QLD Introduces Defamation (Model Provisions) and Other Legislation Amendment Bill 2021
The Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld) (‘the Bill’) was introduced into the Queensland Legislative Assembly on 20 April 2021 by Shannon Fentiman, Attorney-General and Minister for Justice (‘the Minister’). The Bill seeks to introduce amendments to implement the Model Defamation Amendment Provisions 2020 (‘MDAPs’), which were agreed to in July 2020 by the Attorneys-General of all States and Territories.
If passed, the Bill’s amendments to the Defamation Act 2005 (Qld) (‘the Defamation Act’) would commence on 1 July 2021. The proposed amendments will apply to defamatory matters published after its commencement, with existing proceedings continuing under the prior laws. The Minister commented in her Media Release that updating the national approach to defamation laws would provide greater clarity to the courts, the community and the media:
“This is a significant step to protect freedom of expression for Queenslanders, and ensure open and transparent reporting in our state ... These updates to our laws around defamation have been proposed after considerable consultation with the public, legal and academic experts, and stakeholders"
The Bill proposes to amend the following Acts:
the Defamation Act
the Heavy Vehicle National Law and Other Legislation Amendment Act 2019 (Qld) (‘the Heavy Vehicle Amendment Act’)
the Limitation of Actions Act 1974 (Qld)
The development of the reforms goes back to November 2004 when the Attorneys-General of the States and Territories agreed to support the enactment of uniform model provisions in relation to the law of defamation, the Model Defamation Provisions (‘the MDPs’). In Queensland, the MDPs were enacted in the Defamation Act. Each State and Territory also became a party to the MDPs Intergovernmental Agreement, which established the Model Defamation Law Working Party (‘the DWP’). The function of the DWP included reporting to the Council of Attorneys-General (‘the Council’) on proposals to amend the MDPs.
In 2018, the Council reconvened the DWP to review the MDPs. The review, led by NSW, was conducted in 2019 and 2020. Following its conclusion, the DWP recommended to the Council that certain amendments, prepared by the Australasian Parliamentary Counsel’s Committee, be made to the MDPs, through the MDAPs. The Council agreed in July 2020 to support the enactment of the MDAPs by each State and Territory.
The Bill proposes amendments to the Defamation Act and the Limitation of Actions Act 1974 (Qld) to implement the MDAPs.
Key Reforms Proposed
Some of the key reforms proposed by the Bill include:
A single publication rule: this reform would seek to introduce a single publication rule similar to section 8 of the Defamation Act 2013 (UK) (‘the UK Act’) for multiple publications of the same defamation matter by the same publisher (or an associate of the publisher) so that the start date of the one-year limitation period for each publication runs from the date of the first publication; and, for an electronic publication, from when it is uploaded or sent to the recipient;
A serious harm threshold: this reform relates to the introduction of a serious harm threshold, seeking to introduce a requirement for the plaintiff to establish that the publication has caused or is likely to cause serious harm to their reputation and the abolition of the defence of triviality;
New defences: two new defences are proposed to be introduced, one is a public interest defence based on the defence of "publication on matter of public interest" in section 4 of the UK Act and the other is providing that peer-reviewed statements or assessments in a scientific or academic journal are privileged;
Damages: these amendments seek to clarify the cap on damages for non-economic loss by setting a scaled upper limit and applying this limit regardless of whether aggravated damages apply;
Concerns notice: this reform proposes to make the issue of a concerns notice prior to going to court mandatory; and
Offer to make amends: these amendments seek to clarify the offer to make amends process, including the required content and timeframes.
The Bill also proposes to amend the Heavy Vehicle National Law and Other Legislation Amendment Act 2019 to repeal sections 10 and 11 prior to their automatic commencement on 27 September 2021. The commencement of these sections have been predicted to cause unintended and inconsistent enforcement outcomes for Performance Based Standards (the ‘PBS’) vehicles detected operating off route compared with other heavy vehicle classes. This would include the initiation of court proceedings instead of the issue of a penalty infringement notice, or the use of additional enforcement powers such as a direction not to move the vehicle until the breach has been rectified or to move it to a safe location. The Bill seeks to repeal these sections in order to retain the current status quo.
The Bill was referred to the Legal Affairs and Safety Committee on 20 April 2021. According to the Minister, a second stage of the review of the MDAPs is currently underway. This second stage review will focus on the responsibilities and liabilities of digital platforms for defamatory conduct and the defences that would apply to the disclosure of criminal conduct and misconduct in the workforce.
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Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld), explanatory materials, speeches as referenced in the TimeBase LawOne Service.