In Queensland, individuals accused of sexual offences can now be named in the media before the case is committed or heads to trial. Attwood Marshall Lawyers Commercial Litigation Senior Associate Jade Carlson explores this significant shift, comments on current high-profile cases, and asks whether it will lead to more defamation claims.
On 3 October 2023, laws came into effect in Queensland allowing accused rapists and sexual assault offenders to be named prior to committal.
Former Liberal party staffer Bruce Lehrmann was the first high-profile case to be affected, with the Supreme Court of Queensland refusing to grant him a non-publication order under the new legislation. The media was then able to report that Mr Lehrmann had been charged in December 2022 with two counts of rape.
The allegations relate to an incident in Toowoomba in October 2021 and are separate to the sexual assault claims Mr Lehrmann faced from his former colleague Brittany Higgins, which have been the subject of intense media scrutiny and which Lehrmann has consistently denied.
The unveiling of his name in the Toowoomba case came after a monthslong battle between his legal team and media outlets. Mr Lehrmann, who will reportedly plead not guilty, had cited mental health issues in a bid to keep his name suppressed. But the court concurred with the position taken by media outlets, who had argued that Mr Lehrmann’s engagement in media interviews and the fact he had launched parallel defamation proceedings related to the Higgins claims contradicted someone in a poor psychological state seeking privacy.
With the ability to name alleged sexual offenders far earlier in the legal process than before, there are important factors individuals commenting on cases will need to keep in mind – the risk of defamation, for one.
The Queensland Government has updated its Sexual Violence Media Guide to reflect these new changes, advising journalists on how to approach the naming of adults accused of a sexual offence, with a reminder that publishing defamatory material can lead to defamation claims.
But it’s not just journalists who can be sued for defamation. Things published online – such as on social media or forums – are treated the same as any other type of publication when looking at defamatory material.
Shortly after being named in the Toowoomba case, Lehrmann threatened Higgins with further legal action following her Instagram post publicly commenting on his fresh rape charges.
Just this week he has been testifying in his defamation trial against Network Ten and journalist Lisa Wilkinson, related to an interview with Ms Higgins in 2021.
It’s important for people to understand that they can be held liable for what they post, comment on, or even review, in public online places.
Changes to Criminal Law (Sexual Offences) Act 1978
The changes to naming alleged offenders have been introduced to the Criminal Law (Sexual Offences) Act 1978 through the Justice and Other Legislation Amendment Act 2023.
Previously, the media were prohibited from reporting the identity of accused rapists or defendants facing charges for prescribed sexual offences, until their case was formally committed.
A prescribed sexual offence includes rape, attempt to commit rape, assault with intent to commit rape and sexual assault.
Now, offenders can be publicly named in the media before they stand trial, except in circumstances where it would identify or lead to the identification of the complainant. In those circumstances, it is likely a non-publication order will be granted by the court.
The reforms bring Queensland closer in line with other Australian jurisdictions, except for the Northern Territory.
The changes, which were recommended by the Women’s Safety and Justice Taskforce, mean that those accused of a sexual offence will be treated the same as any other individual charged with any other criminal offence.
What is defamation?
Anybody who publishes defamatory material may be sued for defamation. In its simplest form, defamation is the publication of material which harms a person’s reputation.
To succeed in an action for defamation, the aggrieved person (or plaintiff) must prove, among other things, that:
- The material has been published to a third party;
- The material clearly identifies and is about the aggrieved person;
- The material published contains defamatory imputations about the aggrieved person, which are untrue; and
- The published material caused, or is likely to cause, serious harm to the reputation of the aggrieved person.
If the above elements are proven in court, and there is no arguable defence, then the court may make an award of damages. In the case of general damages or non-economic loss, the court will seek to award damages proportionate to the harm caused to the plaintiff’s reputation, of no greater than $250,000.
It is important to keep in mind that it is the effect of what is said (that is imputations carried) that is defamatory, rather than what is exactly said.
In general, there are a number of statutory defences available to a defendant accused of defamation.
- Justification: If the statement is substantially true.
- Contextual truth: If the statement is mostly true and does not further harm the plaintiff’s reputation.
- Absolute privilege: If the statement is made in Parliament or in Court.
- Public document: If the statement is republished from a public document.
- Fair report: If the statement is a fair report of proceedings of public concern.
- Public interest: If the statement is published in the public interest.
- Qualified privilege: If the statement is published to someone with a legitimate interest in knowing the information and the publisher’s conduct is reasonable.
- Honest opinion: If the statement is an opinion of public interest based on facts.
- Innocent dissemination: If the statement is repeated without knowledge that it is defamatory or without negligence in not finding out.
If you are facing defamation claims, it is important that you obtain legal advice without delay, noting there are strict timeframes by which you must commence proceedings, otherwise you risk be barred from taking action.
Attwood Marshall Lawyers – Experienced defamation lawyers helping to protect your reputation
No two matters are the same when it comes to defamation, so it is important to get independent legal advice about your specific circumstances to understand the best course of action to take.
Attwood Marshall Lawyers has a dedicated team of Commercial Litigation lawyers who practice exclusively in this complex area of law. If something has been written, said, or published about you which you believe has damaged your reputation, contact our team to find out where you stand.
Strict time limits apply so it is important to seek advice from an experienced defamation lawyer as soon as possible. We can also help you understand your rights and obligations if you are facing a defamation claim.
For a confidential discussion about your matter, please call our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, or email aheather@attwoodmarshall.com.au or free call 1800 621 071.
Our defamation lawyers are available for appointments at all our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
