Rares, Justice Steven --- "Defamation and the Uniform Code" (FCA) [2006] FedJSchol 36

DEFAMATION AND THE UNIFORM CODE *

Steven Rares[1]

1. Last year marked a watershed in the law of defamation in this country. Each of the States and Territories agreed to introduce substantially uniform defamation laws with effect from 1 January 2006[2]. All the States have passed a Defamation Act 2005 in substantially similar form (“the Uniform Acts”).
2. I will refer to provisions in the New South Wales legislation for the purposes of this paper. Of course, there are some differences, such as in South Australia where there is no provision equivalent to ss. 21 and 22 of the New South Wales, Victorian and Queensland Uniform Acts for the hearing of the matters by a jury.
3. The achievement of this milestone provides a useful opportunity to reflect upon the conventional wisdom that actions in which the sole claim is in defamation can only be brought in the courts of the States or Territories rather than in the Federal Court of Australia.
4. Past practice has seen defamation actions in the Federal Court added to some statutory claim, usually under s. 52 of the Trade Practices Act 1974 (Cth), to attract federal jurisdiction. This may be an unnecessary step and may reflect a misunderstanding of federal jurisdiction. The aims of this paper are to review the impact of the Uniform Acts on the law, to review the procedural aspects of hearing defamation actions in the Federal Court and to consider possible ways in which the Federal Court may have jurisdiction in “pure” defamation actions.

Bases of Federal Jurisdiction

5. Before commencing proceedings in the Federal Court, it is important to satisfy oneself that the Court will have jurisdiction to hear the matter. The views which I express in this paper are personal views which have not been tested in litigation but which may afford some guidance as to matters worthy of consideration.
6. The fundamental source of the Federal Court’s original jurisdiction in any matter[3] is statutory[4]. By s. 5(2) of the Federal Court of Australia Act 1976 (Cth), the Court is a superior court of record and a court of law and equity. Since the enactment of s. 39B of the Judiciary Act 1903 (Cth), the court can now be seen as a court of general jurisdiction in civil matters, although it will always be necessary to ensure that the matter sought to be litigated is within federal jurisdiction. Once the jurisdiction of the Court has been effectively invoked it has “accrued jurisdiction” to determine the whole “matter” or controversy between the parties: Re Wakim; Ex parte McNally[5].
7. The jurisdiction of the Federal Court to hear defamation actions without the addition of any other cause of action may be available in the following classes of case:
   1. where the publication involves the implied constitutional freedom of communication on government and political matter;
   2. where there is an interstate or, possibly other intranational, publication. An argument may be available to suggest that where there are interstate or intranational multiple publications within the meaning given in s. 11(5), the operation of s. 118 of the Constitution is engaged so as to enable each jurisdiction to recognize and apply the provisions of s. 11 of the Uniform Acts as substantive modifications of the laws of each jurisdiction and the common law of Australia.
8. This paper will deal with each of these classes in turn, however it is apparent that the basis of the argument raised in class (2) is substantially more complex than the class (1). However, before dealing with these issues, I will review the new Defamation Acts 2005 and 2006 and procedures in the Federal Court.

The Uniform Acts

9. I will not attempt to analyse in detail the operation of the various defences and damages provisions. Given the novelty of these provisions, it would not be appropriate to do so, although a large drafting debt is evident in relation to the now repealed Defamation Act 1974 (NSW).
10. Most importantly however, the experiment which the Defamation Act 1974 (NSW) made by introducing the concept that imputations conveyed by the matter complained of constituted the cause of action, rather than the publication of the matter complained of itself, has been seen to be inappropriate. The new Uniform Acts do away with the concept of the imputation being the cause of action. Nonetheless, there are references to this concept, particularly in the important defences of offers to amend[6] and contextual truth[7]. I will return to these matters later.
    

Offers to Make Amends

11. Division 1 of Part 3 of the Uniform Acts provides for an early resolution procedure by way of an offer to make amends, when a plaintiff notifies a publisher of the alleged making of the defamatory imputations in a publication. The Uniform Acts prescribe the circumstances in which an offer of amends may be made and what its contents must be. The key concept in an offer to make amends is that it must include an offer to publish or join in publishing a reasonable correction of the matter in question or, if the offer is limited, of any particular defamatory imputations to which the offer is directed[8].
12. It has become a commonplace event that newspapers, in particular, now publish corrections, rather than what in earlier days were more sought after, namely apologies. It may well be a question for the jury or judge hearing an action as to whether the correction either offered or spontaneously published by a publisher, has a palliative effect on the damage which may have been done by the original publication.
13. By s. 20 of the Uniform Acts, an apology is expressly excepted from being an express or implied admission of fault or liability by the maker of the apology and its making is not relevant to the determination of fault or liability in connection with the publication of the matter complained of. Of course, the defendant can still lead evidence in mitigation of the fact that it has made an apology [9] or has published a correction[10], each of which fall outside the effect of the new s. 20(1) and (2)[11].

Defences – Generally

14. It is important to appreciate that the defences provided under the Uniform Acts are, in effect, in addition to the common law defences which generally continue to be available where their continued existence is not inconsistent with the new Uniform Acts[12].
15. The principal statutory defences are justification[13], contextual truth[14], absolute privilege[15], qualified privilege[16] and honest opinion[17]. There are also defences of innocent dissemination[18] and triviality[19]. This paper will address the developments in relation to these defences in turn.

