Page 17 - Week 01 - Tuesday, 14 February 2006
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participate freely in public life and the right not to have one’s reputation trashed at a whim.
These are difficult issues, and they have occupied the minds of legislators at least for the last couple of centuries. It is interesting in any look at the history of the formulation of a definition of defamation to look at the way in which the common law initially developed and then, in different jurisdictions, led to some deviations. That is at the heart of some of the commentary that has been made this morning by the shadow attorney and the shadow Treasurer. For instance, the issue around the defence of truth for public benefit, or truth for public interest, is that the common law defence is, of course, truth and truth alone.
There has been a deviation from that in some jurisdictions, including the ACT because, historically, we adopted our defamation law from New South Wales. It was the House of Lords 160 years ago that initiated an inquiry into the law of defamation—I am sure as a result of some possibly outrageous things said about certain lords in the House of Lords. I am not quite sure what was the particular defamation complained of at the time that precipitated an early inquiry by the House of Lords into an appropriate definition of defamation, but I can imagine, as I am sure we all can, some uppity journalist writing something probably not particularly pleasant, and probably very, very true—
Mr Quinlan interjecting—
MR STANHOPE: Yes, one can imagine an early version of net stockings and raincoats. One can only imagine what might have been the bar with perhaps enormous justification 160 years ago, in relation to a lord, that led the House of Lords to initiate an inquiry into whether or not there should be a further test to the defence that a defamer should need to shelter under—that truth or truth alone was not good enough—and, for goodness sake, what right did they have to pry into the alliance of members of the House of Lords. We needed certainly, or surely, to expand the defence from truth to truth and public benefit or truth and public interest.
That was the genesis. Interestingly, of course, having commissioned the inquiry and formulated a new defence, expanding the defence of truth to truth and public benefit, the British parliament then ignored the report completely and stuck with the common law of truth alone, which of course has been the law in the United Kingdom ever since and has been at the heart of the common law.
The common law defence in defamation is truth. The House of Lords toyed with it. Some jurisdictions—most notably the new colony of New South Wales, rabid with glee, having regard to the interests of the squattocracy here and protecting its membership from freedom of expression—very, very rapidly embraced the House of Lords formulation of defence and public interest, whilst Britain, which generated the inquiry, ignored it completely, as did half of Australia, including Victoria and all of the west. We found ourselves in a situation where the east coast, or parts of the east coast, adopted it and then it was progressively rejected and we ended up with a situation in Australia where I think we were split four-all, four jurisdictions adopting a defence of truth and public benefit and four jurisdictions maintaining the common law position of truth, as did almost the rest of the common law world.
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