What Is a ‘Concerns Notice’ Under Defamation Laws in New South Wales?

Former Federal Defence Minister, Linda Reynolds, has sent a letter of concern – a pre-emptive signal of potentially launching a defamation suit – against Environment Minister, Tanya Plibersek in the latest spin-off lawsuit from the high profile criminal prosecution of Bruce Lehrmann over ultimately unproven allegations of sexual assault. 

Senator Reynolds – in whose office the incident was alleged to have  occurred in, in 2019 – has sent a letter of concern over statements Ms Plibersek made during an interview with Channel 7 that implied Ms Reynolds had acted inappropriately during the investigation of Ms Higgins’ allegations and had attempted to “hide the commission of a criminal offence.”

During the interview, Ms Plibersek stated: “The central point here is that a young woman made an allegation that she had been sexually assaulted in her workplace and that it had been inappropriately investigated, even covered up by her employers.”

Concerns notices

A concerns notice is a letter by an aggrieved person to an individual, business or company that is alleged to have published defamatory statements about them.

It essentially identifies the published material which the aggrieved person claims breaches the laws of defamation and gives the publisher an opportunity to rectify the situation, whether that is by deleting or editing the material, formally apologising, paying compensation and/or paying legal costs.

The formal requirements for concerns notices in New South Wales are contained in section 12A of the Defamation Act 2005 and are that:

1. It is in writing,
2. It specifies where the allegedly defamatory material can be accessed (for example, the webpage, newspaper or magazine brand, date and page etc),
3. It specifies the allegedly defamatory imputations (known as the ‘imputations of concern’),
4. It describes the serious harm (such harm being a requirement of an action for defamation under recent changes to the law) caused or likely to be caused by the imputations of concern  to the aggrieved person’s reputation, and
5. In the case of an aggrieved person considered to be an excluded corporation (for example, a company with 10 or more employees) it describes the serious financial loss (this being a requirement for such entities) caused or likely to be caused by the publication), and
6. A copy of the concerns notice as well as the allegedly offending publication (if practicable) is provided to the publisher.

Under recent changes to defamation laws in New South Wales, legal proceedings for defamation cannot be commenced until at least 28 days after a concerns notice has been served on the other side.

It reported that the concerns notice sent by Ms Reynolds includes an option to “make amends” – to provide a signed apology, retract her comments, pay Senator Reynolds’ legal costs and pay an appropriate sum as compensation for damages publication within 28 days and that Ms Plibersek is considering her options. 

‘Lying Cow’ defamation 

Some may remember that in the days following the allegations of sexual assault going public on 15 February 2021, Brittany Higgins was highly critical of the way the incident was handled by Senator Reynolds who was her boss at the time.  

In March 2021, it was leaked to the media that Linda Reynolds called Brittany Higgins a “lying cow’ within the earshot of other staff members, the day Ms Higgins went public with her sexual assault allegations.

Ms Reynolds did not deny saying the words when she was initially contacted by the media for comment. Nor did she admit it, let alone issue an immediate apology. Higgins sued for defamation, with Linda Reynolds subsequently apologising to Brittany Higgins and agreeing to pay both Ms Higgins’ legal costs and make a donation to a sexual assault charity as part of a confidential settlement with her former staffer. 

Warning from the AFP about concealing criminal behaviour 

Around the same time – late February 2021, then Prime Minister Scott Morrison received a stern warning from the Commissioner of the Australian Federal Police (AFP), that those in positions of power in Canberra are not a ‘law unto themselves’ and that any “failure to report alleged criminal behaviour … or choosing to communicate or disseminate allegations via other means, such as through the media or third parties, risks prejudicing any subsequent police investigation.”

In the same letter, Commissioner Reece Kershaw stressed that politicians should refer information relating to alleged sexual offences to the AFP without delay, “taking into account the rights and privacy of the victim… regardless of which jurisdiction… the alleged conduct occurred.”

The AFP’s handling of the sexual assault case and the prosecution of Bruce Lehrmann have recently been the subject of the Sofronoff Inquiry – the final report is due within the coming months. 

Compensation from the Commonwealth 

After the Lehrman trial was aborted in November 2022 because of juror misconduct and the ACT DPP decided not to pursue a second trial there were several reports that Ms Higgins’ intented to sue Linda Reynolds and Michaela Cash, (whose office Higgins worked in after the election in 2019) along with the Commonwealth for sexual harassment, sex discrimination, disability discrimination, negligence, and victimisation.

However, in recent weeks it has been reported that Ms Higgins has received a confidential compensation payout from the Federal Government for about $3m. This has also been the subject of some controversy. 

The real amount of the settlement has not been disclosed and Linda Reynolds has suggested she will ask the new National Anti-corruption Commission to investigate it when it begins operations on July1.  

Other defamation suits are yet to reach court – Bruce Lehrmann is suing Lisa Wilkinson and Network 10 for defamation, and has not ruled out suing Brittany Higgins for defamation also.