DEFAMATION:  WHERE THE REFORMS HAVE TAKEN US
UNIFORM NATIONAL LAWS AND
THE FEDERAL COURT OF AUSTRALIA*
Steven Rares

1.	Last year marked a watershed in the law of defamation in this country.  Each of the States and Territories agreed to introduce substantially uniform defamation laws with effect from 1 January 2006.  All the States have passed a Defamation Act 2005 in substantially similar form (“the Uniform Acts”).
2.	I will refer to provisions in the New South Wales legislation for the purposes of this paper.  Of course, there are some differences, such as in South Australia and the Australian Capital Territory where there is no provision equivalent to ss. 21 and 22 of the New South Wales, Victorian, Tasmanian, Western Australian and Queensland Uniform Acts for the hearing of the matters by a jury.
The Uniform Defamation Laws

3.	The Uniform Acts seek to ensure that whenever there is an intranational or interstate publication of substantially the same matter, there will be a trial under a single law selected in accordance with s. 11 of the Uniform Acts.
4.	I will not attempt to analyse in detail the operation of the various defences and damages provisions.  Given the novelty of these provisions, it would not be appropriate to do so, although a large drafting debt is evident in relation to the now repealed Defamation Act 1974 (NSW).  
5.	Most importantly however, the experiment which the Defamation Act 1974 (NSW) made by introducing the concept that imputations conveyed by the matter complained of constituted the cause of action, rather than the publication of the matter complained of itself, has been seen to be inappropriate.  The new Uniform Acts do away with the concept of the imputation being the cause of action.  Nonetheless, there are references to this concept, particularly in the important defences of offers to amend and contextual truth.  I will return to these matters later.
Offers to Make Amends
6.	Division 1 of Part 3 of the Uniform Acts provides for an early resolution procedure by way of an offer to make amends, when a plaintiff notifies a publisher of the alleged making of the defamatory imputations in a publication.  The Uniform Acts prescribe the circumstances in which an offer of amends may be made and what its contents must be.  The key concept in an offer to make amends is that it must include an offer to publish or join in publishing a reasonable correction of the matter in question or, if the offer is limited, of any particular defamatory imputations to which the offer is directed.
7.	It has become a commonplace event that newspapers, in particular, now publish corrections, rather than what in earlier days were more sought after, namely apologies.  It may well be a question for the jury or judge hearing an action as to whether the correction either offered or spontaneously published by a publisher, has a palliative effect on the damage which may have been done by the original publication.
8.	By s. 20 of the Uniform Acts, an apology is expressly excepted from being an express or implied admission of fault or liability by the maker of the apology and its making is not relevant to the determination of fault or liability in connection with the publication of the matter complained of.  Of course, the defendant can still lead evidence in mitigation of the fact that it has made an apology  or has published a correction, each of which fall outside the effect of the new s. 20(1) and (2).
Defences – Generally 
9.	It is important to appreciate that the defences provided under the Uniform Acts are, in effect, in addition to the common law defences which generally continue to be available where their continued existence is not inconsistent with the new Uniform Acts.
10.	The principal statutory defences are justification, contextual truth, absolute privilege, qualified privilege and honest opinion.  There are also defences of innocent dissemination and triviality.  This paper will address the developments in relation to these defences in turn. 
Defence of Justification
11.	The Uniform Acts provide for a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter complained of are substantially true.  Gone is any requirement that the publication either relate to a matter of public interest, as under the old Defamation Act 1974 (NSW) or that it be for the public benefit, as under other now defunct statutory defences in some other jurisdictions.  Thus s. 25 restores the original position under the common law.
12.	Accordingly, there is no filter mechanism which might prevent the resuscitation or bringing to light of embarrassing episodes in a person’s life when he or she was young, or issues relating to his or her own private life.  The way has now been open for what some might call robust reporting, and others might call “a smut circus”.  Hunt J evidently believed that this latter phrase, sourced to the alleged paramour of Greg Chappell, accurately depicted the activities in which she had by then engaged, namely, the publication in the epynomous Melbourne “Truth” of  “the sleazy gutter journalism by which those articles are characterized”.
13.	Although the English Courts have now sought to develop, under the aegis of the Human Rights Act 1998 (Imp) and its enactment into English law of the Convention for the Protection of Human Rights and Fundamental Freedoms, a notion of privacy, Australian law has not yet embraced such a notion.  In England, truth alone is a defence to a defamation claim.  Some, but not all, of the media there have exercised a degree of restraint in what they publish following these developments.
14.	It is likely that life as we know it will continue, although perhaps more along Victorian lines.  I speak not of the late monarch, but of the fact that in Victoria, as in England, truth alone has been a defence for many years.  It may be no accident that the Melbourne “Truth” has been published in that jurisdiction.  Some may hope that the media maintain a vigorous sense of individuality and independence in what individual outlets select for publication.
Defence of Contextual Truth
15.	Probably the most significant reform in the Uniform Acts has been the acceptance by all of the jurisdictions of the innovation pioneered in New South Wales of the defence of contextual truth.  This defence enables the tribunal of fact to come to a commonsense result if the matter complained of conveyed a number of defamatory meanings only one or some of which becomes or become the subject of complaint by the plaintiff in the proceedings.  Where the other imputations are of such significance that those about which the plaintiff wishes to complain do not further harm his or her reputation, then because of the substantial truth of the contextual imputations, the plaintiff’s case will fail.
16.	The way in which the Uniform Acts have used the expression “imputation” may revive the bewildering notions utilized by the courts in the construction of the now repealed Defamation Act 1974 (NSW). And, it is of some concern that the form of s. 26 may allow the previous interpretation of s. 16 of the Defamation Act 1974 (NSW) to continue in respect of the new defence of contextual truth.  That could entail acceptance of the construction adopted by the majority of the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Blake where Spigelman CJ, with whom Rolfe A-JA agreed, said that for the purposes of determining whether the defence of contextual truth was capable of being made out: 
“… the court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself”.

This construction may not be applicable to the new defence because the wording of s. 16(2)(c) of the repealed Act was framed in a significantly different way to   s. 26.  In particular, the textual signposts on which Spigelman CJ focused in        s. 16(2)(c), are not present in the new legislation.  His Honour justified this approach thus :
‘Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a “matter of substantial truth”. It is “by reason” of such “substantial truth” that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff’s imputation does not “further injure the reputation of the plaintiff”’. 

17.	Section 16(2)(c) did not focus its attention on a contextual imputation “as such” but on the proposition that such an imputation is a “matter of substantial truth”.  It is “by reason” of such “substantial truth” that a defence to an imputation  pleaded by a plaintiff can be made out on the basis that the plaintiff’s imputation does not “further injure the reputation of the plaintiff”.
18.	The new defence under s. 26 of the Uniform Acts creates an exculpation if the contextual imputation is “substantially true” and the imputations on which the plaintiff relies do not further harm his or her reputation “because of the substantial truth of the contextual imputations”.
19.	As a matter of statutory construction, the result reached in John Fairfax Publications Pty Ltd v Blake may be difficult to sustain.  How the particulars relied upon could have any bearing on the harm to the reputation of the plaintiff in a case where, for example, the particulars rely on facts quite extraneous to the matter complained of is difficult to understand.  The reason why both the repealed s. 16 and the new s. 26 can operate as defences is because when a reader of the matter complained of understands what was published (note that particulars that might be given in a proceeding or pleading many months or years later) that understanding of the contextual imputation injured the plaintiff’s reputation more than those imputations which the plaintiff chose as his or her cause of action or cause of complaint.
20.	The way in which a defence of contextual truth works is illustrated by considering the common law defence of partial justification.  In Plato Films Limited v Speidel Lord Denning discussed the issue of partial justification by reference to a submission made by counsel for the defendant, Gerald Gardiner QC, as he then was.  Mr Gardiner had suggested that a defence of partial justification may not be open to a defendant because of the way the plaintiff had framed his action:
“He took this case.  Suppose a newspaper said of a man: ‘He has murdered his father, stolen from his mother and does not go to church on Sundays,’ and the plaintiff brings a libel action complaining only of the imputation that he does not go to church. The defendants, said Mr Gardiner, cannot justify the major charges of murder and theft, because the plaintiff has not complained of them.  They cannot give evidence of them in mitigation of damages because they are only specific instances.  What is, then, the position?  It would, says Mr Gardiner, be most unjust that the plaintiff should get damages for the minor matter when, if the jury had had the whole before them, they would have given him nothing.  I agree it would.  But the answer is that the defendants,  who had produced such a piece of bathos, would be entitled, in the apt words of Lord Coke, to ‘have showed all the “words and the coherence of them,”  see Brittridge’s Case :  and the jury would no doubt only have given one farthing, as they did in Cooke v Hughes .  In those cases the words so “cohered together” that it was necessary for the jury to see all the words in order to make a correct appreciation of their impact.  Whether the present is such a case, the judge will say at the trial.”

