FREEDOM OF SPEECH IN AUSTRALIAN LAW: A DELICATE PLANT by Michael Chesterman. Burlington, VT: Ashgate Publishing Co., 2000. 360pp. Cloth $99.95. ISBN: 1-84014-052-6.

Reviewed by John Williams, Law School, University of Adelaide, South Australia.

There is a fine tradition in Australian defamation law, that is the so-called "Fairfax swimming pool" or "Murdoch motor-launch." This tradition, so named to celebrate the expenditure that politicians put their damages to after a successful defamation action against a media proprietor, is anathema to an American audience brought up on a diet of NEW YORK TIMES v. SULLIVAN and the First Amendment jurisprudence that it inspired.

That Australia, without a Bill of Rights, has constitutionalized the concept of "freedom of political communication" is a credit to the ingenuity of the High Court of Australia, and it has opened up consideration of American First Amendment case law beyond the realm of legal academics. Despite the arrival of this constitutional implication in 1992 and its subsequent development, the place of the implication in Australian law is-according to Chesterman-far from assured. This is the
central theme of the work. As he states:

The book's broad theme is that, in the words of the title, freedom of speech is indeed a "delicate plant" with Australia law. It is alive as an important value to be protected and it is growing. But the plant needs to be nurtured. It is not so robust or so strongly established that it could never wither away on account of destructive or unsympathetic treatment (p. 1).

Before returning to what is the best or preferred stimulus to this "plant" it is import to get a feel for the Chesterman work. The author's thesis the development and ramification of a constitutional implication of political communication-is traced by the examination of specific contexts. In the seven chapters of the book nr
considers: (1.) "Finding Free Speech in the Law," (2.) "Constitutional Freedom for Political Communication," (3.) "Privileges and Freedom for Defamatory Political Speech," (4.) "Reforming Defamation Law," (5.) "Racist Speech: Civil Remedies to Promote Civility," (6.) "O J and the Dingo: Media Publicity for Criminal Cases Tried by Jury," and (7.) "Who Benefits from Freedom of Speech?" Chapters 3, 4 and 6 appeared previously as journal articles, and at times their previous standalone structure interferes with the flow of the book as propositions or case law are repeated.

As the chapter titles suggest the book addresses distinct areas of media regulation and the interplay between the regulation of the guarantee of "speech" and some other political or social end (such as the prohibition on "racist speech"). The first two chapters on the nature of speech regulation in both its common law and constitutional settings are an excellent account of the legal landscape in this area in Australia. In particular, the author addresses the limits of the constitutional guarantee as developed by the High Court providing a clear and succinct account of its meaning and its operation.

The author is a leading legal scholar in the area of media regulation as well as a former New South Wales Law Reform Commissioner. Despite this he claims that the book,

"is neither an academic legal text nor a law reform treatise. Still less is it a practitioners' text. My hope is that it will instead provide background material of some value to those judges, legal practitioners, law reformers, law students and (possibly) political science students who are interested in delving beneath specific legal rules in order to identify the broader concepts and aspirations associated with the laws which define, preserve and set limits to freedom of speech" (p. xi).

The work does not claim to be a theoretical account of the underpinnings of freedom of speech. What consideration there is given to the issue are through three composite approaches. The first is the notion that freedom of speech is an end in itself. Using Dworkin and others, this approach sees the freedom as a "fundamental personal right, directly attributable to the fact that all people are independently endowed with their own separate capacity for self-expression and indispensable if they are to develop their moral and intellectual capacities to the full" (p. 20). In short, speech is an end in itself that serves the individual. The other two conceptualisations of the freedom of speech are both "instrumental" in that they perceive the freedom as serving some other goal, usually the democratic process. Perhaps the most critical version of the instrumental approach is the so-called "market place of ideas."

The notion that speech, like any other commodity, can be understood within the metaphor and rule of the market place has been hotly debated in the United States. Cass R. Sunstein (1993), for instance, has argued that laissez-faire principles and a belief that government is a neutral agent in free speech debates are illusionary. The market place analogy has been hugely influential on First Amendment jurisprudence and as such may have drawn greater comment from Chesterman. Whether or not the market place approach has already influenced the Australian High Court is itself an issue (Rosenberg and Williams 1997).

The American Constitution may be the U. S. A.'s greatest export. Followed, criticized, considered or rejected, the Constitution remains an unavoidable point of reference in any discussion of speech and its regulation. In providing sustenance to the "delicate plant" that is freedom of speech in Australia, Chesterman draws heavily on the American experience. Chesterman is not uncritical and strikes a cautionary note.

"Undoubtedly, the package of legal principles that make up the Sullivan rule provides useful guidance for reformers of Australian defamation laws. But [the] simple importation of the Sullivan rule from the USA into Australia would not be a satisfactory reform measure" (p. 168).

Chesterman cites a number of reasons why an inappropriate grafting of the American experience into Australia would be counter-productive for the law reformer. To sustain freedom of speech, or its Australian interpretation, it is critical that reform should be organic. Broadly speaking constitutional distrust for parliamentary action has not been the Australian way. The Westminster system has been remarkable resilient in Australia. Despite the micro-economic reform with its
emphasis on deregulation and privatization a robust state remains in the centre of Australia's constitutional heritage. The Australian experience can be immediately contrasted with the American and Chesterman rightly is cautionary, but nevertheless is drawn to the American situation.

FREEDOM OF SPEECH IN AUSTRALIAN LAW is a valuable work that enters into a field that is not overly populated by learned texts. Its emphasis on case law development and doctrinal clarity may prove insufficient to political scientists and political theorists. Yet as an introduction to the area of free speech in Australia it is a work of significance.

REFERENCES:

Sunstein, Cass R. 1993. DEMOCRACY AND THE PROBLEM OF FREE SPEECH. New York: The Free Press.

Rosenberg, Gerald N. and John M. Williams. 1997. "Do Not Go Gently into that Good Right: The First Amendment in the High Court of Australia"
SUPREME COURT REVIEW 439.

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Copyright 2001 by the author, John Williams.