Page 8 - Week 01 - Tuesday, 14 February 2006

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Another area where there is some contention—and we have an amendment for this—is that in the ACT, indeed in New South Wales, truth and the public interest have always been defences to defamation. Truth, being substantial truth, is well defined in the common law and is now included in this legislation. We do not have any problems with that. That is the old common law test. But this bill no longer provides for the public interest defence.

The bill makes it a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations are substantially true. It sets aside the public interest requirement, which was hitherto certainly an impediment to uniform legislation, but a very important protection. Also, of course, the legislation makes provision for non-litigious means of settling disputes by making amends.

In my capacity as chair of the Standing Committee on Legal Affairs, I received a letter from the attorney in relation to Scrutiny of Bills Report 21 dated 6 February 2006. I think it is important to flag one issue. I will table the letter so that any member who wants a copy can get one. Ms MacDonald, the deputy chair, might like one.

The letter refers to a number of issues, but the one I particularly want to touch on—and it is something we will be looking at very carefully—is the capping of the non-economic component of damage awards. The attorney, in his letter dated 10 February, states:

I note that the Committee starts, as to the states and territories, from the unexceptional principle that defamation damages should bear a rational relationship to the harm caused. However, the Committee is concerned that the cap on this component of damages represents a significant intrusion into the rights of the plaintiff.

He goes on to say:

The states and territories have adopted the approach in the legislation for a number of reasons. Firstly, an examination of awards (and in particular NSW, the jurisdiction in which the highest non-economic component were awarded) suggested that the proposed cap would very seldom be exceeded. Secondly, each jurisdiction has slightly different caps for personal injuries, and the failure for jurisdictions to set a common cap may lead to forum shopping, as litigants sought to maximise their tactical positions. On this basis, law officers proposed a single approach. If the ACT did not adopt the cap, litigants might forum shop into the ACT to gain a perceived benefit.

I wonder whether that is so because basically in this bill there are provisions to stop forum shopping. If the defamation is substantially committed in one jurisdiction, that is where the action should be taken. That seems to be aimed very appropriately at stopping forum shopping. I certainly agree that that has been a problem and a concern in the area of the law in the past.

The cap of $250,000—and there has not been a sum remotely like that given in the ACT—may well not be a particular problem here. But times change and that will certainly need to be closely monitored. As the committee rightfully pointed out, that

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