POLITICIANS' ADVANTAGES IN DEFAMATION LAWS: EXPLORING HOW CURRENT LAWS ALLOW THE MOST POWERFUL TO SILENCE THEIR CRITICS

BY ARIELLA TRACTON

WHAT IS DEFAMATION LAW?

Defamation law is an area of civil law with growing complexity. Defamatory material is defined as publication of material that is untrue or unsubstantiated, which causes serious harm to an individual’s reputation.1 These laws exist to protect individuals from undue harm to their reputation, aiming to provide the legal framework to balance the freedom to circulate information in the public interest, with the right to access remedies for the publication of defamatory material.2

There is a clear need for defamation law review. These laws are defined by each state and territory in Australia, creating inconsistency and unnecessary complexity, evincing a need for unanimous regulations to be adopted across all jurisdictions. In NSW, the key legislation on defamation is contained in the Defamation Act 2005 3 While the legislation aims to protect the character of individuals from unfounded attacks to unreasonably harm their reputation, in practice it largely benefits the most powerful.4

This critical discourse will examine the harmful nature of current defamation laws, emphasising the critical need for law reform to protect public interest and promote fair democratic participation through the freedom of political communication.5

¹ Defamation Act 2005 No 77 (NSW) s 7.

² Rhonda Breit, ‘Uniform Defamation Laws in Australia: moving towards a more ‘reasonable’ privilege?’ (2011) 138 (1) Media International Australia Incorporating Culture & Policy 10.

³ Ibid.

4 Ibid.

5 David Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 established this implied right.

Defamation cases proliferate amongst politicians who derive their ‘electability’ through the maintenance of their reputation, aiming to maintain favourable attitudes from the public. Therefore, politicians have a greater incentive to sue over defamation than other plaintiffs as it enables claims that allegations are merely ‘fake news’.6 The current laws enable politicians to threaten defamation litigation on political positions of power to protect themselves from scrutiny.

The recent case of YouTuber Jordan Shanks-Markovina publishing videos exposing John Barilaro’s corruption highlights the need for defamation law reform.10 Arguably, Shanks’ videos published on YouTube were related to public interest and freedom of information. Ultimately, the court ruled in favour of Barilaro, because of his parliamentary

WHAT’S NEXT?

Due to the rapidly changing landscape of Australian politics, the 2005 defamation laws are no longer fit for purpose. As such, organisations including the Law Council of Australia have criticised the way in which defamation laws in Australia stifle freedom of speech and reportage on issues in the public interest. There is no explicit right to freedom of speech under the Australian Constitution, which further reinforces the limitations on expression by journalists established by NSW defamation laws.

The need for defamation law review is recognised. The original national Model Defamation Provisions (‘MDPs’) were approved as a unanimous enactment of uniform provisions in 2005 across all Australian states and territories. In 2020, all Australian states and territories developed the Model Defamation Amendment Provisions, which have established the impetus for meaningful change to be made in defamation law.11 Statutory review has been ongoing ever since former NSW Attorney-General Mark Speakman committed to an overhaul of NSW defamation law in July 2020 by implementing the provisions.12 Ultimately, the national implementation of the 2020 MDP amendments will make defamation law more equitable.

A new proposed defence of public interest in the 2020 MDP amendments aims to increase protections of

Queensland are leading the enactment of these provisions, within an ongoing, two-stage approach of implementation and review.16

Proposed law reform is justified and can modernise the outdated Australian defamation laws. A national approach would be superior to an individual state and territory approach. The current permissive attitudes towards politicians using defamation claims as a knee-jerk reaction to criticism inhibits valid and crucial political commentary.17 The inclusion of a public interest defence would likely remedy these issues, by allowing citizens to be informed on matters affecting their democratic participation.18 Enabling litigation in defamation claims by Australian politicians at its current rate could establish a dangerous precedent, threatening the democratic principles of freedom and liberty in Australia.19

6 Ibid.

7 Garrett Mundy, Jacob Kagi and Eliza Laschon, WA Premier sues Queensland businessman Clive Palmer for defamation. ABC News (Online, 23 September 2020). https://www.abc.net.au/news/2020-09-23/mark-mcgowan-takes-legal-action-againstclive-palmer/12691798.

8 Ibid.

9 Rebecca Payne, NSWCCL on politicians and defamation. New South Wales Council for Civil Liberties (Online, 27 July 2021). https://www.nswccl.org.au/nswccl_on_politicians_ and_defamation.

10 Barilaro v Google LLC [2022] FCA 650.

11 Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Report No 129, January 2016).

12 Paul Karp, Defamation Nation: why are Australian politicians so quick to sue? The Guardian (Online, 13 June 2021). https://www.theguardian.com/law/2021/jun/13/ defamation-nation-why-are-australian-politicians-so-quick-to-sue.

13 Ibid.

14 Michael Douglas, ‘Defamation Actions and Australian Politics’ (2021) University of New South Wales Law Journal 6.

15 Ibid.

16 Law Council of Australia, Review of Model Defamation Provisions – Stage 2 Discussion Paper (June 2021).

17 Craig Burgess, ‘Criminal defamation in Australia: Time to go or stay’ (2013) 20 (1) Murdoch University Law Review 10.

18 Ibid.

19 Michael Douglas, Australia’s ‘outdated’ defamation laws are changing – but there’s no ‘revolution’ yet. The Conversation (Online, 28 July 2020). https://theconversation.com/ australias-outdated-defamation-laws-are-changing-but-theres-no-revolution-yet-143532.