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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2704 ..

MR STEFANIAK (continuing):

Mr Deputy Speaker, ACT defamation law is unwell. Of all our laws that have a malaise, it exists in its own special character. Let us consider our patient here. Our defamation law consists of judge-made common law as modified by two inherited New South Wales acts which are very old. The first is the Defamation Act 1901 of New South Wales. It supposedly provides a basic structure for civil and criminal actions in the ACT. The second one is the Defamation (Amendment) Act of 1909 of New South Wales. It supposedly provides for certain statutory defences to a civil or criminal action for defamation.

The patient has not only passed its use-by date, it is decrepit. The old laws contain rules that are only applicable to words spoken before 21 August 1847. They provide that an aggrieved person may seize and sell presses used in printing the defamatory article. They have been repealed in New South Wales for many years. They should be repealed here as well.

From a safe distance the existing law might appear to offer a person wronged the possibility of an eventual award of damages. But this is not borne out in the experiences of those who have been caught up in defamation proceedings. For example:

in the amazing Abbott and Costello defamation case the subsequent press reporting of the proceedings arguably did far more harm to those involved in the proceedings than the original publication. In that case the reformed law, as proposed by the government, would have afforded a swift means of redress.

a significant number of cases stall at the pre-trial stage because one or other of the parties cannot continue because of lack of funds.

analysis of procedural steps taken in defamation cases by the ACT Law Reform Commission showed that defamation practitioners failed to meet almost all of the time deadlines for undertaking steps, some of them by significant periods of time. Delay is a significant contributor to cost.

The present law places far too much emphasis on monetary damages than on timely correction. Often, by the time damages are awarded, the context in which alleged defamatory remarks were made has long since passed.

The government's bill addresses many of the problems with the existing law. In fact, the proposed law would offer tangible relief to a party at a very early stage, before the need to engage solicitors or commence actions. It also consolidates the existing law and removes unnecessary or defunct provisions. It contains detailed provisions protecting the use of specified material.

However, there were three matters where it was clear there was no consensus. The government referred these three matters to the Standing Committee on Justice and Community Safety for its consideration. While these three matters raised issues of genuine interest, the committee itself only attracted those who had made submissions to the government previously and who, with one notable exception, simply restated the positions they had previously taken.

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