Submission on the review of model defamation provisions | Stage 2 Part B

By Fabienne Sharbanee

24 October 2022

The process of reforming defamation law in Australia commenced around 2 years ago.  The review of the Model Defamation Provisions is being managed by the Victorian and New South Wales State governments, with submissions and input sought from stakeholders around the country.

Stage 2 of the reform process began in September 2022, and was divided into Parts A and B.  Part B addressed the possible extension of the defence of absolute privilege to ensure that defamation law does not have a chilling effect on people’s willingness to report acts of personal violence to the police and other regulators.

Bennett delivered its submission on Part A of the Stage 2 reforms in September, and shared it online last week. Our submission to the Victorian working party on Part B of Stage 2 was delivered earlier this month. 

You can read the full content of the submission below, or you can access it along with all other public submissions here.

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Bennett submission on Part B of Stage 2 of the defamation reform process – proposed extension of absolute privilege

Summary

As was set out in our submission to the Defamation Working Party in May 2021¹, the Bennett Media Law Group considers that the existing defences of qualified privilege (at common law at pursuant to statute), provide adequate protection to ‘victim-survivors’ (as that term is used in the Discussion Paper). Accordingly, we do not consider that there is a need to extend the defence of absolute privilege as proposed, or at all.

Having said that, Bennett recognises that a number of stakeholders are in favour of extending absolute privilege in the interests of limiting risk for victim-survivors and ensuring that reporting of personal assaults is not discouraged by the operation of defamation law. Similarly, we recognise the sound policy in seeking to ensure that defamation laws do not have a chilling effect on victim-survivors’ willingness or ability to report instances of ‘unlawful personal conduct’. Accordingly, we have set out below our recommendations regarding the ways in which the current Model Defamation Provisions (MDPs) could, or should, be improved to protect the interests of all stakeholders (in addition to genuine victim-survivors).

In summary, we believe that the MDPs will be improved by:

• greater certainty in the language utilised in proposed section 27(2)(b1);
• providing constraints on the operation of section 27(2)(b1) such that it is limited to formal publications made to police officers acting in their official capacities;
• providing limitations on the States’ and Territories’ powers by specifying categories of bodies which ought to be declared in the Schedule; and
• including an adequate statutory penalty for making false or misleading reports.

Recommendations 1 and 2: Introduction of section 27(2)(b1) to provide that the defence of absolute privilege applies to publications of alleged unlawful personal conduct made to the police

As set out in our earlier submission, we consider that the defence of qualified privilege provides sufficient protection to victim survivors seeking to make potentially defamatory complaints of ‘unlawful personal conduct’, and appropriately protects potential plaintiffs in the event of false or misleading reports actuated by malice. We do not therefore consider it necessary to extend the defence of absolute privilege.

We do however accept that there are a number of stakeholders in favour of the extension of absolute privilege as proposed in the MDPs. Accordingly, we have also provided our comments on the respects in which we consider the proposed provision may be improved to ensure greater certainty for all potential claimants and respondents.

We have 2 criticisms of the proposed amendment to section 27 in its current form:

1. we consider that the terminology in the proposed provision is uncertain; and
2. we consider that there is ambiguity as to the breadth of the operation of the defence, which should in any event, be limited to formal reports to members of the police acting in their official capacities.

Certainty of terms used in the proposed s 27(2)(b1):

Any amendment which is proposed in order to ensure greater security and protections for victim-survivors must be clear and unambiguously drafted. Any ambiguity in the proposed amendments is likely to result in increased argument regarding interpretation of subsection (b1), which would be contrary to the intent of the reform and the interests of future litigants and victim-survivors alike.

‘Police force’ is undefined, and therefore arguably unclear or reliant on definitions to be applied from other legislation.

The difference between the persons to whom publications can be made pursuant to paragraphs 27(2)(b1)(i) and (ii) of the MDPs is also unclear. The reference in subsection (ii) to publications made to an official of the police force ‘if published in their official capacity’ arguably suggests that subsection (i) extends protection to:

1. publications made to the police force which are made to a person other than ‘an official’; and
2. publications made to a representative of a police force when not acting in an official capacity.

