Legislative Assembly for the ACT: 2008 Week 10 Hansard (Wednesday, 27 August 2008) . . Page.. 3797 ..
Mr Stefaniak and Mr Pratt to support this sort of legislation. But wonders will never cease to amaze, and this is how we find the local Canberra Liberals these days.
I find it ridiculous that the government would impose a so-called civil liability on the plaintiff which goes not to the defendant but to the territory—in other words, it is not a genuine civil liability paid to the person the bill is supposed to protect. In fact, it is just another revenue-raising exercise. I do not support the amendments, and I will not be voting for the bill. I may be a solitary voice on this, but I am sure, over time, that many of those engaged in lawful business activity who have been the subject of the sort of conduct that we have seen of the Greens in the past will look with amazement that there is only a solitary voice in opposition to this legislation.
DR FOSKEY (Molonglo) (4.54): I thank all members for their contributions to this debate. It is always salutary to have a dissenting voice in the Assembly. However, I would be interested in hearing from Mr Mulcahy a much stronger argument than just “I’m surprised that the Libs are supporting it” and the usual go at the Greens. That does not sound very deeply thought through. Very clearly, Mr Mulcahy and I are on different sides of the philosophical fence in relation to these issues.
I am going to comment on all the government’s amendments. In regard to amendment No 3, I have some concern that having to prove that the improper purpose was the main purpose of a proceeding may be too onerous a burden on a defendant. Perhaps the wording should be changed to make it that a defendant has to prove that a “dominant” purpose of a proceeding was an improper purpose.
Some additions to my bill are very welcome, and I readily acknowledge that they are an improvement on my original bill. However, I worry about subclause (e), in that it will be difficult to prove. However, I support the intent, and I trust that minor problems with the bill can be worked out with subsequent amendments. I do not agree with the Attorney-General that it would be inappropriate to create rights outside the Human Rights Act. The area of tort law produces new rights outside of that act on a regular basis. Changing community values produced new rights in the jurisdiction of equity. In fact, it may be a mistake to confine new rights or the statutory crystallisation of existing common law rights into the restrictive confines of the Human Rights Act. These rights are a pale shadow of real rights.
The need for these kinds of laws has increased in recent years as the High Court has read down and effectively emasculated the implied freedom of political expression that a previous court found to exist as a consequence of our system of representative democracy. The government has raised the status of the rights contained in the Bill of Rights to the position of being grounds for review in a natural justice or procedural fairness action. That is a move in the right direction, but it is still not strong enough. Most of these rights need to become actionable in their own right. This bill is itself a watered down version of what I would really like to see enacted, but it is certainly a significant improvement on what currently exists.
I worry that the government has exempted defamation actions from the scope of this bill. The explanatory material does not provide any guidance whatsoever on the rationale for this omission. The Attorney-General and his advisers might think that current defamation laws are adequate to protect against SLAPP suits, but defamation