Page 3205 - Week 11 - Wednesday, 11 September 1991
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Mr Connolly's speech, that what he was doing was in line with that committee, allayed my initial fears. I think it is essential that the main thrust of what Mr Connolly is saying and, indeed, what Judge Kelly's committee is saying is adhered to in the ACT. As the Attorneys-General of Queensland, New South Wales and Victoria are slowly and rather laboriously agreeing on reform of defamation law, the ACT cannot really remain an island in the eastern States and do something completely different.
The Standing Committee on Legal Affairs in its first inquiry looked into defamation law. It had a number of hearings, spoke to a number of people, and read quite a bit of material in relation to that topic. It became quite clear to me as chairman that the ACT was a haven for plaintiffs taking defamation actions. The reasons for that were somewhat varied; but the main thrust was that a person who was allegedly defamed in New South Wales, in the print media and in the media in general, would in many instances have a greater chance of success and getting greater damages if he took an action in Canberra rather than in Sydney, where the major defamation occurred.
The ACT does not have jury trials for defamation and, because a judge alone decides, certain classes of plaintiffs - politicians being one of them - feel that they will get better damages than if a jury of ordinary members of the community heard their action. It was interesting in evidence given before my committee that there has been an increase in some local defamation actions taken in the ACT, and 50 per cent of that increase has been because of the establishment of this Assembly and some of the antics that have gone on since we began operating in May 1989.
It is worth noting just what stage the eastern States have reached. In their second discussion paper, the SCAG meeting in April 1991 reached five points of agreement: Firstly, that defamation actions must be brought within six months of the date when the plaintiff first learnt of the publication, with an absolute limitation period of three years; secondly, that the criminal defamation offence will be retained, subject to the discretion of the relevant State directors of public prosecutions. No such criminal defamation actions have ever been taken in the ACT, I hasten to add.
Thirdly, truth alone will be a defence against defamation, except where the publication is an invasion of privacy. In that case, publication will be justified only if it is in the public interest. Fourthly, a system of court-recommended correction statements will be established as an intermediate proceeding. Fifthly, the contempt laws will be the subject of a separate review. It is worthy of note that the Assembly committee which looked at defamation law, the Standing Committee on Legal Affairs, thought that the ACT could not remain an island unto itself and recommended that whatever we did should be very much guided and determined by what the three largest eastern States did in relation to defamation law.
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