By Jack Wass (Stout Street Chambers)
A trans-Tasman controversy arose this week, when Australia’s former foreign minister, Bob Carr, accused New Zealand’s foreign minister and deputy prime minister, Rt Hon Winston Peters, of defamation. The allegation arose out of comments Peters made on Radio New Zealand’s Morning Report during a discussion of the Aukus partnership and the role of China in the region.
Carr has reportedly written to Peters threatening to bring defamation proceedings. Peters responded that this was not his “first legal rodeo”, and indeed he has given his name to a number of important decisions on the tort in New Zealand.
1News reports that Mr Carr intends to bring proceedings in New Zealand (rather than New South Wales, where he might have been be met by an argument that New Zealand was the appropriate forum).
The more interesting question is what law the New Zealand Court would apply in determining whether the statement was defamatory or is protected by privilege. Peters will no doubt argue that he should be judged according to New Zealand law when speaking in his official capacity about matters relevant to New Zealand’s public interests on a New Zealand radio station; Carr might argue that where Peters made comments calculated to damage his reputation, he should answer for them under the law of the place where Carr will suffer that damage. While both New Zealand and New South Wales law recognise defences of honest opinion and qualified privilege for political statements, it would not be safe to assume the outcome would necessarily be identical under both laws.
This tension has long existed in cross-border defamation cases, since both the place of the statement and the place of the damage will have obvious relevance. Unlike the United Kingdom, there is no special rule for defamation claims under the Private International Law (Choice of Law in Tort) Act 2017. That Act says that where the events in a tort claim arise in two different countries, the court applies “the law of the country in which the most significant element or elements of those events occurred” unless it is “substantially more appropriate for the law of another country” to apply, and there is a general safety-valve where the court can refuse to apply foreign law if it would conflict with principles of public policy (generally a high threshold). There is a sense in which these questions are question-begging, and ultimately the judge would have to make a judgement call about what connecting factor should be given the most weight in the circumstances. There is a prospect (whether appropriate or not) that that judgement itself might be informed by the Judge’s view of whether the statement in question was defensible.
Carr might elect to sue under New Zealand law and avoid this debate. If he does not, the court may well conclude that while New South Wales might be the place where the most significant element of the tort occurred, it is nevertheless more appropriate that a New Zealand court applies New Zealand law to political statements made by a New Zealand politician.
