AUSTRALIAN PRESS COUNCIL NEWS, MAY, 1989 3 Juries price watchdogs out of action MAX SUICH

ary Sturgess, the chief policy exercise its public duty. Publication adviser to the NSW Liberal continued in the face of these legal G Premier, Nick Greiner, com­ threats because not only did the mented in the course o f a discus­ press accept its public duty, it also sion last week that the institutions felt that its wealth allowed it to run were now there to prevent corrup­ the risks o f a lost libel case. tion flowering again in NSW in the Some recent decisions in the manner that it developed under libel courts are likely to force most the last Liberal Government of Sir editors to reconsider this approach. Robert Askin. The publication o f stories o f the Sturgess acknowledged the kind that led to corruption in NSW importance of the Sydney press in becoming a major issue after 1976 publicising this corruption and may now be very costly. The follow­ mobilising political opinion and ing comments on these cases do the political will to end it. His com­ not go to the facts of the individual ments were made with confidence, cases - I don't want to end up in but no self-satisfaction. I think most the libel courts myself. people in NSW would believe that, Former chief magistrate Murray My comment is about the size of Farquhar. while the system is not failsafe, the the damages awarded and the dan­ Greiner Government's reforms gerous temper of Sydney juries in have placed significant barriers in recent libel cases. It would seem the way o f political, police and ing before serious attempts were that juries have forgotten that a courtroom corruption. There is begun, in the last years of the Wran free press, despite its manifest now a standing independent com­ Administr ation, to clean it up. faults and the mistakes it makes, mission to investigate corruption I hope the Greiner Governme­ plays an im portant role in and a strict continuance of the poli­ nt's innovations, such as the Australian public life. For the level cies begun by the departing Labor Independent Commission Against o f damages now being awarded by Government to clean up the courts Corruption, are adequate, because juries is such that there is little and the police. This is a big change the press may not be there to blow room for error when a newspaper from the Sydney o f 1965-1975, the whistle next time. It is well takes up a major issue o f public when Askin, in partnership with known that the libel laws have been concern. An editor must now con­ gangsters and his police commis­ manipulated to try to muzzle the sider that if his reporter makes an sioner, Norman Allan, organised press. error in a sensitive story or if he the corruption of the criminal jus­ The entire Cabinet of the foolishly or carelessly publishes a tice system in NSW. A generation of Queensland Government did so. wild comment by a member of the police and not a few members of So too did the sacked Queensland public about a politician or public the legal fraternity grew up to Police Commissioner, Terry Lewis, figure then the cost can be at least assume that the fix could be put and some of his associates. $300,000 when legal costs are into property developments, drug The former Chief Stipendiary included and quite possibly not far arrests and even the delivery of the Magistrate, Murray Farquhar, sued short of a million. Even the richest sovereign's knighthoods. NSW did the Fairfax group in 1979 and won publisher pauses before that con­ not have a Fitzgerald inquiry. a settlement over reports which sideration. Small publishers can't We will never know how many later proved to be true and ulti­ bear to think about it. The cases I innocent people were verballed mately led to his conviction. have in mind are the damages into jail, or how many crimes were The jailed Prisons Minister, Rex awarded by a jury in a case brought organised by rogue police or Jackson, consistently threatened against The Sydney Morning Herald charges before the courts fixed by legal action, as did a number o f and its legal affairs columnist, John corrupt people on the bench. But notoriously corrupt police. A free Slee, by a solicitor from Blake the stench was almost overpower- press must also be profitable to Dawson Waldron, Nicholas Carson, 4 AUSTRALIAN PRESS COUNCIL NEWS, MAY, 1989 and a case involving a former NSW to accept this kind o f personal aged to bang the writs in on the Education Minister, Rodney attack. That seems fair enough but media. In their current debt-ridden Cavalier, who sued the More e it is hard to believe that he suffered state, most media organisations will Champion, a small local newspaper damage to the extent of $150,000 have to think twice about chancing in rural north-west NSW, over a let­ plus $56,000 interest. Serious error a million dollars to uncover the ter to the editor. In the first case occurred in both reports, and both activities of the next generation of the jury awarded $600,000 to plaintiffs could legitimately point Jacksons and Farquhars. • Carson, who later received a fur­ to their belief that the publication ther $76,000 interest. In the sec­ was most unfair. In the case of the Reprinted by kind permission of The ond, Cavalier received $150,000 Moree Champion, however, what was Sydney Morning Herald. damages and $56,000 interest. the paper to do? If it published a A successful libel defendant does correction or withdrawal of the not have to prove financial loss or assertions it merely drew attention damage to be awarded monetary to them. As one knowledgeable damages. But where there are such lawyer commented: "The paper can FREEDOM huge damages awarded as in these do nothing really. Just wait for the cases the ordinary person would writ." DELAYED assume they are at least in part The report from Press Council compensating for financial dam­ member John Morgan in our last age. But the only reference to any issue on China's hopes for press law financial damage to Carson was a “The publication of reform was written before the pro­ point made by his counsel, Mr democracy demonstrations and T.E.F.Hughes, QC, that Carson may stories of the kind that their brutal suppression in Beijing. never know how many potential led to corruption in NSW Since then, the Chinese authorities clients he had lost through the have announced that the planned publication of the defamatory becoming a major issue consideration of the reforms later material. We may assume that the this year has been postponed indef­ jury nevertheless thought Carson after 1976 may now be initely. • needed to be compensated for very costly. ” $600,000 of loss. I suspect the truth is that the jury sought to punish the Herald to the tune of $600,000. I suppose the remedy is for juries In the other case, Mr Cavalier to understand the important role sued the Moree Champion over a let­ the press plays in a democratic soci­ STUDENT ter which was published in the ety. But the size and concentration Letters to the Editor column head­ o f the media and the financial lust AWARD line "Cavalier branded molester". exhibited by most of its proprietors The Australian Press Council has The Champion has a circulation of undermine respect for the media's recently established a prize for the 3000. Cavalier him self did not important public interest role. best honours thesis or similar work know of the statement until it Judges, in their directions, may rea­ by a student enrolled in an turned up in the clippings that sonably remind juries about the Australian university or College o f came through the Education role of the press and the impact on Advanced Education on a topic Department's system. It was accept­ the public interest of huge and relating to aspects of freedom o f ed in the case that Cavalier was not unjustified damages findings. That speech and of the press. a child molester - a phrase used in rarely happens. I do not believe the Examples of appropriate topics the letter. It seems to me that few, if answer is to hand the disposition of include, but are by no means any, of those few who read the let­ damages over to judges and take it restricted to, the legal restraints o n ter would believe such an allega­ out o f the hands of juries. Judges news reporting, contempt of couirt tion, which seems to have been are just as likely to hand out large in relation to the press and other used as hyperbole by the writer to cheques to brother lawyers media and the constitutional pro­ emphasise a point rather than to defamed by the press as are juries. tection of freedom of speech. make a literal allegation. Cavalier is The size o f the damages awarded The recipient is to be chosen o>n now a journalist; I asked him the to Carson and Cavalier has already the recommendation of a panel o f other day whether he felt comfort­ changed the publishing environ­ judges, and the prize will be award­ able about using the libel courts ment in Sydney. But there is anoth­ ed at a reception by the Council. ]It now that he understood the diffi­ er group entirely whom we must is anticipated that the prize will b»e culties journalists face. He said that expect to take advantage of the sit­ awarded annually but, as is custom­ he had launched the case while still uation. It is certain that the ungod­ ary in these matters, the Council a politician. He had accepted vigor­ ly in Sydney's persisting milieu of reserves the right not to award a ous criticism as an Education lawyers, accountants, cops and prize. The amount of the prize is ait Minister but he was not prepared politicians will be certainly encour­ present $1000. •