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11. The Public Figure Test
        
        There any many problems with the introduction of a public figure test;
        rather than list them here, we suggest that the Committee members read
        Strossen, "A Defence of the Aspirations - but not the Achievements - of
        the US Rules Limiting Defamation Actions by Public Figures" (1986) 15
        Melbourne University Law Review 419. Who a public figure is, when a
        person starts or stops being a public figure and what "actual malice"
        really means, have been the subject of proceedings costing millions of
        dollars of legal fees in the United States. Nevertheless, many sections
        of the Australian media continue to agitate for this reform, believing
        it will result in a reduction of defamation actions or, at least, fewer
        damages awards. We submit that if the Committee really is interested in
        reforming the law, it should look beyond the limited (and largely
        procedural) reforms in the Bill to other reforms proposed, such as the
        public figure test.
        
        There are real problems with the adaptation of foreign "reforms" such as
        the public figure test. Just as the introduction of the cane toad to
        Queensland had unforeseen problems, the "cut-n-paste" approach to
        legislative reform of tacking on good bits from other countries is not
        necessarily likely to work. In America the public figure test is
        "balanced out" by the tort of privacy, which the High Court of Australia
        has said (albeit 2-2 and obiter only, in Victoria Park Racing Co -v-
        Taylor (1937) 58 CLR 479) does not exist in Australia.
        
        The public figure test in America is based on the constitutional
        protection of free speech. (There is no equivalent to this in the
        Australian Constitution). The rationale is that public figures enjoy
        significantly greater access to the media and have a more realistic
        opportunity to reply, and that they have voluntarily exposed themselves
        to the risk (Gertz -vRobert Welch Inc 418 US 323 and 345). The first
        reason shows a touching faith in the availability of the media, while
        the second runs counter to the repugnance implicit in Australian law for
        claims of 'volenti' arguments. How can it be said that a person
        voluntarily exposes themselves to the risk of being defamed by becoming
        a schoolteacher or a public servant?
        
        Another problem is that three kinds of public figures have been
        identified: all-purpose, limited-purpose, and involuntary (Gertz at p
        344-8). In Gerts, the plaintiff was not classified as an all-purpose
        public figure, although well-known in some circles, because no
        prospective juror recognised his name. The problem categories have
        always been the limited purpose and involuntary categories.
        
        The public figure test sounds convincing in theory, largely because of
        its catchy name. Its introduction in Australia would probably only
        further complicate an already complex area of the law.
        
        Nevertheless, there is force in the argument that journalists do not
        feel free to tell the truth about corruption and mismanagement because
        they fear being the target of so-called "stop writs". "Stop writs" do
        not prevent publication of further material, but they do have what is
        called a "chilling" factor. If a politician is known to be quick-
        writted, journalists may be reluctant to publish articles critical of
        him.
        
        The main problem with the American public figure test is that it has
        gone too far. A person thrust into the public eye by ill-fortune or
        persondl tragedy ought not to suffer the additional humiliation of being
        unable to rectify the situation by seeking legal redress.
        
        However, if the test could be limited to public officials such as
        politicians, senior public servants and the like, and be restricted to
        comments made about their fitness for office (in mdtters of public
        interest), the test may give journalists in the political sphere a
        greater degree of latitude. The argument that public servants (above a
        certain level) should be accountable without fear of suit has some moral
        basis; whether amateur sportsmen, small-time actresses, closet
        homosexuals and the Prime Minister's children should lose their right to
        sue is another matter.
        
        A 'public figure' defence (really a 'public official' test) could be
        drafted along the following lines:
        
        "(l) It shall be a defence to an action for defamation that the
        statements were published of a person who was at the time of
        publication:
        
        (a)   a candidate for public office;
        
        (b)   an elected public official;
        
        (c)   the occupant of any position above Class 4 in any branch of
        government who exercises any public function;
        
        (d)   law enforcement officials of commissioned rank and above;
        
        (e)   retained to perform government service deamed to be of importance
        to    the public;
        
        (f)   holding judicial office;
        
        (g)   a director of a company which is a public company or which is a
        company listed on the Stock Exchange or Futures Market for the
        purpose of trading in shares;
        
        (h)   holding or administering pursuant to a trust of any kind
        
        provided that the statements relate to his/her official conduct or touch
        upon his/her fitness for office and relate to matters of public
        interest.
        
        (2) Where the statements are published with actual malice, the defence
        will fail
        
        (3) The burden of proving actual malice lies upon the plaintiff."
        


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