Defence of Justification

16. The Uniform Acts provide for a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter complained of are substantially true[20]. Gone is any requirement that the publication either relate to a matter of public interest, as under the old Defamation Act 1974 (NSW) or that it be for the public benefit, as under other now defunct statutory defences in some other jurisdictions[21]. Thus s. 25 restores the original position under the common law.
17. Accordingly, there is no filter mechanism which might prevent the resuscitation or bringing to light of embarrassing episodes in a person’s life when he or she was young, or issues relating to his or her own private life. The way has now been open for what some might call robust reporting, and others might call “a smut circus”[22]. Hunt J evidently believed that this latter phrase, sourced to the alleged paramour of Greg Chappell, accurately depicted the activities in which she had by then engaged, namely, the publication in the eponymous Melbourne “Truth” of “the sleazy gutter journalism by which those articles are characterized”[23].
18. Although the English Courts have now sought to develop, under the aegis of the Human Rights Act 1998 (Imp) and its enactment into English law of the Convention for the Protection of Human Rights and Fundamental Freedoms, a notion of privacy[24], Australian law has not yet embraced such a notion[25]. In England, truth alone is a defence to a defamation claim. Some, but not all, of the media there have exercised a degree of restraint in what they publish following these developments.
19. It is likely that life as we know it will continue, although perhaps more along Victorian lines. I speak not of the late monarch, but of the fact that in Victoria, as in England, truth alone has been a defence for many years. It may be no accident that the Melbourne “Truth” has been published in that jurisdiction. Some may hope that the media maintain a vigorous sense of individuality and independence in what individual outlets select for publication.

Defence of Contextual Truth

20. Probably the most significant reform in the Uniform Acts has been the acceptance by all of the jurisdictions of the innovation pioneered in New South Wales of the defence of contextual truth[26]. This defence enables the tribunal of fact to come to a commonsense result if the matter complained of conveyed a number of defamatory meanings only one or some of which becomes or become the subject of complaint by the plaintiff in the proceedings. Where the other imputations are of such significance that those about which the plaintiff wishes to complain do not further harm his or her reputation, then because of the substantial truth of the contextual imputations, the plaintiff’s case will fail[27].
21. The way in which the Uniform Acts have used the expression “imputation” may revive the bewildering notions utilized by the courts in the construction of the now repealed Defamation Act 1974 (NSW). And, it is of some concern that the form of s. 26 may allow the previous interpretation of s. 16 of the Defamation Act 1974 (NSW) to continue in respect of the new defence of contextual truth. That could entail acceptance of the construction adopted by the majority of the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Blake[28] where Spigelman CJ, with whom Rolfe A-JA agreed, said that for the purposes of determining whether the defence of contextual truth was capable of being made out:

“... the court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself”.

This construction may not be applicable to the new defence because the wording of s. 16(2)(c) of the repealed Act was framed in a significantly different way to s. 26. In particular, the textual signposts on which Spigelman CJ focused in s. 16(2)(c), are not present in the new legislation. His Honour justified this approach thus[29]:

‘Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a “matter of substantial truth”. It is “by reason” of such “substantial truth” that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff’s imputation does not “further injure the reputation of the plaintiff”’.

22. Section 16(2)(c) did not focus its attention on a contextual imputation “as such” but on the proposition that such an imputation is a “matter of substantial truth”. It is “by reason” of such “substantial truth” that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff’s imputation does not “further injure the reputation of the plaintiff”.
23. The new defence under s. 26 of the Uniform Acts creates an exculpation if the contextual imputation is “substantially true” and the imputations on which the plaintiff relies do not further harm his or her reputation “because of the substantial truth of the contextual imputations”.
24. As a matter of statutory construction, the result reached in John Fairfax Publications Pty Ltd v Blake[30] may be difficult to sustain. How the particulars relied upon could have any bearing on the harm to the reputation of the plaintiff in a case where, for example, the particulars rely on facts quite extraneous to the matter complained of is difficult to understand. The reason why both the repealed s. 16 and the new s. 26 can operate as defences is because when a reader of the matter complained of understands what was published (note that particulars that might be given in a proceeding or pleading many months or years later) that understanding of the contextual imputation injured the plaintiff’s reputation more than those imputations which the plaintiff chose as his or her cause of action or cause of complaint.
25. The way in which a defence of contextual truth works is illustrated by considering the common law defence of partial justification. In Plato Films Limited v Speidel[31] Lord Denning discussed the issue of partial justification by reference to a submission made by counsel for the defendant, Gerald Gardiner QC, as he then was. Mr Gardiner had suggested that a defence of partial justification may not be open to a defendant because of the way the plaintiff had framed his action:

“He took this case. Suppose a newspaper said of a man: ‘He has murdered his father, stolen from his mother and does not go to church on Sundays,’ and the plaintiff brings a libel action complaining only of the imputation that he does not go to church. The defendants, said Mr Gardiner, cannot justify the major charges of murder and theft, because the plaintiff has not complained of them. They cannot give evidence of them in mitigation of damages because they are only specific instances. What is, then, the position? It would, says Mr Gardiner, be most unjust that the plaintiff should get damages for the minor matter when, if the jury had had the whole before them, they would have given him nothing. I agree it would. But the answer is that the defendants, who had produced such a piece of bathos, would be entitled, in the apt words of Lord Coke, to ‘have showed all the “words and the coherence of them,” see Brittridge’s Case[32] : and the jury would no doubt only have given one farthing, as they did in Cooke v Hughes [33]. In those cases the words so “cohered together” that it was necessary for the jury to see all the words in order to make a correct appreciation of their impact. Whether the present is such a case, the judge will say at the trial.”

26. In Whelan v John Fairfax Publications Pty Ltd[34] Levine J said that this passage pointed to the effect of the repealed s. 16. It should be noted that in that case his Honour provided a detailed explanation of the defence of partial justification at common law which will be relevant in the regime established by the Uniform Act which, of course, preserves the common law.

Privilege

27. In the Uniform Acts the availability of common law defences of privilege is somewhat expanded by ss. 27-30. A defence of absolute privilege is provided in s. 27. That provision covers publications made to or by parliamentary bodies, courts or tribunals established by law and publications in the course of proceedings within such entities.

Defences for Publication of Public Documents and Fair Report

28. This defence is curiously worded. In the operative provision, s. 28(1) of the Uniform Acts, it is said to be a defence to the publication of a defamatory matter

“... if the defendant proves that the matter was contained in:

(a) a public document, or a fair copy of the public document, or

(b) a fair summary of, or a fair extract from, a public document.”

