Page 1356 - Week 05 - Wednesday, 12 May 2021
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does not mean that every case defended on the basis of public interest should succeed, the stark absence of a successful defence on this ground suggests the existing framework has not achieved the object of facilitating open discussion on matters of public importance.
A dedicated public interest defence exists in the United Kingdom, Canada and New Zealand, and now too it will exist in Australia generally and in the ACT specifically if this bill is passed. Getting the balance right between the right to reputation and the right to freedom of expression is of fundamental importance in a human rights jurisdiction like the ACT. Both these rights are protected under the Human Rights Act 2004, and a key focus in this bill has been getting the balance right between the two.
The bill introduces a raft of reforms to address the increasing use of defamation law for trivial and vexatious matters. At the forefront of these reforms is the introduction of the widely supported serious harm threshold. This amendment requires that a plaintiff prove that the publication of defamatory matter has caused or is likely to cause serious harm to the reputation of the plaintiff. There are additional mechanisms incorporated in this bill which will ensure that this threshold question is determined as soon as practicable before a defamation trial commences to facilitate the expedient resolution of matters. This will increase the efficiency and operation of defamation laws in the territory.
The introduction of a serious harm threshold is complemented by the further amendment requiring an aggrieved person to issue a concerns notice before litigation can be commenced. This mandatory requirement will further encourage the expedient resolution of defamation matters as well as providing a clear mechanism through which parties may seek to resolve the dispute before proceedings are even commenced. The territory stands to benefit from this legal framework that will encourage pre-trial resolution to alleviate resources on the judicial system and provide protections to people answering to trivial defamation claims.
While the model defamation provisions are uniform there are slight differences across defamation laws in Australia due to each jurisdiction’s respective legal frameworks. The ACT is one of three jurisdictions where defamation proceedings are heard by a judge alone. This bill implements the model defamation amendment provisions in such a way that is congruous with the laws of the ACT to adopt a uniform law that fits within the ACT legal environment. This will ensure that the bill will introduce amendments that allow the model provisions to operate effectively in the ACT, including that defamation trials will continue to be heard by a judge alone.
I am pleased to say that this bill not only is compatible with human rights but will, in fact, promote and balance a number of rights. I am confident that the amendments in this bill will improve the effective administration and operation of the laws in the territory. This bill is the result of hard, careful work and I believe it will be of great benefit to the territory and the nation. I commend the bill to the Assembly.
Debate (on motion by Mr Hanson) adjourned to the next sitting.
Sitting suspended from 12.01 to 2 pm.
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