Our team has published a submission commenting on draft legislation released by the Australasian Parliamentary Counsel's Committee which provides a roadmap for national defamation law reform.
In it, we state that such reform must amend provisions that inhibit the public's right to access information from a free and fair press. Any amendments to the Model Defamation Provisions (MDPs) must aim to strike the appropriate balance between protecting an individual's reputation and the right to freedom of expression, and must seek to jettison complex judicially created rules that 'do not produce the right outcome in each case and adversely affects claimants and defendants alike'.
View our full submission.
Our major recommendations include:
- Amendment to the section 30 qualified privilege defence through the introduction of a statutory defence of publication on a matter of public interest. This reform is necessary as Australian courts have repeatedly rejected a common law defence of publication on a matter of public interest. Australia is lagging behind comparable jurisdictions in affording protection to legitimate public interest journalism. We recommend that a defence analogous to section 4 of the Defamation Act 2013 (UK) is preferable to a defence with a focus on 'responsible communication'.
- The introduction of a serious harm test which requires plaintiffs to establish that a publication caused, or is likely to cause, serious harm to their reputation. There is no explicit ‘threshold of seriousness’ in Australian defamation law and the filtering of spurious claims does not occur until trial. We welcome the introduction of a serious harm test which largely mirrors section 1(1) of the Defamation Act 2013 (UK) and recommends amendments to avoid procedural issues that have emerged in the United Kingdom.
- Amendments to section 35 in order to clarify the nature of the cap on damages for non-economic loss and ensure that aggravation falls within a reasonable range of assessment. The MDPs provide for a maximum amount of damages for non-economic loss, but several recent cases have undermined any cap for non-economic loss. Contrary to legislative intention, the gap between ever larger payouts for defamation and capped payouts for personal injuries continues to grow. Urgent legislative amendments are required to restore the statutory cap.
- The introduction of a single publication rule to provide that the applicable one-year limitation period runs from the date material is uploaded to the internet. Presently, the limitation period for an online publication is effectively open-ended. Amendment would help to facilitate the prompt and effective resolution of claims, end forum shopping and reduce the burden on media organisations who maintain news archives which form part of the historical record.
Our submission is currently being reviewed by the Defamation Working Party established by the Council of Attorneys-General and may help to improve and modernise nationally consistent defamation law. A separate ‘Stage 2’ review process will also be undertaken to consider potential amendments to the MDPs that address the responsibilities and liability of digital platforms for defamatory content published online.
We have long been calling for reform to Australia's outdated defamation laws. This submission represents an important step in establishing a framework for practical changes that will help to reverse the chilling effect on legitimate public interest reporting and the trend towards larger damages awards that has made Australia the defamation capital of the world.
