Page 4885 - Week 15 - Thursday, 15 December 2005
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the retention of the common law as it is considered more responsive to social change than statute law.
Controversially, the bill precludes large corporations from suing for defamation. This prohibition does not extend to nonprofit organisations or smaller family businesses. This represents a clear departure from existing ACT law. At present, corporations may and do sue under ACT law. Since corporations have been excluded from bringing actions in New South Wales, a number of New South Wales corporations have sued in the ACT instead. The proposed prohibition was strongly urged on the basis that in recent times large corporations had used this action to stifle public comment on the quality of products and services of companies. This position in the bill is agreed by state and territory ministers. The commonwealth, however, opposes the exclusion of large companies from the operation of the law.
The bill makes it clear that defamation actions cannot be commenced or continued on behalf of dead people. There was overwhelming support for this proposition. The bill requires defamation proceedings to be commenced within one year, with the courts having the discretion to extend this to three years in appropriate cases. The bill contains a choice of law clause. This type of clause is not strictly necessary in uniform legislation, as the substantive law of each state and territory will be the same in each jurisdiction.
The bill contains a pre-litigation offer of amends procedure. Submissions strongly supported the inclusion of that. The procedure in the bill is a refinement of the existing procedure which applies in New South Wales and the ACT. The model bill does not require jurisdictions to provide for defamation proceedings to be tried by a jury. Members will be aware that, despite such an option being permitted in the ACT for many decades, a jury trial of a defamation matter was never held in the ACT and that, more recently, the ACT has abolished jury trials in civil matters. The commonwealth has insisted on the reinstitution of jury trials in relation to this class of civil action.
The defences to actions in defamation are as important as the elements of the cause of action. One of the most contentious issues has been whether a person should ever be liable for publishing matter that is true. At common law the position has always been that a defendant who proves that the published matter is true has a complete defence. Traditionally, this has been known as the defence of justification. This is also the law in Victoria, South Australia, Western Australia, the Northern Territory, New Zealand and England. In New South Wales, the defendant has a defence only if it is also proved that the matter was published in the public interest. In Queensland, Tasmania and the Australian Capital Territory, the defendant must prove that the matter was published for the public benefit. All states and territories have agreed that their bills should contain a statutory defence that reflects the common law defence of justification. Most submissions to the review clearly favoured this formulation of the justification defence.
The bill identifies the main publications which are subject to absolute privilege, such as proceedings of parliaments, courts and tribunals. No submissions objected to this. The bill protects the publication of fair reports of public documents and of proceedings of public concern. The common law defence of qualified privilege is retained and supplemented by a provision that specifically invites the court to consider the circumstances of the publication. Generally speaking, under common law qualified privilege applies when the person who makes the communication has an interest or duty
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