ABC, RADIO NATIONAL

SUNDAY, 10 FEBRUARY 2002, 12 noon.

Terry Lane Last month Judge Williams, in the Supreme Court of South Australia, found that the Conservation Council of South Australia and some of its office holders had defamed Mr Tom and Mrs Wendy Chapman, the developers of the famous Hindmarsh Island Bridge.

The defendants in the case were ordered to pay $130,000 in damages to the Chapmans for injury to their reputation.

The Chapmans had claimed to have been defamed in eleven publications but the Judge found that they had, in fact, been defamed in three.

The written judgement runs to over one hundred and thirty pages. The Conservation Council, its President Professor Shearman, one of its members Mr Owen and the Vice-President Ms Bolster, were found to have defamed Mr and Mrs Chapman on three occasions.

The Judge found that the defendants had twice with malice, alleged that the Chapmans were using the threat of libel actions to suppress freedom of speech and the Judge says that this was part of a campaign to injure the Chapman's reputation.

The other defamatory allegation made by the defendants is that the Chapmans had not consulted properly with the Aborigines who have an interest in Hindmarsh Island. Again the Judge found the publication was actuated by malice.

In the judgement, Judge Williams describes one of the defendants as "not knowing where to draw the line in the promotion of his cause. There is an element of his campaign which I treat as ugly". Of another defendant he writes "I find that he was prepared to make statements in respect of which he did not have an honest belief", and he says the same of the other two individual defendants. Of another defendant he concludes "that she is a weak person swept along by the force of Mr Owen's dominant personality.

Mr and Mrs Chapman on the other hand are described as fine citizens with a long history of involvement in public affairs. "Indeed", the Judge writes, "it is unnecessary to recite the details of their contribution to the community". The Judge does allow that they displayed a particular aggression in cross examination, but that he says is not necessarily to their ultimate disadvantage in these proceedings as their evidence demonstrated the depth of their hurt.

In his judgement Judge Williams includes a table of 34 instances in which the Chapmans have had awards and settlements from individuals and organisations who have defamed them, including the ABC on 13 separate occasions, Channels 7 and 10 in Adelaide, The Bulletin, The Canberra Times, The Australian and the Democrats, have also at various times paid damages to the Chapmans.

And with me now to talk about the judgement and its implications is lawyer Mr Bruce Donald. Bruce was once upon a time the Head of the ABC's Legal Department and he's a former Chairman of the Environmental Defenders Office. Bruce, good afternoon.

Bruce Donald Hello Terry how are you?

Terry Lane Lovely to have you here again to talk about a very tricky subject in this case. It seemed to me reading Judge Williams' judgement in this case, that the concept of malice is critical in his findings against the Conservation Council, so perhaps you should explain to us the legal concept of malice.

Bruce Donald It's absolutely central in this case because with defamation there are certain defences to it including what's called 'qualified privilege' and what's called 'comment'. Those are certain circumstances where even though you defame somebody it's defensible, but in both cases those defences can be defeated if you establish that the person publishing the defamation was motivated by malice. Now malice we all generally think of as a very serious test - malicious behaviour is behaviour way - overboard, that is so motivated by anger and outrage, and not on any rational grounds, that it ought to be condemned. I think the great problem in this case is whether the Judge has properly reflected the level of malice that ought to be required when we are talking about defeating defences that sustain free speech.

Terry Lane Well what the Judge does, is he draws long pen portraits of the defendants in the case including the President of the Conservation Council of South Australia Professor Shearman, and he says that Professor Shearman was running a campaign against the Chapmans and was prepared to make statements in respect of which he did not have an honest belief. Now on the surface it looks as though what he is saying is Professor Shearman's enthusiasm for opposing the Bridge is itself evidence of malice.

Bruce Donald Well yes, he also said that by declaring himself as deciding to target the Chapmans as part of the campaign he instantly, by that decision, was in the field of malice. Now you know the great problem with the case is that the only three defamatory meanings that the Judge really needed, and in fact did deal with, were limited to comments made by Professor Shearman about the use of the secondary boycott provisions of the Trade Practices Act to silence opposition, and then there was another statement about consultation which Professor Shearman had nothing to do with, so you know it does seem to me that the Judge began considering Professor Shearman's responsibility from a far too-wide perspective of what he ought to have regard to, to decide whether, for those particular comments, these were circumstances where Professor Shearman had ill will towards these people personally.

Terry Lane Well specifically about the secondary boycott, you mean the letter that Professor Shearman sent to Westpac suggesting....

