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Why our defamation laws are no longer fit for purpose

  • 10 November 2021
Peter Dutton has recently argued that funds for defamation actions should be a ‘workplace entitlement’ for Members of Parliament (MPs). I’d like to repeat that another way: the Honorable Peter Dutton, Commonwealth Minister for Defence, would like the taxpayer to fund MPs to sue members of the Australian public for defamation.

Before going into the merits of Mr Dutton’s proposal, it’s worth providing some context to it. He made the argument during a parliamentary debate about whether to investigate Liberal MP Christian Porter over his use of funds from a blind trust to pay the defamation fees in his case against the ABC and journalist Louise Milligan for a report about ‘historical rape allegations’ against a (then unnamed) senior cabinet minister. Subsequently, Mr Porter publicly announced that he was the minister in question and that he strongly denied the allegations.

Mr Porter and the ABC settled this particular case, but since then both Mr Porter and Mr Dutton, as well as Liberal MP Andrew Laming have launched further defamation actions against members of the public over a range of other publications they object to. Many of these publications have been by way of tweets.

Australia’s defamation laws are widely regarded as draconian, outdated and to have a chilling effect on free speech, but it’s worth considering the values that both defamation and freedom of speech are ostensibly seeking to promote. The purpose of defamation law is to protect people’s reputations against serious harm. This is an important value. Damage to someone’s reputation can lead to serious consequences, including loss of employment, the breakdown of relationships and psychological harm. An illustrative case is the situation facing a 36-year-old Aboriginal man who was falsely identified by Seven News as the suspect in relation to the disappearance of Cleo Smith. Clearly there should be strong disincentives in place to prevent such sloppy journalism from damaging someone’s reputation so gravely.

On the other hand, freedom of expression is also an important value. Freedom of expression is considered to be a fundamental human right, in part because it is linked to self-expression and self-realisation, but particularly because of the role that it plays in supporting the open public debate of values and ideas that is necessary to promote other human rights and democracy. Although, we do not have any nationally protected individual right to freedom of expression in Australia, this core value of political communication is protected by the