Why the Commonwealth Proposal Should Be Rejected

Introduction
For reasons that are not readily apparent, every few years politicians put forward proposals for the ‘reform’ of Australian defamation law. These attempts at reform are usually accompanied by calls for uniformity – there being eight different defamation laws operative throughout Australia.

Almost invariably, the proposals for reform are drafted by persons with little or no experience in defamation litigation and, almost inevitably, each attempt at reform miscarries. Uniformity remains a chimera.
The Commonwealth Attorney-General’s ‘Revised outline of a possible national defamation law’ published last year is the latest in a long line of attempts at reform and it appears that the proposed Commonwealth Defamation Bill is to be introduced into Parliament later this year.
Mr Ruddock’s proposal for reform has been subject to considerable discussion by interested parties, including the State Attorneys-General, media organisations and libel lawyers. It has received some criticism and a measure of support.

That support, however, is misguided and misplaced.
The Commonwealth proposal shares many of the defects of past reform packages as well as containing a number of new fangled flaws. It fails to address the issue of uniformity in a meaningful fashion. More importantly perhaps, the Commonwealth proposal, if it became law, would impact negatively on freedom of speech.

In particular, by emasculating the defences of fair comment and qualified privilege the proposal would make it much more difficult for media organisations to publish critical material and engage in investigative journalism. If the law of defamation is to be reformed, it should be reformed so as to widen the ambit of freedom of speech rather than restrict it.

Main features of the Commonwealth proposal
The main features of the Commonwealth proposal are as follows:

(a) a Commonwealth Defamation Act is to be introduced which is substantially different from existing defamation laws and is to comprise a code.

(b) the code will have a limited application, consistent with Commonwealth constitutional powers, and operate concurrently with existing defamation laws.
(c) State Supreme Courts and the Federal Court will share jurisdiction in respect of the code.

(d) the cause of action in defamation will be substantially widened. An action on behalf of the dead will lie, and defamation actions would no longer die with the plaintiff.

(e) the matter complained of will comprise the cause of action, rather than (as is now the case in NSW, Queensland and Tasmania) the imputations sued upon.

(f) a defence of ‘honest opinion’ will replace the current defences of fair comment.

(g) a new two-tier defence of qualified privilege will be introduced, replacing existing common law and code defences. Publication will have to be ‘reasonable’ and the onus of proof in respect of malice is to be reversed: defendants will have to negate malice.

(h) juries, at least in actions brought in the Federal Court, will decide if a person has been defamed and whether defences have been made out.

(i) rights of reply and correction orders will be introduced and the law relating to apologies will be substantially redrawn.

(j) the law relating to damages will be codified.

As can be seen from the above summary, the Commonwealth proposal constitutes a radical and fundamental reordering of the law of defamation.

Critique of the Commonwealth proposal
Codification of the law of defamation is wrong as a matter of principle. The fundamental problem with codification is that it does not allow (as does the common law) for development of the law in response to changed circumstances. It also places undue restrictions on courts and judges.

An additional consequence of codification will be an increase in litigation relating to issues of construction and interpretation of the code (one commentator has already spoken of ‘a financial boom for the legal profession’).

The creation of a ninth defamation law does nothing to reduce the so-called complexity of the existing regime (which, in any event, is much exaggerated. Experienced practitioners have little difficulty in conducting actions involving publications which transcend State boundaries).

In any event, how a system is made less complex by the creation of an additional layer of law is not clear.
The fact that the operation of the proposed code is limited to matters within Commonwealth constitutional power (it appears that the territories, corporations and trade and commerce powers will be principally relied upon) will create a situation of uncertainty and be productive of litigation.

The fact that there will be substantial procedural differences between actions brought under the proposed code and those brought under the existing defamation laws will encourage forum shopping.
The incentive for forum shopping will be increased by the fact that jurisdiction under the proposed code is to be shared by the State Supreme Courts and the Federal Court.

Substantial procedural differences exist between those Courts, most notably as to the role of juries. To think that these differences will not engender forum shopping on a mass scale is to severely underestimate the ingenuity of libel lawyers.
The proposed reform will create a situation where different Courts will be applying the same law in circumstances where their procedures differ radically. For example, a plaintiff suing in the ACT under the proposed code will have a choice between suing in the ACT Supreme Court, where a jury will play no part in the proceedings, and suing in the Federal Court, where a jury will decide all issues save for damages.

Can it seriously be suggested that the creation of such a system is desirable or reduces complexity?
There is no reason in principle for widening the current ambit of the cause of action in defamation. In particular, the creation of a cause of action on behalf of the dead is a retrograde step and one which can only lead to an increase in the number of defamation actions commenced.