21.	In Whelan v John Fairfax Publications Pty Ltd Levine J said that this passage pointed to the effect of the repealed s. 16.  It should be noted that in that case his Honour provided a detailed explanation of the defence of partial justification at common law which will be relevant in the regime established by the Uniform Act which, of course, preserves the common law. 
Privilege
22.	In the Uniform Acts the availability of common law defences of privilege is somewhat expanded by ss. 27-30. A defence of absolute privilege is provided in  s. 27.  That provision covers publications made to or by parliamentary bodies, courts or tribunals established by law and publications in the course of proceedings within such entities.
Defences for Publication of Public Documents and Fair Report
23.	This defence is curiously worded.  In the operative provision, s. 28(1) of the Uniform Acts, it is said to be a defence to the publication of a defamatory matter 
“… if the defendant proves that the matter was contained in:

(a)	a public document, or a fair copy of the public document, or 
(b)	a fair summary of, or a fair extract from, a public document.”

24.	It would appear that the reference to a fair summary or fair extract must have been intended to provide a defence to the publication of a fair report which amounts to such a fair summary or a fair extract, as is the case at common law and under previous enactments:  see e.g. Rogers v Nationwide News Pty Ltd.  As     Gleeson CJ and Gummow J there said:
“[15] 	The policy of the common law's protection of fair reports of court proceedings, and of the legislative extension of the common law in s 24 of the Act, is that it is in the public interest that there should be open administration of justice. That interest is served by protecting persons who publish fair and accurate reports of court proceedings so that a reader of the report will see a substantially correct record of what was said and done in court.”

25.	Since s. 24 provides that the defences in Pt 4 Div 2 of the Uniform Acts are intended to be in addition to the common law defences, it is likely that the Courts will not construe s. 28(1)(b) as narrowing the ordinary common law incidents of the defence of fair report.  However, the exact nature of the defence provided by s. 28(1)(b)is not easily discernible and awaits interpretation by the Courts.
26.	In contrast, s. 29(2) encapsulates the common law concept of a fair report as extending to a fair summary or fair extract from a fair report.  

