Mark Speakman SC: meet the man leading the charge to update Australia’s lopsided defamation laws

Richard Ackland
Photograph: Joel Carrett/AAP

Mark Speakman SC, the New South Wales attorney general, has plenty of fish to fry, which might strike the casual observer as unusual given the tradition of state Liberal attorneys not being overburdened with initiatives.

After passing through numerous security doors to get to his eyrie at the top of Martin Place, the Guardian sat down for a talk with the man leading the charge to update the nation’s lopsided defamation laws.

It’s by no means the only thing on his plate. Tackling the wave of domestic violence, law ’n’ order, behaviour interventions for offenders, the courts and the backlog of criminal cases are among other issues he juggles.

Schooled at Caringbah, the University of Sydney and Cambridge, from which he emerged with a master’s degree, he proceeded to a glittering legal career, with a partnership at the big law shop Blake Dawson Waldron, the firm that did much of Rupert Murdoch’s legal work in Australia – not that Speakman had his fingers in that salmagundi. Then to the bar in 1991, and commercial work at a top-end set of chambers and a senior counsel gong in 2004.

Related: Australia’s ‘unworkable’ defamation laws: what the government’s changes could mean

Politics was always there but took a back seat, what with a young family and carving a career in the dusty confines of the law.

He says he has been politically engaged since the age of 18 and ultimately stood for Liberal preselection in the federal seat of Cook in 2007 – a preselection infamous for its acrimony. Michael Towke was the successful contender, Paul Fletcher, now the communications minister, was runner-up, Speakman was third and David Coleman, the on-leave immigration minister, came fourth.

Speakman took the state seat of Cronulla in 2011 and readers of the political tea leaves say that if Scott Morrison disappeared during an exotic holiday or his government disappeared at the ballot box, then Speakman would be the natural pea to take Cook.

“Oh I think that’s unlikely. I can’t see me moving to federal politics,” he said with the trademark flourish of politicians who don’t want to set the cat among the pigeons.

Speakman is a key figure in a matter of pressing interest to the journalistic tribe. He’s leading the state and territory attorneys general in winding back, revamping and recalibrating the nation’s defamation laws that were enacted in 2005, before Twitter and smartphones were part of daily life.

Defamation reform is among the half-dozen issues media companies have pressed as part of the #RightToKnow campaign.

The media became a sitting target with both hands tied behind its back

Not only is the current defamation regime a feast for already well-padded lawyers, it’s a casino where the odds are stacked against defendant news publishers.

The 2005 uniform law was supposed to restore the balance between reputation and the media’s ability to interrogate the affairs of the nation. At the hands of the courts that intention bit by bit came unglued.

The caps on damages were unpicked and awards of money went stratospheric. The defences for reasonable reporting in the public interest never took hold and so too the capacity to defend an honest opinion.

The implied constitutional protection for the discussion of political and governmental affairs has been singularly unhelpful for journalists, and it is a herculean task for a media company to defend reporting on the basis of truth – as we’ve seen in high profile cases where judges have allowed procedure to trump truth.

The media became a sitting target with both hands tied behind its back.

At the same time the courts have been awash with trivial actions as people fight over rude and unflattering remarks posted on social media platforms.

Speakman refers to “the volume and triviality of litigation in this state. We have 10 times the rate of defamation suits of London, but most of the litigation in defamation is at the low end of the scale.”

Consequently, the draft reform proposals seek to “declutter” the defamation lists and impose a threshold test of seriousness, with courts required to decide whether relatively minor cases should be allowed to go to trial.

Dr Matt Collins QC, the Melbourne-based defamation and information technology specialist, predicts that the triviality threshold will result in costly preliminary skirmishes to determine the seriousness of the matter in dispute.

Related: Your right to know: how Australia's defamation law stifles public interest journalism | Richard Ackland

Speakman remains hopeful that the courts will reject the idea of separate “front end” trials.

He recognises that the current inadequate defences have a “chilling effect on public interest journalism”. The reforms seek to address this by introducing a New Zealand style defence of “responsible communication on a matter of public interest”.

This is a reconfigured version of an existing defence where publishers are “reasonable in the circumstances” – a procedure so complicated and riddled with tripwires that it has hardly ever worked for the media since it was introduced in 2005.

Matt Collins is sceptical about this attempt to strengthen journalistic capacity. He thinks that if journalism that is “reasonable” can’t be defensible, journalism that is “responsible” will fare no better.

This new provision is supposed to be the major break-through in giving the media some air when it comes to dig-deep investigations and public interest probes. Yet Collins says “these reforms will not, in my view, achieve the policy objective that underlies them. They require a substantial rethink.”

He has in mind that journalism would be better served with a UK-type provision, which protects publications on matters of public interest where the publisher reasonably believed that the publication was in the public interest. The fact that London has diminished as the libel capital of the world suggests that this reform is working.

Fifteen years after the broken 2005 uniform defamation laws we are to get another crack at getting the balance right, yet already there are concerns that we’re not there yet. Maybe it will take another 15 years before there’s a new round of tinkering.

The liberating expectation of the 2005 reforms now look like a bad case of over-excitement. Mark Day, a columnist with the Australian, wrote at the time: “There is now real hope that defamation law will at last meet its original aim – to restore reputations if they have been damaged, rather than to provide windfall swimming pools, tennis courts or yachts to public figures.”

NSW supreme court defamation judge David Levine thought the new caps on damages were “like manna from heaven” for media outlets because the lower payouts meant bringing an action would not be worth it.

“Many would wonder, ‘Why sue at all’?” he added.

Still, Speakman sees this latest proposal as a shift towards “recalibrating the balance more in the free speech direction, but certainly not as far as the United States with a public interest defence”.

It’s not as though the uneasiness about the draft proposals is universal. There’s a new provision that allows the media to prove the truth of any meaning in a publication, and that could be used to offset the harm done by the false parts of the publication that are sued on.

Collins calls this a “game changer” for the media.

The jury-absent zone of the federal court with its free-kicks against publishers looks like coming to an end. There’s also a “single publication rule” that reverses the liability that arises when articles are downloaded from the internet. Instead, the liability period will commence from the time the article is uploaded to the internet. This should curtail defamation actions that commence years after an article was originally published online and when the witness, if not the journalist, most likely are safely tucked-up in nursing homes.

Which gets us to stage two of the reforms, which will be in the hands of the commonwealth attorney general, Christian Porter, and are likely to be two years away.

Related: Free press backwater: how to change the defamation laws that stifle Australian journalism

He will have to visit contentious topics such as the liability of digital platforms, the extent to which they are publishers, how to enforce judgments against companies safely under the shield of US law and the mechanisms that will apply for “take-down” orders.

When asked how he saw his legacy as attorney general, Speakman put on his criminal justice hat: “Reducing recidivism and improving community safety while still ensuring fair process. But improved community safety doesn’t necessarily mean locking people up.”

He’s cleared the jails of hundreds of offenders who might otherwise be there because of driving while disqualified. These are not cases of driving dangerously or causing an accident, but simply driving without a licence.

It’s a small but telling initiative, of singular importance to Indigenous Australians in remote areas who depend on being able to get around in a car.

Surely life in the bear pit of NSW politics is not an unadulterated joy for a reflective person. Speakman admitted he misses the “greater civility” of the bar, “but as a politician you can get more done”.

• Richard Ackland publishes the law journals Justinian and Gazette of Law and Journalism. He is a Gold Walkley winner and a former host of Media Watch and Radio National’s Late Night Live