02 March 2015


'The Cost of Losing The Code: Historical Protection of Public Debate in Australian Defamation Law' [PDF] by Andrew Kenyon and Sophie Walker in [2014] 38(2) MULR 554 comments
Defamation law in some Australian jurisdictions formerly provided strong protection for media publication on matters of public interest. In particular, the qualified protection defence in the Queensland defamation Code, introduced in the late 19th century, protected robust political debate. This article explores the common law origins of the Code defence, before considering its adoption elsewhere in Australia and its strength in operation. Notable judgments emphasised the defence’s protection of widely published and forthright political speech. New South Wales removed the Code defence in the 1970s without any intention to weaken such protection. Soon afterwards, the defence was excluded from operation in Western Australia by what has been called a drafter’s foible. The litigation involved speech as political as could be imagined, but that context was not addressed by courts. More recently, Australia’s uniform defamation laws ended the Code defence as an express element in the doctrine. Understanding the history of its introduction, operation and loss suggests defamation law could offer a stronger defence for public speech. Indeed, the history may suggest the uniform laws’ statutory privilege defence warrants a far stronger interpretation. Losing the Code has had underappreciated costs to public speech; understanding the history suggests ways in which they could be addressed.
They state that
Defamation law is said to protect publications on matters of public interest through a range of defences. Under Australia’s uniform defamation laws,  there are defences, for example, related to a publication’s truth, the speaker’s honest opinion, and fair reports of proceedings such as parliamentary debates or court hearings. Instances of public interest speech can be protected by one or more of these defences, but the technical complexities of the law can make them less available than initially apparent. For example, the availability of truth and opinion defences in Australian law became markedly limited in comparison to the English position due to the imputation-based approach that developed in New South Wales under the Defamation Act 1974 (NSW). This required truth and comment defences to meet precisely the plaintiff ’s imputation. The effect was to increase the power of plaintiff lawyers to shape disputes through careful pleading. Defence arguments about truth or opinion that could well succeed under English law could not even be advanced in Australia due to this approach. Important aspects of the approach have continued under the uniform laws despite those laws formally ending the imputation-based approach to the cause of action. All this makes Australian law notably more favourable to plaintiffs, at least where those plaintiffs have the necessary resources to sue.
None of the defences concerning truth, opinion or fair reports are particularly well suited to accommodating ordinary public debate. Such debate includes more than material capable of being proven true in court. Nor is debate necessarily polite and carefully measured. This is well recognised elsewhere in Australian law in relation to political speech. For example, in Coleman v Power it was noted that, while some may desire political debate to contain less superficiality, less invective, more logic and more persuasion, ‘insult and emotion’ are central to ‘the struggle of ideas’. Law ‘does not protect only the whispered civilities of intellectual discourse’. This approach was endorsed more recently in Monis v The Queen: Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. Although in Monis v The Queen the protection of reputation was noted as a legitimate constitutional end, the robust qualities of debate endorsed there and in Coleman v Power remain striking when compared with much of current defamation law.
The defences of truth, opinion and fair report privilege offer limited protection to public debate, particularly when compared with some forms of qualified privilege defence under the Codes. This article does not seek to establish that stronger protection is necessarily warranted, although much existing literature suggests that it is needed, and our own work — doctrinal and empirical, individual and joint, across a wide range of jurisdictions — would support greater protection of public interest speech. In addition, the law in some comparable jurisdictions, notably England and Wales, has undergone successive reform to strengthen qualified privilege-style defences. The ‘Reynolds defence’ in England, while recognised as having weaknesses in practice, was markedly more effective at protecting some forms of public interest speech than Australian law whether using Lange v Australian Broadcasting Corporation (‘Lange’), the statutory defence under s 22 of the Defamation Act 1974 (NSW), or s 30 of the uniform Defamation Acts. The principles from Lange, for example, appear to have provided ‘a barely usable defence’. Even though English law was already more effective in this aspect of protecting public speech, concerns with the weakness of the English approach have recently seen the Reynolds defence replaced by a statutory defence for publication on matters of public interest. Rather than consider these points more closely, here we examine the stronger protection that has existed historically within Australia, ask how it has been lost and consider what that suggests for possible reform.
