Submission of the Australian Press Council to the Federal, State and Territory Attorneys-General.

13 October 1998

1. Executive Summary

The Press Council recommends that the state, territory and federal attorneys-general should resume discussions with the aim of achieving uniform defamation laws throughout Australia as quickly as possible, first by supporting the reinstatement of uniform defamation law on the agenda of the Standing Committee of Attorneys-General (SCAG), and then by taking immediate steps towards the codification of such uniform defamation law.

2. The Lack of Uniformity

Earlier this year the Standing Committee of Attorneys-General (SCAG) removed defamation law reform from the agenda of their meetings. Instead, it was reported, they wanted to focus on such issues as privacy and the accountability of the media.

Some Attorneys said they were happy with their defamation laws, despite the concerns of two most of the country's most recent Federal Attorneys-General, Michael Lavarch and Daryl Williams, and even the High Court in its Theophanous decision in 1994.

At the time of the High Court decision, then Opposition Shadow Attorney-General, Senator Amanda Vanstone conceded that "our current defamation laws are an enormous inhibitor on freedom of speech".

Mr Williams was reported to be "very disappointed" at the decision by the Attorneys-General to remove defamation reform from their agenda, saying that separate laws for each state and territory were bad for business and the community.

The Australian Press Council submits that this should have set alarm bells ringing in the states - any restriction on trade should be viewed most seriously, especially when that trade is in information. The rights of people to be informed and to have freedom of discussion and communication are clearly fundamental tenets that underpin a democratic society.

It is acknowledged that some states have made an effort to reform defamation law - but such efforts do not improve communication among Australians if they are not matched by similar initiatives in neighboring states and territories.

Such attempts at "going it alone" have not always been appropriate. The Law Council of Australia strongly criticised the NSW Government for its 1996 plan for reform, saying proposals for a "declaration of falsity" were "inimical" to the over-riding need in defamation: national uniformity in the law. The Press Council agrees with this sentiment in the interests of free speech.

While NSW shelved that particular aspect of its reforms, it pressed ahead with others, the most notable being the transfer of authority for determining damages awards to judges from juries.

But now there exists the situation where a reputation of a Queenslander or a New South Welshman may be worth more or less than that of a Tasmanian or Victorian. The issue in defamation, it must be remembered, is reputation, not the prosperity or size of a particular state or even the ability of a defendant to pay.

The most recent proposals for change enamate from the ACT. The Council considers that many of these proposals appear to have merit. However, their adoption only in the ACT would further exacerbate the problems flowing from different laws.

3. Boundaries Irrelevant

For publishers and the general public, uniformity of communications law is essential in an environment where delivery of information now knows no territorial boundaries.

The argument for uniformity is not solely that Australian publishers (and broadcasters) have a common set of guidelines to work within but also that all members of the public throughout Australia have free access to the same information.

All the capital city daily newspapers, for example, are on sale interstate, reflecting the somewhat nomadic nature of Australians and their need to stay informed of events "back home". There are two newspapers which circulate nationally, daily (excluding Sunday).

As well, many regional newspapers are located on or near state borders - The Border Mail in Albury, The Canberra Times in the ACT and The Bulletin on the Gold Coast are prime examples of papers with large parts of their circulation in more than one state. People living just blocks apart are subject to different laws in relation to their ability to be informed.

Such newspapers may not be able to publish the same information as, say, The Bendigo Advertiser or The Queensland Times, Ipswich, which have no significant interstate sales.

The issue is what might be published in relation to how the publisher might be able to defend an action. In some states truth is the sole defence to defamation - and that is frequently difficult to show. But, in other jurisdictions, it is possible to defend on the basis of what could reasonably have been expected to be true, a considerably easier defence.

Statistics on defamation actions from state to state do not show the real effect of variances in legislation. For example, in states where truth is the only defence, there may be fewer actions simply because publishers are not prepared to take the risk and publish contentious material. This, as has been argued in recent High Court cases, is not healthy for democracy.

For those newspapers which circulate across borders, defamation can have quite a severe "chilling" effect. Plaintiffs may issue proceedings in the state with the law that is most likely to favour them.

The same applies to radio and television. While newspaper publishers may be able to quantify with some precision the number of copies they sell in each state, radio and television stations are hard-pressed to monitor who is listening or watching interstate - or overseas.

