Defamation Amendment Bill 2021 (No. 34)

Wednesday 22 September 2021

[4.37 p.m.]

Ms (ARMITAGE Launceston) - Thank you, Madam Deputy President. Firstly, I would also like to thank the Leader and the Deputy Leader for the briefings this morning. As usual they were very informative and I really appreciated the two page sheet. It really was good. It was actually very handy to have while we were listening to the briefing. This bill deals with some quite uncontroversial, but nonetheless important, amendments to the Tasmanian Defamation Act 2005. It brings Tasmania into line with other Australian jurisdictions, is informed by sound legal principles and codifies some important provisions that currently exist in common law.

The tort of defamation is a comparably new one in Australia and when originally introduced in Tasmania eliminated some of the existing causes of action, such as libel and slander and streamlined them into one. One of the original objects of the act passed in 2005 was to have a uniform law of defamation operating throughout Australia. It notably also relied on the common law to supplement it, to ensure that the new law retained flexibility and the capacity to develop in response to changing circumstances.

Some 16 years later, we see ourselves now using the common law as developed over that time to improve the act by the bill we have before us. This is exactly how law reform is supposed to evolve. One such example of this is found in clause 6 of this bill, which inserts section 10 from the original 2005 model defamation provision which was previously agreed to by all Australian jurisdictions but does not currently form part of the principal act.

This clause will codify the current common law position there is no cause of action for defamation of or against deceased persons. The bill also introduces a serious harm element which imposes on the plaintiff the onus to establish the publication of defamatory material has or is likely to cause serious harm to their reputation. The judicial officer presiding over the defamation proceedings is vested with the power to determine whether or not this element is established and it encourages early resolution of defamation proceedings by reducing the likelihood of frivolous or vexatious claims of meeting this threshold test.

I believe the Tasmania Law Reform Institute had some reservations with the absence of a definition for serious harm. I understand this provision has likely been drafted to contain a certain degree of flexibility, so I therefore wonder what tests will be used by judicial officers in determining whether the serious harm threshold has been met and what common law tests might already exist to help guide them.

Perhaps it has been suggested in the other place a non‑exhaustive list of matters that can be considered will develop and become codified in time, but for now that will leave a lot of discretion and perhaps, creativity or reliance on common law from other jurisdictions in the hands of the lawyers who will argue these cases. I would appreciate any input the Deputy Leader might have in response to this.

The bill further makes it mandatory for certain pre-litigation processes to be carried out, which increases the likelihood of matters being settled before they actually reach the courtroom. This should save the courts and litigants time and money, which is an entirely good thing and perhaps should be considered as being made mandatory for a raft of other civil actions.

Striking a balance between protecting people's reputation from harm and unfair commentary and ensuring that people's rights to freedom of thought, speech and expression are maintained is very much a central concern of defamation law. This is made all the harder when it is easier and easier to publish defamatory material and harder to retract it, especially in a world that is more connected online than ever before.

The establishment of a dedicated public interest defence will promote legitimate discussion of topics that are essential for a robust democracy to effectively function.

Clause 20 provides a non-exhaustive list of factors to be considered in the circumstances in order to determine whether or not the matter was in the public interest. I believe this also promotes clarity and structure for the court to make its determinations, without imposing overly restrictive tests in making them.

I understand that this bill also seeks to refine the availability of defamation actions to corporations. It better defines which types of corporations might pursue defamation and seeks to prevent corporations tinkering with their structures to slip through and gain access to a cause of action which would not otherwise be available to them. Given the other legal remedies that are available to corporations that are not available to regular individuals, this seems fair. It upholds the principle that the purpose of defamation law is about protecting the reputations of individuals, not corporations.

Finally, I note that this bill does not seem to interfere with the attainment of injunctions for the purpose of preventing the publication of defamatory material. I assume that that power will remain wholly with the equitable jurisdiction of the court. Mr President, I support the bill.