Page 18 - Week 01 - Tuesday, 14 February 2006
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We have had this anomalous position, and one can understand the context. I do not disagree violently, nor I do not necessarily disagree, with things the shadow attorney and the shadow Treasurer say around this dreadful invasion that there is of privacy and of rights and reputation. Those of us in public life are very aware of it, are from time to time scarred by it and are, I think, acutely sensitive of the extent to which our reputations are at times grievously threatened by people totally reckless in addressing comments to or about us that are quite clearly defamatory.
Much of what is said is defamatory; the question is whether or not it is unlawful or actionable. We have this issue in relation to that defence. At the end of the day, when one is participating in a process designed to develop model national legislation there is a lot of argy-bargy and a lot of compromise and, in the context again of some of the commentary and of the shadow attorney’s foreshadowed amendments, one does need to be mindful of the overall benefit of model legislation, national legislation, of a scheme, particularly in relation to an area of civil law such as defamation. What are the benefits? Why did we bother? Should we simply have said, “We’ve got defamation law; we’ll stick with it; there is no need for us to engage in this particular process”?
Indeed, at the beginning of this process it was acknowledged by every jurisdiction at SCAG that there were two jurisdictions in Australia that could perhaps boast to have reasonably up-to-date and modern legislation in relation to defamation, and they were New South Wales and the ACT. In fact, the model legislation that we debate today is, at its heart, based on the law of New South Wales and the ACT. I think it was Mr Stefaniak who acknowledged the role of Mr Humphries in developing the ACT’s legislation, and I acknowledge that Mr Humphries, as attorney, followed by Mr Stefaniak as attorney, did through that process introduce into the ACT what at the time—and I think even up until this legislation was developed—was regarded as the most progressive, most modern and most up-to-date defamation law in Australia. I acknowledge that, as has every other member of SCAG in the process of developing this model legislation. It is true and fair to say that the new model legislation in large measure is based on the law of New South Wales and the ACT.
In that context, the changes that we are debating today are far less than the changes that other jurisdictions that have engaged in this process—in other words, every other jurisdiction—have had to make to their legislation. So we are not debating particularly big changes to the law of the ACT today, because the law we are debating today is based on the ACT’s Defamation Act, which was significantly updated and changed in 2001. But there are, as I understand it, a couple of amendments that have been foreshadowed, and I am happy to discuss them at the detail stage. The issues go to truth and public benefit. In other words, do we abandon the position of a minority of jurisdictions and return to the common law formulation of the defence of truth, with all of the benefits that we receive from that, or do we maintain that higher requirement of defence and public benefit or public interest—a slight change in the purported or apparent balance in the protection of the reputation of individuals. As part of a group seeking to develop national legislation, it is worth pondering, or at least taking some time to think about, what are the benefits, particularly in relation to an area of civil law such as this, of model legislation, and that cannot be dismissed. They were of course uppermost in the ACT’s minds at the time that we participated in the debate in SCAG and ultimately agreed, through much negotiation, to the current formulation of the law that we debate today.
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