Dialogue: Our judges can do with a better view

Here is a case to keep in mind if we are going to accept a New Year invitation from Attorney-General Margaret Wilson and seriously consider doing away with the Privy Council.

A few years ago a judge of the High Court, Sian Elias, now Dame Sian, Chief Justice, issued a decision that almost everyone in the media automatically applauded. She ruled, in the case of Lange v Atkinson, that the normal rules of defamation do not apply when you are criticising a politician.

Ordinarily in this trade you have to tread very carefully if you are crossing the bounds of comment on people's words and actions and presuming to pronounce on their competence or character.

There are several things wrong with the way the law works but the basic principle is fairly sound. We are not divine and we are not a court.

We should not need a law to make us hesitate to pass judgment on a person, as distinct from what the person has said, done, believes or represents.

Those facts can safely say quite enough about the character and competence of a public figure in any case, so long as you are careful.

Auckland university lecturer Joe Atkinson had written a column for North and South magazine in which he blamed the fall of the fourth Labour Government on David Lange's failure to enlist allies in the cabinet before he moved against Roger Douglas.

Lange took exception to the suggestion he was inept or lazy, and sued.

North and South claimed qualified privilege, which essentially means the right to slander somebody in the public interest.

Straightforward reports of Parliament and courts carry that privilege as long as they are accurate and fair to both sides. Justice Elias was asked to extend the privilege to a public expression of opinion about a politician - and she did.

Hard cases, they say, make bad law. I do not entirely agree with Atkinson's assessment of Lange but it was a considered and reasoned point of view.

It is one thing to protect that sort of opinion from a defamation suit but what about false, ill-informed, honestly believed but unchecked and careless invective that also passes for political comment these days?

Dame Sian made no distinction. To the celebrating media it seemed too good to be true. Lange duly appealed. Incredibly, in May of 1998 the Court of Appeal by a majority upheld the decision.

Commentators thought all their Christmases had come. It was hailed as a great day for free speech.

It would certainly have given New Zealanders greater freedom to impugn the reputation of a politician than British or Australians were to enjoy when similar cases went through their courts.

In Australia, where Lange had also forced the issue, there is to be a test of "reasonableness" for a defamatory comment to be protected by qualified privilege.

The New Zealand Court of Appeal set down various criteria for the privilege, none of which stated that a published opinion had to be reasonable, or even (Justice Tipping dissenting) that some care should be taken to see that it is well-founded.

If you honestly believed what you said, if it was a matter of public not private concern, if you wrote or spoke with good intentions and were not using your opportunity for something other than the public interest as you saw it - you could accuse a politician of anything.

Think of what that could have done for talkback radio, or writers I could mention. Anybody who cared about the standard of political debate in this country would shudder.

The Law Commission took the unusual step of issuing a paper expressing concern at the law the judges had made and suggesting that Parliament correct it.

Fortunately, we still have the Privy Council. The London Law Lords received Lange's appeal about the same time as they considered a similar suit brought by former Irish Prime Minister Albert Reynolds against Times Newspapers Ltd.

In Reynolds' case the Law Lords decided there was no "generic" protection for political comment. It depended on the circumstances, such as whether the subject was important, the sources reliable and care had been taken to check things.

The lords also allowed the possibility that qualified privilege could cover not only comment about politicians but others in positions of public importance (even judges possibly).

That would truly be a great day for free speech. Politicians work largely in public and they are easily exposed really.

The Privy Council prefers not to overrule our Court of Appeal these days. It sent Lange's case back to Wellington, gently suggesting that the court might like to reconsider its 1998 decision in the light of Reynolds, and Lange in Australia.

The Court of Appeal did so, issuing a revised judgment last year. It has come to its senses and incorporated a degree of responsibility.

Defamatory statements about politicians could lose their qualified privilege if those who hold the opinion (or rather the hapless newspaper that publishes it) are "unable or unwilling to disclose any responsible basis for asserting a genuine belief."

The fact that Lange has withdrawn suggests Atkinson's piece falls within the law as it is now formulated. But the difficulty of knowing in advance whether a jury will agree that a defamatory opinion has "a responsible basis for genuine belief" means that in practical terms the law is not much changed.

The saddest thing in some ways is that the Court of Appeal could not admit it had substantially corrected itself in response to the Privy Council. It describes its second decision as an "amplification" of the first.

It is tempting to conclude with a comment on the quality of our judges these days. I think I could claim honest belief on the strength of this case and certainly public interest, in view of the debate we are supposed to have on replacing the Privy Council.

But it is better that the facts speak for themselves. In any case, I don't think the judges are ready to accept the sort of slurs they were going to allow against others who make law.