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Legislative Assembly for the ACT: 1998 Week 9 Hansard (18 November) . . Page.. 2647 ..

MR STANHOPE (continuing):

In principle, I do not have any real objection to that. The difficulty I have, and that the Labor Party has, is that Mr Osborne has presented a Bill just on this one issue of the limitation period and Mr Osborne's proposal is not entirely consistent with the proposal that the Attorney has put out for public discussion and public comment. The results of that consultation are not yet with us. I do have some concern about debating today a piece of legislation with which, in principle, I am not sure that I necessarily disagree. It may be at the end of the day that I would be happy to support the sorts of proposals which Mr Osborne has made, but I am concerned about a pre-emptive approach to defamation law reform at the very time that the Attorney has out for public discussion the very same issue on which we are today legislating.

I think that we are sending an unfortunate message to those people who have made submissions to Mr Humphries in that, whilst we invite submissions on a particular issue, before the envelopes are opened, before the submissions are actually printed and disseminated, before we can actually respond to the sorts of issues that the community would seek to raise in relation to a limitation period on defence, we are actually legislating to provide for a reduction in the limitation period from six years to one year, mindful of the fact that in most civil matters the limitation period, probably for a couple of centuries, has been six years.

I am prepared to accept in relation to the defamation law that maybe that is a bit extreme, but I really would like to see the sorts of arguments that I am hoping will be presented to the Attorney in the responses to his discussion paper. To legislate today without the advantage of a single response from a single one of the respondees seems to me not to be particularly wise law-making, because there are arguments against reducing to one year the limitation period in an area such as this. One is, and I think it is legitimate, that, if one is unaware that somebody in another jurisdiction has been consistently defaming one in a most serious way, perhaps one does need an opportunity to pursue those issues.

There is another issue that we really should debate around this and that we have not had the advantage of the advice or wisdom that may be contained within the responses to the Attorney's discussion paper about whether the limitation period should be reduced to, say, a year. I think it would not be unusual at the moment in relation to defamatory matters or potential actions by a plaintiff against a defendant for an alleged defamation, to seek some constructive negotiations about it and perhaps a settlement. The Attorney and I know that, in matters of the law, 12 months is not particularly long.

One discovers a defamation, one is affronted by it, one seeks to have the defamation addressed, one seeks to be compensated for the defamation, one then engages in a round of protracted negotiations with a defendant and the matter is not settled within 12 months, so what does one do? One initiates action. It actually pushes the plaintiffs into initiating action at a time when there may have been some hope of a settlement being achieved. We really should be doing whatever we can to keep all actions out of the court. It should be the No. 1 aim of any jurisdiction. The No. 1 aim of any legislature is to keep matters out of the courts. An unforeseen consequence of a 12-month limitation period for defamation is that we will find an increase in the number of actions commenced.

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