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RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

Australia has become well known as the defamation capital of the world, with many high profile figures regularly, and successfully, suing media outlets.

But recently there’s been a new trend: politicians using defamation law against ordinary people.

It’s become so common that one senior government minister is even suggesting creating a new fund to bankroll the lawsuits - all paid for by the taxpayer.

Today, legal academic and contributor to The Saturday Paper Bri Lee on how the current wave of defamation threats is impacting the ability of regular people to criticise their elected officials - and what that might mean for our democracy.

It’s Tuesday, November 16.

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RUBY:

Bri, to understand what is happening right now in Australia in terms of defamation law, we need to talk about some tweets, posted by a woman called Gemma. Can you tell me about her and what she said?

BRI:

Yeah. So Gemma Carey is an academic. She's a professor. She's also a survivor of child sexual abuse and has written about that in her book No Matter Our Wreckage. And she's also an advocate, not just for issues obviously of child sexual violence and gendered violence, but she's also an advocate in the disability space.

She's got a pretty big Twitter following nearly 17,000 followers, and in particular earlier this year in the wake of the scandals at Parliament House, obviously relating to Christian Porter and also the allegations made by former staffer Brittany Higgins. Carey was very active on Twitter during that time. And she made tweets about three men, three very prominent men, Journalist Peter van Onselen, the Liberal MPs Christian Porter and Andrew Laming.

I think it's best that we don't just repeat what those tweets included, or were about. But certainly those three men have all alleged that the tweets made were defamatory. And Carey has withdrawn the tweets. She's removed them and she's taken them down and she's apologised for them.

But a few weeks ago, she received an email from a law firm. And in the single email, there were three letters attached, and each letter was from one of those three men, alleging that the tweets she had made about them were potentially defamatory.
The letters were demanding that she remove the tweets, apologise for them, and also pay the legal costs that the three separate men had incurred in getting those letters drafted.

RUBY:

Okay, so Gemma got this email with these legal letters - from these three men - who are all pretty high profile men - that would have been full-on. What did she do?

BRI:

So when she received that correspondence, my understanding is that she then spoke to some advocates and lawyers and that team of people of Carey herself and the advocates and lawyers came to realise that she wasn't alone.

Apparently, 14 other - either individuals or groups, have received these types of letters from either Laming, van Onselen or Porter.

RUBY:

OK, so can you tell me more about that, Bri? What other cases are there of politicians suing people for defamation?

BRI:

So someone we know has done this multiple times is the Liberal MP Andrew Laming.

Archival tape -- Nine journalist:

“The PM has ordered a government MP to undergo empathy training after he mocked his own apology for trolling women.”

BRI:

He has sent legal sort of threats. He has sent letters alleging that people have posted defamatory material to a number of individuals and organisations.

Archival tape --ACA:

“He's one of Australia's most controversial MPs. Andrew Laming isn't afraid of making enemies. Only this time he's hit a new low, targeting a group of grannies.”

BRI:

This week it emerged that he had used his staff, the staff from his electoral office, to send out correspondence to the not for profit advocacy organisation Older Women's Network New South Wales.

And his legal correspondents warned them that a Facebook post that they had shared from October was potentially defamatory.

Archival tape -- Beverley Baker (Older Womens NSW):

“It's my first instance was to say well. Tell us where we were wrong. Tell us what, where we were lying. We were factually incorrect.“

BRI:

And the email said that if they did not remove the post by the deadline that he had chosen, it could amount to aggravating circumstances and cause additional costs.

Archival tape -- Beverley Baker (Older Womens NSW):

“I have only my own home and I would have had to have used all of my assets, even if I was vindicated I would have run the risk of losing absolutely everything.”

BRI:

So they immediately agreed to take the post down. And when Laming found out that they had taken the post down, he had a bouquet of flowers delivered to their office. Which we have now heard from representatives of the older women's network that they were quite disturbed by.

Archival tape -- Beverley Baker (Older Womens NSW):

“That is not what the defamation laws were meant for. The defamation laws were meant to protect the innocent, not to stop public scrutiny of people in power. “

BRI:

Groups like that. You're talking about sort of not for profit advocacy groups. One of the critical roles these types of groups and individual advocates and, and journalists play is speaking truth to power is punching up, is trying to sort of, you know, quote unquote, keep the bastards honest.

And for these groups to now be receiving legal threats for sharing posts on social media criticising politicians - that is deeply concerning.

And the other obvious example, of course, is Christian Porter and his sort of failed attempt to sue the ABC and Louise Milligan.

Archival tape -- ABC journalist:

“The case was prompted by an ABC story by journalist Louise Milligan about an unnamed cabinet minister accused of an historical alleged rape. Mr Porter revealed himself to be the person referred to. Categorically denying any wrongdoing.”

BRI:

And then there's also the Defence Minister, Peter Dutton. So his matter is still before the court because he has sued a refugee advocate, Shane Bazzi, for a tweet that Bazzi made that Dutton alleges was defamatory.

And you know these this is happening against a backdrop of, I would say, a gradual and alarming increase in currently sitting politicians using defamation law to try to silence dissent.

RUBY:

We’ll be back after this.

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RUBY:

Bri, what are your options if you're one of the people who's received one of these legal letters, I suppose, like Gemma, and the Old Women's Network in New South Wales, you could choose to take down your post and comply in that way. But what if that isn’t what you want to do? What happens next?

BRI:

Yeah, you have very few options unless you are very wealthy or you have some kind of public profile. Defending yourself against legal action is incredibly expensive, and it's expensive for the people launching the action, too.

So politicians are also looking now for ways to pay for it. And Porter infamously used a blind trust when he was taking that matter to court against Milligan and the ABC.

And Peter Dutton has proposed that politicians be allowed to access a kind of pool of taxpayer money to fund their defamation suits, which is extremely concerning.

Archival tape -- Peter Dutton:

“Thank you very much Mr Speaker, and thank the honourable member for his contribution…”

BRI:

So he has used the phrase workplace entitlement.

Archival tape -- Peter Dutton:

“I think it's a workplace entitlement issue, and I think it's a broader discussion…”

BRI:

To describe what he thinks a fund like this should be considered as

Archival tape -- Peter Dutton:

“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 $1 million - that’s the reality…”

BRI:

He thinks that politicians should be able to use taxpayer money to launch these kinds of actions and presumably, I suppose, also to potentially defend these types of actions.

Archival tape -- Peter Dutton:

“In relation to defamation trials in particular, which are expensive. And we note that particularly when a member of parliament is taking an action against…”

BRI:

And in parliament, he made comments about defamation law having become prohibitively expensive.

But instead of using his position to propose reform or to try and fix things, he's just basically advocating that politicians be added to this class of people who make up a tiny percent of the population who might be able to afford to exploit it.

And this is happening at the same time that people who are, you know, regular citizens who are being sued have to turn to crowdfunding to pay for the action being taken against them. So people being sued like Shane Bazzi and Gemma Carey are now having to crowdfund.

So essentially, what he is suggesting would be exacerbating these serious inequalities in access to the law.

RUBY:

And what does this inequality tell us, Bri? What does it mean that access to, to legal representation to defend yourself against defamation action, but also to try to launch it, is this prohibitively expensive?

BRI:

Right so the trouble as well, with it being so expensive and and we're talking sort of life ruinously expensive potentially is that it doesn't actually matter whether someone's defamation suit is strong or weak. So even if somebody has a strong case either to make or has a strong defence, people are just not able to launch a matter or to defend a matter because they just can't afford that process.

And this is what we often refer to as the general deterrent effect. And what I mean by that is, so when Peter Dutton sues Shane Bazzi, he's not just deterring Shane Bazzi specifically, it sends a message to everyone that if you don't think you could crowdfund like Bazzi has, then you can't afford to criticise a powerful man.

RUBY:

And Bri, the thing that stands out when we talk about this is the fact that the people who you're telling me about who are setting this legal action in motion, who are suing for defamation, in some cases, they're the people who already have access to platforms to speak, and they have proximity to power - they’re politicians. But you would think that being a politician means that you just have to accept that there are some people who will criticise you publicly and possibly even say untrue and nasty things about you that seems par for the course. So it seems like this is a real twist, a change in thinking politicians not accepting that that is something that will happen and and instead taking legal action.

BRI:

Yes, and I'm certainly not the first person to express concern about this apparent increase in the litigiousness by politicians to citizens. It's getting worse and it's extremely concerning.

And I know commentators all the time talk about things being threats to our democracy. But really, honestly, 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. If the effect of these laws is that only a select few can defend their freedom of speech or their reputations? I mean, what are we left with?

The situation at the moment is that even an attorney general apparently can't afford it without a secret trust. But if Dutton got his way. You're talking about a sort of class of people who, to the exclusion of all others, have access to this type of litigation.

As well as this, it's really difficult to crowdfund if you don't have a platform or a following already. And I don't want to live in a country where popularity determines our legal freedoms.

You know, we have this saying in the law that justice delayed is justice denied. But when justice is this expensive, it's not just denied, but it's really dangerous.

RUBY:

Bri, thank you so much for your time.

BRI:

My pleasure, thanks for having me.

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RUBY:

Also in the news today…

The Prime Minister Scott Morrison has thrown his support behind a controversial senate inquiry into the ABC’s complaints process, declaring “nobody” is above the scrutiny of the Senate.”

The ABC’s chair Ita Buttrose has criticised the inquiry as political interference, calling on the Senate to “defend the independence of the ABC”

The public broadcaster has already commissioned an independent review into its complaints process, with a report due out in April.

And a number of Aboriginal Legal Services have criticised a proposal by the states’ Attorneys-General to raise the age of criminal responsibility from 10 to 12, arguing it should instead be lifted to 14.

Change the Record, a coalition of legal and health experts, described the decision as one that will do “nothing to improve the lives of children.”

Almost 500 children under the age of 14 were in Australian correctional facilities in 2020.

I’m Ruby Jones, this is 7am. See you tomorrow.

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