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Legislative Assembly for the ACT: 2001 Week 10 Hansard (30 August) . . Page.. 3808 ..

MR STANHOPE (continuing):

changes to the existing law by: one, introducing a new defence based on the law of negligence; two, introducing an "offer of amends" scheme; and, three, setting out some principles to govern the award of damages.

The Standing Committee on Justice and Community Safety provided two reports on the bill. In the first report-No 1 of 2000-the standing committee, as the scrutiny of bills committee, discussed the competing rights to freedom of expression and the right to privacy, without reaching a conclusion that this bill favours one more than the other. The committee pointed out that the only way to break out of the circular argument about these rights is to make a judgment in a particular case.

In this report the committee tended to use "right to privacy" as equating to "right to protection from attacks on honour and reputation", when they are not necessarily the same thing. "Honour and reputation" are connected with how an individual is perceived by others, whereas "privacy" is concerned with matters that the individual may not want disclosed to anyone, even their most intimate acquaintances.

This distinction is important for two reasons. First, defamation is an attack on a person's "honour and reputation" rather than an attack on their privacy. Of course, a person's privacy may be attacked at the same time as "honour and reputation" but may not found an action in defamation. A person's privacy may have been invaded to gather the evidence for an attack on their public reputation.

Second, the defence of "truth alone" takes no account of any need to protect an individual's privacy. A "truth and public interest" test may not protect a public figure from adverse comments that may be defamatory but it would protect an ordinary citizen who takes no part in public life or whose activities are of no more than prurient interest. The report did not make any judgment about the merits of the bill.

The standing committee was later asked by the Assembly to consider and report on three aspects of the bill: one, whether the ACT should return to the common law defence of truth alone; two, whether the defence based on negligence should be adopted; and, three, whether under the "offer of amends" scheme, a plaintiff should be able to claim compensation for damage to reputation and business as well as expenses.

The committee was faced with very different viewpoints, particularly from the media and lawyers, on these issues, but finally recommended against points 1 and 2 and in favour of the third point. The committee made an additional recommendation that the government develop further proposals aimed at providing in-built incentives for the media to avoid damaging the reputation of people.

The government responded to that report by accepting some of the committee's recommendations wholly and accepting some in part. The government now proposes, in amendments that I understand it will be moving today: to re-establish a "public benefit" test along with the defence of truth; to amend the negligence defence to make it less complex and more akin to natural justice rules; and to permit the publisher to make an offer of compensation with the offer to make amends by publishing retractions or apologies.

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