Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Western Australia.

Date: Wednesday, 17 August 2005

Member: MCGINTY
Subject: DEFAMATION BILL 2005

Second Reading

MR J.A. McGINTY (Fremantle - Attorney General) [1.08 pm]: I move -

That the bill be now read a second time.

This bill is a historic milestone in not only the development and achievement of uniform state and territory legislation but also, importantly, in the reform and modernisation of defamation laws throughout Australia. The bill, together with other state and territory defamation bills, will give all Australians a uniform law of defamation that achieves an appropriate balance between free speech and protecting the reputation and character of individuals who are defamed.
At the 22 March 2005 Standing Committee of Attorneys General meeting, all states and territories agreed to implement model uniform defamation legislation by 1 January 2006.

This bill is, with appropriate drafting modifications, the same as the bills proposed to be introduced in other states and territories as well as the Defamation Bill currently in the South Australian Parliament. This is a historic achievement. Reform of defamation law in Australia, and problems associated with its lack of uniformity, have been under consideration for at least 25 years. In 1979, the Australian Law Reform Commission published its report “Unfair Publication: Defamation and Privacy” and the Law Reform Commission of Western Australian published its report on defamation. A subsequent report was published by the Western Australian Committee on Reform of Defamation, chaired by Wayne Martin, QC, in September 2003.

This bill takes into account these reports as well as a SCAG July 2004 discussion paper and, in particular, because the Martin report was tabled at SCAG, the bill conforms with many of the Martin committee’s recommendations.

For a number of years, the principal obstacle to achieving uniform defamation laws and agreeing on a model bill has been the difficulty of reaching an agreement to overcome the difference between those jurisdictions, being this state, South Australia and Victoria, having “truth alone” as a defence to a defamation action and those jurisdictions, New South Wales, Queensland, Tasmania and the ACT, requiring that the defendant prove that the published matter was “true and that it was in the public interest or for the public benefit” for the matter to be published. Those latter jurisdictions, especially New South Wales, have now agreed to change to “truth alone”.

As all members will appreciate, reform of our defamation laws is essential and any such reform should be uniform throughout Australia. There is, of course, the usual need to reform our laws to ensure that they reflect and cater for the community’s and people’s needs in changing circumstances. However, in addition, in the context of defamation law, rapid technological and other developments in the ease and speed of communications, both in electronic and print forms across jurisdictional boundaries, require that any such reforms be on a national basis. As a matter of both practical politics and constitutional law, the only way that such national uniform defamation law reform can be achieved is by cooperation between all states and territories. While the commonwealth government has made several statements about, and often quite unhelpful interventions in, this cooperative reform process, all of the states and territories have put aside their parochial interests and carefully and diligently worked towards achieving the best defamation laws for Australia. As members will realise when they consider the bill, that task has been completed. As a result, there is now a historic agreement to implement uniform state and territory defamation legislation.

There are four major objectives underlying this bill: firstly, to have a uniform law of defamation operating throughout Australia. This is particularly necessary because of the national media and rapid dissemination of written and oral communications throughout Australia. Secondly, to shift the focus away from costly defamation litigation and court trials to a system that encourages and allows early and non-litigious settlement of disputes involving allegations of defamation; that is, the object of defamation proceedings should be to vindicate the reputation of persons who have been defamed, rather than being an avenue principally focusing on obtaining monetary compensation. Thirdly, to retain, with appropriate modifications, the common law of defamation; that is, the uniform legislation will not affect the operation of the general law concerning defamation except to the extent that the legislation so provides. Fourthly, to ensure that defamation law provides an appropriate balance between protecting personal reputations and free speech, for example, by not placing unreasonable limits on free speech, including publication and discussion of matters of public interest and importance and providing effective and fair remedies for defamed persons.

Given the historic importance of this bill, to assist members in their consideration of the bill, I will outline, in some detail, its central features.

