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Legislative Assembly for the ACT: 2006 Week 1 Hansard (14 February) . . Page.. 26..


MR STEFANIAK (continuing):

the media. It is very unfortunate that the agreement finally reached took out this defence. I think that is a retrograde step. I commend the amendment to the Assembly. I do not necessarily think we again would see a huge number of cases. The attorney already has conceded that that has happened in the past in the ACT. I think there are other provisions in this bill that tend to tighten up those concerns, so I commend the amendments to the Assembly. As much as anything, this is very much a rights issue too.

DR FOSKEY (Molonglo) (12.11): I move:

That the amendments be divided.

Question resolved in the affirmative.

Amendment No 2.

DR FOSKEY (Molonglo) (12.12): I just briefly want to say that I support Mr Stefaniak's amendment No 2, because it maintains the law in the ACT, which provides that the defence of truth should include an element of public benefit. For instance, the reporting of sexual assault cases appears to have replaced the disgusting and prurient reporting of high-profile divorce cases. While I am concerned that the definition of public benefit could be interpreted narrowly to stifle public comment, this does not seem to be the way that judicial definitions of public interest are going, so on balance I support this amendment.

MR STANHOPE (Ginninderra-Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (12.13): I did address this issue at some greater length in the comments that I made earlier. This is an issue for live argument-whether or not the ACT might retain the definition of the defence of truth and public benefit as opposed to the consensus position, which was arrived at by the Standing Committee of Attorneys-General, that we move to a defence of truth alone.

I did give some small history of the development of what might be called the new non-common law defence of truth and public benefit, a defence which applies in only a small number of jurisdictions that have inherited the common law tradition. Notably, it is not a defence within the UK, whence the law that we now apply came. The defence in the United Kingdom is the defence of truth. The defence in half of Australia has, for all the time of their existence, as I understand it, been the defence of truth. There was a deviation initially within New South Wales, which was then adopted by the ACT historically, and we retained it at self-government, that we retained the same position as applied in New South Wales, which was a defence of truth and public benefit-that not only was the statement true but that there was a public benefit or interest in its publication.

We have heard the arguments from the shadow attorney on the extent to which that is a better defence-that that defence perhaps better measures the clash or conflict of rights, the right to freedom of speech, freedom of expression, freedom of the press, and the right to ensure that our reputations are not unnecessarily trammelled or trashed, and that our inherent self-worth and dignity, and our rights as human beings, are not unnecessarily damaged in the pursuit of the right to freedom of speech and freedom of the press.


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