Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 13/2002 by Gareth Griffith
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Defamation Taskforce Report: This paper presents a background to the
most recent proposal for defamation law reform in NSW, namely, the report of
the Attorney General's Taskforce on Defamation Law Reform titled, Defamation
Law: Proposals for Reform in NSW.
Main recommendations: As outlined in a speech by the Premier on 9 July
2002 the Report's main recommendations are to: (a) make greater provision for
the resolution of disputes without litigation; (b) provide greater incentives
for parties, particularly publishers, to use corrections and apologies to avoid
litigation; (c) introduce more onerous cost penalties against parties who
unreasonably fail to resolve matters by the above means; (d) reduce the
limitation period for actions in defamation to one year (from 6 years at
present); (e) provide that compensation for non-economic loss will not exceed
payouts in personal injury cases - that is, $350,000; and (f) prevent
corporations and statutory bodies from bringing actions in defamation (p 1).
Strong views: Defamation law gives rise to strong views, notably
concerning the technicalities it involves, as well as the costs arising from
lengthy trials (pp 3-5).
Money and reputation: The usual remedy in defamation is an award of
monetary damages. A long-standing issue in the defamation debate is how does an
award of money vindicate reputation? If defaming a person alters the perception
others have of that person, thereby damaging their reputation, how in a
theoretical sense is that reputation restored by an award of money? (p 5)
Out of court settlements: From a practical standpoint, often settlements
are reached out of court and the award of damages is not made public. According
to the NSW Law Reform Commission, a confidential deed is often used is these
circumstances, which prohibits the public release or discussion of the terms of
settlement. One result is that 'the defamation remains uncontradicted in the
public mind'; another is that such arrangements make it very hard to compile
reliable empirical data on defamation cases (p 6).
Three Australian defamation regimes: Broadly, there are three varieties
of defamation law in Australia: (a) that of the 'common law States' of
Victoria, South Australia and Western Australian; (b) that of the Code States,
Queensland and Tasmania,; and (c) that of the 'common law with statutory
modifications' jurisdictions - NSW under the Defamation Act 1974, the
ACT under the Defamation Act 2001 and the Northern Territory under its
Defamation Act. The push towards national uniform defamation law appears to
have stalled (p 15).
Imputations as cause of action: Unlike at common law, under section 9
(2) of the NSW Defamation Act there is a separate cause of action for
the publication of each defamatory imputation to each recipient. This means
that in NSW a cause of action for defamation arises from the publication of
defamatory imputations themselves, rather than from the defamatory matter they
are embodied within. This has resulted in a sophisticated and unique pleading
regime in which 'each substantially different imputation conveyed by the matter
complained of gives rise to a separate cause of action' (p 16).
1994 reforms: The Defamation (Amendment) Act 1994, which came
into effect on 1 January 1995, introduced the following major changes to
defamation law in NSW: (a) under section 7A (4) the trial judge and not the
jury should determine whether any defence was established and the amount of
damages (if any) that should be awarded to the plaintiff; (b) under section
46A, in the assessment of damages the trial judge should ensure that any
damages awarded have an appropriate relationship to the injury suffered and
take account of the general range of damages for non-economic loss in personal
injury awards in NSW (including awards made under any relevant statute) (p
24).
Section 7A trials: Section 7A trials are the single most controversial
aspect of the present defamation regime in NSW. A continuing theme in the
current debate is that section 7A jury findings are often perverse or
unpredictable, and that the section has increased the costs involved. It is
probably fair to say that the one thing most practitioners would have wanted to
emerge from the current reform process is for the section 7A trial to be
disbanded. The Defamation Taskforce Report recommended that section 7A trials
be retained (p 24 and pp 30-35).
Amending section 22: The defence of qualified privilege under section 22
of the Defamation Act has rarely been relied upon successfully by a mass
media defendant in NSW. This is owing to the restrictive interpretation of the
section which requires publishers to prove that they believed in the truth of
what was published. The Defamation Taskforce Report recommended that this
requirement be omitted. To this end the Taskforce unanimously recommended that
section 22 should be amended to include a set of factors for courts to consider
when assessing reasonableness. Recommendation 13 make no mention of the
publisher's belief in the truth of the publication (pp 45-46).
Government and political matters: The inter-relationship between the
implied constitutional freedom of political communication, common law qualified
privilege and the statutory defence of qualified privilege under section 22 is
complex. Section 22 is said to overcome the restrictions of the duty/interest
requirement at common law and to focus attention instead on reasonableness in
all the circumstances. This proved influential in the reformulation by the High
Court in Lange (1997) 189 CLR 520 of the constitutional freedom of
political communication. One problem raised by Lange is just how broadly
or narrowly the concept of the 'political' is to be construed. Recommendation
15 is one response to that question. Thus, an additional proposal supported by
2 of the 4 members of the Taskforce was for the insertion of a new section 22A
to elucidate the defence of qualified privilege as this relates to 'government
and political matters' (pp 49-52).