Brian Martin's writings on defamation
Brian Martin's website
Suppression of dissent website
Australian defamation law is extremely harsh and hence a major obstacle to free speech. For example, a reviewer of a book about uranium stated "I object to the author's lack of moral concern." The author sued and won more than $100,000. Exposure of corruption is very difficult. Sir Robert Askin was premier of New South Wales -- equivalent to the governor of a U.S. state -- for a decade and widely rumored to be involved in organized crime. The threat of defamation suits kept the media muzzled until Askin died in 1981.
Much of what is published in the Australian media is checked by lawyers and modified to avoid defamation suits. Readers seldom get more than a glimpse of the process, which is routine for editors, journalists and a few others. My experience with one article illustrates the sort of thing that can occur.
Just before the end of 1996, I wrote a short article based on some of the year's free speech and whistleblower cases. The new year period, when news is slow, seemed a good opportunity to get something into a newspaper, with the hook of reviewing the year's events.
As president of Whistleblowers Australia -- a voluntary organisation supporting whistleblowers -- I was familiar with lots of cases. It was a matter of picking the most suitable examples.
On the suggestion of Robert Pullan -- author of Guilty Secrets: Free Speech and Defamation in Australia -- I contacted feature editors at The Australian, a major national daily newspaper, to see if they would be interested in the article. The people Pullan suggested were away, but I was lucky in talking to Graham Erbacher. He was interested in the concept and liked my actual article. He said it would be published subject only to changes required by The Australian's lawyer.
On New Year's Eve I spoke to Brian Gallagher, lawyer for The Australian, for over an hour. As a result of this discussion, the article was changed in various ways, all with my agreement.
In the left hand column below is the article as originally written and as published on 2 January 1997. Passages in square brackets were deleted from my original text, whereas words in bold face were added. Changes in capitalisation and punctuation are not noted. In the right hand column, side by side with the article, I outline the reasons for the substantive changes. I've numbered each paragraph for convenience.
[Speaking freely in 1996]
We must exercise our right to speak out
Free speech did not shine in the year just gone, as BRIAN MARTIN illustrates with some controversial cases.
The title was changed and an introductory sentence added by a sub-editor. This is standard practice. I had included footnotes only to demonstrate some of my sources, and did not expect them to be published.
1 Free speech is praised in theory but often attacked in practice. In this regard, 1996 was no different [than] from usual.
2 The year got off to an exciting start with the federal election campaign. A few years ago all the major parties passed an amendment to the Commonwealth Electoral Act making it illegal to encourage people to vote informal or in any other way not specified by the Act. Maximum penalty: imprisonment for six months. Although it is quite legal to actually vote informal, it is now a crime to advocate doing so.
3 Albert Langer became the first victim of this new law, being sent to prison for contempt of court by continuing to advocate not giving preferences to the major parties. In the process he became a political martyr. It is not so well known that there were many others who also advocated informal or other nonstandard voting, but were not prosecuted.
Albert Langer case, paragraphs 2 and 3. In Australia, voting is compulsory. It is also "preferential": voters number all candidates 1, 2, 3, etc. If no candidate has a majority of first preference votes, then the candidate with fewest votes is eliminated and second preferences allocated, etc. If a voter improperly numbers a ballot paper or leaves it blank, this is called an "informal" vote.
Albert Langer advocated giving the two major parties equal last preference, for example numbering the ballot 1, 2, 3, 4, 4 in a five-person race. This case was widely reported in the media. I had collected many articles but had no more information. Gallagher did not mention this -- obviously there was nothing to worry about.
4 During the election campaign, Mick Skrijel decided to speak freely about some of his experiences. Skrijel was a fisherman in South Australia when in the 1970s [when] he spoke out about heroin drops off the coast and protection of the drug trade by police and politicians. Afterwards, his business was boycotted, his boat was [burnt] burned, he was assaulted and his family was terrorised. Later [his allegations were referred to the National Crime Authority, which decided to investigate Skrijel. He went] he was convicted on drugs and explosives charges and sent to prison [but then]. He was freed on appeal with all convictions quashed.
5 In 1993, the federal minister for justice, Duncan Kerr, appointed David Quick QC, to review the case. Quick concluded that some evidence against Skrijel had been fabricated and recommended a royal commission into the affair. But Kerr decided against this.
