Inquiry Report

The legal issue of defamation in Australia

Examine the nature and scope of the legal issue of defamation in Queensland and analyse the
viewpoints of two groups of stakeholders regarding the rise in defamation cases. Using this analysis,
evaluate the legal alternatives to reform existing laws in Queensland and their implications. Provide
justification for recommendations to ensure just and equitable legal outcomes.

Word count: 1996

Date: 28/04/2023

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Contents
Contents 2

Introduction 3

Nature and scope of the issue 3

The concept of defamation 3

Viewpoints of stakeholders 4
Parliamentary privilege, defamation cause of action and the media 4
Members of Parliament on parliamentary privilege and defamation cause of action 5

Legal alternatives to reform existing laws 6

Excluding parliamentary privilege 6
Amendment of serious harm cause of action 6

Recommendation 7

Conclusion 7

References 8

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Introduction
The legal principal of defamation, the tarnishing of a person’s reputation, is creating legal debate in
Australia. The Uniform Defamation Laws in Australia, and Queensland, amongst other Australian
states, use common law principles in addendum to uniform law in defamation cases. The purpose of
this report is to examine the legal concept of defamation and analyse opposing viewpoints of
stakeholders. The alternative of changing existing legislation in Australia will be considered and a
recommendation made based on the fulfilment of equity.

Nature and scope of the issue

Currently, the Defamation Act 2005 governs defamation law in Australia. In 2021, the Council of
Attorneys-General approved amendments to Australia’s Model Defamation Provisions; with the
main amendments being a cap on non-economic damages, a serious harm threshold, a public
interest defence and sufficient time to make amends after serving concerns notices (Communities &
Justice, 2022.) Australia remains one of the most litigious jurisdictions for defamation actions
despite these recent changes. There are two key issues in the Defamation Act 2005 that allow this
level of litigation. Firstly, section 27, which provides the defence on the grounds of absolute
privilege, does not defend the publication of defamatory matter on Parliament proceedings. This
means that, according to the 1988 Privilege Resolutions of the Parliamentary Privileges Act 1987
(Cth), the Parliament’s right to freedom of speech ought to not be impeached or questioned in any
Court or place out of Parliament, (Chesterman, M., 1997). Therefore, if a defamatory claim is raised
by a member of Parliament based on words spoken or acts done in Parliamentary proceedings, that
evidence cannot be used as defence under absolute privilege. This is an issue because if a
defamatory claim can be defended using evidence from parliamentary proceedings, the defendant
cannot use said evidence, which is a limitation in the way our legislation functions, (Harker, J., 2005).

The second main issue with the Defamation Act 2005 is found in section 10A, the element of serious
harm. Section 10A (1) describes the element needed to establish a legal claim that allows a party to
seek judicial relief, (Thomson Reuters, N.D.). The main issue with this section is that it fails to
recognise the importance of some types of ‘serious harm’ in upholding democracy in our modern
society, such as ridicule (Davey, T., 2017). This means that forms of media, such as satirical political
cartoons, are limited because of the risk of prosecution, (Davey, T., 2017). This is an issue because
our media is limited in the ways they can communicate important political messages, which is a key
way to hold government accountable.

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The concept of defamation law
Defamation is defined as the publishing of unsubstantiated information, which damages a person’s
reputation. To bring a successful claim for defamation, a plaintiff must prove that: the matter
complained of must convey a defamatory imputation, the matter must be capable of allowing others
to know that it refers to the plaintiff and that the publication of the matter must have been
communicated to at least one third party (Lippingwell, et al., 2019).

Section 27 establishes the defence of absolute privilege. This defence protects individuals if they
publish information during parliamentary, court or tribunal proceedings. This also applies to the
concept of parliamentary privilege, where if a member of parliament publishes personal information
or defamatory information in a parliamentary proceeding, they are protected under absolute
privilege. Section 10A, the element of serious harm, is also relevant. It establishes the element of
serious harm as a cause of action in defamation claims.