The current drafting of the proposed subsection also invites the following additional questions:

• Who, or what, is an ‘official’ of a police force? Is this a reference to serving police officers, all employees of a police service or an intended reference to senior officials?
• Does ‘officials’ extend to administrative staff, or to any other person who is employed by a police service but not bound by the statutory powers and responsibilities of a serving officer (nor trained in the investigative and reporting skills one would expect of a serving police officer)?
• Is it intended that a verbal report made to an employed administrative officer (who is not a police officer) be captured by subsection (i), and/or by subsection (ii) or neither?

Extension of defence to informal and formal publications:

We note from paragraph 2.3 of the Discussion Paper the view that extended privilege should be extended to both formal and informal publications. Whilst we do not quibble with the idea of a preliminary inquiry about the complaints process being captured by the defence (the example given in the Discussion Paper), in our view it would be dangerous to extend the defence to all types of informal publications merely because the or a recipient of the publication is a member of a police service. The context and setting in which the publication is made must remain relevant to the operation of the defence.

In particular, care must be taken to ensure reports made to police employees or officers when they are not acting in their official capacity are not captured by any extension of absolute privilege. It is unreservedly accepted that genuine reports of unlawful personal conduct should not be discouraged when those reports are made through proper channels. The proposed extended privilege should not however apply to, for example, reports made to police officers or employees in casual settings who are not acting in their official capacities. The risk of false or misleading reports would be greatly diminished if the defence were limited in this way. In our experience, false, misleading or embellished reports of unlawful personal conduct are more likely to be made in an informal environment (for example, a conversation in a bar or at a barbeque to an off duty police officer).

We consider that any proposed extension of absolute privilege should limit the operation of the defence to formal publications made to police officers acting in their official capacities.

Recommendation 3: States and territories have the discretion to extend the defence of absolute privilege to publications of alleged unlawful personal conduct to relevant bodies with powers under Commonwealth, State or Territory law to deal with unlawful personal conduct

If absolute privilege is to be extended in the case of reports of unlawful personal conduct to police, then we recognise that there are equivalent policy reasons to also extend the operation of the defence to publications alleging unlawful personal conduct to certain statutory and other bodies, as summarised in Recommendation 3².

We agree that the appropriate mechanism will involve the population of Schedules bespoke to each States’ and Territories’ relevant legislation.

However, we disagree that the MDPs should not propose certain categories, or definitions, of bodies which might, or should, be declared in a Schedule. In our view, such a provision is likely to provide the appropriate guidance – and potentially limitations – to the jurisdictions without inviting disputation or difficulties in interpretation.

In this regard, we note, for example, the existing drafting of s 15 of the Defamation Act 2005 (WA)³ (Act) which requires that an offer of amends must include certain elements, and may include a range of other elements. Similarly, s 30(3) of the Act⁴, provides that in considering the reasonableness of a defendant’s conduct in the context of a qualified privilege defence, a Court may take into account a range of specified matters and, at s 30(3)(j), ‘any other circumstances that they court considers relevant’. In the same vein, a provision could be drafted which required the States to declare certain categories of bodies, and specified other categories of bodies which may be declared.

In our view, an appropriate limitation of the proposed discretion may include ensuring that only bodies which have the power to impose a sufficient penalty for the making of a false or misleading report of alleged unlawful personal conduct can be declared. The statutory penalties for false or misleading statements to statutory investigative agencies and professional disciplinary bodies, discussed at paragraphs 3.3.2.1 and 3.3.4.1 of the Consultation Paper, only provide safeguards in reports made to those particular bodies. A uniform restriction on all States’ and Territories’ powers would ensure uniformity with the existence of a safeguard against false or misleading reports consistently across jurisdictions.

At a minimum, the MDPs should encourage a way forward that requires States and Territories to consult with stakeholders, and with each other, before the bodies in the respective Schedules are declared.

