Council of Attorneys-General Releases Review of Model Defamation Provisions Discussion Paper

Tuesday 5 March 2019 @ 12.43 p.m. | IP & Media | Legal Research

Defamation laws are governed by individual states and territories. However, in late 2004, the Attorneys-General of all the states and territories supported the enactment of uniform model defamation provisions across their respective jurisdictions. This move was necessitated due to the rise of digital media and publications, which cross state borders. As a result, the Model Defamation Provisions were prepared by the Parliamentary Counsel’s Committee and were approved by the Standing Committee of Attorneys-General on 21 March 2005. By mid-2006, all Australian states and territories had adopted the Model Defamation Provisions as legislation.

In December 2018, the NSW Department of Justice announced that the Council of Attorneys-General had appointed a Defamation Working Party (‘DWP’). The DWP will be examining current defamation law in Australia, identifying areas for reform and reviewing the national model defamation laws, with NSW taking the lead with the review process.

A December 2018 media release says:

“Australian defamation laws need updating to take into account online platforms that were only beginning to emerge at the time … [of the] approved model defamation provisions in 2005… The purpose of defamation law is to balance freedom of speech with the right of individuals to protect their reputations. Media companies, internet service providers, social media platforms and plaintiffs’ advisors will each have different views of where that balance should lie. A robust public process will ensure that all views are considered.”

In late January 2019, the states and territories committed to an 18 month overhaul of their defamation laws. On 26 February 2019, the DWP issued the Review of Model Defamation Provisions Discussion Paper (‘the Discussion Paper’) posing questions to be answered by the public. Between April and September, submissions and consultations will be reviewed and drafted into new laws. At the end of September, the Council of Attorneys-General will review the proposed laws. Further consultation will be held in December, and finally the new laws are to be introduced in parliaments by June 2020.

Discussion Paper

The Discussion Paper contains 18 questions that are open to public submission. The questions include further amendments to current legislation and introduction of new mechanisms.

Some of the questions posed by the Discussion Paper include:

Question 2: Should the Model Defamation Provisions be amended to broaden or to narrow the right of corporations to sue for defamation?

Question 3. a: Should the Model Defamation Provisions be amended to include a ‘single publication rule’?

Question 5: Should a jury be required to return a verdict on all other matters before determining whether an offer to make amends defence is established, having regard to issues of fairness and trial efficiency?

Question 10. a: Should the Model Defamation Provisions be amended to provide greater protection to peer reviewed statements published in an academic or scientific journal, and to fair reports of proceedings at a press conference?

Question 14. a: Should a ‘serious harm’ or other threshold test be introduced into the Model Defamation Provisions, similar to the test in section 1 (serious harm) of the Defamation Act 2013 (UK)?

Other potential reforms to the current defamation laws include:

  • Further protections for public interest journalists
  • Reducing ‘forum shopping’ by Plaintiffs
  • Improving dispute resolution mechanisms
  • Scope of current defences

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