Stage 2 of the Defamation Law Reforms has now been implemented in Victoria, commencing with effect from 11 September 2024. This is the latest milestone in a coordinated effort across most States and Territories across Australia towards uniform defamation laws primarily designed to limit limits on freedom of expression in protecting a person’s reputation against harm.
The Stage 2 amendments introduced in Victoria align with those implemented on 1 July 2024 by NSW and ACT. You can read BlackBay Lawyers’ explanation of the 1 July 2024 implementation here.
Tasmania appears to be the next to follow suit, having tabled the draft legislation to parliament on 17 September 2024, which mirrors the amendments made in NSW, VIC and ACT. At the time of writing, South Australia and Queensland are yet to introduce draft legislation. The South Australian Attorney-General Kyam Maher said in parliament in May 2024 that the reforms were progressing, however indicated “we are not implementing all the reforms that deal with other things to do with internet publishing and technical and complicated areas.” We haven’t heard much from Queensland since Stage 2 closed for submissions in October 2022.
Notably, Western Australia and the Northern Territory have seen no changes to their defamation laws since their enactment in 2006. This means no mandatory concerns notices, serious harm threshold, public interest defence, or cap on damages for non-economic loss apply in those jurisdictions.
A foreseeable risk arising from the current lack of uniformity in the laws across the States and territories is prospective plaintiff’s ‘jurisdiction shopping’ so as to avail themselves of any tactical advantages that arise in that jurisdiction. Understandably this is likely to arise where the publication of concern is accessible to be viewed or downloaded Australia-wide and where serious harm might not be able to be proved as readily in the jurisdiction to which the prospective plaintiff is connected or has some nexus. However, one uniform provision in Australian defamation laws is s 11 ‘Choice of law for defamation proceedings’. Effectively, where a defamatory matter is published in more than one Australian jurisdiction, the applicable law is where the harm caused by the publication has its closest connection.
A lesson for ‘jurisdiction shoppers’ flows from Bartlett v Roffey [2023] WASC 3. Mr Bartlett did not serve a Concerns Notice prior to commencing defamation proceedings in Western Australia against the directors of a Melbourne football club,. Before serving a Defence, the defendants sought to transfer the proceedings to Victoria, submitting that Victoria was the correct venue and presented the correct choice of law. The Court agreed, noting that the events and publications overwhelmingly occurred in Victoria, as did the location of witnesses. In its decision to transfer the proceedings, the Court expected the substantive law of Victoria would apply.
The State by State disparity in the defamation laws will continue to pose interesting jurisdictional considerations particularly whilst the remaining States and Territories remain slow in adopting even the Stage 1 reforms. Because of the lack of uniformity, complainants or prospective plaintiffs and those needing to response to a claim of defamation being made against them should seek legal advice to understand precisely which laws apply within the relevant jurisdictions and act accordingly.
For insights into the Defamation Law Reforms following recent high profile cases such as Ben Roberts-Smith and Bruce Lehrmann, read our earlier article ‘Reflections on Landmark Defamation Cases and Legal Reforms’.
ABOUT THE AUTHOR
Sally Westlake is a commercial generalist with an impressive record across litigation, transactional and advisory matters.
She has niche expertise in copyright gained from her in-house career at APRA AMCOS and is experienced in the negotiation and drafting of agreements. Since moving to private practice she’s focused on commercial disputes and litigation, having appeared in the District and Supreme Courts of New South Wales, advised high-profile individuals in defamation matters, directors in insolvency litigation, and assisted the defence of a large corporation in a class action lawsuit.
Empathetic yet competitively driven, she is a fierce advocate for her clients and is committed to achieving their best outcomes.
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