DEFAMATION By Joseph Fernandez
Cartoon by Rod Emmerson
Seven years ago a discredited defamation law artifice – the refusal in some jurisdictions to accept truth alone as a defence – was dumped in the move toward national uniform law. That artifice, the public interest/public benefit element, was unashamedly a privacy protection device. Now one Australian lawyer grouping wants it restored because of “numerous problems” and one especially – “privacy has been compromised”. This call is among the raft of submissions72 before the New South Wales attorney-general under the ongoing statutory review of the State’s Defamation Act. The review can have national ramifications because under the Inter-Governmental Agreement, which promotes uniform defamation law, the Standing Committee of Law and Justice will consider any proposed NSW amendment. A closer look under the surface of the country’s “uniform defamation law” (or, rather, “substantially uniform” law) reveals that, although the last reform is largely achieving its objectives and was a dramatic improvement over the status quo, a number of areas need attention. The NSW Act required a five-year review to determine whether the Act was meeting its policy objectives. A review report was to be tabled in each House of Parliament within 12 months after the end of the five-year period. The review was due for completion by October 26 last year. Given the potential impact of the NSW review on the prevailing Uniform Defamation Acts (UDA) regime in the country, other States and the Territories are watching closely. Sixteen submissions were made, including one by Australia’s Right to Know coalition, a grouping of major media organisations, and whose reform proposals featured in the last Press Freedom Report.This report will look at other reform submissions, including those that came after the last report was published. An overview of the reform submissions suggests that while there is general approval of the UDA many aspects require reform. As the nation’s peak legal profession body, the Law Council of Australia observed, however, it is “very important that any amendments to the Act only be undertaken as part of uniform amendments to the national scheme laws.” The council, in taking a “national perspective” in its submission, said it would be “a matter of the greatest regret if the achievement of uniformity were to be undone by unilateral changes” in individual Australian jurisdictions. Some of the reform proposals are considered below.
The truth defence and the public interest One UDA bulwark was the introduction of the truth alone defence nationwide. That meant abandoning the “public interest” or “public benefit” requirement in four jurisdictions where the truth was not a complete defence. That requirement in NSW, ACT, Queensland and Tasmania severely impaired defendants and was also widely viewed as a de facto privacy protection device. As the Law Council noted, it was “[p]erhaps the biggest stumbling block” to national uniform law then. Not surprisingly, the NSW Bar’s call to reinstate that hurdle has drawn a stiff response from the Law Council. In its submission the Council noted the call “with considerable alarm” and said such a move would be “a gravely retrograde step”. The Council said that, aside from undermining national uniformity, the old requirement distorts the law of defamation and is uncertain in scope and application. In its view, in some cases the requirement also outlaws the speaking of the truth not because what is said undermines the plaintiff’s deserved reputation but because it infringes the plaintiff’s privacy. The Council added that privacy and defamation are two distinct spheres of discourse.
The contextual truth defence This defence is essentially aimed at giving defendants an escape route by allowing them to defend an action by pleading the imputations not sued upon so as to prevent an undeserving plaintiff from succeeding. According to the Law Council the contextual truth defence in section 26 is not achieving its intended objective. One reason is the section is poorly drafted.
Published on May 3, 2012