THERE weren’t many people in a court not so long ago - just some barristers, a nervous local government councillor waiting to be heard, a couple of court staff and me.
The male barrister looked to be in his 60s. He was quite affable and had one of those plummy, deep, resonant but pleasant voices that plays well in court. Those kinds of voices suggest intelligence, a person comfortable with debating issues, and authority. They also suggest a comfortable background and, it must be said, quite probably a private school boys-only education, with lots of rugby, boater hats, high expectations and a keen sense of the importance of having good connections for life after school.
The female barrister had a similar kind of voice. I’d watched her in court before that day. She was quick-witted, no-nonsense, clinical in her questioning and firm but fair with witnesses.
I was there because of the councillor. He had challenged his council on matters that he felt he had a responsibility to challenge. The council responded in a heavy-handed fashion.
We were waiting for something when the barristers started talking about a matter that was in the news that day. The female barrister laughed about not being able to believe what was in the news, her colleague responded with his own disparaging comments, and they had a great time making the kind of generalised negative comments about “the media” that wouldn’t be out of place at a Donald Trump rally.
It annoyed me intensely.
I felt like jumping up and asking how long they thought judges or barristers would remain safe in a country without an independent media. You only have to look around the world right now to know that just calling a country a democracy doesn’t mean the rule of law, or even basic human rights, necessarily follow.
I wanted to ask them how, exactly, they thought a democracy minus the media would operate; whether their dismissal of “the media” was as broad-brush as it came across, or whether it allowed a sliding scale of credibility for different media outlets, or forms of media. And the list went on.
I did enjoy one aspect of that day. A judge criticised a legal firm for the very large costs it sought to reclaim for the council matter, and knocked the bill down to size by a factor of tens of thousands of dollars.
Defamation is exercising the minds of many journalists, media outlets and some within the law right now, with a NSW-led review of Australia’s defamation laws considering whether unreasonable limits are placed on “the publication and discussion of matters of public interest”.
These are the kinds of cases where media outlets take on governments, corporations and powerful people whose actions are not in the public interest, and where the media is often needed to prod or shame governments or regulators to respond.
Recent high-profile defamation court cases have shown how costly, complicated and fraught they can be, how technical the arguments, and how inappropriate a forum in which to test matters of sex, power and gender as society struggles to deal with changing attitudes.
Then there is the way the threat of defamation is used by powerful people to silence critics – often average Australians - by the dodgy to scare off questioners, and by thugs and bullies to intimidate people.
I have in front of me letters sent by a pelvic mesh manufacturer to a woman patient who complained to authorities after catastrophic injuries when she was implanted with a device. The letter doesn’t use the word “defamation”, but it carries a threat.
“We are concerned about you disseminating incorrect information about the device. We are concerned about the harm that causes to our company,” the letter said.
The manufacturer wrote letters to doctors as well, and to the Newcastle Herald when I began writing about pelvic mesh. It was a little more liberal with the word defamation in those letters, warning about the risk of “legal proceedings” against the doctors and this newspaper if we made “damaging and defamatory statements”.
It was acting “to protect its reputation”.
Its device is one of many that are no longer available in Australia because they failed to meet safety and efficacy standards, and failed women.
Writing about some of the doctors who used the mesh devices also carried risks. It was in the public interest to report on a matter that is now acknowledged as a global scandal, but doctors with big egos and questions to answer don’t hesitate to remind you they have a lawyer.
I have other documents showing defamation threats made to people who dared raise allegations of child sexual abuse to churches, schools and other institutions over decades. They include two women who reported serious allegations about a teacher to the Catholic Education Office in the 1980s.
They were told they had “better watch yourselves because you could be prosecuted for continuing to make allegations”.
The teacher was eventually charged with child sex offences. The women were horrified to discover years later that the Catholic Education Office that threatened them with “prosecution” for making allegations had employed the teacher, despite knowing he had already been convicted of child sexual offences.
I know of many cases where threats of defamation were used by people in local government in attempts – some successful – to shut down people asking the kinds of questions that needed to be asked.
A lawyer in an article about the chilling effect of Australia’s defamation laws on public interest journalism said there was a sense that some judges “don’t get what journalists do”.
I tend to agree. The discussion by the two barristers in the court that day was so blinkered, so dumb, that it was almost shocking. But if you’re a powerful person, and articulate, and have the means to stand up for yourself when things go wrong, you can lack a sense of what it’s like to be at the end of the food chain, where having your rights trampled can be almost a daily event.
You only have to look at major inquiries launched in Australia over the past few years – the banking royal commission, the child sexual abuse royal commission, the NSW Independent Commission Against Corruption inquiries that snared politicians from both major parties – to see the consequences of public interest journalism in action. And each involved walking the tightrope of defamation laws during the fight to get those inquiries established.