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“The Purest Treasure?” National Defamation Law Reform in Australia

Published online by Cambridge University Press:  24 January 2025

M. D. Kirby
M. D. Kirby*
Affiliation:
Law Reform Commission of Australia; Australian Conciliation and Arbitration Commission
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Abstract

In this article, Mr Justice Kirby surveys two major issues which are before the Australian Law Reform Commission in its Reference to reform defamation laws. First, he suggests that any reform requires revision of procedures to deliver remedies that are apt for damage to reputation. Unless the judicial system can produce speedier redress and more relevant remedies, it is suggested that administrative or other regulation will replace court procedures. Secondly, the article explores the problems arising in the age of mass communications from Australia's eight different systems of defamation law. After weighing the arguments for and against a uniform code, it is suggested that the present disparity promotes confusion, uncertainty, self-censorship and forum shopping. Four methods of achieving a uniform code are explored. These include a return to the common law, reference of power to the Commonwealth by the States, an attempt to secure agreement with the States on uniform laws and the use of a number of Commonwealth powers to support a national Act. As the vehicle chosen will affect the law proposed, it is suggested that the choice can not be delayed.

Type
Research Article
Information
Federal Law Review , Volume 8 , Issue 2 , June 1977 , pp. 113 - 140
Copyright
Copyright © 1977 The Australian National University

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Footnotes

*

      “The purest treasure mortal times afford,
      Is spotless reputation; that away,
      Men are but gilded loam, or painted clay.”
      Shakespeare, King Richard II, Act 1, sc. 1.

This article is an edited and updated version of an address delivered by Mr Justice Kirby to a conference organised by the Law Society of New South Wales at Thredbo, N.S.W. on 3 October 1976.

References

1 Enderby, “Expansion of Federal Laws” (1975) 1 Australian Government Weekly Digest 489, 492; see also at 551.

2 E.g. The Australian Financial Review, 9 February 1976, 2.

3 The full Terms of Reference are to be found in (1976) 50 A.L.J. 542.

4 This is a reference to s. 6(1 )(d) of the Law Reform Commission Act 1973 (Cth).

5 Among the recent reviews of defamation law are the Report on Defamation (L.R.C. 11) (1971) of the Law Reform Commission of New South Wales; the Fifteenth Report of the Law Reform Committee of South Australia Relating to the Reform of the Law of Libel and Slander (1972); the Report of the Committee on Defamation (Chairman, Mr Justice Faulks) Cmnd. 5909 (1975). A review is current in New Zealand, Kelsey, “Defamation in New Zealand An Alternative Approach ” (1976) 8 Victoria University of Wellington Law Review 130. The Australian Law Reform Commission has published its Working Paper on Defamation (1977) and also its Discussion Paper No. 1, Defamation Options for Reform (1977). It is beyond the scope of this article to consider whether the cause of action in defamation is itself inapt i.e. whether a larger and more comprehensive tort (e.g. intentional infliction of mental suffering) should not be developed. Cf. Wade, “Defamation and the Right of Privacy” (1962) 15 Vanderbilt Law Review 1093.

6 Leviticus, XIX, 16.

7 A useful conspectus of the variety and similarity of the law of defamation in other countries is found in Carter-Ruck, Libel & Slander (1972) 230-354.

8 Information supplied by the respective Supreme Courts. This Table, omitting the Tasmanian figures, appears in the Law Reform Commission's Working Paper on Defamation (1977) 165 (with further elaboration).

9 For example, the figures omit defamation actions commenced otherwise than in Supreme Courts. They include, in the figures for actions set down and disposed of, writs issued before 1972. They include in the number of writs issued, actions only recently commenced where it would not be reasonable, in any system of procedure, to expect a completed trial before 30 June 1976. Furthermore, there would probably be some actions in which the parties have settled their dispute by release or by informal means, without any order of the court. Some cases would have been commenced without any serious intention of bringing the matter on to trial. The most serious defect in the figures is the absence of statistics from the State of New South Wales, where defamation actions are far more prevalent than in any other part of the Commonwealth. Statistics could not be produced from New South Wales and South Australia for administrative reasons. However, there is no reason to believe that the overall position would be very different.