Retention of the common law: Members should be aware that this uniform defamation legislation is not an exhaustive or exclusive legislative code on defamation law. The bill will not affect the general operation of the common law of defamation except to the extent that the bill modifies the common law; that is, the common law will continue to apply in areas other than those set out in the bill. In other areas, such as corporations suing for defamation, the distinction between libel and slander, and damages, the bill will change the common law. There are four main examples: first, the bill does not define what is “defamatory matter”. Therefore, the common law test of defamatory matter will remain; namely, that a publication is defamatory if it is likely to cause ordinary, reasonable people to think less of, or shun or avoid, the plaintiff. Secondly, the bill does not define what is a “publication” of a defamatory matter. Whether there has been such a “publication” will continue to be determined by the common law. Thirdly, the bill does not define “public interest” which, for example, is an aspect of the defences of qualified privilege and honest opinion. “Public interest” will continue to be elucidated by the common law. Fourthly, the bill will not deal with the circumstances in which a person will be able to obtain an injunction to restrain the publication or republication of material. This will remain a matter to be dealt with in the courts’ equitable jurisdiction.

Not codifying the common law will ensure that defamation law retains its flexibility, with the capacity to develop in response to changing circumstances. This will not detract from uniformity because the High Court enunciates the common law, which applies in all jurisdictions.

Libel and slander: The bill will abolish the distinction between libel and slander. The former refers to written defamatory publications and slander deals with verbal defamation. This common law distinction serves no real practical or legal purpose. Therefore, it will be abolished by the bill.

Corporations: Another central feature of the bill relates to corporations. Currently, at common law corporations can sue for defamation. Under the bill, corporations will not be able to sue. There are two exceptions; firstly, where the corporation is a non-profit corporation; and, secondly, where a corporation has less than 10 employees at the time of publication of the defamatory matter. In this context, part-time employees are taken into account as a fraction of a full-time equivalent. In addition, to be able to sue for defamation, such a corporation must be a corporation which is not related, within the meaning of the commonwealth Corporations Act 2000, to another corporation at that time. These exceptions do not include a local council or other governmental or public authority. However, it is important to note that an individual associated with a corporation can still sue for defamation in relation to a defamatory publication about the individual when that publication also defames the corporation.

There are some individuals who consider that all corporations should be able to sue for defamation, with varying pre-conditions depending on whether it is a small, medium or large corporation. The states and territories do not agree with that position. There are several reasons why corporations, other than the corporations to which I have referred, should not be able to sue for defamation. Firstly, defamation law should protect individual persons’ reputations, not corporate reputations. Secondly, there may be other remedies available to corporations to recover losses caused by damaged reputations; for example, the tort of injurious falsehood and commonwealth Trade Practices Act 1974 remedies for misleading, deceptive or unconscionable conduct. Thirdly, large and powerful corporations should not be able to use the threat of defamation proceedings to silence or stifle public debate or criticism. Finally, corporations, unlike most individuals, may well have the ability to engage in advertising to refute alleged defamatory publications and run effective publicity campaigns to protect their public profile and reputation.

Limitation periods: In relation to limitation periods, currently in this state there is a six-year limitation period in which to commence a defamation action. The bill implements the SCAG agreement and has agreed that the uniform defamation law should require defamation proceedings to be commenced within one year, with a judicial discretion in appropriate cases to extend the one-year period to three years. This reform will be implemented by amendments to the Limitation Bill 2005, which is currently in another place.

Offer of amends: Importantly, the bill contains a pre-litigation offer of amends procedure and makes it clear that an apology does not amount to an admission of fault or liability. This is designed to encourage early and voluntary settlement of disputes without resort to litigation. The offer of amends must include an offer to publish a reasonable correction. Some individuals consider that courts should be able to order publishers to publish a correction. However, states and territories consider that the bill should not provide for court-ordered correction orders. There are at least three reasons. Firstly, the offer of amends procedure already encourages publishers to promptly publish corrections; secondly, the bill provides that publication of a correction can mitigate damages; and, thirdly, a prompt and voluntary correction is preferable to a court-ordered correction because court-ordered corrections will necessarily be made a considerable time after the original publication of the defamatory material. In addition, media organisations are opposed to such court orders, for example, on the basis of free speech and because there may be cases when a court orders the publication of a correction and the real truth emerges some time later.

Common law and statutory defences: Importantly, the bill does not exclude any defences to defamation proceedings that may be available at common law or other legislation and which are not included in the bill. That is, the defences in the bill are additional to and do not exclude other defences to civil defamation proceedings.

