This week, retired High Court justice Dyson Heydon – one of Australia’s top legal minds – was found to have sexually harassed six young female associates throughout his career. The Sydney Morning Herald published allegations from several more alleged victims. It was a story more than two years in the making. And thanks to Australia’s defamation laws, it almost never found the light of day.
Australia has some of the most powerful defamation laws in the world. To defame someone is to say or imply something negative about their character, and under Australian law, everyone is considered of “good” character until the opposite is proven true. And it’s really, really hard to prove negative claims about a person’s character are true under the eyes of the law.
It’s why the #MeToo movement never really took off in Australia. In the United States, stories about Harvey Weinstein, Kevin Spacey and Ron Jeremy toppled careers, launched police investigations, and even helped put Weinstein in jail.
In Australia, stories reporting allegations about Geoffrey Rush, Craig McLachlan and Don Burke ended in lengthy, expensive defamation cases – with mixed results. Rush has been cleared by a court of the allegations against him, and McLachlan’s case is yet to be resolved. It sent a ripple to other journalists pursuing allegations of sexual harassment: are you sure? And can you afford to do this?
What makes our defamation laws so different to the US?
In the United States, journalists breaking stories about sexual harassment and abuse have some protection from the First Amendment, a constitutional protection for free speech. Australians might think we have a right to free speech, but it’s not written down anywhere.
I spoke to Kiah Officer, a senior in-house media lawyer for Nine Entertainment (which owns Pedestrian Group), for an expert opinion on Australia’s defamation laws. (She would also be the one to urge me to make it clear these are her views, and not the views of Nine Entertainment.)
As well as the First Amendment, Officer pointed to America’s Public Figures Defences as to why journalists were more able to break stories about powerful figures.
“There is a greater right to speak out about people with public profiles,” Officer said. “In Australia, defamation treats everyone the same, from the Prime Minister to the bloke in the coffee shop, though there are some additional protections for discussions about government and politics.”
Has it always been this way?
Yes and no. The laws haven’t changed, but the way they’ve been applied has, according to Officer.
“The way the courts interpret the law, in my view, has shifted to a position where it can be very difficult for defendants trying to defend or prove the truth of what they say,” she said.
“Some of the defences available have been rendered effectively useless. It’s an important balance between protecting people’s reputation and protecting free speech.”
If a person decides to sue an Australian individual or publication for defamation – and make no mistake, you have to have money to launch a defamation case – then it is down to the individual or publication to prove the allegations are true.
In sexual harassment cases, there’s usually only two witnesses: the alleged harasser and the alleged victim. It becomes a ‘he said, she said’ situation, and it’s entirely upon the alleged victim to prove that it did happen. The person who is accused does not need to prove anything.
And if you lose, then you’re up for a lot of money. It’s not just the attention-grabbing payout figures (Rush, for example, won a record $2.9 million); if you lose you’ll also be paying legal costs for both sides, which are usually much higher than any damages awarded.
“It often costs more to run a defamation case than anyone ever wins,” Officer said.
“Particularly as defamation on social media amongst ordinary members of the community becomes a real growth area, there’s been a discussion on whether the court system is a sledge hammer being used to crack nuts all over the place.”
So how did Dyson Heydon’s story get published?
Tuesday’s front page pic.twitter.com/lepeFcxREx
— Ben Cubby (@bencubby) June 22, 2020
The Dyson Heydon story was two-and-a-half years in the making, but almost abandoned over defamation fears.
The Sydney Morning Herald’s star investigative reporter Kate McClymont had been looking into a tip off. But after her McLachlan investigation brought on a defamation case – and amidst the Daily Telegraph’s defamation battle with Geoffrey Rush – even multi-Walkley Award-winning McClymont thought it could be too hard.
“It was just one of those things that, knowing what the defamation laws were, it was perhaps a hurdle too high,” McClymont said in an interview about breaking the story, in the SMH.
“Some people said: ‘I just don’t want anything to do with this, I don’t have the money to fight a defamation action’. I cannot tell you how many people were afraid they would be considered difficult or whingers and their jobs would be affected. People were afraid of getting on the wrong side of [Heydon].”
However, when another SMH reporter, Jacqueline Maley, received a tip-off about Heydon’s behaviour from separate sources and called McClymont for advice, the pair decided to pursue.
Major investigation from @Kate_McClymont and myself about to drop, on one of Australia’s pre-eminent legal figures. Go to @smh to read
— Jacqueline Maley (@JacquelineMaley) June 22, 2020
It still might not have been published without the independent inquiry into Heydon’s behaviour, which upheld allegations he had sexually harassed six women. The report was finalised by March 2020 this year, but it remained confidential.
McClymont and Maley were also waiting to get permission from all six women to publish. They also needed Heydon’s response, which was a denial of all claims but an apology for any offence caused. It finally came together on Monday this week – three months after the inquiry was finalised.
“I think you’ve just got to pay tribute to how brave these women are,” Maley told the SMH.
“The stakes are so high, the risks are so great. I think it’s pretty amazing.”
Why is it so risky to come forward?
As well as the fear of incurring costs, the legal profession is notoriously anti-whistleblower. The associates Heydon allegedly harassed were all young women, so likely in their first or second jobs (and to be a judge’s associate, you have to be the best of the best).
“If they speak up, that’s the end of their career – or they might have felt that way, which isn’t an unreasonable fear,” Officer said.
“Once you accuse a judge of the High Court of harassing you, who is ever going to touch you?”
At least two women Heydon allegedly harassed changed careers due to his behaviour. Rachel Patterson Collins told the SMH she abandoned her plans to become a barrister, while Chelsea Tabart left law altogether because it felt like “the culture was broken from the top down”, and that she would not be safe “from powerful men like Mr Heydon even if I reported them.”
Mr Heydon’s alleged behaviour has been an “open secret” in legal circles, our investigation has found. The alleged behaviour happened at the High Court, the University of Canberra and Oxford University
— Jacqueline Maley (@JacquelineMaley) June 22, 2020
There is work to reform defamation laws in NSW, at least. Attorney-General Mark Speakman released draft reforms in November last year, which would attempt to “modernise” our laws by protecting public interest journalism.
It would also address the “growing volume of trivial matters going to court”, Speakman said – like the recent Rose Bay Facebook group case, where a man won $35,000 in damages over a Facebook post.
Submissions closed in January this year, with a second stage scheduled to happen in 2020. And it’s not soon enough.