Bruce Donald No I don't. No, that wasn't before the Court. What was here was that there had been injunctions in the Federal Court obtained by the Chapmans against quite a number of people on the basis that they were engaged in unlawful secondary boycotts under Section 45D of the Trade Practices Act and, in the process of seeking those, the Chapmans had issued some 35 form letters saying to people who were engaged in trying to stop the bank lend money, and stop the project at the actual site, that they were potentially liable to the tune of 30 million dollars personally, and it was those injunctions which Professor Shearman was saying had the effect of making people feel silenced, and it was found by the Court that he also imputed that the Chapmans intentionally used the secondary boycott provisions for the purpose of silencing people, and it was that secondary element that constituted the true defamation, that it couldn't be proven what was going on in the minds of the Chapmans as to their intention to use - to seek a remedy that they are perfectly entitled to do under Section 45D.

Terry Lane This is where for a person who isn't a lawyer sometimes it's a bit hard to read a judgement because there is a lot in the judgement about Professor Shearman's letter to Westpac saying that if they proceeded with their business dealings with the Chapmans they might lose other customers, and the Judge seems to take a very dark view of this threat, or veiled threat, or implied threat to Westpac, and take this as evidence of Professor Shearman's malice towards the Chapmans.

Bruce Donald Indeed he did. I'm just making the point that that letter and his conduct vis-a-vis the bank wasn't the subject of the injunction that he was saying had the effect of silencing people. The point I'm making is that I think the Judge has gone in this case, and in the case of Mr Owen and other people, into a very wide analysis of their personal conduct and their motives, expanding the inquiry to determine whether their conduct is motivated by malice for the purpose of that issue, so you know I think there is a real problem in the judgement in that regard.

Terry Lane Well Mr Owen gets a particularly unflattering pen portrait ....

Bruce Donald Yes, the Judge did not like Mr Owen.

Terry Lane Didn't like him at all, considered him clever....

Bruce Donald That his campaign was ugly..

Terry Lane He said Mr Owen's campaign was ugly, Mr Owen was clever, the use of the word 'clever' as a pejorative I thought was interesting in the...

Bruce Donald Indeed, the Judge took particular exception to Mr Owen in a particular episode where he was invited to look at the sewerage farm proposals for the development, and he was embarrassed because his own shack apparently didn't have proper sewage treatment. Now Mr Owen was only there to answer the question as to whether an imputation that using the secondary boycott provisions was for the purpose of shutting people up, you know, - the Judge's inquiry seems to me to have ranged well beyond how it ought to have been confined to determine the true issue of malice surrounding the particular statement that these people were to be made liable for.

Terry Lane Even if they should have been made liable for it in the first place. You're listening to The National Interest, and I'm talking to Bruce Donald about the case where a judgement was handed down a couple of weeks ago against the Conservation Council of South Australia in a defamation action that's been brought against the Conservation Council by Tom and Wendy Chapman the developers of the Hindmarsh Island Bridge.

Now we've mentioned Mr Owen. Mr Owen is a man who owns what the Judge calls a shack, on Hindmarsh Island and in a long and very unflattering portrait of Mr Owen the Judge mentions a number of things, including the fact that Mr Owen had transferred the title of his shack to his wife and the Judge takes this as an indication that he was preparing to act in a manner that he knew would bring him into conflict with the law.

Bruce Donald Well, that's the problem with threats of defamation action, it does bring you into contact with the law, and people get very afraid when there is the suggestion that they are going to be caught up in legal proceedings because they've read enough about it in the press to know that defamation actions in particular go on for years and cost sometimes hundreds of thousands if not millions of dollars, so that it seems to me because you've received a letter of demand and you're engaged in an action to try, and achieve a political solution against a particular environmental outcome to say that 'yes to protect myself I've transferred my house into my wife's name' frankly I think it really is allowing the court to engage in an inquiry that is beyond that in which it should engage.

And this is the problem with this case. I mean there have been eleven, at least eleven defamation actions that I'm aware of in South Australia, by interests associated with the developers here. Each of those actions with very large numbers of meanings to defend. There've been something like 45 items the Chapmans or their interests have recovered either settlements or judgements on, it just seems to me that the great problem is that both the courts and the government are allowing the defamation laws to be used far too broadly. There ought to be processes in place to very quickly review the meanings that people have to defend for example, and quickly strike them out.

I know they are there in the rules, but the courts ought to be more proactive I think in doing so. In this particular case of the eleven imputations or meanings to be defended only three were finally the subject to liability and yet the inquiry and the evidence all proceeded it seems from reading the judgement, before the striking out of the other eight even occurred.

Terry Lane As I read the judgement Bruce, you have to ask yourself the question, "how far can a judge go in demolishing a person's reputation?" Now in the case of Mr Owen again he says that Mr Owen's interests were not genuinely environmental, they were to do with protecting his own interests because he's a shack owner on Hindmarsh Island. He makes the point that Mr Owen's interests were clearly not truly environmental because he has a septic tank that leaks at high tide, Using the Judge's own reasoning in coming to his conclusions about the Chapmans, you would have to say that if he said outside his own court what he said in court about Mr Owen, it would be actionable.