Truth: Perhaps the most well-known defence to defamation proceedings is truth. Currently, truth alone is a defence in Western Australia. This defence is established when the defendant proves that the defamatory publication was true or substantially true. The bill adopts this truth alone defence by providing that it is a defence if the defendant proves that the alleged defamatory publication was substantially true. This represents a considerable compromise by those jurisdictions - Queensland, Tasmania, New South Wales and the Australian Capital Territory - that currently have the truth and public benefit or public interest defence.

Absolute privilege: Of particular interest to members will be the fact that the bill provides for absolute privilege in the usual situations, such as proceedings of Parliaments, courts and tribunals. The bill also protects publications of fair reports of public documents and of proceedings of public concern. Currently, the common law qualified privilege applies when the person who makes the communication has an interest or legal, social or moral duty to make a communication and the recipient has a corresponding interest or duty to receive the communication, and the conduct of the defendant in publishing the material is reasonable in the circumstances.

Honest opinion: The bill retains this common law privilege and elucidates this privilege by providing a list of circumstances, including whether it was in the public interest for the matter to be published expeditiously, which the court may take into account in determining whether the defendant’s conduct has been reasonable. The bill protects expressions of opinion that are genuinely held about matters of public interest in three specified situations: firstly, when the opinion was that of the defendant; secondly, when the opinion was that of the defendant’s employee or agent; and, thirdly, when the opinion was that of a third party. This defence may be defeated if the plaintiff proves that the defence was actuated by malice. This generally reflects the common law defence of fair comment and the Western Australian statutory defence of fair comment.

Innocent dissemination: The common law defence of innocent dissemination is retained and supplemented by the bill; that is, although the common law already protects secondary distributors of material who neither knew nor ought to have known that the material they distributed was defamatory, the bill specifically accommodates modern means of communication by recognising that some parties involved in the distribution of material - for example, booksellers and Internet service providers - have no effective control over the material they distribute and should not be liable in defamation.

Damages: The bill contains several significant provisions relating to damages. First, the bill requires that damages awarded to plaintiffs have an appropriate and rational relationship to the harm plaintiffs have suffered. Secondly, the bill caps damages for non-economic loss at $250 000, which will be adjusted annually with reference to a formula in the bill. Thirdly, the bill retains the ability of courts to award aggravated damages in appropriate cases and full recovery for plaintiffs’ economic loss. Finally, the bill abolishes exemplary and punitive damages for defamation.

Existing legislation: Members will also be interested in the fact that the bill will repeal or amend several existing Western Australian statutes. They are the Slander of Women Act 1900; the Newspaper Libel and Registration Act 1884 and its 1888 and 1957 amendments; the United Kingdom Libel Act 1843, which was adopted in this state by an ordinance assented to on 5 August 1847; as well as the Criminal Code provisions relating to criminal defamation.

Criminal defamation: The uniform state and territory legislation deals with civil defamation. It was not intended, and there has been no agreement between state and territory Attorneys General, to reform or make uniform criminal defamation laws. Therefore, there will remain differences between state criminal defamation laws. However, because of the reforms to civil defamation laws, members will, I trust, agree that it is appropriate to implement reforms to the WA criminal defamation laws.

In this state, the law of criminal defamation is principally in section 53 and chapter XXXV of the Criminal Code. The 1979 WA Law Reform Commission recommended an offence provision. The bill implements that recommendation of the WA Law Reform Commission. In addition, it is appropriate to adopt the generally accepted approach to the formulation of defences that can apply to criminal defamation. This approach applies all the defences to civil defamation proceedings to criminal defamation.

Intergovernmental agreement: Members may also be interested to know that state and territory Attorneys General are developing an intergovernmental agreement to achieve and maintain uniformity for the substantive law of defamation. As I have indicated, this bill will ensure an appropriate and fair balance between free speech and protecting personal reputations. This will be achieved by reforming defamation law and by implementing this reform on a uniform basis throughout Australia. This reform is long overdue and essential in a modern society with extensive and diverse means of communication.

Over the years - perhaps, I am tempted to say, decades - there has been extensive consultation on defamation law reform both through the Standing Committee of Attorneys General and various state Law Reform Commissions and other committees. The proposals in this bill have been considered and endorsed by all state and territory Attorneys General and other persons and organisations, including media organisations. There is broad agreement that these uniform defamation reforms should be enacted. This is an achievement to be celebrated. Therefore, I have much pleasure on behalf of the state government and all Western Australians in commending this bill to the house.

Debate adjourned, on motion by Dr G.G. Jacobs.