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Legislative Assembly for the ACT: 2001 Week 10 Hansard (30 August) . . Page.. 3818 ..

MR STEFANIAK (continuing):

Nevertheless, the Committee's report indicated that a consensus has started to emerge which will lead to a simplification of the law, and yet allow us to achieve sound policy objectives. The Government Amendment gives effect to this consensus.

This amendment provides that, for the purposes of section 23 (1), published matter was not published negligently if:

� reasonable steps were taken to ensure the accuracy of the published matter; and

� a reasonable opportunity to comment on the published matter was given to the plaintiff.

This provision brings the defamation into line with the standards generally applicable to other torts (civil actions, such as civil claims for damages for injuries resulting from motor vehicle accidents) - where negligence is generally the prerequisite to liability. It prevents the innocent from being penalised under the strict liability regime that applies presently under the law of defamation (eg, newsagent or other others in the information distribution chain - internet service providers).

Under section 23, the media must make out the defence before it can apply. However, the provision will also provide a new impetus for publishers to adopt appropriate procedures for obtaining and analysing information designed to ensure the accuracy of a report. It specifically encourages publishers to seek the views of persons who might be aggrieved by a report. These beneficial changes in the way a publisher deals with information before publication (which may be observed in the western democracies that have adopted a negligence-based defence) will result in community-wide improvements in the quality of information being placed before the public.

A question was asked whether proposed section 23 would provide too great a defence to a media defendant in, for example, a situation where the media published an uncorroborated statement made in a statutory declaration, alleging criminal conduct, without seeking the views of the person accused of the criminal conduct in the statement.

Section 23 does not apply to such a situation. Simply repeating the content of a statutory declaration is not enough to satisfy the three tests in section 23.

Firstly, if the defamatory imputation arising from the statutory declaration alleges criminal wrongdoing, the defence in sub-section 23 (1) is not available. Section 23 only applies where the defamatory imputations are of non-criminal behaviour.

Secondly, if the media has not given an aggrieved person a reasonable opportunity to respond to the defamatory allegations in the statutory declaration, the defence in paragraph 23 (2) (b) is not available. The provision only applies where a reasonable opportunity is given. Seeking comment, without notice, in the course of an interview about another matter, would probably not constitute a reasonable opportunity where the nature of the allegation might call for reflection, recourse to records or other consideration.

Thirdly, if the media has not taken reasonable steps to ensure the accuracy of the published matter, the defence in paragraph 23 (2) (a) is not available. Note that, under section 13 of the proposed Act, "published matter" means "...in relation to an action against a defendant for the publication of matter that is or may be defamatory, means the matter so published". Accordingly:

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