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NSW prepared to move first on defamation laws 

NSW is prepared to move first on defamation laws despite warnings that uniform introduction across Australia is crucial for the success of the reform.

user iconTony Zhang 08 September 2020 Big Law
NSW prepared to move first on defamation laws 

Photo: Chris Gleisner

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The NSW Attorney-General Mark Speakman has stated that he will not wait for all states and territories to catch up before enacting new defamation reforms.

In a speech to the Law Society of NSW on Monday, 7 September he signalled that his government, which has led the way on reforming the 15-year-old defamation laws, is prepared to move first before all other states and territories have passed legislation.

“My current intention is that NSW won’t wait for every jurisdiction to catch up and when we get to a critical mass, we will probably move then,” he said.


“I’m not sure when other states and territories will enact their defamation reforms.

“For various reasons they say they can’t do that immediately. But all states and territories have agreed to do it as soon as possible.”

The changes, agreed on by all states and territories at last month’s Council of Attorneys-General meeting, will modernise the existing defamation laws which were introduced in the early days of social media and purport to rein in skyrocketing payouts for non-economic loss and to support public interest journalism.

Once proclaimed into law, the reforms will include changed measures including a serious harm threshold, to keep minor “backyard” claims out of court and a requirement for a plaintiff to issue a concerns notice before going to court, to encourage resolution before litigation.

The reforms will also introduce a public interest defence for journalists, and a defence for peer-reviewed material in scientific and academic journals.

Those wanting to sue for defamation will also have to issue a concerns notice to publishers.

NSW passed legislation earlier this month, but is yet to enact the reforms into law.

Experts have previously warned it was “essential” to the success of the reforms that all states and territories enact the new laws on the same date to preserve their uniformity.

Australian jurisdictions have had uniform defamation laws since 2005, when the various jurisdictions agreed to replace the complicated system of eight different approaches across each state and territory.

Mr Speakman also outlined his vision for the second stage of the defamation reforms. This would focus on the changes on laws around the digital spectrum including liability of internet service providers and digital platforms.

A discussion paper on the second stage of reforms could be released by the end of the year.

“That issue is very complex, there wasn’t the broad consensus about that issue like there was about other issues,” he said.

“So we had a choice of either holding everything up to resolve that issue or splitting the reforms into two.”