Bruce Donald Oh no question about that it would be actionable but that's why we allow, in both courts and parliaments, another defense which is called 'the defense of protected report', or sorry of 'absolute privilege' and reporting that is a 'protected report'. In parliament you can say what you like, and nobody can sue you, step outside parliament and the very same statement can be the subject of the defamation laws. In court a judge or a counsel or a witness can say anything and there can be no action about it, but if the same statement is made outside then it can be the subject of legal action.

Terry Lane But Parliament has a Privileges Committee which is a bit of a restraint ..

Bruce Donald A bit of a restraint.

Terry Lane ......on politicians. Is there any similar privileges committee restraining judges?

Bruce Donald There are certainly judicial commissions in around the country and there are certain standards of behaviour and judges, and in this case I mean Justice Williams, will have engaged in an inquiry which he considered to be relevant.

I'm critical of that inquiry because I think looking at the imputations that were really at issue here he allowed it to go far too widely and took into account considerations about these people's personalities which frankly went far beyond assessing whether the particular statements in question were motivated by malice, and I think to have gone into the detail of particularly Mr Owen, but not only that, I mean Professor Shearman's behaviour as well I think was unfairly, in my opinion, criticised and evaluated by the Judge.

The Judge said of Mr Owen the fact that he took on an elected government was a matter that was entitled to be the subject of comment. You know, for goodness sake, this was a case where governments, there was an election in the middle of it all, and governments campaigned on different policies about it or rather at least it was proposed that they ought to change their mind, they ultimately didn't. The Federal government you recall took a different view, and Robert Tickner made a declaration about this particular project that was knocked over by the Federal Court, I mean there's huge disagreement about all of this and to see the defamation laws work with this degree of intrusion into people's lives, I frankly find it very very worrying indeed.

Terry Lane We should probably remind listeners, because this goes so far back into history, that the original contract for the bridge which involved the Chapmans and the State Government, was made by the Bannon Government and it seemed as though the Liberal opposition, led by Dean Brown, might not be prepared to go ahead with the bridge, except that Mr Brown made his statement that well of course 'we will be bound by any contracts which have been entered into by the present government', so that gave the opponents of the bridge some hope that they would be able to persuade the new Liberal Government to withdraw from the contract.

Bruce Donald Yes.

Terry Lane We should now get onto the specific allegations which were made against the Chapmans that the Judge found to be defamatory. And the first is the suggestion that the Chapmans used legal actions or threat of actions in order to deprive ordinary citizens of their right to free speech, and the Judge found that this was a particularly repulsive allegation to make against fine and upstanding citizens. And it seemed as though people might not be familiar with the concept of the SLAPP writ which variously stands for something like 'strategic legal action against public participation', or to 'prevent participation', the Judge seemed to find that even to term an action a 'SLAPP writ' was libellous in itself.

Bruce Donald Well it is, because it has been said and argued both by the Chapman's lawyers and in New South Wales in other cases, to carry a meaning that the intention of the person taking the legal process is not to legitimately seek the remedy that that process makes available to them, but for an ulterior purpose of shutting somebody up. It's a SLAPP writ to shut somebody up, a silencing writ.

Now of course the problem here is that people get very afraid of, as I said earlier, of legal action and in one of the publications that Professor Shearman was held personally liable for, he's drawing that fact to the public, to the attention not so much of the public, but of his own members. In his environment movement speech, he said "we believe that this legal process is being used simply to silence us, for the view of an eminent legal expert is that what the law prohibits is intentional interference with the performance of contracts".

Now he was commenting on the complexities of the use of the Trade Practices Act against people's behaviour, and bear in mind that while this case was running, and before it was heard, the Trade Practices Act has now been actually amended, so that there is a specific defense to a Section 45D case for conduct, the dominant purpose of which is to protect the environment. But what Professor Shearman is dealing with is whether the effect of the service of these legal letters on people has such a chilling effect on them that it can be inferred that that was part of the intention of the Chapmans. Now it's always difficult to prove what's in someone's mind, so yes you do and this case shows you must be very careful before you, in the course of public debate, impute that a person intends to use a legitimate legal process for a secondary purpose of shutting somebody up.

Terry Lane Well the second defamatory allegation for which the Chapmans are getting compensation is that they failed to properly consult the aborigines who have an interest in any development on Hindmarsh Island, and the Judge makes the point that an allegation of dealing dishonourably with aborigines is a particularly repulsive charge, whereas he said, if the Chapmans had been accused of dealing dishonourably with another commercial organisation, such as a bank, that allegation wouldn't be so serious - an interesting distinction?

