Defamation (Amendment) Bill
DEFAMATION (AMENDMENT) BILL
Bill introduced and read a first time.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [2.38]: I move:
The Defamation (Amendment) