is totally innocent of every allegation, it would still be unacceptable for a politician to make a political party an unsafe place to discuss those issues, due to legal threats. The defamation threats should thus be considered a first order issue for the party, separate from consideration of other issues.