29. It would appear that the reference to a fair summary or fair extract must have been intended to provide a defence to the publication of a fair report which amounts to such a fair summary or a fair extract, as is the case at common law and under previous enactments: see e.g. Rogers v Nationwide News Pty Ltd[35]. As Gleeson CJ and Gummow J there said[36]:

“[15] The policy of the common law's protection of fair reports of court proceedings, and of the legislative extension of the common law in s 24 of the Act, is that it is in the public interest that there should be open administration of justice. That interest is served by protecting persons who publish fair and accurate reports of court proceedings so that a reader of the report will see a substantially correct record of what was said and done in court[37].”

30. Since s. 24 provides that the defences in Pt 4 Div 2 of the Uniform Acts are intended to be in addition to the common law defences, it is likely that the Courts will not construe s. 28(1)(b) as narrowing the ordinary common law incidents of the defence of fair report. However, the exact nature of the defence provided by s. 28(1)(b)is not easily discernible and awaits interpretation by the Courts.
31. In contrast, s. 29(2) encapsulates the common law concept of a fair report as extending to a fair summary or fair extract from a fair report.
    

Qualified Privilege

32. Section 30 provides for a statutory defence of qualified privilege, which is modelled on the repealed provisions of s. 22 of the Defamation Act 1974 (NSW). The concept of reasonableness embodied as an essential ingredient in the new s. 30, as with its statutory predecessor, is also an essential element in the Australian common law defence of qualified privilege as extended by the High Court in Lange v Australian Broadcasting Corporation[38]. The Court had drawn upon its earlier decisions in Theophanous v Herald & Weekly Times[39] and Stephens v West Australian Newspapers Ltd[40] for the requirement of reasonableness in the making of a publication in order for the defendant to rely upon the common law defence of qualified privilege. That defence has to be conformable with the implied constitutional freedom of communication on government political matter[41].
33. Prescribing a criterion of reasonableness in the common law defence of qualified privilege will obviously limit the circumstances in which the defence may be available. In an earlier emanation, I once described the element of reasonableness (required to conform to the implied constitutional freedom) as “a millstone around the new defence’s neck”[42].
34. In the 30 odd year history of s. 22 of the Defamation Act 1974 (NSW), a defence under the section has succeeded rarely. I am personally aware of only one such occasion which was in the extraordinary case of Barbaro v Amalgamated Television Services Pty Limited[43]. There, a television station was found to be entitled to rely on s. 22 in publishing a current affairs program from an independent producer which was transmitted live. The circumstances were that the plaintiff, Dominic Barbaro, sued on imputations asserting, in substance, that he was one of the murderers of the late Donald Mackay, the anti-drugs campaigner from Griffith, New South Wales. Justice Woodward, in a Royal Commission report, had named Dominic Sergi as one of the murderers. Part of the entertainment of the case was that Dominic Sergi was in fact the plaintiff’s father-in-law and the plaintiff had originally commenced the proceedings in that name. He subsequently applied to change the description of his name in the title of the proceedings during their course. The plaintiff was identified when a reporter attended, unannounced, at a farm with a camera crew. The reporter said to the plaintiff “We are looking for Dominic”, to which the plaintiff replied: “Yes, I Dominic”. The reporter then asked: “Dominic Sergi?” to which the plaintiff replied: “Yes, what do you want”.
35. Samuels JA continued the story as follows[44]:

“The reporter then said: “You are the one that was in the Royal Commission”. The [plaintiff] ... then, to quote the words of his counsel when opening the case to the jury, “became upset and angry” and attacked the camera, repeatedly telling the cameraman to put it down, then to put it in the car, and finally to go, using language of a more pungent kind.”

This interchange demonstrated why it was reasonable in the circumstances to misidentify the plaintiff as the person whom he incorrectly said he was.

36. In general, the difficulty of a media defendant in establishing reasonableness in the publication of untrue matter is exemplified in decisions such as Austin v Mirror Newspapers Ltd[45] and Morosi v Mirror Newspapers Ltd[46].
37. However, in Jameel v Wall Street Journal Europe Sprl[47], the House of Lords expanded the scope of its earlier decision in Reynolds v Times Newspapers Ltd[48]. They recognized that, as Lord Hoffmann said[49], in respect of matters of public interest there is a professional duty on the part of journalists to impart information and an interest in the public in receiving it. That generalization, he said, should be regarded as a proposition of law, so that “[i]f the publication is in the public interest, the duty and interest are taken to exist”[50].
38. Next, their Lordships held that one looked at the matter complained of as a whole to ascertain whether it was in the public interest. If opinions reasonably might differ over which details are needed to convey the general message, the fact that a judge, with the benefit of leisure and hindsight, might have made a different editorial decision should not destroy the defence[51].
39. The test was left as one of “responsible journalism” as Lord Nicholls of Birkenhead had described it in both his speech in Reynolds v Times Newspapers Ltd[52] and in the advice of the Privy Council in Bonnick v Morris[53]. This standard of conduct was to be applied in a practical and flexible manner[54].
40. So, if the Australian courts are prepared to borrow from these developments, the standard of “reasonableness” may be viewed through the different, and more practical, prism suggested by the House of Lords and the Privy Council.
41. The ordinary common law of qualified privilege, not involving any question of the implied constitutional freedom of communication of government or political matter, was described by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia Pty Ltd[55] as follows:

“Qualified privilege gives no licence to defame. It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published. If the occasion is privileged the further question which arises is whether the defendant “has fairly and properly conducted himself in the exercise of it”[56]”

42. It can be seen that the inclusion of the requirement of reasonableness both under s. 30 and at common law in cases involving the implied constitutional freedom thus serves as an important protection for plaintiffs against the publication of false and injurious words, in what will usually be publication to a large readership or audience.
    

Defence of Honest Opinion

43. The Uniform Acts provide in s. 31 a defence to the publication of defamatory matter if the defendant proves that:

“(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.”

44. One ambiguity in this formulation is that during the course of the second reading debate on the Defamation Bill 2005 in the New South Wales Legislative Assembly[57] the Attorney-General[58] referred to concerns which the New South Wales Bar Association had raised about the operation of what was then cl 31 in the Bill. That concern related to circumstances where the defamatory matter which was published was not exclusively an opinion that also included statements of fact. The Attorney said:

“By way of clarification, I affirm that clause 31 is not intended to alter the position at common law in regard to the pleading of defences or the kinds of facts that can be relied on to support a defamatory opinion. The equivalent defence at common law is the defence of fair comment.

