From July 1,the defamation laws in NSW and the ACT are changing in tandem to introduce new defences,including a defence to help Facebook page administrators fend off costly claims over comments by others.
Victoria is among the states expected to follow suit shortly,but some jurisdictions won’t. The differences in the law mean in theory it is easier to bring,and win,a defamation claim in some parts of the country than others.
University of Sydney Professor David Rolph,an expert in defamation law,said that “in a country of 27 million people it’s not really defensible to have substantially different defamation laws” in the states and territories.
“Disconformity increases cost and complexity and might encourage forum-shopping,” Rolph said.
Forum-shopping involves a plaintiff bringing their claim in the jurisdiction they consider most likely to deliver them a favourable outcome.
Increasing confusion
It hasn’t always been as confusing. In 2006,every state and territory in Australia introduced near-identical laws to create an almost uniform system of defamation laws across the country.
For the next 15 years,Australia had close to perfect uniformity in defamation laws across the country. But cracks emerged in 2021,and again this year.
Bruce Lehrmann filed his Federal Court defamation case against Ten and Lisa Wilkinson in NSW.Dominic Lorrimer
Three different sets of law
From July 1,there will be different sets of defamation law in Australia:
While Victoria,Queensland and Tasmania are expected to catch up with NSW and the ACT and pass identical legislation shortly,South Australia will only adopt some of the changes,so there will remain three different laws across the country.
Sydney is Australia’s defamation capital and has emerged as one of the defamation capitals of the world.
The first wave of changes
Disunity first set in when Western Australia and the Northern Territory opted out of changes made in every other state and territory in 2021,after a reform process led by NSW. The majority’s changes included:
Network Ten and Lisa Wilkinson could not deploy the public interest defence in Bruce Lehrmann’s Federal Court case against the network and the high-profile presenter because the former Liberal staffer sued over an interview aired in February 2021. The laws did not change until July. But it is not clear that the defence would have succeeded in that case,either.
The public interest defence was tested in Heston Russell’s defamation case.Edwina Pickles
The second wave
From July 1,NSW and the ACT are changing the law again to include:
Queensland and Tasmania committed to the second round of changes,but it is not clear when it will pass legislation to effect them. Victoria is also committed to the changes and,which is expected to become law around August.
The South Australian Attorney-General,Kyam Maher, that the state was “not implementing all the reforms that deal with ... internet publishing”. SA is expected to introduce the changes relating to complaints to police “in the not too distant future”.
Plaintiff-friendly jurisdictions
Western Australia and the Northern Territory are now,in theory,the most plaintiff-friendly jurisdictions in Australia because a claimant does not need to wait and issue a concerns notice before suing,and does not need to prove serious harm to reputation to bring a defamation suit. In addition,defendants cannot rely on any of the new defences including public interest.
South Australia is also set to be a more favourable jurisdiction for plaintiffs than the eastern states because it is not introducing some of the new exemptions or defences relating to online publications.
Linda Reynolds is suing Brittany Higgins and David Sharaz in the WA Supreme Court.Alex Ellinghausen
West Australian Liberal senator Linda Reynolds,,is suing her former staffer Brittany Higgins and her husband David Sharaz for defamation in the WA Supreme Court over social media posts.
Reynolds does not have to establish that the allegedly defamatory posts have caused,or are likely to cause,serious harm to her reputation in order to bring the claim. Higgins and Sharaz cannot rely on defences such as public interest,but it is unlikely that defence would have been useful in that case.
“The effect of the first stage of the reforms[in 2021]… was to make suing for defamation more difficult for plaintiffs by introducing serious harm to reputation as an element of the cause of action,” Rolph said.
“In Western Australia and the Northern Territory,where those reforms are yet to be enacted,it is obviously easier for plaintiffs to bring a claim in defamation.”
No ‘genuine consensus’
The changes to the law in 2021 and this year were led by NSW.
Dr Michael Douglas,a defamation lawyer at Perth firm Bennett,said:“I think that the NSW-led reforms,although they got attorneys-general to agree,didn’t have a genuine consensus.
“I’ve been a critic of the process for a while. I don’t think the rest of the country truly came with them. Different states have different priorities.”
Douglas said the fact that plaintiffs in WA and the NT did not have to issue a concerns notice and wait before launching a defamation case was a “huge advantage”,but it was not yet clear if defences such as public interest were “going to make any real difference”,as they had not yet been tested fully.
The serious harm requirement “will have its biggest impact ... on the small fry matters” rather than larger disputes,Douglas said.
Which law applies?
There is a risk that the difference between the laws will encourage forum-shopping. A well-advised plaintiff would choose to bring their claim in the jurisdiction with the most favourable laws.
However,Rolph noted there is in the law in all states and territories that may discourage forum-shopping:a court must apply the defamation law of the state or territory with the “closest connection” to the harm allegedly caused by the publication if it crosses jurisdictional lines.
Courts apply the defamation law with the “closest connection” to the alleged reputational harm.Adobe Stock
In considering which law to apply,the court may take into account a range of factors,including where the plaintiff lives and the extent of the publication in each state or territory.
The Perth-born Reynolds is closely tied to WA professionally and personally. It is not surprising that she is suing in her home state,but it does have its advantages.
New laws?
Douglas said he would support the laws being considered afresh at a national level by the Australian Law Reform Commission,and potentially enacted by the Commonwealth.
While there were questions about the extent of the Commonwealth’s power to legislate in this area,he noted the vast majority of defamation now involved the internet and “if the Commonwealth were to take the reins it would[likely] cover 90 per cent plus of defamation litigation in Australia”.
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