Introduction
Australia’s defamation laws were designed to operate as a nationally consistent scheme. That aspiration held true after every State and Territory adopted the Defamation Act 2005 (or equivalent) by 1 January 2006. But the landscape changed dramatically with the 2021 Stage 1 Model Defamation Amendment Provisions (MDAPs).
Today, Western Australia (and the Northern Territory) stand alone as the only jurisdictions that have not adopted the 2021 reforms. The result is a fractured national framework, significant procedural divergence, and a growing trend of forum shopping by plaintiffs seeking to avoid the new barriers introduced elsewhere.
This article explains what the reforms were, why WA’s refusal to adopt them matters, and how litigants are exploiting the gap.
What WA Has Not Adopted
The 2021 reforms introduced four major changes to the uniform defamation law. WA has adopted none of them:
1. Serious Harm Threshold
Plaintiffs in reformed jurisdictions must prove the publication caused, or is likely to cause, serious harm to their reputation. WA plaintiffs do not need to prove serious harm—only publication, identification, and defamatory meaning.
2. Mandatory Concerns Notice
Elsewhere, plaintiffs must issue a detailed concerns notice before suing. In WA, plaintiffs can commence proceedings without:
- giving a concerns notice
- identifying imputations
- waiting for a response
3. Public Interest Defence
The new statutory defence protecting responsible public‑interest journalism does not exist in WA.
4. Single Publication Rule
Reformed jurisdictions start the 1‑year limitation period from the first publication. WA still applies the old republication rule, meaning:
- every re‑post, re‑upload, or re‑broadcast is a new publication, and
- each one restarts the 1‑year limitation period.
This makes WA one of the most plaintiff‑friendly jurisdictions in the country.
Why Plaintiffs Are Forum Shopping Into WA
Because WA has not adopted the 2021 reforms, plaintiffs can avoid the most significant barriers to defamation litigation.
A. No Serious Harm Test
In NSW, Victoria, Queensland, SA, Tasmania, and the ACT, defendants can apply for an early dismissal if serious harm is not established. In WA, this defence does not exist.
B. No Mandatory Concerns Notice
Plaintiffs can sue immediately, without giving publishers a chance to correct or clarify the material.
C. No Single Publication Rule
Old publications can be revived simply because:
- a website refreshed the page
- a social media platform auto‑updated content
- a user re‑shared the material
This allows claims that would be time‑barred elsewhere to proceed in WA.
D. WA is now a “haven” for plaintiffs
The combination of:
- low threshold
- no early strike‑out mechanism
- flexible limitation period makes WA extremely attractive for plaintiffs seeking to avoid the 2021 reforms.
Why the Federal Court Is Also Becoming a Plaintiff Magnet
The Federal Court has become a preferred forum for defamation plaintiffs because it offers:
- no jury trials
- affidavit‑driven evidence
- efficient case management
- faster hearings
The Federal Court can hear defamation cases if:
- the claim includes a federal issue (e.g., ACL)
- constitutional issues arise
- publication occurred in the ACT or NT (almost always true for national publications)
Under s79 Judiciary Act, the Federal Court applies substantive State/Territory law but not procedural rules inconsistent with federal case management powers.
This creates a strategic opportunity:
Plaintiffs may argue the Federal Court is not required to determine serious harm before trial, even if the substantive law of a reformed State applies.
This uncertainty benefits plaintiffs and further undermines uniformity.
The Trap: Applicable Law May Not Match the Chosen Forum
Even if a plaintiff files in WA to avoid the reforms, the court must still apply the substantive law of the jurisdiction with the closest connection to the harm.
Courts consider:
- the plaintiff’s residence
- where publication occurred
- where harm was suffered
- other relevant factors
This can lead to:
- cross‑vesting (transfer to another State), or
- application of another State’s law (including serious harm and concerns notice requirements)
Plaintiffs who choose WA may still find themselves subject to the very reforms they sought to avoid.
Why WA’s Position Matters Nationally
WA’s refusal to adopt the 2021 reforms has three major consequences:
A. The uniform scheme is no longer uniform
The original 2005 Acts were adopted nationwide. The 2021 reforms were not.
B. Plaintiffs can exploit the gap
WA and NT now operate as alternative pathways for plaintiffs seeking:
- lower thresholds
- longer limitation periods
- fewer procedural hurdles
C. Defendants face increased uncertainty
Defendants must now:
- challenge forum choice
- argue for cross‑vesting
- raise choice‑of‑law defences
- deal with revived claims that would be time‑barred elsewhere
This increases cost, complexity, and litigation risk.
No Commitment From the WA Attorney General
There is:
- no public announcement
- no bill
- no policy statement
- no timetable
from the WA Attorney General indicating when, or even whether, WA will adopt the 2021 reforms.
WA did not join the majority of Attorneys‑General who approved the reforms through the Standing Council of Attorneys‑General (SCAG). Commentary routinely describes WA as a “uniform reform laggard.”
Conclusion
Western Australia’s failure to adopt the 2021 uniform defamation reforms has created a significant divergence in Australian defamation law. Plaintiffs now have strong incentives to file in WA or the Federal Court to avoid the serious harm test, mandatory concerns notices, and the single publication rule.
Defendants, meanwhile, face increased uncertainty, higher litigation risk, and the need to challenge forum choice more aggressively.
Until WA adopts the reforms, Australia’s defamation law will remain fragmented — and WA will continue to be a strategic jurisdiction for plaintiffs seeking a more favourable legal landscape.