An historico-legal study of the Defamation Act, 1958 (NSW)

Topic: An historico-legal study of the Defamation Act, 1958 (NSW)

Presenter: Dr David Galbraith - MPhil Candidate, TC Beirne School of Law

The working title of the thesis is "An Historico-legal Study of the Defamation Act, 1958 (NSW)", and it is intended that it will be a "cradle to grave" study of the Act from both legal and historical perspectives. The bill for the Act was introduced into the Legislative Assembly in October, 1958 and received the Royal Assent and commenced on 31 December of that year. It was repealed by the Defamation Act, 1974 (NSW).

From a purely historical point of view, the principal question to be addressed concerns the motivations of the then NSW government in repealing the Defamation Act, 1912 (NSW) that was based upon the common law, and replacing it with a statute that was based upon the Queensland Law of Defamation Act, 1889 and the Criminal Code, 1899. Here the allegation has been that the government was motivated by desire to provide a civil cause of action for "defamation of the dead" and to allow for criminal prosecutions in the like circumstances in the wake of publication of "Wild Men of Sydney" by journalist Cyril Pearl. That book was highly critical of John Norton (who had died in 1916), and whose son Ezra was a prominent newspaper publisher in 1958. New South Wales was due to have an election in March, 1959 it has been contended that the 1958 Act was passed as a quid pro quo for Norton's newspapers supporting the government in that election. John Norton's widow was also alive in 1958.

The bill for the 1958 Act was bitterly fought in both Houses of the NSW Legislature, principally on the ground that it allowed causes of action for "defamation of the dead", and a question arises as to the extent that the relevant provision (s. 5) involved any modification of the common law. Related is the question of the extent to which s. 5 featured during the period that the Act was in force, and its significance in the ultimate repeal of the 1958 Act. As well as being opposed in the NSW Legislature, the measure was also strenuously opposed by professional and amateur and others concerned with what may be broadly described as those concerned with freedom of speech. 

The 1958 Act followed closely the Queensland statures referrd to above, and this gives rise to the question of the extent that either those statutes constituted a codification of defamation law.

While the 1958 Act was in force, there were about 60 reported decisions (both at first instance and on appeal) which considered it, and it is intended to consider these decisions to ascertain the extent to which they revealed difficulties concerning its workability and other problems concerning its operation. In broad terms the contentions are that the 1958 Act generated uncertainties and was unduly technical. 

Shortly after a change of government in NSW in May 1965, the question of defamation law was referred to the newly established Law Reform Commission, and in a Report published in 1971 it recommended that the 1958 Act be repealed, and that the NSW of defamation again be modelled opn the common law. While the 1974 Act repealed the 1958 Act, there were several provisions in it that were modelled on provisions in the 1958 Act. It should be noted that while the opposition of the day did not oppose the repeal of the 1958 Act, it gave warning that, at the Committee Stage, it would seek to" emasculate" the government's bill. The thesis will examine these processes. 

Finally, the thesis will consider the significance of the 1858 Act in the overall history of Australian defamation law down to the commencement of the 1958 Act. 

All welcome, please register by emailing Beth Williams.

Contact: Beth Williams, ph: (334) 69350, email: events@law.uq.edu.au