WA councillor pushes for defamation reform, citing chilling effect on local government

The core issue is the "serious harm test". Under WA law, a claimant does not need to prove a publication has caused or is likely to cause serious harm to their reputation before a defamation claim can proceed. In every other Australian jurisdiction, the 2020 provisions allow such claims to be dismissed at an early stage if this threshold is not met.

"Every other Australian jurisdiction has adopted the serious harm test through the Model Defamation Amendment Provisions 2020, while Western Australia remains the only state yet to implement this important reform," Green stated in the council agenda ahead of Tuesday's meeting.

Green argued the current situation has a "detrimental effect on free speech and accountability, particularly in local government," describing councillors as "reluctant to speak out."

Attorney General Tony Buti confirmed that work was progressing. He said the reforms would be "consistent with the Model Defamation Provisions implemented in other jurisdictions, which include a serious harm test and a single publication rule." Buti added that work on the Stage 1 and Stage 2A reforms was "under way and legislation will be introduced into Parliament once it is finalised."

The amendments were originally agreed to by all states, including WA, following a 2020 review by the Council of Attorneys-General.

Analysis

Why This Matters

The absence of a serious harm test in WA creates a chilling effect, potentially discouraging local councillors from raising legitimate concerns or speaking freely on community issues for fear of expensive legal action.
The reform would bring WA into line with the rest of Australia, creating a national standard that balances free speech with protection from frivolous defamation claims.
The outcome of the proposed legislation will determine whether local government accountability is strengthened or remains stifled in the state.

Background

In 2020, the Council of Attorneys-General agreed to a suite of model defamation amendments for all Australian states and territories. These provisions introduced a "serious harm" test, meaning a defamation claim can be dismissed early if the plaintiff cannot demonstrate serious harm to their reputation. While all other jurisdictions have adopted this framework, Western Australia remains the only state that has not yet legislated the changes. Councillor Scott Green's motion directly challenges this lag.

Key Perspectives

[Councillor Scott Green, City of Melville]: He is advocating for immediate reform, arguing the current laws are out of step with the rest of the country and are directly harming democratic participation and accountability at the local government level. [WA Attorney General Tony Buti, State Government]: Acknowledges the need for reform and confirms work is progressing on the legislation. The government aims to align with the national model provisions but has not provided a specific timeline for the introduction of the bill. [Critics/Skeptics of Reform]: While not explicitly quoted in the source articles, the core tension lies between the need to protect free speech and accountable governance, and the right of individuals and entities to protect their reputation from defamatory statements. The delay suggests potential internal government concerns or complexities in drafting the legislation.

What to Watch

The formal introduction of the Stage 1 and Stage 2A reform legislation into the WA Parliament.
The response from the WA Local Government Association to Green's notice of motion.
Whether other local councils follow Melville's lead in applying public pressure on the state government.

Analysis

Why This Matters

Background

Key Perspectives

What to Watch

Sources