Quoted by Michaela Whitbourn, ‘Uniformity at risk as defamation reforms set to start in three states on July 1’, Sydney Morning Herald/The Age (online)

Press/Media: Press / Media

Period1 Apr 2021

Media coverage

1

Media coverage

  • TitleQuoted by Michaela Whitbourn, ‘Uniformity at risk as defamation reforms set to start in three states on July 1’, Sydney Morning Herald/The Age (online)
    Media name/outletThe Sydney Morning Herald
    CountryAustralia
    Date1/04/21
    DescriptionNationally-agreed reforms to Australia’s defamation laws will commence in NSW, Victoria and South Australia on July 1 but the uniformity of the regime is at risk as the remaining states and territories have failed to guarantee they will introduce the changes on the same date.

    The country’s defamation laws were last updated in 2005, when the states and territories agreed to pass mirror legislation to replace an unworkable system of eight different laws across the country.

    NSW Attorney-General Mark Speakman led a national process to reform and modernise the outdated laws, and in July last year attorneys-general from across the country agreed to implement the changes.

    The model provisions have now been passed in three states – NSW, Victoria and South Australia – but those jurisdictions had been waiting for other states and territories to catch up before choosing a commencement date.

    The trio have now agreed to commence the new laws on July 1, while other jurisdictions will follow suit either on that date or as soon as possible thereafter.

    Mr Speakman said on Thursday that “all Australian jurisdictions agreed eight months ago the precise wording of reforms (and that they would start ‘as soon as possible’), providing ample time for all parliaments to have passed and proclaimed identical legislation”.

    “Uniformity is highly desirable and all jurisdictions have committed to this as the ultimate outcome, but waiting indefinitely for a small minority of jurisdictions unwilling to commit to any commencement date for the reforms is not an option,” Mr Speakman said.

    “All the remaining jurisdictions need to do is copy, paste, pass and proclaim the legislation to which they all agreed and continue to agree.

    “NSW, South Australia and Victoria account for about three quarters of all defamation judgments delivered in the 13 years from 2007 to 2019.”

    Mr Speakman said it was likely more jurisdictions would catch up by July 1 “and the couple of laggards by the end of the year”.

    He said the current and future defamation law “severely restricts the scope for forum shopping between states and territories”.

    The defamation reforms include a new “serious harm” test aimed at weeding out minor claims before a costly trial and a new public interest defence, both modelled on British law. It is not yet clear how these changes will work in practice.

    Associate Professor Jason Bosland, director of the Centre for Media and Communications Law at Melbourne Law School, said “having two regimes undermines the national harmonisation achieved with the 2005 reforms and has the capacity to lead to forum shopping”.

    Michael Douglas, senior lecturer at the University of Western Australia’s Law School, said Mr Speakman and his Victorian and South Australian counterparts “need to hold their horses”.

    “A fundamental purpose of Australia’s Defamation Acts is harmonisation of defamation laws between jurisdictions who have often done things differently,” Mr Douglas said.

    “A conflict of laws could make defamation litigation way more complex for media and plaintiffs alike in a national media market.

    “The benefit of these amendments has been grossly overstated. They’ll benefit big media companies ... but there’s little in here for regular people involved in backyard defamation disputes. I’m not a fan.”

    A second wave of defamation reforms is anticipated and Mr Speakman said a discussion paper would be released next week on issues including the legal responsibility of internet intermediaries for defamatory content published by users of their services.

    The new laws seek to reduce defamation payouts by clarifying the cap on general damages for non-economic loss, which is adjusted for inflation but is currently $421,000. A plaintiff may still receive a higher payout in some cases, including if damages are awarded for economic loss as in the Geoffrey Rush case.
    URLhttps://www.smh.com.au/national/uniformity-at-risk-as-defamation-reforms-set-to-start-in-three-states-on-july-1-20210401-p57fu5.html
    PersonsMichael Douglas