After a year-long wait, NSW will move forward with defamation reforms that passed state parliament in 2020 but have hovered in limbo since.
The Model Defamation Amendment Provisions 2020 passed NSW parliament in August 2020 after the state led an 18-month review into the efficacy of defamation laws in the modern era. NSW Attorney-General Mark Speakman at the time told LSJ that the Council of Attorneys-General had agreed to start the amendment process “as soon as possible”. Three jurisdictions – NSW, Victoria and South Australia – have since introduced the provisions and agreed to commence the laws on 1 July 2020.
“I’m grateful to the Attorneys-General of Victoria and South Australia who’ve also guided this historic reform through their respective Parliaments,” said Speakman in a statement published in April.
Legal commentators have flagged the issue that other states and territories have not yet introduced the reforms to their parliaments. Neither have they committed to a timeline for doing so, placing the uniformity of the national defamation regime – which has existed since 2005 – in jeopardy.
University of Sydney law professor and defamation expert David Rolph told LSJ uniformity was a “hard-won goal” that should be protected as much as possible.
“The whole point of uniform legislation is that Australian defamation law has been uniform – right through since the first of January 2006. Before that, we had substantively different defamation laws. It meant the same publication disseminated across different jurisdictions could lead to different outcomes. We need uniformity.”
Speakman told The Sydney Morning Herald that uniformity was “highly desirable” but that “waiting indefinitely for a small minority of jurisdictions unwilling to commit to any commencement date for the reforms is not an option”.
“All the remaining jurisdictions need to do is copy, paste, pass and proclaim the legislation to which they all agreed and continue to agree,” he said.
The Attorney-General also announced the launch of a “Stage 2” review for defamation law, investigating the relevance of current laws in the context of social media and whether the threat of liability was having a “chilling effect” on investigatory journalism. The Stage 2 Discussion Paper has been published at justice.nsw.gov.au/defamationreview and calls for submissions from media, digital platforms, legal stakeholders and other members of the community. Submissions close on 19 May.