At common law, as I understand it, the defence of fair comment is available in respect of such defamatory imputations or defamatory meanings carried by the matter concerned that can be said to be opinions rather than a statement of fact. An imputation is basically an accusation or charge about someone, whether express or implied. At common law the opinion must be based on proper material, namely, statements of fact that are true or statements that are privileged. Statements of fact may be set out in the matter that expresses the opinion, but facts can be relied on even if they are not set out with the opinion if they are notorious or widely known. An opinion may be based on facts that are either defamatory or non-defamatory. However, where a publication of matter includes both defamatory statements of fact and a defamatory opinion, it is appropriate at common law for the plea to be limited to fair comment and not to include a plea of justification. This kind of pleading is conventionally called a rolled-up plea.

Nothing in clause 31 is intended to affect pleadings of this kind.”

45. The Attorney-General’s remarks indicate that, consistent with s. 24 of the Uniform Acts, the effect of s. 31, as drafted, is that it will not interfere with the common law defences of fair comment on a matter of public interest. Whether this will be the way the Courts interpret the defences under s. 31 and at common law must await further clarification.

Damages

46. In all jurisdictions, damages will be assessed by the trial judge alone[59]. By operation of s. 34, the amount of damages awarded must reflect an appropriate and rational relationship between the harm sustained by the plaintiff and the quantum of the award[60]. The maximum amount which a court can award for compensatory damages, other than an element for aggravated damages[61], is $250,000[62]. That amount will be adjusted upwards each year by publications in the Gazette[63].
47. The Court is empowered to award a sum exceeding the maximum set pursuant to s. 35(1) if, and only if:

“... the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.”

48. The Court is not able to make any orders for exemplary or punitive damages[64] and must disregard malice or other state of mind of the defendant at the time of publication or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff[65].

Procedural matters in the Federal Court

49. The jurisdictional questions referred to below may need to be established in litigation before the Federal Court could offer a relatively certain path to litigants seeking an alternate venue to the traditional State and Territory Courts.
50. Although s. 39 of the Federal Court of Australia Act 1976 (Cth) provides that unless the Court otherwise orders trials in the Court are to be by a judge without a jury, ss. 40-42 make provision for jury trials. Because s. 79 of the Judiciary Act 1903 (Cth) would “pick up”[66] ss. 21 and 22 of the New South Wales Uniform Act[67], the Federal Court would have regard to, inter alia, what s. 40 of its own statute requires – namely where “... the ends of justice appear to render it expedient to do so ...” - in considering whether to order a jury trial[68].
51. Factors which may be relevant to the exercise of the Federal Court’s discretion under ss. 39 and 40 of its Act and s. 21 of the Uniform Acts as to jury trial are:

(a) the fact that the Court has a national character, which s. 48 of the Federal Court of Australia Act 1976 recognizes, to sit in one or more venues as is appropriate[69];

(b) the desirability that the mode of trial favoured by the relevant legislature whose law, by force of s. 11 of the Uniform Acts, is the substantive law to decide all causes of action arising from the multiple publications, should be given effect. Of course, this consideration would be equally relevant the other way in those jurisdictions like South Australia and the two mainland Territories where there is no provision for jury trial of defamation actions;

(c) the fact that since at least the time of the passage of Fox’s Libel Act in 1792, it has been recognized that a jury is an appropriate tribunal of fact to decide the question of libel or no libel. As Brennan J, speaking for the Court, said in Reader’s Digest Services Pty Ltd v Lamb[70]:

“But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally.” (emphasis added)

Class 1 - The Implied Constitutional Freedom of Communication on Government and Political Matter

52. I now turn to a consideration of the first of two possible bases for federal jurisdiction in defamation matters in a “pure” sense. Section 39B(1A)(b) of the Judiciary Act 1903 (Cth) may give the Federal Court jurisdiction in matters in which the implied constitutional freedom of communication on government and political matter is in issue[71]. Thus, most defamation cases involving politicians are likely to be within the original jurisdiction of the Federal Court by virtue of the fact that some aspect of the implied constitutional freedom of communication on government and political matter will be in issue in the proceedings.
53. The mere fact that the plaintiff or applicant is not relying on the implied constitutional freedom is not necessarily a reason to deny the Federal Court jurisdiction. This is because the defendant or respondent may well do so. The question for the Court will be whether the controversy between the parties involves a “matter” with a federal claim. As Gummow and Hayne JJ pointed out in Re Wakim; Ex parte McNally[72]:

“What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”[73]. There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’[74], notwithstanding that the facts upon which the claims depend “do not wholly coincide”[75]. ”

54. It is important to note that the implied constitutional freedom itself is not exhaustively defined by the decision in Lange v Australian Broadcasting Corporation[76], as Gaudron, McHugh and Gummow JJ pointed out in Roberts v Bass[77]. Issues concerning the law of fair comment on a matter of public interest; truth and other common law defences; or circumstances giving rise to a cause of action may involve issues concerning the application of the implied constitutional freedom.
55. Nor should one think that the implied constitutional freedom is necessarily limited simply to cases in which politicians may be plaintiffs or applicants. Calls are often made in the media for the Commonwealth Parliament, Ministers or their departments, or authorities of the Commonwealth to act on particular issues. Examples come to mind such as a company collapse, the conduct of a business, such as is currently the subject of the Royal Commission into the operations of Australian Wheat Board Limited in Iraq, the conduct of regulatory authorities and, possibly, even issues in courts. In addition, discussion of areas in which the Commonwealth might legislate or regulate conduct, also, may well be capable of falling within the implied constitutional freedom.
56. Some idea as to the potential scope of the implied constitutional freedom can be seen in the decision in Lange v Australian Broadcasting Corporation[78], where the Court said:

“Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. ...

Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend.”

Class 2 - Interstate or Intranational Publications

57. Mass media publications may be actionable in the Federal Court because the Uniform Acts contain a choice of law provision in section 11 which any Australian court exercising jurisdiction under one of those Acts is bound to apply.
58. There are a number of steps to this argument. However, for present purposes, it is important to begin by focusing attention on:

(1) s. 39B(1A) of the Judiciary Act 1903 which provides:

“The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

...

