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Legislative Assembly for the ACT: 2003 Week 3 Hansard (12 March) . . Page.. 946 ..

MR STEFANIAK (continuing):

On the question of whether turning it around and making a defence is the best way of doing it, I accept that the government is keen to go down that path. At the end of the day, I do not have a huge problem with that. The benefit of amendment 2 is that it clarifies, in (1A), that the report itself, when tabled, is also protected. That would have protection to an extent anyway, but this reinforces that information in the report is also protected. I think that is a positive step with regard to this amendment. Accordingly, I am quite comfortable in accepting the government amendment there.

MS DUNDAS (3.48): I am not as satisfied as Mr Stefaniak is with the government's amendments. My understanding is that the government's amendments propose to remove the protection of privilege from evidence given and replace it with a defence to a defamation action.

I fail to see the need for this amendment. It appears that the government is attempting to put its stamp on this piece of legislation. However, in my opinion, in doing that they have made this slightly worse than it could have been.

If privilege were to apply to evidence given to the inquiry, that evidence would simply not be admissible in a defamation action. A defamation action could not even get off the ground, with no evidence to be given to the court. If privilege does not apply, but a defence is provided instead, as is suggested by these amendments, all the evidence given before the inquiry becomes admissible in court. The evidence can be given before the defendant gets to make out their case that they do have a defence to the action.

If the case were to be heard in full, it is reasonable to expect that the defamation action would fail on the account of that defence. So one may think that protection from a finding of defamation is the same as if the evidence was privileged. Theoretically this is true, and Mr Stefaniak has made the point that it would be a very brave lawyer indeed who wanted to pursue this action.

However, in practice, some litigants use court actions just to intimidate people. Some plaintiffs have very deep pockets and can afford to initiate a legal action they know they will lose. Most disturbingly, where a defendant does not have the time or money to fight an action, or cannot find a no-win/no-fee lawyer, he or she can end up cornered into offering the plaintiff a settlement, even though the opposing side would have lost the case if a court determination were made.

Unfortunately, that is the reality of our legal situation. That is why I am concerned about these amendments. In theory they might provide protection but, in reality, we have lawyers and people who are willing to push cases-even cases they know they will lose-just as a form of intimidation.

It was my understanding that this Assembly was most concerned about relieving those pressures on people who wanted to give evidence, so they would be free to give full and frank evidence without any fear-fear of defamation action, fear of harassment and all the other things that stop people from putting the full picture forward.

Unfortunately, because these amendments still mean that an individual could face court action-that they do not have the full protection of privilege-I have concerns with

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