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States’ defamation reputation intact


Cite as: (2004) 78(9) LIJ, p. 22

The push for national defamation laws

The move toward national defamation laws gained momentum in July with the release of the federal government’s proposal for a unified regime.
Federal Attorney-General Philip Ruddock released the proposed laws at the regular Standing Committee of Attorneys-General meeting held in Adelaide on 30 July.
On the same day, the state and territory Attorneys-General announced that they had signed off on recommendations for uniform laws and would set up a working party to draft legislation.
The LIJ asked Mr Ruddock and Victorian Attorney-General Rob Hulls to discuss their respective plans for national defamation laws.

Victoria questions the federal Attorney-General’s commitment to national defamation law.

The federal Attorney-General’s defamation law reform agenda is a cynical attempt to undermine and criticise the work of collaborating states in the lead-up to a federal election.

The states and territories established a working party on defamation law in late 2002. Explicitly recognised in this action was the need for a national approach to defamation law, an approach that would offer certainty and consistency in a sensible and uniform manner.

Over the past 18 months, the states have developed a comprehensive framework for defamation law reform that builds on the best aspects of the law in each jurisdiction.

Twenty-one key recommendations on defamation were supported by the Standing Committee of Attorneys-General (SCAG) in Adelaide in late July. A draft defamation Bill will now be prepared for consideration by SCAG at its November meeting later this year, based on these 21 key recommendations.

At the March 2004 SCAG meeting, federal Attorney-General Philip Ruddock agreed to share the Commonwealth’s defamation work with the states in order to move towards a model national approach.

Far from this occurring, the states were left in the dark with Mr Ruddock finally tabling his revised proposals at the recent SCAG meeting in Adelaide. This action clearly belies any commitment made by the federal Attorney-General to be collaborative and surely calls into question his honest commitment to national defamation law reform.

Mr Ruddock’s defamation grandstanding earlier in the year was underpinned by an implicit threat to the states that the federal government would simply pass a national defamation Bill if the states failed to dance to the tune that he had set.

It is now clear, however, as the states have consistently maintained, that the Commonwealth cannot legislate comprehensively in the area of defamation law. Not only is this reflected in legal advice obtained by the Victorian and New South Wales Attorneys-General, but is confirmed in the federal Attorney-General’s own recent correspondence to state Attorneys-General. This acknowledges that a referral of power from the states to the Commonwealth would be needed to facilitate coverage of the field in defamation law.

Therefore, rather than creating a “sensible uniform code”, Mr Ruddock’s proposals will create a ninth layer of legal complexity for defamation law in Australia. Surely this should be motivation enough for the federal government to work with the states towards a common goal, if as Mr Ruddock has asserted, he is working “in the interests of all Australians”.

The states’ defamation reform efforts have been directed at getting the balance right between the protection of personal reputation and the safeguarding of freedom of expression.

Unlike the federal Attorney-General’s proposals on defamation, the states will not allow corporations or dead people to sue. Mr Ruddock’s March 2004 proposal, which removed juries from the defamation equation, has now been revised by the Commonwealth and is in line with the states’ recommendation. The states’ position paper supports juries as the cornerstone of our justice system in determining whether a publication is defamatory and whether a defendant has a defence. Similarly, Mr Ruddock has now been forced to come on board in relation to the common law defence of fair comment.

It is indeed disappointing that Mr Ruddock continues to play politics with defamation law. It is the federal government that needs to get on board with the states and work collaboratively towards a national framework for defamation law.

State and territory Attorneys-General are demonstrating that, unlike the federal Attorney-General, they can move beyond the politicisation of federal-state relations to achieve effective and efficient defamation law reform that will benefit us all.

ROB HULLS is Victoria’s Attorney-General.


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