13:40, August 31 79 0 theguardian.com

2020-08-31 13:40:05
NSW willing to act on defamation law reform without waiting for other states

The New South Wales attorney general, Mark Speakman, says he will not wait for all states and territories to catch up before enacting new defamation reforms.

Experts have previously warned it was “essential” to the success of the reforms that all states and territories enact the new laws on the same date to preserve their uniformity.

But Speakman used a speech to the Law Society of NSW on Monday to signal that his government, which has led the way on reforming the 15-year-old defamation laws, is prepared to move before all other states and territories have passed legislation.

He said his intention was to wait for a “critical mass” to be ready.

“I’m not sure when other states and territories will enact their defamation reforms,” he said. “For various reasons they say they can’t do that immediately. But all states and territories have agreed to do it as soon as possible.”

Some jurisdictions were preparing for elections, he said, and others were preoccupied with the Covid-19 response.

“My current intention is that NSW won’t wait for every jurisdiction to catch up and when we get to a critical mass, we will probably move then,” he said.

Achieving consistency across the states was a critical focus of the last defamation reforms in 2005.

A University of Sydney law expert, David Rolph, has previously warned that “having a uniform starting date is essential to the success of these amendments”.

Australian jurisdictions agreed to pass the defamation reforms last month, through the council of attorneys general.

The decision followed a string of high profile and costly defamation battles in 2018, including Geoffrey Rush’s record $2.9m case over the publication of allegations of sexual misconduct by Sydney tabloid the Daily Telegraph.

Australian jurisdictions have had uniform defamation laws since 2005, when the various jurisdictions agreed to replace the confusing, unworkable system of eight different approaches across each state and territory.

NSW passed legislation earlier this month, but is yet to enact the reforms into law.

The reforms include a new public interest defence based on the British system, which is designed to stop defamation stymying the publication and discussion of matters of public interest.

The defence is available to publishers who can prove the publication was on a “matter of public interest” and that the defendant “reasonably believed that the publication was in the public interest”.

The reforms also introduce a “serious harm” provision to “help unclog” the courts from minor claims, where legal costs often outweigh potential damages.

The laws will clarify the cap on payouts in a bid to reduce ballooning damages and introduce a new “single publication” rule to ensure the limitation period on claims begins from the date material is first uploaded, rather than downloaded.

Those wanting to sue for defamation will also have to issue a concern notice to publishers.

Speakman also foreshadowed a second stage of the defamation reforms. The council of attorneys general also examined changes to the liability of internet service providers and digital platforms.

“That issue is very complex, there wasn’t the broad consensus about that issue that there was about other issues,” he said.

“So we had a choice of either holding everything up to resolve that issue or splitting the reforms into two.”

Speakman expects a discussion paper on the second stage of reforms to be released by the end of this year. He expects legislation to be ready in mid-2022.

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