When it comes to getting state and territory attorneys-general to agree to law reform, an A-G cannot be bogged down by slow respondents, Mark Speakman says. Instead, one has to try to “force the pace”.
This month has marked a “turning point” for defamation law in Australia, NSW Attorney-General Mark Speakman (pictured) recently proclaimed.
As reported by Lawyers Weekly, the Model Defamation Amendment Provisions – as agreed to by the Meeting of Attorneys-General (MAG) – have been introduced in NSW (with Victoria, Queensland, South Australia and the ACT all set to follow), and will cover more than 85 per cent of Australians.
The key changes included in the reforms are: greater clarity on the operation of the cap on non-economic damages, the introduction of a new public interest defence, the introduction of a serious harm threshold for defamation claims, the introduction of a single publication rule, requirements that concerns notices be served with sufficient time for amendments to be made before commencing proceedings, and a new defence for peer-reviewed matters published in academic or scientific journals.
These new laws, A-G Speakman proclaimed at the time, will “strike a better balance between protecting reputations and freedom of expression”.
Speaking last week about the reforms on The Lawyers Weekly Show, Mr Speakman, who led the charge within MAG in ensuring that defamation laws in Australia are “fit for purpose in this digital age”, elaborated on how such law reform gets over the line.
“NSW is the jurisdiction where the majority of defamation in Australia is run as litigation, and it’s a jurisdiction where some statistics suggest per capita has 10 times the rate of defamation of London. Many commentators suggested that it was stifling free speech at one end, with a lack of defences for responsible journalism, and at the other end, the cost tail was wagging the dog with so many cases that involved small amounts of money,” he outlined.
“So, I thought it was in the public interest for NSW to drive this process. It’s not a professional interest – as a barrister, I didn’t practice in this area – but more a public interest to make sure that we’re not having an excessive, chilling effect on responsible journalism at the one end, and at the other end, that there’s an efficient and cheap and fair and quick way to resolve relatively minor disputes.”
There was a need, Mr Speakman continued, for “prompt” reform to defamation laws across the country.
“The whole reform process took two to probably three years, which by the standards of inter-jurisdictional reform in Australia, isn’t bad. My experience as a minister (as A-G and before that as environment minister, collectively, for six years) is that inter-jurisdictional reform sometimes has a glacial pace,” he reflected.
“I must say, generally my colleagues approach this in good faith and not in a partisan way, but having so many jurisdictions involved means that federation takes a while to get reform through.”
All state and territory jurisdictions come to the table with their own idiosyncratic environmental concerns, and when it comes to ticking off as many reform boxes as one can, Mr Speakman said it is critical to “try to force the pace”.
“When you’ve got eight state and territory attorneys-general, plus the federal attorney-general, there are a lot of cooks with the broth. So, you do have to force the pace. But ultimately, I don’t think you can let yourself be bogged down by the slowest respondents,” he advised.
“So, to give you an example, the exact wording of these laws was agreed upon in July 2019. We legislated within a couple of weeks. There are still some jurisdictions, two years later, that have not legislated, even though they have agreed to the precise wording.
“I waited a while because, I didn’t want different defamation laws for any period in different jurisdictions. But it became clear to me that, unless we forced the pace, we would be waiting forever, which is why two years later, I basically gave up waiting any longer for slower jurisdictions and herded as many other jurisdictions as possible to start on the 1st of July 2021, and to keep this transitional period where there are two defamation regimes going, keep that as short as possible.”
Sometimes the pace of reform is slow, he mused, and you’ve “just got to nicely and diplomatically keep pushing people”.
“In the end, you form a view that unless you set a deadline, it’ll never happen,” he said.
The forum for discussion among Australian attorneys-general is a “pretty collegiate” process, Mr Speakman noted, even with representatives from across the political spectrum coming to the table.
“My observation is everyone approaches it in a pretty non-partisan sort of manner. That doesn’t mean we don’t have disagreements or that some jurisdictions are slower than others, but it’s done in good spirit and in good faith,” he said.
That said, when there are as many attorneys-general in one room making collective decisions, it “can be a slow process”, he ceded.
“Like the old saying that sun never sets on the British Empire, there is always an election happening somewhere in Australia, and there’s always a jurisdiction that says they are in caretaker mode at the moment and can’t make substantive decisions. So, that slows the process down as well,” he said.
When asked if he thinks further reform to defamation laws is needed, and if he was able to achieve all he wanted (at least for NSW) in this process, Mr Speakman said that the “door to reform is never closed”.
“Not everybody favours each of the reform initiatives that have been undertaken, and I guess we’ll have to wait and see how they work in practice and whether there’s further tweaking involved or needed,” he said.
Last week, Marque Lawyers managing partner Michael Bradley and senior associate Daisy von Schoenberg also spoke on The Lawyers Weekly Show about the new defamation reforms, how they could impact current and future cases and hypothesised about how they could have potentially altered the outcome of previous high-profile cases.
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with The Honourable Mark Speakman SC MP, click below: