Editorial: Chilling attack on freedom of speech

Sometimes, the proponents of a new piece of legislation give the game away. Such is the case with the last-minute addition to the Electoral Amendment Bill (No 2), which stipulates that journalists and political commentators can be jailed for libelling a parliamentary candidate during an election campaign. The Government's excuses for this draconian step are so limp as to be utterly untenable. Margaret Wilson, the Associate Justice Minister, says the new sub-clause is necessary because in an election campaign it is difficult to undo the damage done by "untruths". To Tim Barnett, who chairs the justice and electoral select committee, it is simply a reasonable warning that the media should stick to the facts.

It is no such thing. It is a totally unjustified assault on legally sanctioned press freedom. And it is totally unnecessary.

The new sub-clause makes it an offence to publish any untrue statement that defames a candidate and is calculated to influence voters. Anyone convicted of such an offence faces a fine of up to $5000 or up to three months in prison. Perversely, another new sub-clause makes it an offence to knowingly distribute false information during an election campaign. Why the qualification relating to intent was not included in both sub-clauses has not been explained. But its absence jeopardises even those journalists and commentators writing in good faith. In sum, it represents a sharp switch from the welcome trend towards freedom of speech, transparency and accountability.

Perhaps most remarkably, the proposed law makes a mockery of recent legal decisions. It is difficult not to see it as a knee-jerk reaction to verdicts delivered on a defamation action brought by a former Prime Minister, David Lange.

The Court of Appeal ruled that journalists and commentators should have the right, in a democracy, to criticise politicians, provided they did so without malice and without saying anything they knew was untrue.

This victory for free speech had another important caveat, however. The Appeal Court, in its second decision, said that defamatory statements could lose their qualified privilege if the writer was "unable or unwilling to disclose any responsible basis for asserting a genuine belief". Essentially, the court laid down reasonable guidelines for fair and honest commentary on the qualities and conduct of politicians - the sort of guidelines that would promote a level of debate necessary for the functioning of democracy.

If politicians found this development discomforting - as they have now confirmed - they had an ally in the Law Commission. Surprisingly, even before Mr Lange had withdrawn his action, it was suggesting changes to the defamation laws. It wanted journalists to have to prove they acted reasonably, arguing it would be impossible for a politician to gather evidence about how a story was compiled.

The commission also recommended that a newspaper lose the defence of qualified privilege - essentially public interest - if it refused to publish a letter or statement from an offended politician commenting on a story.

If the first suggestion seems superfluous, given the Appeal Court guidelines, the second at least answered Margaret Wilson's concern. Even it, however, is redundant. During election campaigns, newspapers routinely publish politicians' letters explaining or contradicting columns or reports. Those standing for Parliament have a ready forum for righting perceived wrongs.

The Law Commission's intention may have been to gently adjust the freedom of speech scales. If so, it should be as appalled by the additions to the Electoral Amendment Bill (No 2) as are those who cherish press freedom. That freedom is further eroded because the clause denies the traditional defences of qualified privilege and honest opinion. It also criminalises what is, and should remain, a civil tort. It strikes at the heart of the Bill of Rights Act's protection of free speech.

The harshness of the Government's reaction far surpasses anything the commission might have contemplated. That response is a significant step backwards in an age when the likes of the Official Information Act and the Bill of Rights have been catalysts for a more open society.

The dissemination of ideas and information on the qualities and capabilities of those who govern is an integral part of that process. The Court of Appeal recognised that. Now, in a particularly chilling manner, the Government wishes to deny it.