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

(2) Section 118 of the Constitution which provides:

“Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”

59. As Gleeson CJ, McHugh, Gummow and Hayne JJ noted in Dow Jones & Co Inc v Gutnick[79], harm to reputation is done when a defamatory publication is comprehended by the reader, listener or observer, making publication not a unilateral, but a bilateral, act involving the publisher and the publishee. Their Honours then observed that the bilateral nature of publication underpins the common law rule that every communication of defamatory matter founds a separate cause of action[80].
60. Where a publication is made beyond the limits of any one State in any other State within Australia, importantly, s. 118 of the Constitution requires that full faith and credit must be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State. Thus, where interstate publications are sued on in a defamation action, the law of each place of publication will create a substantive right to sue on that publication in that jurisdiction[81]. So, when the plaintiff sues in one forum on interstate or intranational publications, a matter may arise under s. 118 of the Constitution, Accordingly, if a matter does arise under s. 118 then s. 39B(1A)(b) of the Judiciary Act 1903 (Cth) would apply to confer jurisdiction on the Federal Court[82]. Of course, s. 118 is silent as to the Territories, but when the court is exercising federal jurisdiction, then s. 79 of the Judiciary Act 1903 (Cth) operates to make Territory laws binding.

The Effect of Section 11

61. The Uniform Acts, by s. 11, seek to solve the choice of law issues in such cases by ceding responsibility to the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection[83]. Relevantly, s. 11 of the Uniform Acts provides:

“ 11 Choice of law for defamation proceedings

...

(2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.

(3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account:

(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time, and

(b) the extent of publication in each relevant Australian jurisdictional area, and

(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area, and

(d) any other matter that the court considers relevant.

(4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section.

(5) In this section:

Australian jurisdictional area means:

(a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or

(b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or

(c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence.

geographical area of Australia includes:

(a) the territorial sea of Australia, and

(b) the external Territories of the Commonwealth.

multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.”

62. Where publication occurs in more than one State or Territory, so that pursuant to the Uniform Acts a cause of action would arise in each such jurisdiction, the question is how does one take account of the laws of each relevant jurisdiction?
63. What is the effect of this provision? In a purposive sense it obviously seeks to find a common sense solution to what was the position under the ancien régime where the parties and the court had to grapple with the laws in up to 8 substantively different jurisdictions in which causes of action, defences and replies all had different incidences. Remarkably, section 11 seeks to offer a means of reconciling all such conflicts and inconsistencies within a framework of substantive uniformity among all jurisdictions in Australia. But, how does it do this?
64. In one sense, but over-simplistically, s. 11 represents a choice of law provision which enables the court seized of a defamation claim to apply one law to resolve all issues, including damages.
65. But let us consider this section in the hypothetical context of a court sitting in New South Wales on a Melbourne resident’s claim based on the publication of a national television program. Does the New South Wales s. 11 have the effect of extinguishing the causes of action which existed in each other jurisdiction than that which the Court, under s. 11(2), selects as the substantive law applicable? Certainly, it appears that s. 11 commands the Court so to act, but how does the legislature of one State have the power to affect the substantive law of another State or Territory?
66. The identity of the plaintiff in such an action may make it hard to choose between the substantive laws of New South Wales and Victoria where, say, he or she is the Prime Minister or Leader of the Opposition and the audience sizes are similar. The theory behind s. 11 in the Uniform Acts is that each State and Territory has passed a provision in identical form so that the law of each jurisdiction will bring about the same result, first as to the substantive law to be chosen and secondly as to its application to the facts of each case.

A Constitutional “Matter”

67. It is likely that considerations arising from the application of the choice of law rule in s. 11 of the Uniform Acts, and, indeed, from cases involving the implied constitutional freedom will create a “matter” in the constitutional sense. In one sense the possibility of conflicting findings as to the defamatory quality of a publication and the establishment or defeat of defences, were separate actions litigated in more than one Australian jurisdiction, will often indicate there is a single matter[84]. Once there is a single “matter” within the meaning of one of the nine classes of matter in ss. 75 and 76 of the Constitution, then the court hearing it is exercising federal, not State or Territorial, jurisdiction[85]. Such a “matter” may arise under the Constitution or involve its interpretation within the meaning of s. 39B(1A)(b) of the Judiciary Act 1903 (Cth)[86].
68. Questions which interstate or intranational defamation claims raise may, but need not necessarily, arise in federal jurisdiction. Once engaged, federal jurisdiction is national in nature[87]. It has been a frequent feature that where a defamation claim is brought in the Federal Court applicants have chosen to add a claim under s. 52 of the Trade Practices Act 1974 (Cth) [88].
69. In Dow Jones & Co Inc v Gutnick[89] Gleeson CJ, McHugh, Gummow and Hayne JJ noted that the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. And ss. 8, 11 and 39 of the Uniform Acts reflect a similar legislative policy. But their Honours firmly rejected adopting a rule, suggested by the appellant, that Australian law should provide for a single place of publication the law of which would govern liability for publications anywhere else, whether within or outside Australia[90]. Their Honours continued[91]:

“Publications within Australia, but in different States or Territories, may require consideration of additional principles. Although the choice of law to be made in such a case is again the law of the place of the tort[92], questions of full faith and credit[93] or other constitutional questions[94] may well arise.”