Considerable protection for public debate existed under past defamation Codes in Australia. Queensland gained a defamation Code late in the 19th century. The model provided by the Defamation Act 1889 (Qld) in Queensland was quickly adopted in Tasmania. It was also adopted in New South Wales under the Defamation Act 1958 (NSW) until being replaced by the Defamation Act 1974 (NSW). A similar Code was enacted in Western Australia, but only some of its defences were held to apply to civil defamation actions. The term ‘Code’ is used here in accordance with the case law and literature although the various pieces of legislation were not all strictly codes, with certain aspects of common law defamation continuing to operate. One of the more interesting aspects of the Code was the form of qualified privilege it provided. Called a qualified ‘protection’ rather than ‘privilege’, it is identified here simply as the Code defence by way of shorthand. It is not clear that the value of the Code defence was widely recognised, and its demise is an ironic loss to the protection of public speech under the uniform Defamation Acts. The uniform laws, which have generally been seen as strengthening free speech, have at the same time undermined one strong protection for speech by removing the Code defence.
Part II examines common law qualified privilege before the Code’s creation. Broader aspects of the common law defence were supported in the Code’s enactment, as summarised in Part III. The Code’s operation is outlined in Part IV, especially the way in which it offered strong protection for media publications. The replacement of the Code in New South Wales and the judicial exclusion of the Code defence from civil actions in Western Australia are considered in Parts V and VI. It is striking that the New South Wales changes were not made to reduce, in any substantial sense, the protection offered by the Code defence. Indeed, the replacement statutory provision in s 22 of the Defamation Act 1974 (NSW) was intended to offer largely equivalent protection to the Code defence. Equally striking, in the Western Australian context, the formal legal question addressed in the central Full Court and High Court decisions completely obscured the political quality of the speech in question. The publication in issue involved the type of speech that the High Court had recently said was of central importance for protection by the Code defence. Understanding the history underlying the Code defence’s introduction, operation and loss could suggest that the current statutory defence under the uniform defamation laws warrants a far stronger interpretation which would bring it into line with most aspects of the Code defence. It appears that losing the Code has had underappreciated costs, and the history of the defence suggests ways in which they could be addressed.
The authors conclude
In a 1965 presentation, Justice Walsh observed of the New South Wales Code: ‘What concerns the practising lawyer is the law which is now in force’. While true for the practitioners being addressed then, it is also valuable for practitioners, and all the more so for academic understanding, to recognise how the law differs from comparable and historical situations. In the case of the Code defence, it is important to see what has been lost and the haphazard way in which that occurred. It may not simplify matters too much to describe the history in these terms.
In 1889, Queensland set out a statutory version of qualified privilege. The Code defence incorporated robust ideas about protecting public speech. The ideas were seen at the time of enactment as substantially reflecting the common law. Subsequently, a more restrictive approach became orthodox at common law and, for almost all of the 20th century, defamatory media publications could rarely succeed in a general qualified privilege defence. Over the same period, it became clear that the Code defence could protect robust defamatory speech in mass media publications. Strong judicial statements were made in support of the Code defence, especially in cases of political speech and other speech of public importance. The Code defence offered more protection than was available under s 22 of the Defamation Act 1974 (NSW), as judicially interpreted, and under the High Court decision in Lange. Griffith’s statements that the Code largely replicated the common law are ironic in retrospect because the Code defence ended up providing far stronger protection than the common law did in 2005 when the uniform laws were enacted. The Code defence could protect much robust public debate, probably more than any other aspect of Australian defamation law.
