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- 19 October 2005
Defamation Bill
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Page: 18801
Second Reading
Debate resumed from 18 October 2005.
Ms LEE RHIANNON [11.23 a.m.]: Defamation is an issue that is very relevant for the Greens because increasingly our local councillors are facing defamation cases, not because they have done anything wrong but because they are doing their job. This happens because often developers who are very determined to bring forward large-scale developments in local council areas come up against progressive members of local councils who want more transparency, who want their local community to have a fair deal, and who want to ensure that before certain developments go ahead their environmental and social impacts are thoroughly looked at.
Because of the endeavours of our local councillors some unscrupulous individuals are bringing spurious defamation actions. I do not imagine that this is something that will be reduced in the near future but we are certainly conscious that the law has a critical role to play in this respect. If we tightened up our defamation laws in this State we could reduce the number of cases of strategic litigation against public participation [SLAPP] suits, which is something that is becoming more common in our community as people believe that they have, quite rightly, a right to speak out about a whole range of inequities.
Last night I was in the midst of discussing how defamation laws, while necessary, are not equally accessible to all in our society. The fact that defamation law is said to be uniform throughout Australia misses the real story, and that is the inadequate access people have to the courts. This bill and this Government have done little to solve the problem. The Government has continued to protect the interests of the big end of town and ignored others in our community who have far less access to power and money. The Greens support the use of defamation laws where there is a real threat to a person's reputation from unfounded and spurious allegations.
My colleague Mr Ian Cohen has gone through a number of defamation cases and gained a wealth of experience in this area. He won an out-of-court settlement from the Daily Telegraph over an article by Piers Ackerman that clearly defamed him. After going through an extremely excruciating court process over a number of years, he received an apology, which was printed in the Daily Telegraph. But it was small compensation for the suffering he had experienced as a public figure who had been clearly defamed. The Greens are also well aware that defamation laws are often misused to intimidate individuals and stop them speaking out against some of the many injustices in our society.
Open debate in our society is essential. Defamation law can be used to discourage meaningful discussion about critical issues and to silence those who wish to reveal failings of people in positions of influence. My colleague Mr Ian Cohen has been battling developers up and down the New South Wales coast for decades and has much first-hand experience in how the defamation process can be misused. That experience is extending to many of our local councillors. Mr Ian Cohen has spoken on a number of occasions in this House about the harrowing experience of defamation actions in which people have made utterances in the public interest and have been dragged through a court case, often on the most spurious of charges.
Mr Ian Cohen's experience is not unique to Greens members of Parliament. I know of at least three Greens councillors who in recent years have been subject to defamation actions, and these actions have been brought purely to silence them. The Greens involvement in local government is growing rapidly. People are voting for us because they want representatives who are willing to provide an effective voice against overdevelopment and other excesses perpetrated by the major parties in this area of government. One response has been for defamation law to be used as a vehicle by developers and local politicians to silence the voice of the Greens in revealing corrupt and grubby practices that, sadly, very often go hand in hand with local government.
While powerful individuals can use defamation law to silence criticisms, corporations in recent times have turned to other areas of the law to commit what commentators have termed "legal blackmail". Tort litigation in the form of SLAPP suits has been used by corporations in Australia since the 1990s. It is one of those very unfortunate aspects of American life that has been imported into this country. SLAPP suits are brought by corporations or sometimes by wealthy individuals to silence critics. The common theme in SLAPP suits is an attempt to silence critics.
For the Greens, the obvious example is the action commenced by Gunns in December 2004 against 20 individuals and organisations, including Senator Bob Brown, Greens member of the Tasmanian Parliament Peg Putt, the Wilderness Society, Doctors for Forests, film-makers and many others. The original writ alleges that these 20 conservationists had damaged Gunns' profits and reputation to the tune of $6.9 million. Gunns, the biggest native forest logging company in Australian and the biggest hardwood chip company in the world, is attempting to silence the Greens and many others and stop them speaking out about Gunns' crippling and environmentally destroying actions. Gunns seeks to stop campaigns to save our precious forests.