This innovation also has serious free speech implications.
Abolition of the imputation as the cause of action will create uncertainty. How can a trial be meaningfully conducted (especially before a jury) when the defamatory meanings at the heart of the action have not yet been determined?
The defence of ‘honest opinion’ is much more limited than the existing defences of fair comment (which embody the so-called ‘right’ of free speech).

There can be no proper basis for curtailing freedom of speech at the present time. In any event, the proposed defence of honest opinion may well be constitutionally invalid.

The new defences of qualified privilege severely modify the current common law and code defences in favour of plaintiffs. These proposed changes constitute a further attack on freedom of speech and may well be constitutionally invalid. The impact will be most pronounced in Queensland and Tasmania, where the qualified protection code defences provide defendants with wider latitude to publish defamatory material.

The introduction of rights of reply and correction orders which the courts can compel defendants to publish is misguided as a matter of principle. The codification of the law in relation to apologies will severely disadvantage defendants.

The conduct of full jury trials in the Federal Court will involve a dramatic increase in utilisation of court time and judicial resources. One wonders whether the Federal Court judges know precisely what they may be in for. Jury trials will run for weeks and involve the need for lengthy judicial directions as to the operation of the proposed code. The fact that juries will not decide damages will not significantly reduce the length of trials. One can also expect a substantial number of appeals to the Full Federal Court.
Codification of the law relating to damages can only cause confusion. Even the current codes do not attempt to do this.

Conclusion
The Commonwealth proposal for reform of defamation law in Australia is fundamentally misconceived and misguided. Should the proposed code ever become law, it will create a degree of confusion and complexity which will make the current regime look like a model of simplicity and clarity.

The Commonwealth proposal will increase the number of defamation actions and give rise to unproductive litigation relating to matters of construction and constitutional validity. More importantly, the proposal (by emasculating the existing defences of fair comment and qualified privilege) constitutes a substantial attack on freedom of speech.

Media organisations will find it much more difficult to publish genuinely critical material. Investigative journalism will be unreasonably fettered, and material which is not actionable under the current law will no longer be protected. That being the case, the lack of criticism of the proposal by media organisations is very surprising.
There is no compelling reason why ‘reforms’ along these lines should be introduced.

The current proposal should be scrapped and focus redirected towards discussions with the States as to the creation of a genuinely national law of defamation. Any such law should not be codified, but rather comprise the common law with necessary modifications. Any such law should widen the ambit of freedom of speech, rather than restrict it.

In 1966 in an English decision Lord Diplock stated that: ‘lawyers should be ashamed that they have allowed the law of defamation to become bogged down in such a maze of technicalities.’ That comment was misguided; politicians and judges bear primary responsibility for the state of the law of defamation.
Lawyers do, however, bear a measure of responsibility, especially in relation to proposals for reform and, historically, lawyers have played an important role in preventing misguided proposals for reform from becoming law. For example, it was the compelling criticism of libel lawyers which caused the 1983 Commonwealth Uniform Defamation Code to be scrapped by the then Attorney-General Gareth Evans.

Libel lawyers should subject the latest Commonwealth proposal for reform to like criticism. It deserves no better fate than its predecessors.

Attorney General’s department: Revised outline of possible national defamation law: www.ag.gov.au/agd/WWW/rwpattach.nsf/personal/5AF3DB5EDB149F99CA256EF5000A0292/$FILE/0+0+defamationV5+19+August.PDF

The Communications Law Centre: Submission to Attorney-General Concerning Proposals for a National Defamation Law:
www.comslaw.org.au/publications/pub61.pdf

Electronic Frontiers Australia: Defamation Laws & the Internet: www.efa.org.au/Issues/Censor/defamation.html

The Communications Law Centre – Free speech and defamation: www.comslaw.org.au/main_ver4.asp?inputCategoryID=33

Parliamentary Library: Free Speech and the Constitution: www.aph.gov.au/library/pubs/rn/2001-02/02rn42.htm

Gazette of Law and Journalism: Richard Ackland www.lawpress.com.au/

Free Speech Victoria: www.fsvonline.org/

Combined media defamation reform group submission paper: www.astra.org.au/content/pdf/DefamationSubmissionMay04.pdf

Australian Press Council “ position on reforms: www.presscouncil.org.au/pcsite/fop/fop_ar/ar04.html#defam

Radio National “ The National Interest “ March 2004, presented by Terry Lane www.abc.net.au/rn/talks/natint/stories/s1070448.htm

Whistleblowers Australia: www.whistleblowers.org.au/

‘The Cadaver explains to Crikey why the dead should be able to sue for defamation:’ www.crikey.com.au/media/2004/08/05-0006.html

Life without reputation by Margaret Simons
www3.griffith.edu.au/01/griffithreview/article_content.php?id=181