Viewpoints of stakeholders
Parliamentary privilege, defamation cause of action and the media
From the viewpoint of the stakeholder of the media, limiting freedom of speech because of
parliamentary privilege is unjust. Defamation law can be used to threaten the media into self-
censorship, (Douglas, M., 2021). For example, in the case of Barilaro v Shanks-Markovina [2021] FCA
950, the defendant published what was claimed to be defamatory content to their social media,
which happened to be information regarding the plaintiff - a politician. Similar outcomes have
occurred in Arena v Nader (1997) 42 NSWLR 427 and Australian Broadcasting Corporation v Chau
Chak Wing [2019] FCAFC 125; (2019) 271 FCR. In both cases, the defendants were unable to use vital
evidence in court proceedings because of parliamentary privilege. Media publishers may fear that
publications based on parliamentary happenings may be interpreted as defamatory, and if their
publications are substantiated by words or actions that occurred in parliament, because they cannot
be used as evidence. The defence of absolute privilege has been applied to defend those who
scrutinise, criticise, or provide information on parliamentary happenings given that they do not do so
with malice or are not unreasonable in publishing. This means the responsibility of government to
the people is limited, because there is a limitation on the publication of media that criticises our
government, which holds parliament accountable to the people.

Serious harm is also significant to the media. In the Defamation Act 2005 (Qld), under section 10A (1)
serious harm is established as a cause of action for plaintiffs against defamatory publications. Parker

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states, ‘the centrality of humour and the connection of satire to the ridicule test were also
confirmed in the definition of ‘ridiculous’ as ‘deserving to be laughed at or absurd.’’ (Parker, J.,
2021). Essentially, if media outlets publish satirical content, if the plaintiff believes it leaves them
susceptible to ridicule, whether it has currently impacted their reputation, they have a cause of
action. However, there is a democratic importance to satire that section 10A (1) fails to account for,
that satire communicates important political messages in an entertaining and powerful way, (Parker,
J., 2021). Therefore, the media’s freedom of expression is limited. In the case of King & Anor v
Greenwood [2022] NSWDC 61, the publishers of a newspaper communicated an important message
about the defendant, who had laundered money, through satirical cartoon. The plaintiff only sought
remedy for the defamatory publication for damage to reputation and did not argue lack of truth for
the allegations made within the cartoon. The defendant had to pay damages to the plaintiff despite
the importance of the message they shared. Similar can be found in the cases of Smit & Yemini v
Simon [2022] VMC 29 and Gair v Greenwood [2019] NSWDC 725. This means that our members of
parliament cannot be fully held accountable, which is key to a maintaining democracy and a
responsible government.

Members of parliament on parliamentary privilege and defamation cause of action

Another viewpoint from the stakeholder of parliamentary officials is that freedom of speech without
fear of prosecution is essential for the functioning of parliament. Parliamentary privilege is necessary
for the House to address challenges to its authority that might diminish its dignity and lower the
esteem in which it is held,’ (Harker, J., 2005). The Parliamentary Privileges Act 1987 (Cth) establishes
this protection: being that members of parliament have certain immunities and privileges. Section
16 is significant, because it establishes the existence of parliamentary privilege in court proceedings.
It protects members of parliament from having words said, acts done, or documents produced in
parliamentary proceedings used as evidence in court proceedings. Parliamentary privilege protects
members of parliament so they can represent their electorates in proceedings without fear of
defamation. Therefore, without Parliamentary privilege, our parliament’s function would be limited
because its ability to be representative would also be limited. In the case of Rann v Olsen [2000]
SASC 82, the plaintiff ascertained that the defamatory claims made disclosed private information
within the cabinet. Similar circumstances are reflected in the cases of Lange v Australian
Broadcasting Corporation [1997] HCA 25 and Leyonhjelm v Hanson-Young [2021] FCAFC 22, where
the defamatory claims disclosed cabinet discussion, contradicting the ‘freedom of political
communication’, (Australian Human Rights Commission, N.D.). Therefore, parliamentary privilege
also significantly upholds the unique rights of our representatives.

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A limitation to the previous discussion is that of the viewpoint of parliamentarians, which is that the
right to be free from mental, emotional, and physical violence are incredibly important, (Australian
Human Rights Commission, N.D.). Parliamentary officials are at great risk of the repercussions of
media influence through forms like satirical political cartoons, where the media greatly influence
‘society’s opinions and understandings,’ (Moloney, C., 2006). The cases of the Australian
Broadcasting Corporation v Hanson B40/1998 [1999] HCATrans 211, Palmer-Bruyn and Parker Pty
Ltd v Parsons [2001] HCA 69 and Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports
Australia Pty Ltd [2022] NSWCA 150 all entail media publishers exaggerating words spoken and
actions taken to caricature the plaintiffs under the excuse of satirical political commentary. This, in
all three cases, impacted their reputation. Parliamentary officials feel they should have some
protection so they can live without fear that their words spoken, and actions done will be removed
from context, caricatured or overexaggerated to an extent that harms their reputation (Byrnes, A.,
2010). If they have this fear, their ability to properly represent their electorates may be limited, since
they may not fully express their true thoughts and opinions to their full extent in fear of being
defamed. Therefore, our parliament’s ability to function and its representativeness would be limited.

