One year on; a conversation with the NSW Solicitor General regarding recent defamation law reforms
The current Defamation reform process was initiated by the NSW attorney- general in 2019 and is ongoing.
Stage 1 resulted in the 2021 amendments to the uniform legislation, including to the Defamation Act 2005 (NSW) (the amendments are not yet in force in WA and the Northern Territory). Stage 2 is about the internet and other aspects and the process is continuing. The Solicitor General has been, and still is, a member of the Defamation working party, which advises the various attorneys-general, and of the Expert Panel, which advises the NSW attorney-general. The Solicitor General did not undertake this interview in any of those capacities or on behalf of those bodies but as the author of Australian Defamation Law and Practice and as someone who has had an extensive career in media law prior to his appointment as Solicitor General.
Bar News (BN): Thank you Mr Solicitor for taking the time to talk today. While our readers would know you as the Solicitor General, many might not know that prior to that appointment you had a large practice in media and defamation law. How did your practice arise and what did you enjoy most?
Solicitor General (SG): From the beginning I was interested in having, if possible, some work in media law, so not only defamation but also contempt and suppression cases. I read with Tobin QC who had a large practice in those areas. Over time we came to do a lot of cases together which enabled me to build a practice, so I was very fortunate.
At that time almost all the cases came out of the mass media and so they involved publicly contentious issues and questions, so there was always an intrinsically interesting aspect. There were also more jury trials than now and those were all a drama in themselves.
BN: One of the most notable defamation cases you appeared in was Lange v ABC (1997) 189 CLR 530 for the ABC. That case notably developed the common law qualified privilege defence. Do you consider that case to be your most significant defamation matter?
SG: In one sense it was of course a very important and signal case but as it turned out the High Court’s development of that defence was not enormously beneficial to the media publishers after all. It was a curious case in many ways. I think Mr Lange ultimately regretted that he was the subject of this kind of test case. He eventually got a settlement with the ABC so there was no trial. The result of the case was, I think, two paragraphs of the defence I drafted were struck out!
In some senses though I look back on the trials as more significant cases, particularly Deren v New South Wales (1998) Aust Torts Reports 81-463, which was known as the Mr Bubbles Case. I was for the plaintiffs and it was high stakes because the Derens sued the police over material the police had given to the media which related to criminal allegations against them. The Derens were ultimately cleared as the criminal proceedings came to nothing. During the course of the proceedings I had come to appreciate what an injustice had been done to the Derens. At this time there were a number of cases where extraordinary allegations were made about childcare centres without substance but these allegations effectively destroyed the lives and livelihood of people against whom the allegations were made.
In the end, the Court of Appeal allowed Mrs Deren to retain her trial verdict but not Mr Deren, which I think was the wrong outcome, but I would say that, wouldn’t I! The problem of course for the Derens was that money could never compensate for what had happened to them.
BN: Since becoming the Solicitor General, you have remained actively involved in defamation, for example by being the author of Australian Defamation Law and Practice. Other than statutory reform, what have been the biggest changes you have seen over the years?
SG: The first one has been the impact of the internet and social media which was not a factor when the 2005 uniform legislation was being implemented because it just wasn’t realised then what an impact it would have on defamation law.
The second is the cases now being heard in the Federal Court without a jury. It didn’t occur to any of us in 2005 that the Federal Court would construct a jurisdiction to hear defamation cases. I think there is a problem in hearing some of these cases without a jury. It is true that usually jury cases take longer but many plaintiffs do not want to face a jury so I think you therefore have fewer trials if you have trial by jury. But now in the Federal Court you can avoid a jury and some of the cases that are being heard there, where there is a real issue of credit between the parties, puts a judge in a judge-alone trial in a difficult position to resolve those issues and I think a jury can do it better, without giving reasons and using their knowledge of the values of the community. I think that’s probably preferable.
BN: There are two reforms from the 2021 amendments which are arguably the most important. First, the new serious harm test in s 10A requires a plaintiff to prove that a publication post 1 July 2021 had caused, or is likely to cause, serious harm to their reputation before bringing a claim in defamation. This test is identical to the serious harm test that came into force on 1 January 2014 in the UK. However, it appears their change was more of an evolution from developments in the English and Welsh common law. Is that right?
