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Legislative Assembly for the ACT: 2006 Week 1 Hansard (14 February) . . Page.. 13..

MR MULCAHY (continuing):

successfully sought an injunction to stop the program being aired, arguing that even if it was true it was not in the public interest.

Although the courts have tended to construe what is and what is not in the public benefit in relation to prominent figures in certain fashion, its removal will still impact on the privacy of individuals and society. Whilst it has become, to some extent, inevitable that the media loves to dwell on the lives of prominent figures, the removal of this requirement will further threaten the privacy of individuals in our society. Legislation featuring things such as a public benefit requirement is needed to ensure the unnecessary intrusion of the media into people's lives.

It is interesting, Mr Speaker, to reflect on comments made by the attorney in the Assembly in 2001. I am not sure in what capacity he spoke at that time. Was he Chief Minister then? He went on the record to support the public benefit test.

Mr Stefaniak: Shadow attorney.

MR MULCAHY: Shadow attorney. He said:

A 'truth and public interest test' ... would protect an ordinary citizen who takes no part in public life or whose activities are of no more than prurient interest.

These are not my words, Mr Speaker. These are the words of the Chief Minister, who seems to be recanting on a declared position, which at that point was commendable. However, with the new bill he has succumbed to the demands of interstate colleagues. The government is proposing to scrap any protection to an individual's privacy. In his presentation speech Mr Stanhope said:

To this end, the government hopes that this process will provide a method for the coherent development of a statutory tort of privacy and other provisions focused on media ethics.

I would submit that this is an unsatisfactory stance. At common law the courts have recognised defamation as an indirect way to protect the privacy of individuals. We could all reflect on the matter of Ettingshausen v. Australian Consolidated Press, which is a celebrated case that illustrates the very points I am making. The protection should be strengthened by legislation, rather than further weakened. At present there is no common law right to privacy and although the High Court of Australia has indicated that it might, under the right set of circumstances, develop such a right, the ACT should not be relying on such a possibility.

DR FOSKEY (Molonglo) (11.18): In 1979 the Australian Law Reform Commission recommended the adoption of uniform defamation laws. The recent threat of federal government intervention has finally spurred the state attorneys-general into action. Thankfully they have resisted the more anti-democratic proposals advocated by the federal Attorney-General.

In particular, the Labor governments have produced uniform laws that remove the rights of large corporations to sue for defamation. I have some reservations about this since I recognise that a business of any size can suffer irreparable loss if its reputation is badly damaged by a campaign of smear and innuendo, perhaps waged by a larger competitor.

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