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Legislative Assembly for the ACT: 1999 Week 13 Hansard (9 December) . . Page.. 4054 ..

MR HUMPHRIES (continuing):

In view of the state of the ACT law and the inherent improbability of improvement through a uniform exercise or judicial intervention, I have undertaken a review of ACT defamation law. On 11 September last year I released a discussion paper suggesting series of targeted reforms. The Bill I have presented today is based on that paper and the responses to it.

Mr Speaker, a number of important issues arise here and I will go through them in order. First of all, negligence. The most significant change proposed in the Bill is the introduction of a new defence based on negligence. The defence represents a significant departure from the present law in the Territory and other Australian jurisdictions. At present, save for a couple of minor exceptions, liability for defamation is imposed without fault. That means that you do not need to intend to harm someone to be sued successfully. You do not even need to be aware of what you are doing. You can defame someone accidentally or innocently. The person suing you need only to prove that the matter was published and that it was defamatory. The imposition of liability without fault sits uneasily with modern concepts of personal responsibility. It is inherently unfair.

In comments on the discussion paper, a new defence was proposed by Crispin Hull from the Canberra Times. He suggested that the primary defence for a defamatory statement should be the same as in negligence except where the defamation imputed criminal behaviour. Mr Hull's proposal is not novel. In 1843, Lord Campbell introduced amendments to legislation in the United Kingdom to achieve a not dissimilar result. Lord Esher, an English judge, in a number of judgments at the turn of this century similarly attempted to import the concept of negligence into the common law. Since 1974, negligence has been a defence to defamation actions in the United States as a result of a decision of the Supreme Court. However, in this country, similar attempts at judicial and legislative reform have been resisted at every opportunity and, to date, stymied.

The Government has studied the Hull proposal and believes that it has great merit. Accordingly, the Bill has been framed to permit a publisher a defence if they can prove that they did not act negligently. For the first time, innocence or the lack of fault will be a defence.

I have no doubt that this reform will generate some excitement. It may be criticised by some as being too great a concession to publishers. However, the introduction of such a defence will provide a new and powerful reason for journalists and publishers to get their stories right. This defence will introduce a new dynamic into defamation law - a dynamic which provides a significant incentive for journalists and publishers to act without negligence. This measure also rids defamation law of one of its most archaic and objectionable features - no fault liability. Together with other reforms referred to later, it is a measure worthy of considered debate and support.

I turn now, Mr Speaker, to truth. Another significant change to the law concerns the defence of truth. At common law, the most important defence for defamation is truth. That is the case in many common law countries and a number of Australian States, including Victoria. The common law defence was altered in New South Wales very early in its colonial history, based on recommendations of a select committee of the

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