By Paul Gregoire and Ugur Nedim
The Council of Attorney-Generals (CAG) agreed to a set of national uniform defamation laws across all states and territories in November 2004.
These provisions were prepared by the Australasian Parliamentary Counsel’s Committee, with every state and territory adopting them in 2006.
“Thirteen years later and I think it is fair to say that current defamation laws no longer strike the perfect balance between public interest journalism and protecting individuals from reputational harm,” Christian Porter told the National Press Club in November 2019.
In calling out defamation laws, the Australian attorney general also noted that a path to reforming them had been instigated by the CAG in mid-2018. And while the finalised amendments were released last July, they still haven’t been adopted nationwide.
One aspect to defamation law singled out by Porter as needing reform is “forum shopping”: the selecting of a jurisdiction where a jury isn’t permitted, as it’s understood to favour the plaintiff.
This follows a swag of high-profile cases having taken advantage of this arrangement in the Federal Court.
So, last week, when the AG launched a defamation case against the ABC over a report – which didn’t name him as the alleged perpetrator in an historic rape claim, but, he asserts, still identifies him – he did so by taking the favourable Federal Court route under old laws that advantage his position.
The national uniform laws
Former NSW attorney general Bob Debus oversaw the passing of the Defamation Act 2005 (NSW) (the Act). It was part of the nationwide roll out of uniform laws. But the legislation didn’t take effect in this state until 2006, when all other Australian jurisdictions had passed their own set of laws.
For a civil case to succeed under these laws, three distinct components must be proven on the balance of probabilities. These are that the material was published, either in print or orally, that it directly or indirectly identified the plaintiff, and it damaged their reputation in some way.
Part 4 division 2 of the Act provides the available statutory defences. These include absolute privilege, being of public concern or an honest opinion.
However, unlike other comparable western democracies, the defence of public interest isn’t included. And experts state that without this, the ABC’s best bet against Porter is contextual truth.
Section 26 of the Act contains the defence of truth which is proven if it’s established the matter included substantially true imputations, along with the one that’s claimed to be defamatory, and, therefore, the latter doesn’t harm the plaintiff’s reputation in the context of these truths.
For the digital age
The standing defamation laws have long been criticised for silencing free speech in the name of protecting the wealthy and the powerful, who then go on to receive exorbitant damages. Often described as draconian, local defamation laws are said to stifle public interest journalism.
Porter has been championing the reforms on this front, as well as on there being a need to give them an overhaul due to the changes that have been brought about to publishing since moving into the digital age with its accompanying social media platforms.
In 2018, the CAG established a NSW-led Defamation Working Party to review the laws. The Model Defamation Amendment Provisions 2020 were approved by the CAG last July.
This state passed the changes into law via the Defamation Amendment Act 2020 (NSW) last August. Although, the new laws are yet to be enacted.
The Amendment Act inserts section 29A into the Act, which contains the defence of publishing on a matter concerning an issue of public interest. For this to be established, it must be shown that the matter is “of public interest” and publishing it “was in the public interest”.
The new legislation also inserts section 10A into the Act, which establishes the element of serious harm. This higher threshold requires that the defamatory action has or is likely to cause “serious” harm to the plaintiff. And if raised, this threshold must be determined as early as possible.
Changes have further been made to section 35 of the Act to clarify the way in which aggravated damages are applied. This section originally set a cap to the amount of non-economic damages awarded, but this has been exceeded in past cases due to the recognition of aggravated damages.
Once the changes are through, aggravated damages will still be able to be pursued, but any award will need to be made separately to the non-economic loss.
Section 14B of the Limitation Act 1969 (NSW) sets a one year from publication date limit for the filing of a defamation case. While section 56A of this legislation permits a court to extend this to up to 3 years from publication date.
Changes to limits have been brought in for the digital age, which includes providing a 56 day extension from the date a publication is first noticed if this is still within the initial year of publication.
And in terms of multiple online publications, the changes clarify that the year time limit only applies to the date the original publication was first uploaded.
Although, the amendments don’t address the issue of forum shopping, as juries remain unpermitted in certain jurisdictions.
The ACT, Northern Territory and South Australian courts exclude juries for defamation trials, while, in the Federal Court, a jury is only allowed under extraordinary circumstances.
The changes don’t take effect until all jurisdictions pass the amendments, and so far, only NSW, Victoria and South Australia have done so.
A timely delay
Porter’s vision of an improved system of nationwide defamation laws has been delayed due to the fallout from the pandemic.
And since historic rape allegations have recently been levelled against him, he’s now taking advantage of the old system he once critiqued, as he moves to sue the ABC.
The attorney general has done his best in forum shopping by filing his claim with the Federal Court, where a jury is basically ruled out. He’s claimed aggravated damages, as he asserts that journalist Louise Milligan intentionally tried to harm him.
And the ABC can’t claim it published in the public interest.
The move to sue is widely seen as a means for Porter to avoid an independent inquiry into the rape allegations, which would operate in a similar manner to the investigation carried out into harassment claims made against former High Court judge Dyson Heydon.
And if the case does go ahead, this favoured approach for a plaintiff is also perceived as a means to discredit the historic claims throughout the wider public perception.
