(Image: Tom Red/Private Media)

This is part one of a two-part look at defamation reform.

To the casual observer, defamation law in Australia probably looks like an absolute mess. Thankfully, we have a strong corps of defamation law experts in the country who agree that our defamation law is an absolute mess.

Three things happened recently, each momentous in its own right. First, the New South Wales government announced that the so-called stage one amendments to the Defamation Act, painstakingly negotiated over several years and agreed to in principle by all eight states and territories, will finally come into effect on July 1 this year.

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Not quite everywhere, however. Only NSW, Victoria and South Australia have so far passed the amendments through their parliaments, and they’ve given up waiting for the others so they’re going it alone if necessary. This will drive a huge hole in the “model law” arrangement that had been so painfully pieced together back in 2005 when everyone harmonised their previously disparate defamation laws into a nationally consistent one.

Second, NSW also released 100 pages of discussion paper for the stage two round of proposed defamation reforms. (More on that later; I’m still reading it.)

And third, a group of 39 prominent defamation lawyers, including the leading silks Bruce McClintock and Sue Chrysanthou, put their names to a note circulated among NSW MPs insisting that the stage one amendments “are fundamentally flawed and should be abandoned”. So the part of the work that has been completed, trumpeted and is about to become law has a big and influential group of haters of its own. Look out stage two.

I should note that these lawyers largely don’t include those who make their money defending media companies against defamation suits.

(There was a fourth defamation excitement — Peter Dutton commenced his campaign to defamation-threaten the entirety of Twitter into not calling him a potato anymore — but I’m too scared to talk about it.)

What’s the beef with stage one? The guiding principle with these reforms was to address the problem, as former attorney-general and current defamation plaintiff Christian Porter famously described it, “that current defamation laws no longer strike the perfect balance between public interest journalism and protecting individuals from reputational harm”. Well he would say that. Maybe not now.

The headline reform is the new “public interest” defence, designed to support the media in doing investigative journalism on stories of genuine public interest, such as allegations of corruption or serious crimes by people holding offices of public trust (as a random example). The idea is to fix the current flaw whereby the only viable defence available to the media when publishing such allegations is to prove their truth. I can’t think of a relevant example.

The lawyers’ complaint about the new defence is that it won’t reduce the volume of defamation cases but will increase their cost and may “encourage irresponsible and unreasonable journalism”. At least in the short term.

That’s fair, it might do that in the short term. It certainly will encourage the media to have a harder go at whistleblower and survivor allegations against famous people because, if the defence works, they won’t have to prove the allegations’ truth. However, the courts will pretty quickly be asked to decide how far the media can now go before striking trouble. Hopefully, a fair bit further than they can go now.

The other major amendments in stage one are the introduction of a “serious harm” threshold (designed to chuck minor claims out at the first gate) and a clearer cap on damages to bring defamation verdicts back closer to some logical parity with payouts in other types of compensation claims (such as personal injury).

The lawyers don’t like these either, because they won’t work. To be honest, reading their arguments in detail they really have nothing nice to say about stage one. It’s like it was sprung on them without warning, forcing them to go public at the last minute with their dire warning of looming fatality, instead of emerging from a process of open public consultation and submissions as well as negotiation between all eight governments.

For all that, the concerns are not silly and they may be proved right in some respects. They have a good argument that legal cost sanctions would be a more effective way of dissuading plaintiffs from filing petty suits, rather than an arbitrary serious harm test that might trigger mini-trials in practice and end up costing even more than the current benighted system.

It’s just a bit late in the day to be trying to derail the train, and it’s reasonable to look askance at any argument that says our current defamation law isn’t in urgent need of change. It definitely is.

If by July 1 the other jurisdictions haven’t caught up and NSW and the other two go ahead as threatened, then we will see a return of the very unfortunate problem of forum-shopping. Most defamatory publications are available online, which means a plaintiff can sue anywhere. They will, naturally, choose the laws that best suit them, which won’t be those that include stage one.

It will, at least temporarily, end the defamation tsunami in NSW, Victoria and SA, but there will also be reports of major flooding in the courts of everywhere else.

As for stage two, I’m over the word count. See you in the next episode of Defo Wars, when I try to gratuitously work in a reference to that photo where Dutton looks like Darth Sidious.

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Peter Fray
Peter Fray
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