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Australians being sued for defamation may miss out on new defences depending on which state or territory law applies, prompting renewed calls for the federal government to step in to pass national defamation laws.
The states and territories failed to reach unanimous agreement on Friday on a second wave of changes to their defamation laws, including reforms aimed at shielding Facebook page administrators from lawsuits over posts by third parties. A first wave of changes was introduced in most states and territories in 2021.
Attorney-General Mark Dreyfus, pictured during question time in Canberra this month, has previously supported a “national reconsideration” of defamation laws.Credit: Alex Ellinghausen
At a meeting of attorneys-general on Friday, the majority of states and territories including NSW and Victoria agreed to the changes, slated to start on July 1, 2024, but South Australia said it supported only “aspects of” of them.
Australia’s defamation laws are state and territory-based, and uniformity depends on the jurisdictions passing identical legislation.
Attorney-General Mark Dreyfus said in opposition in 2018 that a “national reconsideration” of defamation laws was warranted. At the time, NSW was leading a review process that ultimately resulted in the 2021 changes. His office declined to comment on Sunday.
Significant harmony was achieved in 2005 when all jurisdictions passed virtually identical laws, but cracks started to emerge in 2021 after Western Australia and the Northern Territory failed to enact the first wave of changes.
University of Sydney Professor David Rolph, an expert in defamation law, said: “It took many decades to get uniform defamation laws in Australia.
“However, for more than two years now, following the first stage of the reforms, significant differences have opened up between jurisdictions. It seems that even further differences are likely to eventuate.”
Rolph said that “if the federal government legislated the national uniform defamation laws itself, within its constitutional limits, it would go a long way to promoting uniformity”.
“There is something of a jurisdictional mismatch where defamation law is a state and territory responsibility, but it is increasingly being applied by the Federal Court,” Rolph said.
“Because the Federal Court is now exercising jurisdiction over defamation cases, the federal government has a clear interest in defamation law.”
Dr Michael Douglas, senior lecturer at the University of Western Australia’s law school, said the “lack of uniformity is problematic, particularly so for media organisations publishing throughout Australia”, and cases involving cross-border publications “will be more complex”.
“I support the Commonwealth legislating the field if they do the job well. A proper reference to the Australian Law Reform Commission would be a start,” Douglas said.
A new public interest defence, intended to protect public interest journalism, and a serious harm threshold for bringing a lawsuit, aimed at weeding out trivial or “backyard” claims, were among changes that took effect in 2021 in all jurisdictions except WA and the Northern Territory.
But Douglas said that he was “glad WA has not followed the east in implementing the 2021 reforms” and “in my view, the recent NSW-led reform processes prioritised media voices above all others”.
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