Qualified Privilege
27.	Section 30 provides for a statutory defence of qualified privilege, which is modelled on the repealed provisions of s. 22 of the Defamation Act 1974 (NSW).  The concept of reasonableness embodied as an essential ingredient in the new     s. 30, as with its statutory predecessor, is also an essential element in the Australian common law defence of qualified privilege as extended by the High Court in Lange v Australian Broadcasting Corporation.  The Court had drawn upon its earlier decisions in Theophanous v Herald & Weekly Times and Stephens v West Australian Newspapers Ltd for the requirement of reasonableness in the making of a publication in order for the defendant to rely upon the common law defence of qualified privilege.  That defence has to be conformable with the implied constitutional freedom of communication on government political matter.
28.	Prescribing a criterion of reasonableness in the common law defence of qualified privilege will obviously limit the circumstances in which the defence may be available. In an earlier emanation, I once described the element of reasonableness (required to conform to the implied constitutional freedom) as “a millstone around the new defence’s neck”.
29.	In the 30 odd year history of s. 22 of the Defamation Act 1974 (NSW), a defence under the section has succeeded rarely.  I am personally aware of only one such occasion which was in the extraordinary case of Barbaro v Amalgamated Television Services Pty Limited.  There, a television station was found to be entitled to rely on s. 22 in publishing a current affairs program from an independent producer which was transmitted live.  The circumstances were that the plaintiff, Dominic Barbaro, sued on imputations asserting, in substance, that he was one of the murderers of the late Donald Mackay, the anti-drugs campaigner from Griffith, New South Wales.  Justice Woodward, in a Royal Commission report, had named Dominic Sergi as one of the murderers.  Part of the entertainment of the case was that Dominic Sergi was in fact the plaintiff’s father-in-law and the plaintiff had originally commenced the proceedings in that name.  He subsequently applied to change the description of his name in the title of the proceedings during their course.  The plaintiff was identified when a reporter attended, unannounced, at a farm with a camera crew.  The reporter said to the plaintiff “We are looking for Dominic”, to which the plaintiff replied:  “Yes, I Dominic”.  The reporter then asked:  “Dominic Sergi?” to which the plaintiff replied:  “Yes, what do you want”.
30.	Samuels JA continued the story as follows:
“The reporter then said:  “You are the one that was in the Royal Commission”.  The [plaintiff] … then, to quote the words of his counsel when opening the case to the jury, “became upset and angry” and attacked the camera, repeatedly telling the cameraman to put it down, then to put it in the car, and finally to go, using language of a more pungent kind.”

This interchange demonstrated why it was reasonable in the circumstances to misidentify the plaintiff as the person whom he incorrectly said he was.
31.	In general, the difficulty of a media defendant in establishing reasonableness in the publication of untrue matter is exemplified in decisions such as Austin v Mirror Newspapers Ltd and Morosi v Mirror Newspapers Ltd.  
32.	The ordinary common law of qualified privilege, not involving any question of the implied constitutional freedom of communication of government or political matter, was described by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia Pty Ltd as follows:
	
“Qualified privilege gives no licence to defame.  It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published.  If the occasion is privileged the further question which arises is whether the defendant “has fairly and properly conducted himself in the exercise of it””

33.	It can be seen that the inclusion of the requirement of reasonableness both under s. 30 and at common law in cases involving the implied constitutional freedom thus serves as an important protection for plaintiffs against the publication of false and injurious words, in what will usually be publication to a large readership or audience.
Defence of Honest Opinion
34.	The Uniform Acts provide in s. 31 a defence to the publication of defamatory matter if the defendant proves that:
“(a) 	the matter was an expression of opinion of the defendant rather than a statement of fact, and 

(b) 	the opinion related to a matter of public interest, and 

(c)	the opinion is based on proper material.”

35.	One ambiguity in this formulation is that during the course of the second reading debate on the Defamation Bill 2005 in the New South Wales Legislative Assembly the Attorney-General referred to concerns which the New South Wales Bar Association had raised about the operation of what was then cl 31 in the Bill.  That concern related to circumstances where the defamatory matter which was published was not exclusively an opinion that also included statements of fact.  The Attorney said:
“By way of clarification I affirm that clause 31 was not intended to alter the position at common law in regard to the pleading of defences or the kinds of facts that can be relied upon to support defamatory opinion.  The equivalent defence at common law is the defence of fair comment.
By way of clarification, I affirm that clause 31 is not intended to alter the position at common law in regard to the pleading of defences or the kinds of facts that can be relied on to support a defamatory opinion. The equivalent defence at common law is the defence of fair comment.

