Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

Review of defamation law

In July 2002, the development of consistent defamation laws was re-instated on the Standing Committee of the Attorney-General's (SCAG's) agenda. At the SCAG meeting in April 2003 Ministers supported the incorporation of key principles in defamation laws of respective jurisdictions and endorsed the PCC preparing model draft provisions for the purposes of consultation:

  • defamation should include an objects clause
  • corporations should not be able to sue (except perhaps for small business)
  • there should be no public figure test
  • offer of amends processes should encourage the early resolution of disputes
  • general damages should be subject to the same cap as personal injuries general damages
  • defamation laws should confer protection on publishers and reporters for report of media conference and press conference given by public officials
  • damages should be determined by judges, not juries
  • limitation periods should generally be one year, and
  • there should be reciprocal protection for publishers of parliamentary records and reports of parliamentary proceedings.
Discussion Paper

The Australian Government released a discussion paper entitled Outline of possible national defamation law before the March 2004 SCAG meeting. It was agreed by Ministers that SCAG officers should consider the issues relating to defamation and prepare a paper on defamation, identifying all issues requiring resolution, with more comprehensive draft provisions attached. However, it was also agreed that the Australian Government would continue to work on its own proposal.

The Australian Government proposal

A Revised outline of possible national defamation law was released publicly by the Australian Government in July 2004. The revised outline responded to concerns raised during the consultation process, made some changes and involved some clarification. For example, the revised outline:

  • envisaged a role for juries
  • adopted a defence of truth and public ‘interest' (a matter not involving the unwarranted disclosure of ‘private affairs')
  • made it clear the proposed defences of honest opinion and qualified privilege are intended to reflect and clarify the common law
  • proposed further mechanisms for encouraging speedy resolution of proceedings, and
  • placed more emphasis on restoring the plaintiff's reputation, and less emphasis on money.