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State “patchwork” defamation laws to be unstitched

State “patchwork” defamation laws to be unstitched

THE FEDERAL Attorney-General’s recently proposed version of uniform defamation laws has received some criticism from members of the legal profession. But representatives argue that states and…

THE FEDERAL Attorney-General’s recently proposed version of uniform defamation laws has received some criticism from members of the legal profession. But representatives argue that states and territories should adopt a policy of uniformity as quickly as possible, or Philip Ruddock’s controversial proposal could be enforced.

Defamation law in Australia is a “patchwork” of common law and state and territory statutes, and there should be a draft Bill for a national defamation law, according to Ruddock.

A 1979 report conducted by ALRC, Unfair Publication: Defamation and Privacy, argued significant changes were needed “in the substantive law governing rights of action and defence”. It recommended that there should be a codified, uniform law of defamation in Australia to replace the patchwork of existing statutes and case law.

The Federal Government’s new discussion paper proposes running defamation trials without juries, restricting the defence of fair comment, giving judges the power to order corrections and replacing the common law defence of qualified privilege.

In an interview with Lawyers Weekly, Clayton Utz litigation partner Norman Lucas said aspects of the proposal were problematic. First, Ruddock wants to “do away” with juries completely and only have judges. “The rationale is that it would be cheaper and quicker,” Lucas said. He argued “quite a few in the profession question this”.

“If the judge has to decide everything, a judge has to justify the decision. That takes time and also the reasoning is subject to appeals,” Lucas said. “Whereas the jury comes to a decision and they don’t have to give reasons. It might look attractive but it’s not necessarily cheaper and quicker.”

Also, the proposal was fundamentally flawed, Lucas argued. He referred to the current common law defence of fair comment, which says that “provided I set out the fact on which I am relying, if I honestly hold an opinion, then I can express that opinion and will have a defence of fair comment”.

But Ruddock wants to “scrap” that and have a more restricted defence “which says not only must the opinion be honest, but it must be a reasonable opinion”. Lucas argued the injection of the “reasonable opinion” comment means a value judgement is going to be made as to whether someone’s opinion was reasonable. “This is an erosion of freedom of speech,” Lucas said.

One sensible suggestion, Lucas argued, was the proposition that the statute of limitation period would be 12 months. “It is crazy that you can have three or six years,” he said.

Another “good” idea was giving the right of reply to the plaintiff early on in the process, Lucas said. “If this is done then the plaintiff might be satisfied and that would be the end of the matter,” he said.

But a key problem with Ruddock’s proposals was that they were too demanding. “He is trying to force the states and territories to have their own uniform laws, and with the new proposals he is saying ‘if you don’t do this, I will enforce this’,” Lucas said. “State Attorneys-General haven’t taken to this kindly.”

Law Council president Bob Gotterson agreed Ruddock “has a reputation for determination in seeing through his initiatives”. and “If states and territories fail to agree on a uniform legislation at their level, then don’t be surprised if the Commonwealth does act to the limit of its constitutional powers in this area”.

While state and territory A-Gs have reportedly resisted Ruddock’s proposals, arguing they have already agreed on plans of their own to create uniform defamation laws, they have been given until July to come up with concrete proposals.

Like this story? Read more:

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State “patchwork” defamation laws to be unstitched
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