Page 21 - Week 01 - Tuesday, 14 February 2006
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does not believe in the truth of what they allege, what public interest is served by allowing them to publish?
The acts of corporations are in fact the acts of individuals acting on their part, and it is sometimes a convenient cloak for a malicious attack on senior management, to defame a corporation rather than a specified individual. An example is the all-too-common allegation that a corporation has offered bribes to public officials. Trying to prove that a particular senior manager was reasonably understood as the target of the allegation can be problematic, yet all senior management is thereby sullied and it is surely preferable to allow the corporation to vindicate its own reputation.
To refuse a remedy because there have been instances where corporations have sued, and failed, is an over-reaction. Surely the appropriate response to that is to impose cost penalties.
I think he does make a very reasonable point. If a corporation obviously has done the wrong thing and that is alleged in the media and there is a reasonable defence to that, that is fine. If you applied the public benefit test, too, that would be all very well. But most corporations have excellent reputations, and to allow someone to get behind that and to make those corporations—and indeed perhaps all the employees in them—powerless to take any action is, I think, a retrograde step and I commend this amendment to the Assembly.
MR MULCAHY (Molonglo) (11.50): I have a few additional comments in support of the proposed amendment. I have outlined already my belief in why these changes should occur. I hear what the Chief Minister says about caps, and for that reason we did not oppose those measures but flagged concern. But I do not accept that by preserving the right of corporations to sue we are going to fill our courts with large amounts of litigation. The reason I say that is that the pattern of the way defamation laws have existed to date is that there has not been a history of large numbers of law suits being run by corporations on these grounds.
I believe we are taking away a fundamental right and are opening the door for malicious activity against individual firms, which will effectively be left with little or no recourse, if we let these changes occur. There is always the risk of jurisdiction shopping. Canberra has had a reputation for being an area in which higher payouts have been achieved in defamation, and that has led to people bringing cases to the territory. But the pattern certainly in relation to corporations does not support the view that they have raced around Australia regularly attempting to silence critics on spurious grounds.
I cannot see how one could defend saying that they cannot protect their own interests. We all hear of urban mythology about big corporations and what they might have in their products. I remember a major chain in the United States being accused of being controlled by the Scientology church some years ago, and everybody started to believe that. Then I read an expose of where the particular company had investigated this, right back to the source of the rumour—it had started somewhere in north-eastern United States—and pinned those who were the architects of this. It was without truth, but of course it did a lot of damage to the reputation of families and parents who were patrons of that business. It was not a competitor—it was an individual or a group of individuals—that decided to maliciously damage that company’s name. Under this
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