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Legislative Assembly for the ACT: 1999 Week 13 Hansard (9 December) . . Page.. 4053 ..

MR HUMPHRIES (continuing):

I commend the Bill to the Assembly.

Debate (on motion by Mr Quinlan ) adjourned.

MR HUMPHRIES (Treasurer, Attorney-General and Minister for Justice and Community Safety) (10.35): Mr Speaker, I present the Defamation Bill 1999, together with its explanatory memorandum.

Title read by Clerk.

MR HUMPHRIES: Mr Speaker, I move:

Mr Speaker, if ever there was an area of the law where the challenge of reform is real and insistent, it is defamation law. If we rank the rights we enjoy in civil society according to our capacity to enforce them, then our right to assert our good name versus our right, say, to claim misappropriated property, to be granted a divorce or to have access to personal information would rank so low as to be almost non-existent.

The essence of the problem with the present law of defamation, here and elsewhere in Australia, is that it is fundamentally elitist. In effect, only the wealthy and the prominent have any prospect of pursuing defamation proceedings in most cases. A symptom of this problem is the disincentives built into the law that work against early settlement or resolution of an alleged defamation. The barriers to an action in defamation are so great as to render it a privilege few in society can realistically expect to exercise.

Mr Speaker, proposals to reform the law of defamation on a uniform basis have been made in the ACT and other Australian jurisdictions for many decades. Controversy has surrounded this area of the law since the first Australian colonies gained self-governing status. Today, after many years of effort to secure a uniform law amongst the States and Territories, we have to face the fact that uniformity, however desirable, is but a distant possibility. Other Australian jurisdictions are now taking pause to improve their own local defamation laws. Similarly, we must look to our own defamation law. Our present law is based on an uncomfortable mix of the common law and a number of old New South Wales Acts. We are poorly served by archaic legislation riddled with inconsistency and error.

In the past there has been a view that the development of defamation law can be left to judges rather than parliament. After all, it is in the nature of the common law to change and evolve. However, with the occasional celebrated exception, defamation law has been resilient to judicial reform. Even the High Court now appears to favour the view that it is proper for the legislature, rather than judges, to make substantive changes to the law of defamation.

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