70. Now s. 11 appears to supplant, to some extent, the common law by providing that for intranational publications in more than one State or Territory there will be but one substantive law applicable. That substantive law is to be ascertained in accordance with the provisions of ss. 11(2) and (3). The primary mechanism for such ascertainment is in s. 11(2) which provides that where there has been a “multiple publication”[95] the law to be applied to resolve the whole controversy – or “matter” - is that of the Australian jurisdictional area[96] “... with which the harm occasioned by the publication as a whole has its closest connection”.
71. Likewise, ss. 79 and 80 of the Judiciary Act 1903 (Cth) may be relevant to the exercise of jurisdiction by the Federal Court in a defamation action. Those sections provide:

“79 State or Territory laws to govern where applicable

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

80 Common law to govern

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

72. Gleeson CJ, Gaudron and Gummow JJ noted in ASIC v Edensor Nominees Pty Ltd[97] that s. 79 has been assumed to implement or to be “... consistent with what in any event would flow from the operation of Ch III and covering cl 5 of the Constitution” as well as to be supported by s. 51(xxxix) of the Constitution as a law with respect to matters incidental to the execution of powers vested by Ch III in that Federal jurisdiction. Their Honours said that Dixon CJ had earlier observed that in a suit between subject and subject ss. 79 and 80 “... direct where this Court shall go for the substantive law”[98].
73. In the context of the Uniform Acts, if there is a matter within federal jurisdiction then s. 79 of the Judiciary Act 1903 (Cth) “picks up” the Uniform Act of the forum, and through it, potentially the provisions of each of Uniform Acts of each jurisdiction in which a publication is made[99].
74. If a publication occurs in more than one State or Territory, the plaintiff could plead specifically a cause of action under s. 8 of each of the Uniform Acts and allege the substantive law on which the plaintiff sues. The pleading may then rely on s. 118 of the Constitution to ensure that each of the other causes of action in the other jurisdictions became subject to the alleged substantive law.
75. It is because each jurisdiction has passed a complementary provision in s. 11 that it is arguable that that mechanism overcomes the constitutional difficulty that the law of one State or Territory cannot alter the substantive law of another State or Territory as to a cause of action given by a law of the latter jurisdiction. As Gibbs CJ, Wilson and Dawson JJ said in Gosper v Sawyer[100]:

“A New South Wales statute could not constitutionally have the effect of altering the law of Victoria as to the administration of a Victorian trust (see Permanent Trustee Co. (Canberra) Ltd. v Finlayson[101]) and if s. 88F purported to have that effect it would be a nullity by the law of Victoria.”

76. The question which then arises is whether effect can be given to the substantive law selected by the several s. 11s and, if so, whether that can be done regardless of federal law. A choice of law rule, as John Pfeiffer Pty Ltd v Rogerson[102] contemplates, can operate in non-federal jurisdiction in Australia so as to allow the Courts of the forum State or Territory to recognize and enforce the laws of another State or Territory.
77. However, their Honours appear to have concluded that s. 80 of the Judiciary Act 1903 (Cth) required the application of the common law choice of law rules, so that the matter was in federal jurisdiction. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said[103]:

“[102] Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.

[103] In the present case, the provisions of the NSW Compensation Act upon which the applicant relied (to deny or diminish the respondent's claim) should have been classified as provisions about a substantive issue which was governed by the lex loci delicti, New South Wales. The Supreme Court of the Australian Capital Territory was obliged to reach this result by application, pursuant to s 80 of the Judiciary Act, of the common law rules for choice of law which are part of the common law in Australia referred to in s 80.” (emphasis added)

78. In the context of an interstate or intranational publication to which the Uniform Acts, and their choice of law provision in s. 11, apply, there is an argument that the statute law of each lex locus delicti – that is, the law of each place of publication – governs the substantive issues in the litigation concerning such publications, but, by force of s. 11, each jurisdiction requires the Court to apply only one substantive law which it must ascertain. The reasoning in the passage just quoted from John Pfeiffer Pty Ltd v Rogerson[104], suggests that in cases of interstate or intranational publication the first choice of law rule applied by the Court of the forum may be that selected by the federal common law rule of the place of each publication which s. 80 of the Judiciary Act 1903 (Cth) mandates. The second choice of law rule which must then be applied may be that required by the law of the place of publication, namely, that ascertained pursuant to the application of s. 11 of the Uniform Acts of the jurisdiction in which the publication occurred.
79. Another way of viewing this is that if the Court of the forum is referred by s. 11 of its Uniform Act to the law of another Australian jurisdiction, s. 11(4) of the forum’s Uniform Act contemplates a further reference (with its limited conception of renvoi) to the law of another Australian jurisdiction.
80. If the former analysis were correct, and it has not been tested, then each matter involving interstate or intranational publications is in federal jurisdiction and, by force of s. 39B(1A)(c) of the Judiciary Act 1903 (Cth), it could be seen as arising under a law made by the Parliament, namely s. 80 of the same Act[105].
81. As the above discussion illustrates, defamation actions in which interstate or intranational publications are involved raise sui generis issues as to whether they are in federal jurisdiction. The resolution of those issues, at least in the proceedings where they are first raised, is likely to occur in federal jurisdiction because the Constitutional question as to jurisdiction will be part of the “matter”.

Conclusion

82. The new reforms have opened a number of interesting areas for consideration while at the same time reviving the old common law. That should enable defamation practitioners to further hone their skills though perhaps not as imaginatively as the owners of “Blackie the Talking Cat” were able to achieve. In Miles v City Council of Augusta Georgia[106] the plaintiffs sought to have a local council ordinance, which required them to pay a tax, declared invalid as infringing Blackie’s First Amendment “right” to freedom of speech. The plaintiffs represented themselves and Blackie. Both Judge Bowen’s and the Court of Appeals’ judgments repay careful reading as models of entertaining legal reasoning.
83. In dealing with the constitutional issue the Court of Appeals said:
    

“This Court will not hear a claim that Blackie’s right to free speech has been infringed. First, although Blackie arguably possesses a very unusual ability, he cannot be considered a “person” and is therefore not protected by the Bill of Rights. Second, even if Blackie had such a right, we see no need for appellants to assert his right jus tertii. Blackie can clearly speak for himself.”

84. The enactment of the Uniform Acts may cause a reappraisal by the profession and, then, by the Courts, of the question of federal jurisdiction in interstate and intranational defamation matters. No doubt the new legislation will spawn many intriguing new arguments of which the issues raised above may form part.

---

* A paper presented at the Media Law Conference, Marriott Hotel Sydney on 26 October 2006 : see too papers originally presented at the University of New South Wales law faculty “Defamation & Media Law Update 2006&#822[1] seminar on 23 March 2006 (published (2006) 28 Aust Bar Rev 1) and at the College of Law City 2006 Autumn Intensive on 29 March 2006.