Legal alternatives to reform existing laws

Excluding parliamentary privilege
One alternative to reform existing laws would be to amend s29 of the Defamation Act 2005 to
exclude the use of Parliamentary privilege from defamation proceedings. An amendment of Section
13 of the Defamation Act 1996 (UK) (Joint Committee on Parliamentary Privilege, 1999) was
proposed to waive parliamentary privilege in defamation claims if the claim does not suggest that
the government meeting was inspired by an improper motive or was untrue or misleading. It is also
worth noting the UK receives significantly less defamation claims than Australia. This alternative
would mean that journalists and reporters discussing government proceedings would have greater
freedom of speech. The public would also feel more empowered to discuss and critique our
government. However, members of parliament may feel that their freedom of speech is limited.
They may withhold valuable information, action, or discussion in parliamentary happenings in fear of
being defamed without a reliable defence. This would decrease the power of our government, albeit
while also strengthening the rule of law, since defamation law would apply more equitably to
members of parliament and regular people.

Amendment of serious harm cause of action

Another alternative to reform existing laws on defamation would be to amend section 10A of the
Defamation Act 2005 (Qld) to bar the use of the ridicule test to prove there is a cause of action. This

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alternative otherwise maintains the use of serious harm as a cause of action, which means that
members of parliament, if truly defamed, can still file claims under that cause of action. Additionally,
it also means that the media will be able to publish political commentary more freely (including
satire) without fear of prosecution (Cornall, R & Luscombe, K-A, 2021).

Recommendation
It is recommended, based on the above alternatives, that parliamentary privileges are removed
defamation cases. To do this, section 29 of the Defamation Act 2005 would need to be amended to
notably exclude parliamentary privilege from defamation cases. This would allow for defendants to
use words spoken and actions taken in parliamentary hearings as evidence.

This amendment would be well supported by the example of the UK, since the Joint Committee on
Parliamentary Privilege led a similar amendment to the UK’s defamation law, justifying it by stating
that ‘freedom of speech is subject to self-regulation by Parliament,’ rather than from legislation,
(Rights and Freedoms, N.D.).

Therefore, if a defamation claim came forward involving a member of parliament, using evidence
from parliamentary proceedings, the evidence would be rendered valid for use in the case.
Therefore, any other defence, including that of absolute privilege, could be used to prove the
defendant’s case through the balance of probabilities.

This recommendation creates just and equitable outcomes by ensuring that parliamentary officials
can be held accountable to the same extent in courtrooms as non-parliamentary officials.
Additionally, the removal of immunity from members of parliament supports the rule of law since
evidence from laypersons and members of parliament can both be used.

Conclusion
Australia may be known as the defamation capital of the world, but the main issues in the law reside
in the limitations of a section 10A (1) and section 27 of the Defamation Act 2005. The inconsistency
created by parliamentary privilege, particularly in defamation cases, has caused serious
complications. However, it is evident that clarifying a removal of parliamentary privilege in
defamation cases would substantiate a more equal environment, supporting freedom of media and
press and freedom of speech to a greater extent.

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References

Arena v Nader (1997) 42 NSWLR 427

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR

Australian Broadcasting Corporation v Hanson B40/1998 [1999] HCATrans 211,

Australian Broadcasting Corporation (“Political Free Speech case”) [1997] HCA 25; (1997) 189 CLR
520; (1997) 145 ALR 96; (1997) 71 ALJR 818

Australian Human Rights Commission, N.D., Australian Government,

<https://humanrights.gov.au/our-work/commission-general/bullying-know-your-rights-violence-
harassment-and-bullying-fact-sheet>

