Tasmanian Attorney-General Vanessa Goodwin

To protect Tasmanian jobs from the commercially damaging statements of environmental activists, Tasmania’s Liberal government took a policy to the election of changing the island state’s laws to allow corporations to sue for defamation. The legislation for the policy has yet to be released, but the government reaffirmed its commitment to bringing it in earlier this week. Most observers are expecting the legislation to be passed by Tasmania’s parliament within the year.

The change has implications far beyond the state’s borders. Since 2006, all Australian states and territories have had largely uniform defamation laws. Adopted as part of this package was a limitation on companies with more than 10 employees suing for defamation — a feature of New South Wales defamation law since 2002. The Tasmanian government’s stated intention of repealing this aspect of its defamation law threatens to undo the uniformity across all Australia’s legal jurisdictions, allowing corporations with a national footprint the ability to transfer lawsuits into Tasmanian courts, even if the events precipitating those lawsuits occurred elsewhere. “I think that’s a real risk. And we’re not the only ones saying that,” Law Society of Tasmania president Matthew Verney told Crikey this morning. “We could see very opportunistic litigation.”

Tasmanian Attorney-General Vanessa Goodwin said in a statement earlier this week that the proposed changes are an attempt to protect Tasmanian jobs and the businesses that create them:

“We will always support the right to free speech but that right to free speech needs to be balanced by the opportunity to challenge clearly false and misleading claims which have the potential to destroy jobs,” she said.

The laws are likely prompted, Verney says, by an environmental campaign against timber processor Ta Ann, which the government claims led the company to shed 40 jobs. But Verney is highly critical of this rationale. “The very nature and history of defamation law is that it exists to protect people’s reputation. The government is trying to prevent commercial injury and the loss of jobs. They’re very different things.” And anyway, he adds, businesses already have legal avenues to pursue for such redress.

Principally, businesses can pursue claims of injurious falsehood, both to seek injunctions against the further publication of damaging and untrue material, and to seek damages. When the laws were changed in 2006 to prevent large corporations suing for defamation, it was intended that more of them would pursue claims of injurious falsehood instead, Sydney University associate professor in law David Rolph tells Crikey . “There’s always been a concern about the chilling effect of defamation law,” he said. But the uniform defamation laws did make it harder for companies to pursue legal redress. “It’s far more straightforward to sue for defamation,” Rolph said. “All you have to prove is a defamatory publication. In injurious falsehood claims however, the plaintiff has to prove the defendant published false statements about a plaintiff’s goods or services, that the defendant was motivated by malice or another improper motive, and that there was injury, or damage, caused to the plaintiff.”

The uniform defamation laws do have weaknesses. For one, they were rushed in. In 2004, then-federal attorney-general Philip Ruddock made clear he’d be introducing federal defamation laws if the states and territories didn’t get their act together and resolve the differences between their legislations. Some of these changes were significant. For example, in some jurisdictions, proving the truth of a defamatory publication was a defence against defamation. In other jurisdictions, it was not. In response to Ruddock’s ultimatum, agreement was quickly reached, after several decades of failed attempts. But what ended up happening, Rolph says, was that much of defamation law as it stood in New South Wales, the country’s largest defamation jurisdiction, was exported with little refinement or consideration for the other jurisdictions of Australia.

Rolph has reservations about some aspects of this. For example, one impact of the inability of corporations to sue for defamation has been a far greater use of injunctions to prevent injurious falsehoods being published. And Rolph isn’t certain the current threshold preventing corporations from suing for defamation — if the company has 10 or more employees, it can’t sue — makes much sense, describing it as “arbitrary”. But, he stresses, that doesn’t mean Australians would be better served by particular jurisdictions changing the laws on their own. “The whole purpose of the laws was to minimise differences. This is a substantive difference. If the law on corporations suing for defamation needs to be rethought, it’d be better for all the states and territories to discuss them.”

Instead, Tasmania is forging ahead on its own. Verney says the government’s policy is part of a “concerted effort to limit, stifle and chill debate in Tasmania”, which the government has also pursued through laws limiting protests and the like. But when you muck around with defamation law, it could affect people far beyond the Apple isle.

Peter Fray

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