1 A judge of the Federal Court of Australia.

[2] This happened in New South Wales (Defamation Act 2005), Victoria (Defamation Act 2005), Queensland (Defamation Act 2005), South Australia (Defamation Act 2005), Western Australia (Defamation Act 2005), Tasmania (Defamation Act 2005) and the Australian Capital Territory (Civil Law (Wrongs) Act 2002 as amended by the Civil Law (Wrongs) Amendment Act 2006); and Northern Territory (Defamation Act 2006). Section references are to the Defamation Act 2005 (NSW)

[3] see In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257: Re Wakim; Ex parte McNally (1999) 198 CLR 511

[4] s. 19 (as to original jurisdiction) and s. 24 (as to appellate jurisdiction) of the Federal Court of Australia Act 1976

[5] (1999) 198 CLR 511 at 584-588 [136]-[147]
[6] s. 14 of the Uniform Acts
[7] s. 26 of the NSW Uniform Act
[8] s. 15(1)(d)
[9] s. 38(1)(a) of the Uniform Act (NSW)
[10] s. 38(1)(b) of the Uniform Act (NSW)
[11] s. 20(3) of the Uniform Act (NSW); see also Civil Liability Act 2002 (NSW) Pt 10 esp s. 69
[12] s. 24(1) of the Uniform Act (NSW)
[13] s. 25
[14] s. 26
[15] s. 27
[16] ss. 27-30
[17] s. 31
[18] s. 32
[19] s. 23
[20] s. 25 of the Uniform Act (NSW)

[21] see Howden v “Truth” and “Sportsman” Ltd [1937] HCA 74; (1937) 58 CLR 416 as to this test under s. 7 of the Defamation Act 1912 (NSW)
[22] cp Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153 at p 157 F;
[23] 14 NSWLR 153 at p 156 E
[24] see e.g. A v B plc [2002] EWCA Civ 337; [2003] QB 195; Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457
[25] see e.g. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
[26] s. 16 of the Defamation Act 1974 (NSW)
[27] see s. 26 of the Uniform Act (NSW)
[28] [2001] NSWCA 434; (2001) 53 NSWLR 541 at 543 [5]
[29] [2001] NSWCA 434; 53 NSWLR 541 at 543 [5]
[30] [2001] NSWCA 434; (2001) 53 NSWLR 541
[31] [1961] AC 1090 at pp 1142-1143
[32] [1602] EngR 6; (1602) 4 Co Rep 18b, 19b
[33] (1824) Ry & M 112
[34] [2002] NSWSC 1028; (2002) 56 NSWLR 89 at 106-107 [71]
[35] [2003] HCA 52; (2003) 216 CLR 327
[36] [2003] HCA 52; 216 CLR 327 at 335 [15]

[37] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 324 per Mason JA; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63 per Hunt J

[38] [1997] HCA 25; (1997) 189 CLR 520 at pp 572.2-575.4
[39] [1994] HCA 46; (1994) 182 CLR 104 at p 137
[40] [1994] HCA 45; (1994) 182 CLR 211 at pp 252-253
[41] see [1997] HCA 25; 189 CLR 520 at p 574.2-.10
[42] Rares: Free Speech in the Law (1995) 13 Australian Bar Review 209 at p 215.5
[43] (1985) 1 NSWLR 30 (Hunt J); (1989) 20 NSWLR 493 (CA)
[44] 20 NSWLR 493 at p 495 C-D

[45] [1986] AC 299 at p 313; (1985) 3 NSWLR 354 at p 360
[46] [1977] 2 NSWLR 749 at pp 796, 797-798
[47] [2006] UKHL 44
[48] [2001] 2 AC 127

[49] [2006] UKHL 44 at [50], Lord Scott of Foscote at [144], Baroness Hale of Richmond at [150] agreeing
[50] [2006] UKHL 44 at [50]
[51] [2006] UKHL 44 at [33] per Lord Bingham of Cornhill, [51] per Lord Hoffmann
[52] [2001] 2 AC 127 at 202
[53] [2002] UKPC 31; [2003] 1 AC 300 at 309
[54] see [2006] UKHL 44 at [32], [53]-[57], [107], [144], [146]-[150]
[55] (2004) 218 CLR 366 at p 377 [22]

[56] Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 at p 117 per Dixon J quoting Dickson v Earl of Wilton [1859] EngR 26; (1859) 1 F&F 419 at 426 [175 ER 790 at 793] per Lord Campbell CJ

[57] Hansard on 12 October 2005. The Attorney was referring to the common law principles established in the authorities referred to by Jordan CJ in Goldsborough v John Fairfax & Sons Ltd [1934] NSWStRp 43; (1934) 34 SR (NSW) 524 at pp 530.3-534.7; Gardiner v Joh Fairfax & Sons Pty Ltd (1942) SR (NSW) 171 at p 173.2-.10

[58] The Hon Bob Debus MP

[59] In the jurisdictions in which juries determine all other issues, s. 22(3) of the Uniform Acts so provides.

[60] cp: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at p 66.7-.10 per Mason CJ, Deane, Dawson and Gaudron JJ

[61] see s. 35(2)
[62] s. 35(1)
[63] s. 35(3)
[64] s. 37
[65] s. 36

[66] see e.g. Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 79 ALJR 1389 at 1392 [9]- [10], [2005] HCA 38; 218 ALR 677 at 680 per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ

[67] and its analogues

[68] So, in Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) 10 ATPR 40-887 at 49,604 col 1.2) Jenkinson J thought it not unlikely that a trial by jury would be ordered in a defamation action which was combined with a count under s. 52 of the Trade Practices Act 1974.
[69] National Mutual Holdings Pty Ltd v The Sentry Corporation [1988] FCA 133; (1988) 19 FCR 155 at 162
[70] [1982] HCA 4; (1982) 150 CLR 500 at 506.9
[71] see Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

[72] (1999) 198 CLR 511 at 585-586 [140]-[141]; see too Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [29]- [32], [36], [43]

