Page 9 - Week 01 - Tuesday, 14 February 2006
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could well represent an intrusion into the rights of the plaintiff, and we will certainly be monitoring that aspect.
I will speak at some length to the specific amendments. I think it is important to ensure that any law that we pass recognises the respective rights of all parties and the people who are likely to be affected. I particularly hoped that this model legislation would include the defence of truth and public benefit, which always seemed to me to be a sensible test. What is the point of dredging up someone’s minor convictions 20 years ago when that person has led an exemplary life since then? Yes, they are absolutely true, but what is the public benefit? It always seemed to be a pretty reasonable test.
I am a great supporter of the principle of model legislation, but obviously there are times when people depart from it. The Criminal Code is a classic case in point. There seem to have been quite a few departures in terms of that lengthy exercise between the jurisdictions. Indeed, the attorney and other members of the government have said on occasion that we should not follow other jurisdictions willy-nilly. Just because everyone else is doing something is not a good reason to do it. Just because New South Wales is doing it is not a good reason to do it.
I raise those points because whilst generally I am in favour of a uniform approach—and that has been our position in opposition and in government—there are times when we do need to ask ourselves whether that is actually the best approach. The opposition believe that the old defence of truth and the public benefit is a better defence than truth alone. The old defence has been with us for many years and we think it has served us fairly well. I will give a few examples when I move my amendments.
MR MULCAHY (Molonglo) (11.03): I rise to support the observations of Mr Stefaniak in relation to this legislation. While the case for uniform defamation laws in Australia may, on the face of it, appear fairly persuasive, I am certainly of the view—and this is a view shared by opposition members—that this bill will have a significant negative impact on the law. It is for that reason that the opposition will be putting forward a number of amendments.
It is clear that the Labor state and territory governments have capitalised on the need to create unity by trying to limit the scope of the law. Of course that pattern of conduct in relation to proposals for uniform legislation has not always been adhered to. On this occasion the opposition believes that there are compelling arguments for departing from the generally preferred approach of uniform legislation where matters intersect between the states and with the commonwealth.
The law of defamation has historically been a balance between two competing interests: freedom of speech on the one hand and protection of the reputation of every individual on the other. This bill will shift the balance dramatically towards the former. I am a little surprised that the government would embrace this legislation, notwithstanding the quest for uniformity, because it does run contrary to some of the principles that we have heard expressed in this chamber in previous times, including prior to my election to the Assembly.
The shift in balance is particularly evident in relation to corporations. Whereas previously a corporation, as a separate legal entity, has been allowed to sue for
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