Beyond the Code defence’s enactment and aspects of its operation, its removal is equally notable. In New South Wales, the defence was replaced through legislative reform without any aim of weakening the defence. Indeed, s 22 of the Defamation Act 1974 (NSW) was meant to replicate much of the Code defence and even strengthen its protection for public speech. Judicial interpretation meant the section failed to meet those aims. In Western Australia, the Code defence was ruled inapplicable in civil defamation actions in Bridge, a dispute centrally involving political speech. A contrary approach was clearly possible (as the dissenting judgments show) and a contrary approach would appear preferable given the speech at issue. Bridge involved just the sort of speech for which the Code defence was championed as ‘an essential of parliamentary democracy’. Finally, with the introduction of uniform defamation laws the Code defence disappeared as an express element of law. Its value to public debate, however, would appear to remain. It is surprising how little debate arose about the removal of the Code defence in Queensland by the uniform defamation laws. The situation was quite different in the early 1990s when attempts to achieve uniformity between some Australian jurisdictions failed. At that time, the Australian Capital Territory, New South Wales, Queensland and Victoria prepared Defamation Bills. All four jurisdictions would have provided a defence for ‘publication in the public interest, in good faith and after appropriate inquiries’. The way in which the new defence would have required a ‘responsible approach’ to be taken by the media was explained at some length in Queensland parliamentary debates. However, the Defamation Bill 1992 (Qld) — unlike the other jurisdictions — also contained the Code defence. On that point, it was simply noted that the defence had ‘worked well in Queensland for many years’ and would continue. If those reforms had been passed, the Code defence would have survived in Queensland and offered the possibility of repeated reminders of its value.
The situation was different with the uniform laws. Then, Queensland parliamentary debates did not engage in any detail with how the cl 30 qualified privilege defence under the Defamation Bill 2005 (Qld) compared with the  Code defence. It was merely noted that the new defence and common law privilege ‘replace[] the current Queensland statutory defence which sets out eight specific circumstances, based on the common law but wider, where qualified privilege applies’. The personnel involved were different than in the early 1990s and there was greater political pressure towards uniformity in 2005. But other matters in the 2005 reforms — such as whether justification would require proving public interest or public benefit as well as substantial truth, and whether corporations would be able to sue — were subject to vigorous debate.
In addition, the removal of the Code defence should not be seen as a continuation of its New South Wales history. Instead, that history offers one of the key lessons about the defence. Much of the strong protection offered by the Code defence could still be found now through more robust interpretation of s 30 under the uniform laws. It is not the terms of the defence so much as the judicial application of it that has undermined such statutory qualified privilege defences in Australia. The New South Wales experience with s 22 of the Defamation Act 1974 (NSW) did not reflect the aims held for it by the preceding Commission report; nor did it reflect parliamentary debates when the legislation was enacted. The experience with s 22 has, however, influenced s 30 of the uniform laws. A better reference point for s 30 than the restrictive rules in Morgan could be Calwell. Calwell shows that widespread publication on a subject of general public interest was protected under the Code defence, with the judgments emphasising the value in that strong protection. Such publication would be protected under the uniform laws if s 30 was traced to its origins. While s 30 may offer more workable judge and jury roles than was sometimes offered by the Code defence, it need not be any weaker in protecting public speech. Section 30 need not be as weak as s 22 was held to be. It is s 22 rather than the Code defence that has a poor connection to the history.
The statutory review of the uniform defamation laws — a review which remains incomplete years after its statutory deadline — might consider reform of s 30. However, even if a review appears, achieving national statutory reform may be practically impossible. This difficulty only adds to the value there would be in case law considering more carefully just what should be required under the existing s 30. In that task, the Code defence should not be forgotten. If free speech is to be given meaningful weight in Australian law, aspects of defamation law might well be thought to warrant development. One of the obvious ways in which that could happen is through a stronger privilege defence. Important sources for such a development lie in the lessons of the Code defence. It offered strong protection for public interest speech; it provided defamation law with ‘an essential of parliamentary democracy’. The lessons of its history need not be lost. (Windeyer J).