• Treasurer Joe Hockey during the house of representatives' question time at Parliament House in Canberra, Monday May, 26, 2014. (AAP)
Treasurer Joe Hockey says he found a recent Fairfax article concerning claims of a campaign fundraising body run by his federal electoral office both “offensive and repugnant” - but is he wise to sue?
By
Margaret Simons

26 May 2014 - 6:11 PM  UPDATED 26 May 2014 - 6:14 PM

Joe Hockey is determined to pursue his defamation action against Fairfax Media publications, according to statements from his office. Around the traps, the word is that he is very angry indeed.

The stories over which he is taking action, published on 5 May, were headlined "Treasurer for Sale". They claimed a secretive fundraising vehicle for the Liberal Party charged annual membership fees of up to $22,000 for perks including meetings with Mr Hockey.

Julia Gillard was called a pathological liar. The integrity of her relationship with partner Tim Mathieson was repeatedly questioned, including in mainstream media and the nether regions of the World Wide Web. Stories in both Fairfax Media and News Corporation papers implied that she had behaved improperly and perhaps corruptly as a lawyer. She never sued.

The second paragraph of the story increased the sting, by putting this in the context of current Independent Commission Against Corruption probes into other Liberal fundraising bodies.

Mr Hockey said the stories gave the impression of wrongdoing or potential corruption. This was "both offensive and repugnant". He was particularly  upset about the headline.

But is he wise to sue?

There is a mixed record on politicians taking defamation action in Australia. Some don't. This might be principle, or a canny understanding of how the law can work to inflame reputational damage, rather than cure it.

John Howard  was at various times described as a racist, a rodent, a liar and a man driven by the opinions and ambitions of his wife - something which in other contexts has been regarded as a defamatory allegation. He never sued, and was on the record as saying he thought politicians should not resort to the law to defend their reputations.

Julia Gillard was called a pathological liar. The integrity of her relationship with partner Tim Mathieson was repeatedly questioned, including in mainstream media and the nether regions of the World Wide Web. Stories in both Fairfax Media and News Corporation papers implied that she had behaved improperly and perhaps corruptly as a lawyer. She never sued.

On the other hand, the list of politicians who have repeatedly resorted to law is long. Bob Hawke was notoriously litigious. Jeff Kennett too. Jim Cairns sued. So did Joh Bjelke Petersen, Neville Wran, Pauline Hanson, Arthur Calwell  and many others, reaching back through the decades of political mud-slinging.

Tony Abbott, so far as I can find, has sued only once - in what lawyers with a knowledge of comedy classics like to call the Abbott and Costello case, taken against writer Bob Ellis and his publisher in the late 1990s. The defamatory imputations claimed included the idea that Mr Abbott was so "weak and unreliable" that he allowed his political decisions to be affected by his wife. Horrors!

All this was, as the ACT Supreme Court found in 1999 "untrue, has no foundation in fact, and should be totally deleted from the annals of Australian political mythology". Mr Abbott told the court he was provoked to sue mostly because the defamation also affected his wife - a "conscript" to public life, rather than a volunteer like himself. Most will sympathise with that motivation, and Mr Abbott is not generally litigious.

Since then he has been accused of bigotry, of dishonesty and even of violence -  of punching the wall next to the head of a political opponent during his student years. Mr Abbott says the story is false, but he has not resorted to law.

Good for him.

The record tells us that running to the courts is completely ineffective in defending reputation for politicians and public figures. The public regard for Howard, Gillard, Hawke, Kennett and Abbott is clearly unaffected by their willingness or otherwise to sue. Other things - the verdict of history and the long view - are more powerful. Thankfully, we can still  be reasonably confident that over time, truth will out.

And preserving that confidence  is one of the reasons why politicians should not sue.

Politicians have many ways of responding to allegations. They can speak under parliamentary privilege. They have ready access to the media. They can correct the record and defend themselves.

For similar reasons I don't think journalists should sue either, at least not over allegations or comments about their activities in public life - including crude and admittedly offensive satire such as that directed by The Chaser against columnist Chris Kenny.

Legal action is costly for all involved. Particularly at a time when organisations such as Fairfax Media and the ABC are strapped for cash, defamation action is one more chilling influence on the free flow of information, news and views. The money is better spent on getting the journalism right.

Whether Mr Hockey succeeds at law will depend on whether Fairfax Media can prove their allegations to be true. The stories are still up on the website, so one assumes Fairfax stands by them.

If this action goes to court, rather than being settled, the impact of the stories will be stretched over years, rather than days.

Mr Hockey might be angry, but his resort to the law is bad principle and bad politics.

Margaret Simons is an academic, freelance journalist and author.