6 Skrijel prepared a leaflet with information about his case. Kerr sent a letter to Tasmanian media outlets saying that he would sue them if false and defamatory material in the leaflet were repeated in the media. Skrijel prepared a revised leaflet called "Crime, justice and Mr Kerr" and during [this] last year's federal election campaign went around Kerr's electorate in Hobart putting it into letterboxes. Members of the Australian Federal Police [were sent to visit] visited an ABC journalist in Hobart, who had cancelled an interview with Skrijel, in the hope that she would help them find him. By [this time] now Skrijel is quite used to coming under attack when he speaks out.
[1. Richard Ackland, "Policing a citizen's right to expression," Financial Review, 9 February 1996, p. 30.]
Mick Skrijel case, paragraphs 4 to 6. I had many articles and documents, and had talked to Mick and also to Isla MacGregor, who was familiar with the case.
Gallagher had many concerns. In the second sentence, he was concerned that Kerr, the minister for justice, was being implicated in the 1970s charges. I said Kerr wasn't involved and agreed to a reversal of the order of the words 'when' and 'in the 1970s', a change that didn't seem significant to me.
Gallagher asked about my reference to the National Crime Authority. Was there an implication that the NCA was involved in a frame-up? I said yes. He said my sentence was defamatory of top NCA officials. The most authoritative reference on this matter was the report by David Quick, a QC -- "Queen's Counsel," a high-ranking barrister. I pulled out Quick's report but could not find an ideal quote quickly. I should have known beforehand exactly whether Quick had named the NCA in allegations of evidence fabrication.
Gallagher asked who had told the NCA about the case. I consulted Mick's leaflet about the case and answered Peter Baume (a well-known politician). Gallagher recommended deleting the part about the NCA. If I had been more familiar with documents about the case, this might have been unnecessary.
Gallagher asked who had sent the Australian Federal Police to visit the ABC (Australian Broadcasting Corporation) journalist in Hobart. I said it was either Kerr or Kerr's office, but that no written evidence was available. So the sentence was altered to say simply that members of the AFP visited an ABC journalist.
7 Defamation law continues to be a highly effective restraint on free speech. [Most] Some threats to sue for defamation are just bluffs, but they often work because of the cost and hassle of defending a court action, even when the defence is successful. The University of Western Australia tried an original and spectacular bluff. It concerned a long-running dispute concerning David Rindos, an archaeologist who was denied tenure at the university in 1993. A supporter of Rindos set up a site on the World Wide Web with numerous documents about the case. After the address of this web site was mentioned on radio and in the press, UWA threatened to sue because the site itself allegedly contained defamatory material. This is roughly equivalent to suing somebody because they mentioned the title of a book that allegedly [contained] contains defamatory material. UWA never followed through with its threats, but [they] it scared some media outlets from repeating the Web address.
[2. "Defamation law and free speech," Whistleblowers Australia, 1996.
3. Brian Martin, "Is publishing a web site address defamatory?" forthcoming in Defamed.]
University of Western Australia case, paragraph 7. UWA had threatened me with defamation, among others. I had documents and had talked with several others who were involved. The Rindos web site is at http://www.acsu.buffalo.edu/~hjarvis/rindos.html
Gallagher didn't request any changes. He did comment on my use of the word "allegedly," which I had italicised. He noted that all defamations are just alleged until proved in court. He also said that there are precedents for the UWA claim, for example when in another country newspaper #2 referred to but did not quote a (defamatory) article in newspaper #1. Newspaper #2 was successfully sued for defamation. From his point of view, the key question was how specific the reference was, a different matter from the reference being defamatory itself.
8 Avon Lovell knows a lot about defamation cases. In 1985 he published a book called The Mickelberg Stitch which pointed out weaknesses in the case against the Mickelberg brothers, who were convicted of swindling gold bullion from the Perth Mint. The book sold well until police sued for defamation. The Police Union introduced a levy to fund dozens of legal actions against Lovell, the distributor and booksellers. Lovell appeared in court hundreds of times but not a single action reached trial in 10 years, effectively banning the book. Finally this year Lovell reached a settlement with the Police Union, so now the book can be sold openly.
[4. Avon Lovell, The Mickelberg Stitch (Perth: Creative Research, 1985). See also Avon Lovell, Split Image: International Mystery of the Mickelberg Affair (Perth: Creative Research, 1990).
