2021 changes to Queensland defamation law
In 2018 the Council of Attorneys-General initiated a review of the model defamation laws. A Defamation Working Party, led by NSW, was established to review the current defamation law. A discussion paper was released in February 2019 followed by a period of public consultation.
Each jurisdiction ultimately committed to enacting consistent legislative change to their respective defamation laws.
On 1 July 2021 the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld) came into force, the effect of which was to amend the Defamation Act 2005 (Qld).
The purpose of this legal update is to highlight the more significant amendments and discuss what that might mean for the future of defamation claims for government agencies.
Key changes include the introduction of a ‘serious harm’ requirement, the issuing of a concerns notice as a pre-requisite to commencing proceedings, the removal of the defence of triviality, and the addition of new defences.
Serious harm requirement
One of the most significant changes to the defamation law is to introduce a new s 10A that provides that an individual has no cause of action for defamation unless the individual proves that the publication has caused, or is likely to cause, serious harm to the reputation of the individual. And with respect to an excluded corporation, it must provide that the publication has caused, or is likely to cause, serious harm to the reputation of the corporation, and serious financial loss.
The previous defence of ‘triviality’ has been removed from the legislation.
The net result is that minor or trivial reputational harm alleged to have been caused by a defamatory publication will no longer give rise to a cause of action in defamation.
Requirement to issue a concerns notice
The previous legislation allowed for an aggrieved person to issue a ‘concerns notice’ as a form a pre-proceedings dispute resolution process. The process aims to resolve matters at an early stage without the need to issue proceedings. The legislation affords costs benefits if the concerns notice process has been engaged in before a proceeding is commenced, depending of course on what offers are made and who is ultimately successful at the end of the proceedings.
The amendments now make the concerns notice process compulsory. It is now a pre-requisite to commencing proceedings. Under new s 12B, a concerns notice must be issued by the aggrieved person prior to commencing proceedings, otherwise the proceedings cannot be commenced.
Additional defences and removal of triviality defence
As mentioned above, the defence of triviality has been removed from the Defamation Act. New defences have been added, including:
- (a) the defence of responsible communication in the public interest; and
(b) the defence of scientific or academic peer review.
The effect the amendments will have on defamation claims remains to be seen.
It is likely that the changes will result in a reduction in the number of defamation claims made against government agencies as there will be a need to prove that any reputational damage has caused, or is likely to cause, serious harm (to an individual), or serious harm and serious financial loss (to a corporation). Those matters that are less serious or ‘trivial’ are not likely to be pursued.
If you require any further information, or advice, about the proposed changes, or defamation matters generally, please contact Paul Lack from Crown Law's Commercial Dispute Resolution Team.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 5 August 2021
Author: Senior Principal Lawyer, Paul Lack