At common law, as I understand it, the defence of fair comment is available in respect of such defamatory imputations or defamatory meanings carried by the matter concerned that can be said to be opinions rather than a statement of fact. An imputation is basically an accusation or charge about someone, whether express or implied. At common law the opinion must be based on proper material, namely, statements of fact that are true or statements that are privileged. Statements of fact may be set out in the matter that expresses the opinion, but facts can be relied on even if they are not set out with the opinion if they are notorious or widely known. An opinion may be based on facts that are either defamatory or non-defamatory. However, where a publication of matter includes both defamatory statements of fact and a defamatory opinion, it is appropriate at common law for the plea to be limited to fair comment and not to include a plea of justification. This kind of pleading is conventionally called a rolled-up plea.

Nothing in clause 31 is intended to affect pleadings of this kind.”

36.	The Attorney-General’s remarks indicate that, consistent with s. 24 of the Uniform Acts, the effect of s. 31, as drafted, is that it will not interfere with the common law defences of fair comment on a matter of public interest.  Whether this will be the way the Courts interpret the defences under s. 31 and at common law must await further clarification.
Damages
37.	In all jurisdictions, damages will be assessed by the trial judge alone.  By operation of s. 34, the amount of damages awarded must reflect an appropriate and rational relationship between the harm sustained by the plaintiff and the quantum of the award.  The maximum amount which a court can award for compensatory damages, other than an element for aggravated damages, is $250,000.  That amount will be adjusted upwards each year by publications in the Gazette.
38.	The Court is empowered to award a sum exceeding the maximum set pursuant to s. 35(1) if, and only if:
“… the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.” 

39.	The Court is not able to make any orders for exemplary or punitive damages and must disregard malice or other state of mind of the defendant at the time of publication or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
Is Forum Shopping Dead?
40.	The effect of the choice of law provision for interstate or intranational publications contained in s. 11(2) of the Uniform Acts may be to create federal jurisdiction.
41.	In the past, it was notorious that plaintiffs who did not wish juries to decide their matters would select a forum where there was no provision for jury trials.  Thus, plaintiffs, who one would ordinarily expect to sue in the Supreme Court of New South Wales for publications in that State’s mass media, such as the daily newspapers published principally for circulation in Sydney or for electronic broadcasts principally within the Sydney area, frequently would resort to the Supreme Court of the Australian Capital Territory, where the matter complained of would also have been published, but to a far smaller audience or readership.
42.	Following the decision in BHP Billiton Ltd v Schultz, the effect of the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States, Territories and the Commonwealth has been to require the Court in which the proceedings have been initiated to consider the interests of justice without proceeding from a predisposition in favour of the forum selected by the plaintiff.  The question for decision under the analogues of s. 5(2)(b)(iii) will be whether the Court nominated by the applicant for transfer is a more appropriate forum in the interests of justice than the one in which the proceedings were commenced.
43.	Thus, Gleeson CJ, McHugh and Heydon JJ observed:
“It is not necessary that it should appear that the first court is a “clearly inappropriate” forum.  It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.” 

