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- 4 May 2005
Defamation Law Reform
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Mr KIM YEADON: My question without notice is directed to the Attorney General. What is the latest information on defamation law and related matters?
Mr BOB DEBUS: The honourable member for Granville is certainly well aware that the right to freedom of expression in a democratic society is vital and precious. That right can sometimes sit uneasily alongside the right to be protected from the malicious destruction of one's reputation. Those competing rights are the reason why the reform of our defamation laws is both important and highly contentious. In a spirit of goodwill over the past 18 months the States and the Commonwealth have co-operated to arrive at a package that will reform the present patchwork of inconsistent defamation laws that operate across Australia, and indeed have always done so.
It is fair to say that the package leans more heavily in the direction of freedom of expression and unshackling the responsible media from some of the constraints that have applied in some States, including in New South Wales. The States and Territories, led by New South Wales, have released model legislation that sets out a proposed framework for uniform State and Territory defamation laws. All States and Territories are committed to introducing consistent legislation by 1 January 2006. That would be an historic achievement, were it to happen.
However, apparently as part of the pointless machismo currently afflicting Federal Ministers dealing with the States, almost at the eleventh hour in this harmonious process the Federal Attorney- General is seeking to impose upon the States his own uniform national defamation law—that is, a ninth defamation law in the Commonwealth of Australia. While in itself that might be seen as part of the posturing and rhetorical flourishing that the Commonwealth is seeking to engage in across a range of issues, it is the content of Mr Ruddock's proposals that is particularly obnoxious to defenders of free speech. Mr Ruddock's initial proposals include a right to sue for defamation on behalf of the dead. That dawn-of-the-dead proposal would see famous criminals and crooks reach out from beyond the grave to sue media outlets and book publishers. Based on some of the coverage from last week of Sir Joh Bjelke-Petersen, writs could have been issued—
Mr SPEAKER: Order! I remind the honourable member for Epping that he is on three calls to order.
Mr BOB DEBUS: Under the Ruddock proposal, writs could have been issued against every newspaper in the country. Thankfully the proposal to prevent defamation of the dead has been dropped. However, the Federal Attorney-General is now holding out for an equally obnoxious proposal: the right of large corporations to sue to protect their reputations; the right of McDonald's to sue the bearded protester standing outside a store with a handful of leaflets; the right of the property developer to sue the local residents action group; or the right of Shell or Exxon to sue an environmental activist.
There is simply no need to allow large corporations to sue for defamation in that way, because they have no personal reputation to protect. The commercial reputations they enjoy in the community are largely the product of advertising campaigns. Large corporations are already in possession of ample legal protection for the legitimate interests of a commercial nature that they hold, including actions for injurious falsehood and applications for relief under the Trade Practices Act.
By giving corporations the right to take defamation action, the Commonwealth would give free reign to big companies to abuse their economic strength in order to silence individuals and stifle free speech. It generally takes a great deal of courage and a lot of money to defend a defamation action by a corporation. If a plaintiff corporation seeks damages and wins, it will also be able to claim legal costs. Companies receive tax breaks for litigation fees. On the other hand, individual defendants, even if they win the case, generally walk away with a large legal bill to pay.
The notorious "McLibel" case provides a sobering example of how corporations can abuse their legal rights. In that case the European Court of Human Rights observed that the power of McDonald's outstripped that of many small countries. McDonald's used its corporate might in the courts in an attempt to silence criticism. That case was the longest running trial in English legal history. Even if one was utterly convinced of the merits of one's defence, how many individuals are rich enough to take on a financial Goliath in the Supreme Court, and brave enough to lose everything they own in legal fees?
That is how the defendants in the Tasmanian Gunns case must be feeling right now. Gunns, the giant logging company, has an annual turnover of more than $600 million. It is suing 20 individual environmental activists and organisations on a range of grounds, including defamation. It is seeking more than $6 million in damages. If the Commonwealth should proceed with its threat to introduce a national defamation law we can expect to see more and more corporations attempting to silence critics with defamation suits. The commonwealth wants to allow all corporations, large and small, to sue individuals for defamation.
At present they cannot do that in New South Wales. Since 2002 only small businesses with fewer than 10 employees can sue. The New South Wales defamation law allows individual members of corporations to sue, but it stops large corporations from using their economic strength to stifle public criticism and freedom of expression. If the Commonwealth Attorney-General's proposal is implemented it would have a catastrophic effect on free speech, which used to be something that the Liberal Party cared a lot about. Recently I wrote to the Commonwealth Attorney-General to indicate that New South Wales cannot accept the proposition that large corporations should be given this right to silence criticism. I can only hope that the Commonwealth, for once, will decide to reject the interests of multinational corporations in favour of every day democratic freedoms in Australia.
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