Bruce Donald Yes, I think it is inappropriate distinction. I mean the issue is whether the statement - I'll read out the statement from the actual publication, and bear in mind it was a newsletter or publication within the environment movement in South Australia talking about the Hindmarsh Island matter, and it said "consultation with the relevant aboriginal groups through the planning process was token - Wendy Chapman has admitted in Federal Court that her company Binalong never consulted directly with any of the organisations listed as a condition for building the bridge".

That was the actual words used. Now the facts were that where the Chapmans admitted that they hadn't consulted was in other dimensions of the planning process, but not in relation to the bridge where, as it turned out, they had conducted some consultations. So, you know, a very fine distinction is being drawn here as the basis for saying that one officer of the Con Council and the Con Council itself ought to pay some thirty thousand dollars in damages for that statement. You know, it really does seem to me that it's out of proportion to what ordinary people would think about Wendy Chapman, who had in fact admitted that other aspects of the development she hadn't consulted.

Terry Lane I guess we've gone around in a circle and now we are now back at the beginning Bruce, but the most worrying aspect of the judgement is that it would seem that if it were generally applied, just simply enthusiastic participation in an environmental campaign would itself be taken as evidence of malice.

Bruce Donald Well certainly there are enough statements by the Judge in this case to say that when you decide to target somebody who's involved in an environmental action that you are fervently opposed to, then that puts you in the field of malice.

That's the point I think that ought to be taken for review by an appeal court because if that's to be the situation whether it be environmental activity, or social conduct by people, or the behaviour of councils, or builders, or whatever, you know that really means that free speech in a democratic society has a big question mark over it, so that's something that I think ought to be the subject of an appeal.

And the other thing that ought to come out of this case is that in South Australia, and indeed nationally, there ought to be serious consideration to replicating the environmental defense that has been brought in Federally against secondary boycott liability, so that if your dominant purpose is the protection of the environment, where you don't have a financial interest, and one can argue up and down whether Mr Owen had a financial interest because he liked his shack on the Island, I frankly don't think he did, but if you don't have an interest and you are engaging in public debate then you shouldn't be the subject of defamation actions just as you shouldn't be the subject of boycott provisions where, you know, theoretically you can do much worse than just criticise somebody. So that's the second thing I think that should happen.

And thirdly I really think that the courts through the management of these cases ought to get the parties in quickly and quickly review the vast raft of defamation meanings that people have to answer.

Terry Lane You probably know there is a case which is running currently in Victoria, I think the hearings been adjourned until the end of April at the moment, but it involves a builder of a house in the seaside resort of Ocean Grove and a couple who objected to the house at the planning objection stage, and the builder is suing them for defamation in this case and this is a case which has now been commented on by the Planning Minister in Victoria Mr John Thwaites, who said last week that it looks as though there is a need for laws that specifically define privilege in planning cases. Would that do what you want?

Bruce Donald Look, it happens all over Australia. It's been a real problem for many years that developers take legal action, people from BHP over Ok Tedi, down to Keith Williams over Hinchinbrook Island, and those sort of places have for years used the defamation laws to question people's conduct, and builders in local council issues the same.

Yes I do think, that, but, the problem is that the way Mr Thwaites talks is he inevitably says "Oh well, providing everybody is reasonable". We've got to inject a note of reasonableness into this - you see the problem in a free society is that people aren't always necessarily reasonable, they get really outraged by things, and they ought to be entitled to get outraged by things, and in the cut and thrust of public debate they ought not necessarily be subject to a test of reasonableness.

You know I really do think that if Thwaites is serious about this he ought to look at a far higher level of protection of free speech than appears from his announcement about it which, as I say, says we've all got to be reasonable and then its all okay. The beauty of life is that we are not reasonable.

My 'Summer Read' was the biography of John Adams the second president of the United States, and when he introduced the Sedition Acts in the late eighteenth century, Jefferson immediately said but 'these Acts are a breach of the right of free speech', in other words Jefferson was saying even something which you might call sedition might be protected by the First Amendment to the United States Constitution.

Terry Lane I have a feeling in the context of that argument Jefferson said that Adams was mad. And Adams didn't sue, much to his credit.

Bruce Donald I mean free speech is a valuable thing and I just don't think that our laws are truly valuing it as this case I think demonstrates. I don't think this case is a sufficient protection of the free speech of these people in opposing something that, in my view, they didn't have a financial interest in opposing, just a public interest.

Terry Lane Bruce, we'll have to leave it there, but thank you very much for your time. Bruce Donald, lawyer and one-time head of the ABC's Legal Department and a former Chairman of the Environmental Defenders Office.