Tuesday, 31 March 2015

Australian Defamation Law Reform

One of the most important speeches of my legal career was one on behalf of Attorney-General Collarey and with the strong support of Justice Kelly, President of the Community Law Reform Commission. The speech was made at a conference on defamation reform at the Institute of Ethics in Perth and was followed by a specific conference calling for national reform a couple of months later in Canberra. In the years after this conference, the pressure for reform never stopped growing.

Peter Quinton, photo credit David Dare Parker

It is a matter of quiet personal satisfaction that a great deal has changed in defamation law since this speech. I lecture on the reforms from time to time - and the detail of the changes can be a little overwhelming. The actual effects are fairly straightforward.

The first is in relation to the substantive defence. The defence in the ACT and around the country now is truth alone, so it is possible to engage on the question of whether the information published satisfies an objective test in relation to truth rather than having to also meet secondary tests about whether it is appropriate that that information be put into the public arena.

Secondly, at a procedural level, the past very simple procedural process that applied around the country in relation to the commencing of the defamation actions has disappeared and, in its place, defamation actions now have to be commenced in much the same way as any other civil action for damages is taken. That means very simply that, before an action is contemplated, the plaintiff is put to a very large degree of effort. It is unlikely, given that single procedural change, to see these actions being used in the way that stop writs had been traditionally used.

Thirdly, in relation to the structure of defamation actions, the ACT model, based on the UK reforms in the 1990s, has now been adopted in New South Wales and all other parts of Australia. There can be a dialogue between the defendant and the plaintiff in relation to an offer of amends so that, after the initial quarrel is raised with the publication, it is possible for the defendant to come back and say, “We got it wrong; we can act together to minimize the damage that you have suffered.” If the plaintiff pursues the case, without attempting to engage in that process of reconciliation, the defendant ends up with an actionable defence.

Finally, the law has changed in relation to who can commence actions. It is now only a personal action or an action that can be taken on behalf of corporate bodies that have a public purpose or small companies with fewer than 10 employees. That would tend to exclude most of those companies that had previously commenced actions overseas in the form of a stop writ.

In terms of the changes to the defamation law undertaken on a uniform basis, there are fairly substantial, coherent protections. In addition, changes to civil law have seen the introduction of significant procedural safeguards that are designed to prevent writs that have no merit proceeding. Most significantly is a New South Wales reform, whereby at the point at which matters are set down for trial the legal practitioner responsible for drafting the claim has to certify that there are reasonable prospects of success.

Peter Quinton
March 2015

No comments: