Defamation cases need weeding out, says Christian Porter

Attorney-General Christian Porter wants a new threshold test to weed out trivial defamation cases.

Attorney-General Christian Porter.

Federal Attorney-General Christian Porter says it is a matter of “screaming obviousness” that a new threshold test is needed to weed out trivial defamation cases he says are overwhelming the courts.

Mr Porter told The Australian he was “shocked” by the amount of low-level defamation action, saying the issue deserved “quick attention” because it was not productive for litigants or the courts.

His comments come after state and territory attorneys-general this week released a discussion paper flagging major potential changes to the nation’s outdated defamation laws.

The changes being considered include moves that could stamp out forum shopping by litigants between the state and federal courts, improve the defences available to protect public interest journalism, and restore the effectiveness of a statutory cap on defamation payouts.

Mr Porter said he wanted to consider the responses to the discussion paper before forming a view on most aspects of reforms.

However, he said setting a threshold to prevent trivial cases was so obvious he was prepared to express a view on it early. In Britain, a “serious harm” test exists to weed out such cases.

“There is an astonishing amount of defamation action going on at the lowest level of our courts — neighbours against neighbours, things said by one person to three other Twitter users,” he said. “It’s quite incredible … and I think its merits, in terms of its effects on the litigants and its effects on the court system, are highly questionable.”

He said there were other methods to settle such disputes than “full-blown litigation”, including the ability for individuals to obtain orders to have material quickly ­removed from the internet or ­administrative arbitration to resolve disputes, he said.

Mr Porter also flagged possible support for measures to prevent forum shopping between courts. The Federal Court has become an increasingly popular forum for defamation litigation because in general, cases are determined by a judge sitting alone. This is in contrast to state courts, in which ­either side can elect for a case to be heard by a jury.