10 The Queensland figures led the then Minister for Justice and Attorney General for Queensland, Mr W. E. Knox to criticise the misuse of defamation “stop writs”: Knox, Opening Speech, Seminar on Journalism and the Law, 24 August 1975, mimeo, 3.

11 Report of the Committee on Privacy (Chairman, Sir Kenneth Younger) Cmnd. 5012 (1972) para. 116.

12 Id. para. 145.

13 Marr, “The Press Council Stumbles at its First Hurdle”, Bulletin, 16 October 1976, 21.

14 For example, lay participation in enquiries following complaints against members of the legal profession is now provided for by law in the United Kingdom, has recently been suggested in a New Zealand report, has been proposed in Victoria and South Australia and is under study in N.S.W. Independent and judicial scrutiny of compaints against police was proposed by the Law Reform Commission in its first report Complaints Against Police, A.L.R.C. 1 (1975). Certain self-discipline machinery does exist in respect of special aspects of media conduct. This includes the tribunals of the Media Council of Australia. It is a subject presently under study by the Autsralian Broadcasting Tribunal.

15 Groll, “The Press Council and the Press Ombudsman in Sweden” in Council of Europe (Directorate of Human Rights) Round Table on Press Councils (1974) so, 51.

16 E.g Robertson, , “The Libel Industry”, New Statesman 2 July 1976, 6-7Google Scholar.

17 Except where a delay occurs between the publication and the commencement of proceedings.

18 Note thats. 7(a) of the Law Reform Commission Act 1973 (Cth) imposes a d,uty on the Commission to ensure that so far as practicable its proposals do not ''unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions”.

19 The Defamation Law of Queensland 1889 (Qld); Criminal Code 1899 (Qld) (criminal defamation).

20 Act No. 42 of 1957.

21 Criminal Code 1913, Chapter XXI (W.A.).

22 Defamation Act 1958(N.S.W.).

23 Cf. n. 5 supra. The new Act is the Defamation Act 1974.

24 Most notably in respect of the defence of justification, the scope of qualified privilege, the provision of an offer of amends and the quantum of recoverable damages.

25 Wrongs Act 1958 (Vic.); Wrongs Act 1936 (S.A.).

26 The New South Wales Act of 1901 was substantially amended in 1912. It was the 1912 Act (as amended) which applied in New South Wales until 1958. The 1912 statute was passed in New South Wales too late for application to the Australian Capital Territory pursuant to the Seat of Government Acceptance Act 1909, s. 6 (Cth).

27 Defamation Ordinance 1938 (N.T.).

28 As disclosed in the discussion of the Gorton and Wright cases infra.

29 New South Wales v. Commonwealth (1976) 50 A.L.J.R. 218, 226 (Barwick,C.I.); Queensland v. Commonwealth (1976) 50 A.L.I.R. 189, 203; Bistricic v.Rokov (1976) 11 A.L.R. 129, 138 ff. per per Murphy J.

30 30 Comment by Mr Iustice Bray on an article Woodward, "Censorship" (1971)A.L.J. 510, 585-586, where he called diversity “The protectress of freedom”.

31 See Table. The paucity of actions may depend in part upon the inadequacy of current law procedure and excessively cautious legal advice, stemming from inexperience of the cause of action.

32 For example, Mr Galbally's criticism of transfer of unconnected powers, in this context the law of defamation, unconnected with the law of contempt of court. Minutes of Proceedings and Official Record of Debates of the Australian Constitutional Convention, (Melbourne) (1975) 88.

33 For example Mr F. Walker (N.S.W. Attorney-General), Bulletin, 4 September 1976, 25.

34 The statutory defences relating to fair reports and other minor variations of the common law would be lost.

35 Ellicott, ''Law Reform-The Challenge for Government”, 11 June 1976, mimeo. 100.

36 Ellicott, “Law Reform and the Role of the States”, 13 June 1976, mimeo. 122.

37 Duke of Brunswick v. Harmer (1849) 14 Q.B. 185; McCracken v. Weston(N.S.W.) 611. Cf. the model statute known as the Uniform Single Publication Act approved in 1952 by the United States Conference of Commissioners on UniformState Laws. See now s.9(3) of the Defamation Act 1974 (N.S.W.), (leave of thecourt necessary in certain cases).

38 Non-profit community broadcasting stations are likely to increase following amendments in 1976 to the Broadcasting and Television Act 1942 (Cth).