SG: The common law there had developed what was referred to as a ‘threshold of seriousness’ test, however it seemed to me that the threshold of seriousness was only really reflecting the test of whether something is defamatory or not. Therefore, I never considered that the common law test added anything. Whereas the statutory serious harm test in both jurisdictions does change the law because under the common law damage to reputation was presumed. Now, however, that is not the case, as can be seen in the UK Supreme Court case of Lachaux v Independent Print Ltd  UKSC 27.
BN: You just mentioned Lachaux v Independent Print Ltd & Evening Standard  UKSC 27. Can you tell us a bit about why that case was so important?
SG: Chiefly because it’s really the only UK Supreme Court case that considered this issue. Also, it underlined the fact that this test does pose an additional bar from the common law position because damages are not presumed and that, whether by inference (for example in mass media cases with relatively serious imputations) or by evidence, serious harm has to be established as a fact.
It perhaps raises more questions than it answers in terms of the various tests that one might use in assessing whether serious harm has occurred, and when that assessment should be made, but to be fair to Lord Sumption, who gave the judgment for the court, he didn’t have to consider those questions and those questions will have to be decided in due course.
BN: On 5 July 2022, there have been only two cases that discuss serious harm in NSW. One considered the UK statutory test (Rader v Haines  NSWDC 610) and one the NSW statutory test but only on a motion without full argument (Newman v Whittington  NSWSC 249), so it is too soon to know how the test will be interpreted here.?
SG: Yes, it is far too soon to know. It is clear that in mass media cases it is unlikely to be a bar to a plaintiff bringing a claim given the extent of publication/viewership, etc. However, it may well be able to cut off trivial cases such as those on social media, limited publication, or publication to people who don’t take the allegations or defamatory statements seriously. That is the intention. It is likely to be intensely litigated because it’s a new provision and defendants may want to try and explore how it’s going to work. A new provision will always attract litigation in the early stages but hopefully it will ultimately lessen the volume of litigation.
BN: I want to ask you about the new public interest defence in s 29A – it is a defence when publishing something defamatory if the matter concerns an issue of public interest and the defendant reasonably believed that the publication was in the public interest. Evidently, there was a view that a defence wasn’t already available that covered this ground?
SG: Well, the media would say that the statutory qualified privilege defence, in s 30, hadn’t worked because the courts construed the notion of the journalist's/ publisher’s reasonable conduct too narrowly. It is certainly true that that defence didn’t work very often, if at all. The problem with the s 30 defence is that you are considering a publication that is not only defamatory but also false. You then have to explain how and why this came about, which inevitably leads to a consideration as to the way the journalist approached the publication. It can be very difficult for the journalist to establish reasonable conduct when the material turns out to be false.
The question is whether the new defence will change that situation. You may still have the same problem for defendants because courts will likely look at the publisher’s conduct in forming a reasonable belief. Now however the court must take into account all the circumstances of the case and there is also a list of factors that a court may take into account, so it is not solely based on the journalist’s conduct but that will still be an important factor.
BN: Again, there is no case in NSW that has yet decided this defence. However, one aspect will be the notion of what is in the ‘public interest’. Do you think defendants will try to broaden that notion to utilise the defence more widely?
SG: I think the notion of public interest in other aspects of defamation law (such as the honest opinion defence) has always been quite broad and I doubt that will be a problem for the mass media. Of course, this is a defence designed for the mass media and so when you get into more private types of communication there are other defences that might be better suited where the issue of ‘public interest’ is not relevant.
BN: As many readers might be aware, there is also currently a process regarding Stage 2 uniform defamation law reforms; can you give us a sneak peak as to what you think further areas of reforms for defamation law will be?
SG: Aside from Part A, which is looking at the internet and social media, Part B is the proposal by Victoria to consider the availability of absolute privilege on complaints to a range of bodies (including the police) but also in relation to certain conduct, such as sexual harassment. This would be a significant expansion of the current absolute privilege defences, bearing in mind anyone could make a complaint that turns out to be defamatory under absolute privilege and an improper motive (malice) in making that complaint would not defeat an absolute privilege defence.
Such an expansion raises various issues and questions, particularly for reporting non-criminal conduct to bodies that receive complaints about that conduct, and these are policy questions that will ultimately need to be resolved by the attorneys-general.
BN: Mr Solicitor, thank you so much for being willing to speak to Bar News today. BN