Page 28 - Week 01 - Tuesday, 14 February 2006
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MR STANHOPE: The commonwealth are not railroaded into anything. The position that Mr Ruddock had on the table was that if uniform defamation legislation was not achieved the commonwealth would legislate. That was Mr Ruddock’s negotiating position. Mr Ruddock’s negotiating position was: “We will develop uniform defamation legislation. If we don’t make progress in the development of uniform defamation legislation, the commonwealth will utilise its power and it will legislate.” There is nothing to stop Mr Ruddock legislating. He chose not to, on the basis that we arrived at a consensus, agreed position of all nine of us—and this is it.
Not all of us like every part of it. I think everybody is aware of Mr Ruddock’s position, particularly in relation to the right of corporations to sue and the right indeed of a suit to survive death. These were positions that the states and territories did not adopt. Mr Ruddock was very firmly of the view—he was the only attorney-general involved in negotiations who was of the view—that a right of action in relation to defamation should survive after life; that the right of action in relation to an individual defamed would survive that person’s death and might be pursued by their estate. That was another position that Mr Ruddock brought to the table but that was not agreed to.
I guess it goes to the point I make: when you are sitting around as nine jurisdictions, negotiating model national legislation, you compromise. But, in relation to this, one issue we have not pursued is the implications for this new defence of truth, truth alone, within Australia for the development of a right of action in privacy, for breach of privacy—the tort, a new tort, in relation to breach of privacy. The law is developing around the world and it is certainly developing quickly in those nations and places that have adopted a human rights act or bill, such as the United Kingdom. It is tempting to re-energise the debate around the value of bills of rights.
One of the values of bills of rights, of course, is our capacity to hook into the development of law in particular areas around rights throughout the world. One of those is in relation to what is occurring across the world, particularly in human rights compliant jurisdictions, in relation to the development of the law around rights such as the right to privacy. We in Australia have been cut off from the development of that law. We have been cut off from the development of a whole range of jurisprudence.
The broader definition or broader defence of truth and public interest has thwarted the development of the law in Australia in relation to privacy. The fact that we here in the ACT have a Human Rights Act and a scrutiny of bills committee goes to the importance of, I think, section 12 of the Human Rights Act in relation to the right to privacy. Even this particular scrutiny of bills report highlights the point I am making—that all of a sudden, through this current formulation, this change to the common law, the fact that as a nation in relation to defamation, which at its heart, as everybody has indicated in this debate, is around the contest between freedom of speech and privacy—at its heart that is what the law of defamation is a contest or a tension between—we now open up within Australia, through this new definition, a far greater prospect of the law in relation to privacy and the tort of privacy developing through the operations of the common law. That is a very good thing and in time—not today but over time—a real benefit and strength of this new definition is the extent to which it opens up the capacity for the common law to now develop in a new direction in Australia.
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