Today’s decision mostly confirming the ban on Underbelly in Victoria inevitably includes a passing reference to the Charter:
Ground 4. The learned trial judge erred in failing to have regard to ss 7 and 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
This ground was abandoned on the second day of the hearing before us. However we observe that even if it was open to the applicant to rely upon the Charter in terms of the right of free speech, which we consider to be highly unlikely, then we would adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:
The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.
Like other passing mentions before it, these comments are all about vibe, not analysis.
I’ll focus in this post on the remark that it is ‘highly unlikely’ that ‘the applicant’ can ‘rely on the Charter in terms of the right of free speech’. As previously discussed in this blog, Charter s. 49(2) seems to preclude the Charter’s application in this case; the relevant proceedings, the murder prosecution, started before 1/1/7. So, neither Channel 9 nor the murder defendant himself can rely on Charter rights.
But, I don’t think the Court was referring to s. 49(2) when it used the terms ‘applicant’ and ‘rely’. Rather, I suspect that the Court was referring to Charter s. 6(1), which provides that ‘Only persons have human rights’. The Charter defines a ‘person’ as a ‘human being’. So, Channel 9 and its corporate owner don’t have human rights. Charter s. 6(1) was specifically included to prevent a repeat in Australia of a much-hated Canadian decision that overturned that country’s tobacco advertising laws. For what it’s worth, I think that the Canadian case was rightly decided, as the Canadian government made no serious attempt to justify the laws in question; when they did, after passing narrower laws that allowed the tobacco companies to attribute health warnings to the government, the Supreme Court upheld those laws. Nevertheless, the view that corporations shouldn’t have rights is a fairly mainstream one.
The Underbelly judgment, in my view, shows why the exclusion of corporations in general (and corporate speech in particular) from the Charter is problematic. The case isn’t only about the right of Channel 9 to speak (in the sense of broadcasting what it wants and including whatever it wants online) but also the right of the various people involved in the writing and production of Underbelly to get their work to the wider Victorian public. These appear to include the original writers of the book on which Underbelly was based, the screenplay writer, the police officers (and others) who acted as advisers, the actors and other technical people involved in the production. They are all ‘human beings’. Of course, none of them are the subject of the (reduced) orders made by the Court of Appeal, but as they are all bound by contracts with Channel 9, the ban effectively silences them. Is the Court saying that, to pursue their rights, all these individuals should themselves bring an action before the Supreme Court? Or that their rights must not be enforced in a way that benefits a corporation?
The Canadian Supreme Court in Dagenais, another case about a ban on a docudrama (which I’ll discuss more in another post), didn’t get distracted by the legal nature of the particular party before it (the Canadian Broadcasting Corporation):
It is… important to note the extent to which a publication ban trenches upon the rights of individuals to freedom of expression. In the case of the publication ban at issue here, the specific freedom of expression interests engaged by the ban included: the film director’s interest in expressing himself; the CBC’s interest in broadcasting the film; the public’s interest in viewing the film; and society’s interest in having the important issue of child abuse presented to the public. All of these interests were limited by the publication ban ordered in the case at bar.
The fallacy of the ban on corporations having rights is that it assumes that corporations can be readily separated from the humans who deal with them. Equally fallacious is the idea that human rights should not serve commercial interests. This isn’t a mere commerce case; it’s a media case. It’s true, of course, that Channel 9’s main interest is its bottom line, but that’s how the media operates.
There’s another part of the Court of Appeal’s reasoning that fits with this anti-commerce vibe: its dismissal of the ‘expression’ at the centre of the dispute:
The applicant argues that the trial judge ought to have had regard to the public interest in ‘receiving the information and the ideas imparted by Underbelly’. The first matter that might be observed is that based upon fact, as the television series is, nevertheless it is a ‘docu-drama’. It is clear to us that the principal purpose of the series is that of entertainment. This it does by the graphic portrayal of violence and the salacious behaviour of many of those portrayed. The entertainment value of the program is enhanced by the music used as background and sometimes by humorous narrative.
Given that the subject-matter of Underbelly is the world of organised crime, it is unclear why its ‘graphic portrayal of violence and… salacious behaviour’ means that it merits classification as entertainment. Is the Court suggesting that the (less entertaining) real facts weren’t violent and salacious? Equally, while music and humour are certainly entertaining, since when are they at odds with imparting information? As already mentioned in this blog, Blue Murder, the brilliant ABC docudrama on police corruption in Sydney, is widely regarded as one of the best treatments of this topic that has ever appeared in the media. Apparently, though, Underbelly isn’t to the Court of Appeal’s taste, with the result that Victorians cannot make a similar judgment of their own (for now.)
The Court’s dismissal of the information value of Underbelly sits poorly with the text of the Charter’s right to freedom of expression:
(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether- (a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e) in another medium chosen by him or her.
To dismiss freedom of speech claims made by a commercial broadcaster is to dramatically downgrade the Charter’s promotion of everyone’s right to freedom of the press. The Canadian Supreme Court recognised freedom of the press as ‘a paramount value in Canadian society’. By contrast, the Victoran Court of Appeal effectively sidelines it with a passing mention.