39 Defamation Act 1974 , s . 15 (N.S.W.).

40 Id. s. 12

41 McLean, v. David Syme and Co. Ltd. (1971) 92 W.N. (N.S.W.) 611Google Scholar.

42 (1971) 92 W.N. (N.S.W.) 611.

43 It is beyond the scope of this article to consider the scope of the Common wealth's power to enact a uniform choice of law rule for operation throughout Australia. Nor is it possible to discuss the proper content and approach to such a rule in defamation actions. Cf. Mackiff v. Simpson [1968] V.R. 62, 65 (Menhen nitt J.); Maple v. David Syme & Co. Ltd. [1975] 1 N.S.W.L.R. 97, 105 (Begg J.) and the unreported observations of the High Court in Garretty v. Nationwide News Pty. Ltd. cited by Begg J.

44 (1974) 22 F.L.R. 181.

45 The plaintiff sued the Commission and a journalist as joint tortfeasors.Id. 182.

46 ld. 196.

47 Wright, v.Australian Broadcasting Commission, unreported, 7 September 1976 (Supreme Court of N.S.W.)Google Scholar.

48 Contrast the observations of the N.S.W. Law Reform Commission in L.R.C.11, Ope cit., 110-113.

49 Page 14 of the as yet unpublished judgment.

50 The implication of Calwell v. Australia Ltd. [1973] 1 N.S.W.L.R.550,562-563; on appeal (1976) 50 A.L.J.R. 152, 155 and of Wright's case is probably to afford greater protection to the media in ventilating matters of public interest, particularly if the plaintiff sues in New South Wales.

51 Maple, v. David Syme & Co. Ltd. [1974] 1 N.S.W.L.R. 290, affd. [1975]1 N.S.W.L.R. 97.Google Scholar

52 Law Reform Commission of N.S.W., op. cit., 9ff.

53 Minutes of Proceedings and Official Record of Debates of the Australian Constitutional Convention, (Sydney) (1973).

54 The recommendation of the Standing Committee (Standing Committee C), sixth meeting, is contained in Australian Constitutional Convention 1974,Standing Committee C, Interim Reports to Executive Committee (Melbourne), 36-37.

55 Ibid.

56 Agenda item No. S. 7, Minutes of Proceedings and Official Record of Debates of the Australian Constitutional Convention (Melbourne) (1975) xlvi. It was adopted, op. cit., 89. It went in this form to the Hobart meeting of the Convention.

57 Australian Constitutional Convention, Official Record of Debates, (Hobart),27 October 1976, mimeo.54.

58 Mr Solomons (N.S.W.); Mr Medcalf (Attorney-General, W.A.); Mr Storey (Attorney-General, Vic.).

59 Australian Constitutional Convention Official Record of Debates, (Hobart)op. cit., 55, Mr R. W. Baker (Tas.).

60 Id. 71.

61 Id. 69.

62 Cranston, , “Uniform Laws in Australia” (1971) 30 Journal of Public Administration 229; the Law Reform Commission (Aust.), Annual Report 1975 A.L.R.C. 3, 48; Annual Report 1976 A.L.R.C. 5, 5Google Scholar.

63 H.R. Deb. 1976, Vol. 101, 2853.

64 Carter, Ruck, op. cit., 288 (Quebec); 321 (Japan).Google Scholar

65 Carron Iron Co. v. Maclaren (1855)5 H.L.C. 416; 10 E.R. 961.

66 Miller, “The Commonwealth Broadcasting Power and Defamation By Radio or Television” (1971-1972) 4 University of Tasmania Law Review.

67 (1977) 13 A.L.R. 273.

68 Id. 277.

69 Id. 280.

70 Ibid.

71 1d. 278.

72 Ibid.

73 Id. 279.

74 The Covenant was adopted by Resolution No. 2200(xxi) by the General Assembly of the United Nations Organization. General Assembly Official Records, xxi, Supplement No. 16 (A/6316), 52-58. It was Schedule 1 to the Human Rights Bill 1973 (Cth).

75 H.R. Deb. 1976, Vol. 101, 3560.

76 (1977) 13 A.L.R. 273, 274.

77 Id. 275.

78 Jd. 275, 281 and 282.