The example Schedule 1 provided with the MDPs highlights another risk inherent in the drafting presently being considered:- the critical limiting words ‘concerning alleged unlawful personal conduct’ are included in the chapeau to the example section. It follows that, at least in theory, if a State or Territory were to omit those words from the chapeau of a provision in the Schedule, publications to the relevant body regarding any subject matter will be afforded the protection of the defence. This is contrary to the intention of the reforms. The proposal to permit States and Territories to extend the application of the defence by populating the proposed Schedule should therefore be crafted in a manner which ensures that the privilege is only extended to the relevant bodies in the case of matter concerning alleged unlawful personal conduct that is published to the body (for example, a report of professional misconduct to a regulatory body should not be capable of being captured by the defence, regardless of the content of each States’ and Territories’ eventual Schedule⁵).

Recommendation 4: The defence of absolute privilege should not be extended to publications alleging unlawful personal conduct made to employers

For the reasons detailed in in the Discussion Paper, and addressed in our earlier submission⁶, we strongly agree with Recommendation 4 and make no further comment.

Recommendation 5: It is not necessary to include in the MDPs a statutory safeguard, requirement, or penalty against the making of false and misleading publications to police or other relevant bodies regarding allegations of unlawful personal conduct.

We disagree with Recommendation 5.

In our view, if there is any intention to extend the defence of absolute privilege, then in our submission there must be a statutory penalty for false and misleading reports in order to address publications that are made maliciously to which a defence of qualified privilege would otherwise apply.

The imposition of a penalty provides, at a policy level, the balance for what is being taken away from potential claimants by the proposed extension of the defence. Genuine victim-survivors ought not be deterred by a penalty that is only imposed in the case of false and misleading (or potentially deliberately false and misleading) statements. Others motivated by less proper motives should however be deterred by the existence of such a penalty.

1. If a complaint of unlawful personal conduct were made, to a statutory body, which was knowingly false and intended only to cause damage to the person about whom the complaint was made: under the current law, a claim for defamation would be made, and any asserted defence of qualified privilege would be defeated by malice. The claimant would recover damages for, inter alia, damage to their reputation and hurt and distress arising from the publication.
2. if absolute privilege is extended to respond to this scenario:

4.1   any claim of defamation would be defeated by absolute privilege; however

4.2   the claimant may be entitled to press for the imposition of a penalty for the knowingly false report. If a penalty were imposed, there would be no recompense to the claimant for the damage to their reputation or the hurt and distress suffered as a result of the publication, but there would be some solace provided if the law responded to the situation by the imposition of a financial penalty on the publisher.

Balancing stakeholder views

This is a subject matter in which it is increasingly difficult to balance the interests of all existing and potential stakeholders.

The Bennett Media Law Group support the need to ensure that Australia’s defamation laws do not have a chilling effect on people’s willingness to report crimes of personal violence against them.

However, we also consider that it is incumbent on practitioners experienced in defamation matters⁷, to ensure that the interests of all other parties potentially affected by the extension of the defence are considered.

Experience teaches us that it is often the most extreme, unusual or unexpected of circumstances which result in contested litigation. The extension of a ‘blanket’ defence like absolute privilege requires careful consideration to ensure that its operation does not extend beyond the scope of what is contemplated or appropriate.

Media Law Group

Contributing authors: Martin Bennett, Fabienne Sharbanee, Taleesha Elder and Pragya Srivastava

1. Bennett + Co, Response to Discussion Paper, Attorneys- General Review of Model Defamation Provisions – Stage 2, dated 19 May 2021
2. At page 29 of the Discussion Paper:  statutory investigative bodies; human rights, equal opportunity and/or anti-discrimination commissions; and professional disciplinary bodies.
3. And its equivalent in other State jurisdictions
4. And its equivalent in other State jurisdictions
5. Bennett has advised numerous clients in circumstances where a publisher has made a defamatory report (of conduct other than unlawful personal conduct) to a professional disciplinary body, or a statutory investigative body, motivated by a malicious ulterior motive
6. [FN1] above
7. Whether, as barristers or solicitors, and whether advising plaintiffs or defendants

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.