Page 22 - Week 01 - Tuesday, 14 February 2006
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scenario, unless you could demonstrate some economic loss, you would find it very difficult to take action against promotion of that sort of damaging claim and of many other claims that are made, particularly against food corporations, which seem to be the popular target.
So I think Mr Stefaniak’s amendments are worthy of consideration. I sense from what the attorney is saying that his heart and mind are not behind this legislative change but that in the interests of national cooperation he will go along with it. I would urge him to consider the issues that have been outlined earlier about the rights of companies and the rights of individuals—particularly in this proposed amendment the rights of smaller businesses. He may not be so sympathetic to the larger companies, but smaller businesses can be damaged, particularly in a community of the size of Canberra, and we ought to preserve those rights for people to pursue litigation.
MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (11.53): I will not speak at length. Suffice it to say that these were issues in the SCAG debate or consultation. There was a broad debate, submissions were called for and the overwhelming weight of the submissions on this issue was that corporations not be permitted to sue. There was a range of views amongst members of SCAG and there was a compromise determined at the end of the day. The compromise was that companies with fewer than 10 employees and nonprofit organisations or companies such as charitable organisations would retain the right to sue, and any business that might, for instance, have been immediately knocked out of business as a result of an assault on its reputation and would suffer grievously could retain the right.
So the decision was taken as a compromise position, accepting the essential strength of the argument that any person or organisation that suffers loss as a result of an unlawful act—accepting that defamation is unlawful, which I guess it is in a sense—should be able to defend themselves and claim damages for that loss. It is a fundamental principle essentially in relation to the way in which civil law operates.
I think there is a range of justifications that can be mounted, particularly by us, without begging again that we are weak and need protecting. I can think of recent actions in the last six or seven months. I do not know whether it is going to be continued with now, but I think it is Westfield that is in pursuit of John Brogden, an immediate past leader of the opposition in New South Wales, in relation to what Westfield claimed to have been defamatory remarks around the construction of a shopping centre in, I believe, Liverpool. Where is the action being undertaken? Is it being undertaken in Sydney? No. Where is Westfield suing the immediate past leader of the Liberal Party in New South Wales? Westfield is suing in the ACT Supreme Court.
Why are Westfield doing that? They are doing that because you cannot sue in New South Wales. Westfield are suing John Brogden for defamation in the ACT because Westfield could not sue John Brogden for defamation in New South Wales, because New South Wales does not accept the right of corporations to sue. It illustrates the point: we now have our Supreme Court tied up in a defamation action which can go forever, cost a motser and tie up a judge of the Supreme Court for months, because Westfield cannot sue John Brogden in Sydney; they can only sue him in the ACT. So what are they doing?
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