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Legislative Assembly for the ACT: 1999 Week 13 Hansard (9 December) . . Page.. 4055 ..

MR HUMPHRIES (continuing):

House of Lords. Since that time in New South Wales and then in the ACT, a defendant has been required to show not only that the matter was true, but also that publishing the matter served a public benefit. It is now proposed that the defence of truth should revert to its original simple common law form.

There may be howls of protest at this proposal. Some may see it as a sign of the end of civilisation. Others may argue that they dare not take this step without first making new laws about privacy, spent convictions or some other aspect of the law. These arguments, Mr Speaker, lack credibility. First of all, the proposal brings ACT law into line with other common law jurisdictions. Demonstrably the law in those places has not led to the collapse of polite society.

As for the argument that we must make laws dealing with other matters first, those making the argument miss the point of this area of law. The function of defamation law is the protection of reputation. The public benefit test has had a distorting effect on the law of defamation by shifting the issue away from reputation to the protection of some other right, such as a right to privacy. The law of defamation is not the appropriate mechanism to protect other evolving rights. If there are gaps in the general law, they should be addressed on their own merit, not as a by-product of a law which, until now, has been the preserve of the rich and famous.

Mr Speaker, the Bill provides a new offer of amends scheme. As politicians, some of us are defamed almost daily, mostly under parliamentary privilege. We do not defend our reputations by scurrying off to the courts, but through robust debate, correction and, sometimes, apology. Immediacy is the great strength of the parliamentary process and its rules. In contrast, defamation litigation generally happens many years after an event. It sometimes happens so long after the event that any decision by a court can have little effect on restoring the reputation of a person. Media reports of proceedings, when the matter finally comes to court, often gain greater currency and do greater damage than the original defamatory publication. In such circumstances, perhaps we should not be surprised to find the courts place greater emphasis on awards of damages than prompt correction and legitimate costs as the goal of these proceedings.

There seems to be general agreement that this problem may be ameliorated by introducing a statutory offer of amends scheme into the defamation law. Again, we find ourselves walking in the footsteps of Lord Campbell and his statutory process for apologies. Today, the Lord Campbell scheme is little used as there are few structural incentives for potential litigants to seriously attempt to resolve a dispute short of going to trial. Indeed, there are significant tactical disincentives to using the old apology provisions.

Under the proposed scheme, litigants are encouraged to consider timely and reasonable corrections. A publisher may make a formal offer of amends that may consist of an apology, correction, offer of settlement or a combination of the three. The person defamed must seriously consider an offer. Under the proposed model, the making of an amends at the earliest sign of a problem is now very attractive. A reasonable offer of amends is a complete defence to a later action for defamation.

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