5. Mark Irving, "11-year battle to publish ends," Weekend Australian, 21-22 September 1996, p. 2.]
Avon Lovell case, paragraph 8. I had read Avon's books, had some other documents and talked with him.
Gallagher did not ask for changes but had some questions of his own. Was the book The Mickelberg Stitch, now available, unexpurgated? I said it was so far as I knew. Gallagher asked what the Police Union had gained in the settlement. I said they essentially dropped their case.
Afterwards I checked with Avon. My answers to Gallagher were correct. In the settlement Avon received a substantial payment and all defamation cases against the book were dropped. What did the Police Union gain? Avon dropped his own cases against them.
9 Whistleblowers are those who speak out in the public interest, typically about corruption or dangers to the public or environment. They frequently come under attack, being ostracised, harassed, reprimanded, transferred, referred to psychiatrists, demoted and dismissed.
10 [Whistleblowers make numerous disclosures to official bodies such as the Criminal Justice Commission in Queensland and the Independent Commission Against Corruption (ICAC) in NSW. Many of them are disappointed with the response -- or lack of it -- to their disclosures, at least according to whistleblower organisations. Some office bearers in Whistleblowers Australia said as much to media outlets. In response, Barry O'Keefe, head of ICAC, sent letters to Whistleblowers Australia demanding that apologies be made for these statements. At the hearings of the NSW parliamentary committee with oversight of ICAC, Commissioner O'Keefe was asked why, if he was threatening to sue in his role as a private citizen, he had sent letters to Whistleblowers Australia on ICAC letterhead. To some whistleblowers, it might seem that O'Keefe's letters are a symptom of precisely the problems with ICAC that they are complaining about.]
[6. For example, Barry O'Keefe, letters to Whistleblowers Australia, 29 & 30 October 1996; letter to Jean Lennane, Vice-President of Whistleblowers Australia, 30 October 1996.
7. Rachel Morris, "Relations sour with whistleblowers," Daily Telegraph, 18 December 1996, p. 2.]
Barry O'Keefe case, paragraph 10. ICAC was set up and is funded by the New South Wales (NSW) state government. I had copies of many of O'Keefe's letters, including one to me.
Gallagher asked what Whistleblowers Australia (WBA) officials had said that O'Keefe had objected to. Unless this was fully specified, my account wasn't accurate. I read from one of O'Keefe's letters to WBA vice-president Jean Lennane. For example, in his letter of 30 October 1996 he began:
"It has been brought to my attention that on 25 October, 1996 you gave an interview to Radio 2GB in which reference was made to your accusation against me of 'disclosing the names of 50 people who blew the whistle on corruption' and the 'this disclosure led to their dismissal'. This is untrue and I must insist that you retract that statement on Radio 2GB on which it was broadcast, and apologise for your misstatement."
I had talked with Jean about this and seen her response to O'Keefe. She denied making these specific claims. But Gallagher's point was correct. O'Keefe was alleging that WBA criticisms were far more than whistleblowers being "disappointed with the response -- or lack of it -- to their disclosures" as I said in my article. O'Keefe's demands for apologies could be seen as legitimate given the things he claimed were said about him.
I raised the issue of a disagreement over facts between O'Keefe and Jean Lennane. But I realised this wasn't the key issue. It would take too much space and time to rewrite the paragraph. So I suggested leaving it out altogether.
11 Whistleblowers sometimes receive mixed messages from the powers that be. In the Department of Foreign Affairs and Trade [(DFAT)], allegations about paedophilia received increasing attention this year. Foreign Minister Alexander Downer called for anyone with information to come forward and that no officer should be afraid to blow the whistle. At the same time, Downer did not intervene as DFAT took disciplinary action against employee Alastair Gaisford, a whistleblower on paedophilia in the service. Furthermore, Federal Police raided Gaisford's home at the behest of DFAT. Gaisford's experiences provide a stronger signal to other potential whistleblowers than Downer's words.
[8. Brian Toohey, "Defensive behaviour," Sun-Herald, 5 May 1996, p. 37.]
DFAT case, paragraph 11. I had newspaper articles and some original documents. Gallagher wanted to know whether Gaisford had blown the whistle before being disciplined. I said yes. (Later I checked my files to confirm this.) No changes were required.
