20 November 2012

Defamation and Reporting

'Appropriate Reforms to Defamation and Protection Laws' (UWA Faculty of Law Research Paper No. 1, 2012) by Michael Gillooly was an Invited Submission to the WA Government St Andrew's Hostel Inquiry in June this year. It is relevant to the forthcoming national Royal Commission into child abuse involving arms of the Roman Catholic Church in Australia and other institutions, and to the NSW and Victorian inquiries in the same area.

Gillooly notes that
This is an advice to the Government of Western Australia made as part of its inquiry into the conduct and response of relevant public officials and government agencies in relation to allegations of sexual abuse at St Andrew's Hostel in Katanning, and related organisations.
It addresses what might be appropriate reforms to current WA defamation or protection laws in respect of:
1. Allowing a person who reports child sexual abuse, believing it to be true, to have statutory protection from defamation proceedings.
2. Whether designating additional positions or authorities for this purpose would be appropriate (consistently with the currently designated mandatory reporters, the Department for Child Protection or Western Australia Police).
3. Whether the Public Interest Disclosure Act 2003 (WA) can be suitably amended, or alternatively, provides an appropriate model for that purpose.
4. Any other mechanisms or protections that could be considered to ensure that those who have a valid complaint of child sexual abuse can disclose it appropriately.
He goes on to comment that
There is no doubt that reports about child sexual abuse, whether actual or suspected, which are made to an appropriate person, honestly and in good faith, would be protected by the defence of qualified privilege. Nonetheless, the long standing existence of that protection proved an insufficient inducement to members of the hostel community to come forward and voice their concerns about the activities of the Warden. It is submitted that the reason is the common law nature of the defence. Because the defence is rooted in the common law, it suffers from certain deficiencies as a form of encouragement to potential complainants:
First, the defence can only be stated in the broad terms of general principle. The virtue of this generality is that qualified privilege is flexible enough to apply in a multitude of different situations. In this regard it can be contrasted with its distant cousin, absolute privilege, which only applies in a narrow range of specifically enumerated circumstances. However, the defence’s generality and flexibility are also its major weaknesses for present purposes, for there may be some element of uncertainty attaching to the precise scope of its application. Hence, it fails to provide a potential reporter with a clear and specific statement of his or her immunity from action.
Second, the defence is not readily accessible to non-lawyers. Its existence and elements are to be found in the interstices of the common law, and considerable specialist knowledge is required to grasp its full implications.
Third, like all common law principles, the defence is open to change retrospectively and without notice by judicial decision.
Gillooly makes several recommendations -
Amendments to the Children and Community Services Act 2004
1. That a specific and explicit right to report child abuse for members of the public be enacted. The insertion into Part 4 Division 9A of provision along the following lines is suggested:
Section XXX. Voluntary reporting of child sexual abuse
(1) A person, who believes or suspects that a child has been, is being or will be the subject of sexual abuse, may report that belief or suspicion to the CEO of the Department of Child Protection, the Commissioner of Police or any of their officers.
(2) A person making a report under subsection (1) shall state their reasons for forming the reported belief or suspicion.
2. That the subsection 129(2) protection be extended to cover reporters exercising the new right enacted pursuant to Recommendation 1. The insertion into s 129(1) of a new paragraph along the following lines is suggested:
Paragraph 129(1)(exxx) (exxx)
makes a report under section XXX;
3. That special provisions relating to defamation proceedings be enacted in order to: (i) cast the onus with respect to good faith under the new defence on the plaintiff; (ii) enable a defendant to obtain a declaration of falsity in an appropriate case; and (iii) penalise the use of defamation proceedings to deter good faith reporting of child sexual abuse.
The insertion, after s 129, of a new section along the following lines is suggested:
23 Section129XXX. Provisions relating to defamation proceedings
(1) In any proceedings for defamation, when a defence under s 129(1)(exxx) and (2) is relied upon, the defendant need not prove that he or she acted in good faith, but the onus of proof lies on the plaintiff to establish the defendant’s lack of good faith in order to defeat the defence.
(2) Where defamation proceedings fail due to successful reliance by a defendant on a defence under s 129(1)(exxx) and (2), and the plaintiff proves the falsity of the defamatory imputations conveyed by the report made under s XXX, the court may make a declaration of the falsity of those imputations.
(3) A person shall not threaten or foreshadow the initiation of defamation proceedings in order to deter or dissuade a person from making a good faith report under s XXX.
Penalty: a fine of $6000
Amendments to the Public Interest Disclosure Act
 4. That section 5 be amended to make the Public Sector Commissioner the “one stop shop” for the initial receipt of public interest disclosures.
The insertion into section 5 of provisions along the following lines is suggested:
Paragraph 5(3)(j)
(j) where the information relates to any of the matters referred to in any of the preceding paragraphs of this subsection, except for paragraph (g) 43 – it is made to the Commissioner.
Subsection 5(3A)
Where a disclosure is made to the Commissioner under s5(3)(j), the Commissioner shall refer the disclosure to the relevant “proper authority” and is not subject to the obligations set out in Part 2, Division 2 with respect to that disclosure.
Administrative Recommendation
5. That the Public Sector Commissioner be asked to consider the preparation of guidelines under s 21 to facilitate the identification of the person within a public authority who has been designated to receive public interest information disclosures
I have been rereading 'Republication of Defamation under the Doctrine of Reportage - The Evolution of Common Law Qualified Privilege in England and Wales' (UNSW Law Research Paper No. 2010-20) by Jason John Bosland, which examines -
the ‘doctrine of reportage’ - a particular application of the ‘Reynolds’ qualified privilege defence to defamation recognised by the House of Lords in Reynolds v Times Newspapers Ltd. The doctrine of reportage provides protection for the neutral reporting (republication) of defamatory allegations made by others in the context of a dispute or controversy of public interest. It is argued in this paper, however, that this emerging defence is doctrinally distinct from the privilege recognised in Reynolds and that its jurisprudential basis needs to be reconsidered. Moreover, the development of the defence under the guise of Reynolds privilege has led to confusion, both by courts and by commentators, as to its potential breadth. It is suggested that the public interest justifications underpinning the reportage defence need to be explicitly re-examined by the courts in order to define its proper scope. Following an examination of these public interest justifications, it is argued that a broad interpretation of the defence should be rejected.