The law consists of legislation. But it also consists of judicial precedent, or ‘common law’, as handed down by the courts. And in the courts, change is afoot.
On Monday, Justice Jayne Jagot will take her place on the High Court, marking the first time Australia’s highest court has had a female majority. It’s a significant moment in history, but what does this mean for the future of media law?
Last year, Justice Jagot presided over the sensational Federal Court defamation trial brought by then-Attorney-General Christian Porter against the ABC and journalist Louise Milligan. The case was settled in May 2021, so no judgment was delivered. However, a series of rulings left no doubt about her ability to make tough calls, including her decision in June 2021 to remove 27 pages of the ABC defence from the court file ‘to prevent prejudice to proper administration of justice’.
And last month, Justice Jagot held that a newspaper report about a businessman was not defamatory, whereas an analogous report on Nine’s flagship current affairs program 60 Minutes did convey defamatory imputations. As Justice Jagot wrote, ‘A program of this kind may be based on sober and careful journalism, but ... it is using numerous techniques – interplays of darkness, shadow, headlight glare, small pools of light, shadowy and silhouetted figures, unfocused images, slow motion, cutting between scenes, subsequent reveals of people’s identities, voiceovers and ominous, portentous, or intriguing music – to create an impression of high drama and international intrigue.’ The judgment showed a forensic attention to detail.
At events such as this upcoming lunchtime seminar, new Communications Minister Michelle Rowland is outlining her priorities. By contrast, judges tend to be less forthcoming. The Porter and Schiff cases don’t give many clues about how Justice Jagot will tackle media law issues, other than revealing a meticulous rigour. So, it will be fascinating to watch as the High Court, even as it faces further personnel changes, delivers big decisions about the responsibility of digital platforms, the constitutional protection of free speech, the limits of privacy, and other issues crucial to the vitality of our public and collective life.
Sacha Molitorisz, UTS Law senior lecturer
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