Since the article was written, Gaisford has won some court skirmishes but ended up being dismissed.
[Update, based on information from Alastair Gaisford, November 2001: Gaisford was dismissed three times, in 1996, 1997 and 1999. The Federal Court set aside each dismissal (1996, 1997 and 2000). DFAT settled out of Court three weeks before the fifth Federal Court trial was due to commence in April 2001. DFAT completely capitulated by reinstating Gaisford and his security clearance and paying him close to $1m in compensation, superannuation and legal bills, though without any admission of liability. A month later he took an early retirement package and another $100,000.]
12 One of Australia's most energetic and courageous whistleblowers is Ray Hoser, whose book The Hoser Files [gives details] makes allegations about corrupt behaviour in VicRoads and the Victorian police and judiciary. Hoser's original expertise is with wildlife. In his book Smuggled he [told how] alleges that members of the NSW National Parks and Wildlife Service were responsible for much of the illegal trade in endangered species. This year, he has provided explosive new [evidence] material about the service in a new book, Smuggled 2. Although Hoser successfully defended an action to ban the book, he faces defamation proceedings. His Internet provider [subsequently], presumably after being threatened with similar proceedings, cut his access to electronic mail and shut down his sites on the World Wide Web.
[9. Raymond Hoser, The Hoser Files: The Fight Against Entrenched Official Corruption (Melbourne: Kotabi Publications, 1995).]
Ray Hoser case, paragraph 12. I had read Smuggled and The Hoser Files and seen various documents. I had read my text to Ray and he had suggested various changes, mainly to make the language stronger.
Gallagher asked whether Ray's Internet provider had cut his access in order to stop his free speech. I said no, it was due to a complaint by an official Ray had dealt with. So the phrase "presumably being threatened with similar proceedings" was added to avoid defamation of the Internet provider. Gallagher also recommended changing "gives details" to "makes allegations." I agreed. In fact, in my initial draft I had written "makes allegations." Ray, an enthusiast for bold language, recommended changing this to "gives details." So I was back to my original words.
In 1997, Ray spent four months in prison for forging a fax to avoid a minor traffic offence. He claims he was framed by the police. His web sites in Australia were shut down, but he has set up replacement sites in the US at http://www.smuggled.com.
13 The gagging of free speech and the suppression of dissidents goes on all the time, frequently with the object of protecting individual reputations against unwarranted attacks. A few cases receive widespread attention, but most are less spectacular. There are battles in every organisation in which employees are warned, censored, harassed and sacked. Numerous speakers and writers routinely engage in self-censorship.
14 Free speech will always be a threat to those in positions of power, some of whom will use whatever means possible to squash it. Free speech cannot be protected by laws alone. It requires people to continually exercise it.
Paragraph 13. Gallagher asked whether this paragraph referred to Hoser. I said no -- it referred to the entire issue of free speech. He asked whether I assumed that whistleblowers are correct. If so, by calling Hoser a whistleblower I was endorsing his claims. I said no. In Whistleblowers Australia we say only that the claims of whistleblowers are worth investigating. We do not have the capacity to investigate them ourselves.
Gallagher asked about the right to sue. This led to the extra phrase about "protecting individual reputations against unwarranted attack." By this stage I wasn't ready to argue! Nor did it worry me to include some mention of the usual justification for defamation law.
Brian Martin is associate professor in Science and Technology Studies at the University of Wollongong and president of Whistleblowers Australia. His book Suppression Stories has just been published.
First, defamation law can have significant effects on what is published. Some stories are never written because they are too hot. Others, including mine, are written in a cautious fashion to avoid defamation. Finally, articles are checked by defamation specialists and either approved, modified or pulled. Few readers are aware of these complex processes that shape what they read or hear.
Second, if I had known far more about the cases I could have avoided some of the alterations. Of course it is always possible to know more, but there is a limit. Attaining truly in-depth knowledge of just a single case is a major task.
Third, a lot of work is required to prepare and check articles that are potentially defamatory. Knowing the hazards, I did lots of preparatory reading, wrote very carefully and checked some points with knowledgeable people. Some of this work is desirable if it substantially improves accuracy. But another effect is to discourage writers and publishers from dealing with topics that are potentially defamatory.
A subeditor wrote the excellent title for my article -- "We must exercise our right to speak out." If only it was that easy!