The latest arrival on the information distribution scene, the Internet, also has that shortcoming - anyone putting information on the Internet cannot tell where it will be accessed.

One of the questions for the courts about the Internet is just who is the publisher - is it the organisation that provides the connection (which can be readily traced) or is it the provider of the information (which may not always be traceable)?

Obviously when a publisher or broadcaster crosses over into the role of Internet information provider as well, the problems of defamation remain, probably exacerbated.

The Internet also raises problems with contempt - while a newspaper might not print a certain article in editions that go interstate the same article published on a website could easily be accessed by someone interstate.

While this submission is not about contempt it highlights yet another reason why the Australian Press Council feels the Attorneys-General need to address the issue of uniformity in laws affecting communication.

4. Consequences

The lack of action in achieving uniformity gives no comfort to those disseminating more information to a population increasingly hungry to receive it.

It also indicates a refusal to deal with recent High Court decisions which clearly give a pointer to the way defamation law should be heading in relation to political discussion and the public interest.. Especially the reference to a more widely available qualified privilege defence in Lange.

While the High Court has clarified how a qualified privilege defence should be available, the states and territories have not acted, either in concert or individually, to make sure their own laws provide a workable qualified privilege defence.

The "chilling effect" of different laws upon publications and broadcasts which cross state boundaries has been well documented in cases such as Theophanous.

Further, the fear among publishers is that more states will do as NSW has done and go it alone with reforms, and that laws will still be quite different from state to state.

While there are insufficient decisions to hand to assess what the action by NSW will mean, clearly there is the chance of significant differences in the size of awards emerging from state to state - increasing the incidence of "forum shopping" where writs are issued in the jurisdictions where plaintiffs think they will do best.

As submitted above, existing defamation law does not sit comfortably with new technology. Again, there is a "chilling effect" - if a publisher cannot determine precisely who has access to the published material then it is less likely it will be published at all. This runs counter to the principles of modern communication vehicles such as the Internet where information is made available to as many people as possible.

The Internet raises issues of national borders, not just state borders. Those providing information to an international audience should be able to do so with some certainty.

Someone suing from the United States will have a high expectation of a damages outcome when they issue their writ for something emanating from Australia. Whether our courts can cap those expectations remains to be seen. It is more likely that international defamation actions will put pressure on courts here to make bigger awards.

The award in May this year of $2.5 million (subject to appeal) to international sports promoter James Erskine against The Sydney Morning Herald for a 1992 article tends to support that contention.

Writs issued last year by a number of American film stars against Australian magazines also lend weight to fears that defamation is becoming an international event. It is highly unlikely that the writs would have even been issued in the United States.

5. Why haven't attempts at reform worked so far?

Attempts at reform to date have lacked agreement among the states and territories and have generally met with dissent among publishers.

But most attempts at reform have focussed on the mechanism of defamation law, rather than uniformity.

Generally, the SCAG has left it to one or two states to come up with drafts which rewrite the statutes from start to finish. But they have failed to secure the agreement of the other Attorneys.

When the drafts go out for comment, those most affected have roundly criticised them for their shortcomings (which have included linking defamation to privacy, compromising defences by requiring admissions of error etc).

The Australian Press Council believes that the consultation process has been flawed.

It is understandable that the law needs to protect those who are hurt or at risk and offer them recourse. But this is not the issue.

Uniformity is the issue.

Consultation with those who gather and deliver information should be the first step.

A consultation process before the drafting of new laws should elicit realistic responses from most publishers and broadcasters (not just their lawyers) for whom the main priority is uniformity rather than a re-write of every paragraph of defamation law.

They would probably argue for certain changes, such as giving real meaning to the qualified privilege defence identified by the High Court or a more workable version of the Wrongs Act defence which has relatively limited application because of its references to negligence.

Some might even favour a system of compulsory mediation before the various procedures leading to trial. Others might want a ceiling placed on awards with anything above that having to be proved by the plaintiff to be an actual loss.

But their real priority would be the attaining of uniformity.

The Australian Press Council strongly urges that you support the reinstatement of uniform defamation law on the agenda of SCAG. It is only by so doing that the Australian public will be served by newspapers that can sensibly report the news of the day on an Australia-wide basis without fear of exposure to litigation.

See also
1998-99 Freedom of the Press Report- Defamation Law
for the current state of the law: Press Law in Australia
Index of material on the site on defamation law

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