[73] Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ
[74] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 45 at 512 per Mason J
[75] Fencott (1983) 152 CLR 570 at 607 per Mason J, Murphy, Brennan and Deane JJ
[76] [1997] HCA 25; (1997) 189 CLR 520
[77] [2002] HCA 57; (2002) 212 CLR 1 at 29 [73]
[78] [1997] HCA 25; (1997) 189 CLR 520 at 571.4-572.2
[79] (2002) 210 CLR 575 at 600 [26], 606-607 [44]

[80] 210 CLR at 600 [27]; citing Duke of Brunswick v Harmer [1849] EngR 915; (1849) 14 QB 185 [117 ER 75]; McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 519-520, 528

[81] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575

[82] s. 39B(1A)(b) reflects s. 76(i) of the Constitution; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [42]

The Australia Acts 1986 (Cth and Imp) had the effect of extending the legislative powers of the States so as to enable them to make laws with extraterritorial effect, subject to the Constitution and the Commonwealth of Australia Constitution Act 1900 (Imp), and also so as not to affect the Statute of Westminster 1931 (see ss. 2, 3, 5 of the Australia Act 1986 (Cth): see also Sweedman v Transport Accident Commission [2006] HCA 8 at [43]- [52] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1)

So, in theory, each State could pass an enactment which provided for consequences under its law in respect of causes of action litigated within its courts even if one or more of those causes of action owed its existence to the law of another State. But, it must be borne in mind that in a federal system one does not expect to find one government legislating for another (Sweedman v Transport Accident Commission [2006] HCA 8 at [22] per Gleeson CJ, Gummow, Kirby and Hayne JJ; cf: In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 at p 529.7 per Dixon J). However, the effect of such a State law may not be able to supervene s. 118 of the Constitution which requires that full faith and credit be given to the law of the other State sought to be rendered irrelevant.

The choice of law provision in s. 11 purports to operate so as to bind each court exercising jurisdiction in cases of interstate or intranational publication not merely because each State law says it does, but because “effect must always be given by a State or Territory court to the Constitution” (covering clause 5 as noted by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John PfeifferPty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at 517-518 [15]). This will raise a question as to how the Constitution’s requirement in s.118, that full faith and credit be given to such State laws, will operate.

It can be seen that, while s. 11 of the Acts seeks to provide a single choice of law rule common to each jurisdiction, s. 118 of the Constitution requires that full faith and credit be given by, inter alia, the laws of each State to those of the other States and by courts, including the Federal Court, to the laws of the States. This relationship between the Acts, the common law and the Constitution may give rise to a “matter” in the constitutional sense, a proposition that is to be explored further in the following section.

[83] see s. 11(2)

[84] Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 586 [141], 587 [147]

[85] cf: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 586 [54], 598-599 [95], 606-607 [121]

[86] see John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at 535 [69], 539 [81] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

[87] see per Gleeson CJ, Gummow, Kirby and Hayne JJ in Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625 at 628 [12], 633 [33]

[88] e.g. Take the time when, as an unlikely applicant, FAI General Insurance Co Limited succeeded in demonstrating that a rival insurer’s broker had contravened s. 52 of the Trade Practices Act 1974 by engaging in conduct which was misleading and deceptive in misdescribing the effect of FAI’s professional indemnity policy’s wording, causing it harm (RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92; (1993) 41 FCR 164 (FCAFC); FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd 108 ALR 479 (Foster J)). Ironically, the generosity of that policy’s wording was a cause of FAI’s later collapse.

[89] (2002) 210 CLR 575 at 604 [36]
[90] 210 CLR 575 at 604 [36]
[91] 210 CLR 575 at 605 [37]
[92] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
[93] Constitution s. 118
[94] e.g. Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

[95] i.e. publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons: see s. 11(5)

[96] as defined in s. 11(5)
[97] (2001) 204 CLR 559 at 587 [57]

[98] 204 CLR 559 at 587 [57] citing from South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130 at 140

[99] see e.g. 204 CLR 559 at 587-588 [58], 611-612 [134]-[137] per McHugh J, cp at 639 [219]-[220] per Hayne and Callinan JJ

[100] [1985] HCA 19; (1986) 160 CLR 548 at 560.10-561.1
[101] [1968] HCA 85; (1968) 122 CLR 338 at 343
[102] [2000] HCA 36; (2000) 203 CLR 503 at 535 [68], 540 [89] 542 [96]
[103] [2000] HCA 36; 203 CLR 503 at 544 [102]- [103]
[104] [2000] HCA 36; (2000) 203 CLR 503 at 544 [103]

[105] One further complication should be mentioned – the truculent menace of much of the twentieth century, s. 92 of the Constitution. It provides, relevantly that “... trade commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”. The word “intercourse” includes communication, as Dixon J pointed out in Bank of NSW v The Commonwealth ((1948) [1948] HCA 7; 76 CLR 1 at 381.8; see generally at 380.10, 381.5-382.4).

In Nationwide News Pty Ltd v Wills ((1992) [1992] HCA 46; 177 CLR 1 at 56.1) Brennan J said that the expression of ideas whether in literary or other form was capable of attracting the operation of s. 92 (see too at [1992] HCA 46; 177 CLR 1 at 54.10-60.1 per Brennan J, 82.2-84.2 per Deane and Toohey JJ). And Deane and Toohey JJ said that the fact that words were used or published in the course of trade or commerce in the production, distribution and sale of a newspaper “... would not affect the application or operation of s. 92’s guarantee of freedom of interstate intercourse” [1992] HCA 46; (177 CLR 1 at 84.2 and see too Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 191.10-192.2 per Dawson J)

As the High Court pointed out in Cole v Whitfield ((1988) [1988] HCA 18; 165 CLR 360 at 388.1), the notions in s. 92 of absolutely free trade and commerce and absolutely free intercourse are quite distinct (165 CLR at 393.5, 393.8, 393.10-394.2)

So, a question may arise as to whether in some way the Uniform Acts cut across the freedom of intercourse which s. 92 protects. That issue, if it arises, will, no doubt, require a particular examination of the operation of some section in a factual setting about which I will not begin to think, let alone, speculate.

[106] 551 F. Supp 349 (1982): [1983] USCA11 929; 710 F 2d 1542 (1983; CA 11)