We will not be silenced by such actions, but Gunns has been successful in diverting precious resources that our community would have much rather seen spent on campaigning against logging and other environmental threats. Instead, time, funds and energy have been diverted to fight an action in the Supreme Court of Victoria. Gunns' original 218-page writ includes a raft of disparate allegations, including defamation. The company claims to have lost millions in lost productivity and bad publicity. John Quiggin, from the University of Queensland, wrote about SLAPPs in July this year in the Australian Financial Review and observed:
A particularly disturbing feature of the Gunns lawsuit is the way it mixes up allegations of criminal damage, such as the sabotage of logging equipment, with a civil case that is primarily based on alleged defamation.... As it is, the protection of legal proceedings permits the plaintiffs, while alleging defamation, to make accusations that would themselves be defamatory in ordinary circumstances, without any apparent avenue for redress.
John Quiggin concludes his article with the remark that:
Gunn's action in this matter is a clear indication that allowing defamation action by corporations does more harm than good.... Companies like Gunns have ample resources to defend themselves against their critics in the open marketplace of public opinion. They do not need the courts to do their job for them.
As noted by "Now We the People", "These suits are rarely intended to actually win, 77% of SLAPP suits in the US lose, but to preoccupy protestors and movements, transforming public debates into lawsuits.
By using SLAPPs the companies not only often lose financially and legally, but they lose the PR war. Many people have commented that in serving this writ Gunns are handing the issue to the protestors and groups. The heavy-handed tactic sets up a David vs Goliath scenario and puts the issue of logging Tasmanian forests back on the agenda.
A number of jurisdictions in the United States of America have now enacted legislation against these kinds of SLAPP suits to guard against the erosion of public participation and debate. The Greens have tabled anti-SLAPPs legislation in the Tasmanian Parliament and we are planning to do the same thing in the New South Wales Parliament. It should be an embarrassment for the New South Wales Government that it has not acted earlier to do this job and that it has now been left behind by the Greens moving on this important issue. I would like to place on record an observation of Tom Molomby, SC, on this new defamation bill. Mr Molomby has a reservation about clause 28, which provides a defence to defamation if the matter was contained in public documents.
The new provision says it is a defence to the publication of defamatory matter if the defendant proves that the matters were contained in a public document or a fair copy of a public document, or a fair summary of, or a fair extract from, a public document. A public document is defined in this bill to include "any document issued by the government (including a local government) of a country or by an officer, employee or agency of the government, for the information of the public". The old Defamation Bill had a similar section protecting the publication of various official documents, but this bill expands the definition of what is a public document, which, in the opinion of Tom Molomby, QC, would seem to include a wider range of material such as press releases that would not have been protected by the old section and which could be used on occasions in a partisan and damaging way. I will conclude with an extract from Brian Walters excellent book, Slapping on the Writs: Defamation, Developers and Community Activism. Brian suggests that Australia has yet to strike the right balance between protecting reputations and free speech. He observed:
One of the main vehicles for silencing debate is the defamation writ. In striking the balance between protecting individuals from defamatory statements and protecting the right to free speech, Australia is out of line with the rest of the developed world. There is much more liberty in the United States and in Europe to speak out on issues of public importance. Indeed, most developed countries have a constitutionally recognised right of free speech. Australia does not.
The Greens will continue to work to reform the legal system so that people who validly should be protected by defamation law, where their reputation is subject to unfair attack, can access the system and not be deterred by cost, complexity and court cases that drag on for years. We also need, as a society, to prevent large, powerful individuals and corporations from using their position and the law to silence critics, who rightly speak out against unfair or unsavoury practices. A lot of reform is still needed in the area of defamation in this State and country.
The Hon. HENRY TSANG (Parliamentary Secretary) [11.35 a.m.], in reply: I thank honourable members for their contribution to the debate and for their support for the bill. The bill is based on the model defamation provisions that were endorsed by the State and Territory Attorneys General in November 2004. Prior to the endorsement, the model provisions were subjected to an extensive period of public consultation. This was to ensure that the new law would achieve the right balance between protecting reputation from unjustified attack and protecting freedom of expression. Reputation is an integral and important part of the dignity of the individual. Freedom of expression is essential to the proper functioning of parliamentary democracy. The protection of both these interests is notoriously difficult to reconcile in practice but absolutely vital to a free society.
