IT IS A case of deflation after much hot air was generated about the Standing Committee of Attorneys-General’s (SCAG’s) newly released model defamation Bill, despite it bringing the states and territories into the closest alignment on the matter in the last 100 years.
The general consensus is that there seems to be more work to be done, even though it has taken so long to get the states, territories and Commonwealth to agree more than they have in the past on the matter.
Head of the NSW Bar Association Defamation Working Group, Stephen Rares SC, told Lawyers Weekly that the recent SCAG model is a step closer to uniform laws, but a drive is still needed to “get rid of the absurd mix of laws that are ridiculous at the present time”.
We are very slowly moving towards uniform laws, Rares said. Acknowledging that Australia was closer than it had ever been, he said things were still not perfect. “I think it is an improvement, but there are still problems,” he said.
Rares was critical of the states’ intention to restrict the right of corporations to sue for defamation. “There are frequently cases where a story can do incalculable damage to an organisation,” he said.
Attorney-General Philip Ruddock also criticised this element of the SCAG proposals, arguing it stripped sole traders and small family businesses of the law’s existing protection.
But the indication is, said Rares, that “we are moving in the right direction”. It is “thanks to the A-G’s drive that the states have knuckled down”. It is through pressure like this that things are achieved, Rares said. “This is exactly the way we got uniform companies law in this country.”
It is “high time” that somehow the states, territories and Commonwealth strike a compromise, said Law Institute of Victoria (LIV) president Chris Dale.
Australia needs a common model and “it is silly to continue having a series of models that operate in different states,” he said.
Dale also praised Ruddock’s pressure on the states to get a uniform defamation law. “I am pleased to see that [Ruddock] has seized the need to do something and am hoping that, due to this pressure, we will get a common law.”
“We have been talking about uniform defamation laws for decades, but now that technology has really galloped ahead and the laws have been left in a bygone era with all the differences in different states, I hope we will achieve a positive outcome,” Dale said.
The ongoing and contentious development of uniform laws reached a peak in July this year as organisations responded to a previous SCAG proposal for uniform defamation laws.
These first proposals received some criticism from state and national bodies representing the legal profession.
The problem, according to the NSW Bar Association, was that despite the federal Attorney-General’s objective to achieve uniformity of the law in defamation throughout all jurisdictions across Australia, “the SCAG proposal does not suggest that there is to be such uniformity”.
The NSW Bar Association said that in a number of areas, the initial SCAG proposal in July left it unclear what “legislation is proposed and whether the legislation will be a solution adopted by all jurisdictions”.
“The Association regards this as of concern where the public interest in having a uniform law throughout Australia is considerable,” the Association said.