Their Honours further observed that “[t]he justice referred to in s. 5 is not disembodied, or divorced from practical reality”.  However, there may be aspects raised in particular cases which affect where the interests of justice lie and one new issue, which is discussed below, involves considering whether the proceedings could or should be heard in the Federal Court of Australia. 
A New Forum? 
44.	One new thought which may be worthy of consideration is whether it is possible to bring defamation proceedings in the Federal Court. However, before commencing proceedings in the Federal Court, it is important to satisfy oneself that the Court will have jurisdiction to hear the matter.  The views which I express in this paper, and which I elaborated in a paper given last week, are personal views which have not been tested in litigation but which may afford some guidance as to matters worthy of consideration.
45.	The fundamental source of the Federal Court’s original jurisdiction in any matter is statutory.  By s. 5(2) of the Federal Court of Australia Act 1976 (Cth), the Court is a superior court of record and a court of law and equity.  Since the enactment of s. 39B of the Judiciary Act 1903 (Cth), the court can now be seen as a court of general jurisdiction in civil matters, although it will always be necessary to ensure that the matter sought to be litigated is within federal jurisdiction.  Once the jurisdiction of the Court has been effectively invoked it has “accrued jurisdiction” to determine the whole “matter” or controversy between the parties:  Re Wakim;  Ex parte McNally.
46.	Provided that a matter is properly commenced in the Federal Court, because it is within the jurisdiction of that court pursuant to s. 39B(1A) of the Judiciary Act or otherwise, it may be difficult to argue that it is in the interests of justice to transfer the matter to a Supreme Court of the State or Territory in which a second action has been commenced and vice versa.  The Supreme Courts, of course, are able to exercise federal jurisdiction by force of s. 39(2) of the Judiciary Act 1993.  
47.	The jurisdiction of the Federal Court to hear defamation actions without the addition of any other cause of action may be available in the following classes of case:
(a)	where the publication involves the implied constitutional freedom of communication on government and political matter;
(b)	where there is an interstate or, possibly other intranational, publication.  An argument may be available to suggest that where there are interstate or intranational multiple publications within the meaning given in s. 11(5), the operation of s. 118 of the Constitution is engaged so as to enable each jurisdiction to recognize and apply the provisions of s. 11 of the Uniform Acts as substantive modifications of the laws of each jurisdiction and the common law of Australia.
48.	If there be jurisdiction in the Federal Court, then depending on where the proceedings are heard and which substantive law is chosen under s 11 of the Uniform Acts , consideration may need to be given as to whether to have a jury.
49.	Factors which may be relevant to the exercise of the Federal Court’s discretion under ss. 39 and 40 of its Act and s. 21 of the Uniform Acts as to jury trial are:
(a)	the fact that the Court has a national character, which s. 48 of the Federal Court of Australia Act 1976 recognizes, to sit in one or more venues as is appropriate;
(b)	the desirability that the mode of trial favoured by the relevant legislature whose law, by force of s. 11 of the Uniform Acts, is the substantive law to decide all causes of action arising from the multiple publications, should be given effect.  Of course, this consideration would be equally relevant the other way in those jurisdictions like South Australia and the two mainland Territories where there is no provision for jury trial of defamation actions;
(c)	the fact that since at least the time of the passage of Fox’s Libel Act in 1792, it has been recognized that a jury is an appropriate tribunal of fact to decide the question of libel or no libel.  As Brennan J, speaking for the Court, said in Reader’s Digest Services Pty Ltd v Lamb:
“But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof;  it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally.”  (emphasis added) 

Conclusion 
50.	The new reforms have opened a number of interesting areas for consideration while at the same time reviving the old common law.  That should enable defamation practitioners to further hone their skills though perhaps not as imaginatively as the owners of “Blackie the Talking Cat” were able to achieve.  In Miles v City Council of Augusta Georgia the plaintiffs sought to have a local council ordinance, which required them to pay a tax, declared invalid as infringing Blackie’s First Amendment “right” to freedom of speech.  The plaintiffs represented themselves and Blackie.  Both Judge Bowen’s and the Court of Appeals’ judgments repay careful reading as models of entertaining legal reasoning.
51.	In dealing with the constitutional issue the Court of Appeals said:

“This Court will not hear a claim that Blackie’s right to free speech has been infringed.  First, although Blackie arguably possesses a very unusual ability, he cannot be considered a “person” and is therefore not protected by the Bill of Rights.  Second, even if Blackie had such a right, we see no need for appellants to assert his right jus tertii.  Blackie can clearly speak for himself.”