Page 4884 - Week 15 - Thursday, 15 December 2005
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
long-held philosophical views about what defamation law should be about. Members who took part in the debates about reform to our defamation law in 2001 will remember the campaign run by stakeholders against the provisions ultimately adopted by the Assembly.
The ACT takes the view that the adoption of the uniform bill in relation to defamation is unlikely to have an immediate dramatic impact on the current culture within the media, which consistently sees serious errors in reporting and some partisan opinion presented as fact. However, the adoption of the model provisions is an essential and important policy step in creating a starting block from which a coherent examination of the law may proceed. This is because, in the past, reforms in the ACT and New South Wales have been frustrated because the parties have simply moved to another jurisdiction. The establishment of a common legal infrastructure will deny this type of undesirable forum shopping. The states and territories propose to establish an intergovernmental agreement committing the parties to achieving and maintaining uniformity in respect of the substantive law of defamation.
I will turn to some of the substantive provisions in the bill. The bill provides for an objects clause. The objects are: to enact provisions to promote uniform laws of defamation in Australia; to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and to promote speedy and non-litigious methods of resolving disputes and the publication of defamatory matter.
It is still a little unusual to see an objects clause in ACT legislation, although this practice is becoming more common. Inclusion of an objects clause was strongly supported by law officers and in submissions. The clause explicitly recognises the need to protect both personal reputation and freedom of expression. Protecting freedom of expression and protecting personal reputation from unjustified aspersions are not new ideas and can be traced back through English common law.
The statement of rights is consistent with the ACT Human Rights Act. This is particularly important because influential civil law decisions from the UK and the US courts are now developing this jurisdiction having regard to the language in international treaties. One of the great strengths of the civil law is that, because it is in part constantly developing as a result of the case-by-case considerations of civil jurists in the common law countries, it is dynamic. It is constantly evolving to adapt to new situations.
The bill preserves the common law test of defamatory matter and does not attempt to codify it. This means that decisions about whether matter that has been published is or is not defamatory will continue to be decided according to the common law. This will allow for the law to change gradually and incrementally as the meaning of words and actions and the standards of society change. The majority of submissions supported this. Nevertheless, the explanatory statement does provide useful background information that will help explain the approach the common law takes to the law of defamation.
At common law, a publication is defamatory if it is likely to cause ordinary, reasonable people to think less of, or shun or avoid, the plaintiff. Almost all submissions supported
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .