Australian Defamation Law

In most Australian jurisdictions defamation law is a mixture of statute and common law. The law is far from uniform from State to State. In 1979 the Australian Law Reform Commission recommended numerous changes to the law of defamation including introducing a uniform defamation law for all of Australia. Despite attempts to bring such law into effect, this has not occurred nationally, although three States (New South Wales, Victoria and Queensland) adopted uniform laws in 1992.

The main issue in relation to the law of defamation (which seeks to protect individual reputation) ‘is how to reconcile [its] purpose with the competing demands of free speech’. In Australia free speech in the political arena is implied into the constitution but is not otherwise constitutionally protected. This is different to the United States where freedom of speech enjoys broader constitutional protection. As a result, in Australia, in contrast to the US, ‘libel actions still play a prominent role in our own public affairs as a regular arsenal of political combat’.

What is most interesting then is the way in which the recent ‘free speech’ cases have impacted on the law of defamation in Australia. In particular, the cases of Theophanous v. The Herald Weekly Times Ltd & Anor and Stephens & Ors v. West Australian Newspapers Ltd are of significance. In effect these cases have established a constitutional defense in situations where the defamatory material is a matter of political discussion. In Theophanous v. The Herald Weekly Times Ltd v. Times Ltd & Anor it was held that a defamatory publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly (i.e., not caring if the material was true or false); and (c) the publication was reasonable in the circumstances. A publication that attracts the freedom implied in the Commonwealth Constitution can be described as a publication on an occasion of qualified privilege. Theophanous was applied in the decision of Stephens & Ors v. West Australian Newspapers Ltd, which went further and confirmed that the defense applied to State (as well as Federal) political publications

As a defense derived from the Constitution this new form of qualified privilege cannot be restricted or overridden by state, territory or federal legislation. Indeed, in Theophanous it was held that ‘defamation law, whether it be based on legislation or the common law, was subject to and could be shaped by, the implied constitutional freedom of political discussion’. The effect of finding an implied freedom of political discussion in the Constitution has been to expand the defenses available in defamation actions and thus reduce the circumstances in which speech can be legitimately restricted. Consequently, the balance between free speech and protection of reputation has shifted, with a move towards greater protection of free speech and the ‘constitutionalization’ of defamation law, not unlike that existing in American law. In fact, Walker argues that these Australian decisions ‘strike a better balance than New York Times Co. v. Sullivan between the protection of reputation from wrongful attack and the protection of freedom of communication.’

It is still not clear to what extent that this development will impact upon the rest of defamation law. Probably, to a large degree it will depend on the extent to which free speech is or isn’t ultimately recognized as a constitutional right.

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