Around the nation identical bills are being introduced and debated in State and Territory parliaments and soon the goal of uniform defamation laws will have been achieved. For the first time in 150 years there will be just one law to deal with defamation cases, not eight. Although some members of this House have noted there have had to be some changes to the New South Wales law as a consequence, the enormous benefits of having one uniform law for every Australian citizen cannot be denied. It is no exaggeration to say that the passage of this bill represents a very important milestone in Australian legal history. New South Wales, or more precisely Sydney, has long been regarded as the defamation capital of Australia, so it is most fitting that New South Wales is the first State to pass the new law.
I turn now to address specific matters raised by honourable members during debate on this bill. The Hon. David Clarke, on behalf of the Opposition, raised some issues with respect to juries that need to be clarified. The model defamation provisions allow parties to elect to have proceedings determined by a jury unless the court orders otherwise. In those jurisdictions, such as South Australia where civil juries were abolished many years ago, they will not be reintroduced for the mere handful of defamation cases that come before those courts each year.
The absence of juries in South Australia will not detract in any way from the uniformity of the scheme. The same substantive law will apply to determine liability and defences wherever a defamation case is heard. It will make no difference whether a case is heard in Perth, Adelaide or Sydney: liability will be determined the same way, the defences will be exactly the same and the same remedies will be available in each jurisdiction. The Hon. Lee Rhiannon, in opposing the right of small businesses to sue, seems to have forgotten the debate on the Defamation Amendment Bill 2002. During that debate her colleague the Hon. Ian Cohen said:
The removal of small business owners' right to defend their trading name through the law of defamation is particularly unjust. Small businesses have neither the resources or the time to defend their name in the public arena through public relations or counter advertising …
The Greens, including Ms Lee Rhiannon, supported the small business exemption when it was introduced in 2002. So I find her sudden opposition to an amendment that has been part of New South Wales law for three years baffling, to say the least. Finally, the Hon. Dr Arthur Chesterfield-Evans and the Hon. Peter Breen raised concern about the change to the justification defence in New South Wales. The first point I make is that there cannot possibly be a uniform defamation scheme if New South Wales persists in being the only State or Territory in the country with a defence of "truth and public interest". The defence, which is unique to New South Wales, simply had to change if we were to achieve the goal of uniformity.
The second point I make is that the common law defence of truth alone is not a novel defence. It has been the law for centuries in England, and it is the current law in Victoria, Western Australia, South Australia and the Northern Territory. It is important for honourable members to understand that the adoption of the truth alone test in New South Wales will not change the fact that if an allegation is found to be defamatory then it will also be presumed to be false and the onus will fall on the defendant to prove that it is true. Therefore, if someone publishes a statement such as, "Joe Bloggs is the worst driver in Sydney", they will not be able to rely on the truth defence because there is no realistic way they can prove the truth of the statement to the court.
That is why publishers tend to rely much more heavily on the defences of comment and qualified privilege to justify the publication of otherwise defamatory statements. Honourable members may be assured that under the new defamation law publishers will continue to risk significant liability if they publish defamatory material that they cannot prove to be substantially true. In order to reassure the House, particularly in light of the comments made by Reverend the Hon. Fred Nile, I can confirm that the passage of the Defamation Bill is the first and most critical stage of an ongoing defamation law reform process. The State and Territory Attorneys General are keen to ensure that uniformity of defamation law is maintained into the future.
They are also mindful of the need to ensure that the law keeps pace with developments in both society and communications technology. That is why the Ministers have agreed to endorse an intergovernmental agreement to support the future development of defamation law in Australia. Under this agreement, any proposed amendments to the model defamation provisions must be referred to and considered by the Standing Committee of Attorneys General. The passage of the Defamation Bill represents a major milestone in Australian legal history, and I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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