Barilaro v Shanks-Markovina [2021] FCA 950

Byrnes, Andrew, “Second-Class Rights Yet Again? Economic, Social,and Cultural Rights in the Report
of the National Human Rights Consultation” [2010] UNSWLawJl 10; (2010) 33(1) UNSW Law Journal
193
<http://classic.austlii.edu.au/cgi-
bin/sinodisp/au/journals/UNSWLawJl/2010/10.html?stem=0&synonyms=0&query=right%20to%20n
ot%20be%20defamed>

Communities & Justice, 9/12/2022, New South Wales Government

<https://www.justice.nsw.gov.au/justicepolicy/Pages/lpclrd/lpclrd_consultation/review-model-
defamation-
provisions.aspx#:~:text=On%2031%20March%202021%2C%20Attorneys%2DGeneral%20agreed%20
that%20New%20South,as%20soon%20as%20possible%20thereafter>

Chesterman, Michael, “Privileges and Freedoms for Defamatory Political Speech” [1997] ADelLawRw
8; (19978) 19 Adelaide Law Review 155
<http://classic.austlii.edu.au/cgi-
bin/sinodisp/au/journals/AdelLawRw/1997/8.html?stem=0&synonyms=0&query=parliamentary%20
privilege>

Cornall, Robert & Luscombe, Kerrie-Anne, 04/06/2021, Law Council of Australia

<https://www.lawcouncil.asn.au/publicassets/b6425c29-44c7-eb11-943c-005056be13b5/4013%20-
%20Review%20of%20cross-examination%20ban.pdf>

Davey, Tom, “Defamation, Online Communication and Serious Harm: An Alternate Approach” [2017]
CommsLawB 13; (2017) 36(2) Communications Law Bulletin 4
<http://classic.austlii.edu.au/cgi-
bin/sinodisp/au/journals/CommsLawB/2017/13.html?stem=0&synonyms=0&query=serious%20har
m>

Defamation Act 2005 (Qld).

Defamation Act 1996 (UK).

Douglas, Michael, “Defamation Actions And Australian Politics” [2021] UNSWLawJIF 5; (2021) UNSW
Law Journal Forum No 5
<http://classic.austlii.edu.au/cgi-

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bin/sinodisp/au/journals/UNSWLawJlF/2021/5.html?stem=0&synonyms=0&query=parliamentary%2
0privilege>

Gair v Greenwood [2019] NSWDC 725

Harker, Julia, “The Impact of Jennings v Buchanan on Freedom of Speech and Defamation: The
Erosion of Parliamentary Privilege?” [2005] AukULawRw 3; (2005) 11 Auckland U L Rev 27
<http://classic.austlii.edu.au/cgi-
bin/sinodisp/nz/journals/AukULawRw/2005/3.html?stem=0&synonyms=0&query=parliamentary%2
0privilege>

King & Anor v Greenwood [2022] NSWDC 61

Joint Committee on Parliamentary Privilege, 1999, UK Parliament

<https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4303.htm>

Lange V Australian Broadcasting Corporation [1997] HCA 25

Lippingwell, S., Thompson, A., Harris, L., Gibson, K., Thomas, J., Smith, D., second edition 2019,
“Investigating Legal Studies for Queensland Second Edition”, Cambridge University Press.

Leyonhjelm v Hanson-Young [2021] FCAFC 22

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150

Moloney, Christina, “Defamation and Satire – Drawing the Line” Communications Law Bulletin, Vol
24 No. 4 2006
<http://classic.austlii.edu.au/au/journals/CommsLawB/2006/2.pdf>

Parker, James, “A Licence For The Satirist? The Failure Of Australian Defamation Law To Protect
Satire In Political Media” [2021] UNSWLawJIStuS; (2021) UNSWLJ Student Series No 21-21
<http://classic.austlii.edu.au/cgi-
bin/sinodisp/au/journals/UNSWLawJlStuS/2021/21.html?stem=0&synonyms=0&query=james%20pa
rker>

Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69

Parliamentary Privileges Act 1987 (Cth)

Rann v Olsen No. SCGRG-97-913 [2000] SASC 83

Rights and Freedoms, N.D., Australian Human Rights Commission

<https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-
expression>

Smit & Yemini v Simon [2022] VMC 29

Thomson Reuters, N.D., Thomson Reuters

<https://legal.thomsonreuters.com/blog/cause-of-action-overview-and-how-to-specify-
elements/#:~:text=What%20is%20cause%20of%20action,the%20defendant%20towards%20the%20
plaintiff