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States and territories agree to standardise defamation laws.



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PM

 

Friday 5 November 2004

States and territories agree to standardise defamation laws

 

MARK COLVIN: Australia may be getting closer to some major changes in the libel laws. Th e states and territories have reached a historic agreement to unify defamation legislation across the country. 

 

The present system has plenty of critics, not least because it differs so much from state to state, so people who want compensation for libel often go shopping for which system will give them the best deal. It also tends to favour compensating people with money, rather than forcing corrections or retractions.  

 

Free speech advocates see today's agreement between the states as a significant improvement. But the big hurdle for this new agreement is the Federal Government. 

 

The Attorney-General Philip Ruddock has his own, quite different, scheme for a unified system, one which would extend the defamation laws to cover corporations and dead people. 

 

Rachel Carbonell reports. 

 

RACHEL CARBONELL: The states and territories attempted to thrash out an agreement on uniform defamation laws in 1991, but a consensus couldn't be reached and the project was abandoned. 

 

Today a meeting of Attorneys-General in New Zealand did achieve consensus. A unanimous vote supported a model bill put forward by New South Wales. 

 

The Victorian Attorney-General, Rob Hulls. 

 

ROB HULLS: Now, this is the first time there's been broad agreement on this fairly difficult topic. It's caused conflict and confusion for quite some time, it's led to forum shopping across jurisdictions, but state and territory attorneys have agreed on a nationally unified model for defamation laws. 

 

RACHEL CARBONELL: What do you mean when you say 'forum shopping'? 

 

ROB HULLS: Well, it basically means that people can choose a particular jurisdiction. If they believe they've been defamed, for instance, in the national media they can choose a particular jurisdiction in which to bring their action.  

 

So, they can forum shop, they can choose a jurisdiction where they may have different defences, where it's possible for a corporation to sue, for instance, and we believe that it is absolutely crucial that there be model laws right across Australia. 

 

RACHEL CARBONELL: What's been the biggest problem with having different defamation laws in each of the states and territories? 

 

ROB HULLS: Well, basically it's meant forum shopping can take place, but not only that - there's been different defences for defamation across Australia. In some jurisdictions, for instance, dead people or their estates have been able to sue for defamation. In some jurisdictions corporations have been able to sue individuals. 

 

Now, what's been agreed is a uniform defamation model that will ensure that truth is a stand alone defence, rules out defamation of dead people, rules out the right of corporations to sue individuals, and also will put a cap on the damages. So, this is - as I said - a pretty historic agreement. 

 

RACHEL CARBONELL: Brian Walters SC from Free Speech Victoria says it's a good proposal that improves the current system, but less limitations on what can be said about politicians is also needed. 

 

BRIAN WALTERS: Australia is right out of line with the international community with its defamation laws. We are now the only western nation without a constitutional guarantee of free speech.  

 

People who've been following the US election will say that the debate, in many respects, was far more robust than it was for our own election, and that's because the amendments to the US Constitution guarantee free speech, and although you can't speak about someone maliciously and falsely, pretty robust statements can and are made in the course of political debate, and that's generally going to mean a healthier democracy. 

 

RACHEL CARBONELL: However, free speech advocates certainly prefer the model endorsed by the states and territories today to that put forward by the Federal Attorney-General Philip Ruddock. 

 

Mr Ruddock says corporations and the estates of dead people should be allowed to sue. 

 

PHILIP RUDDOCK: Um, I mean, that's my view, not in terms of estates to be able to obtain damages, but in order to protect a reputation. 

 

There have been situations where there are people who are afraid to publish material about an individual while they're alive because they know it's defamatory, but as soon as they're dead, think they've got free reign.  

 

I don't think that's desirable, when the reputation of a deceased person can significantly, if depreciated, affect remaining family members. It can occasion very significant hurt. 

 

In relation to corporations, there is the potential for significant harm, and if there is no available remedy, that is a matter of concern. The Business Council has said that. The Bar Association of NSW has said that.  

 

So, these are situations where there are differences of view that have emerged, the states have changed their position in many cases to take the view that they have, and I think we're entitled to look at those questions in greater depth before we come to a concluded view. 

 

RACHEL CARBONELL: The states and territories will now consult with their cabinets over the proposal, but then the model must be ratified by Mr Ruddock. 

 

If he doesn't ratify it, he can draft federal legislation which he says will replace the laws in the states and territories, but which free speech groups say will end up being a ninth layer of complexity. 

 

MARK COLVIN: Rachel Carbonell.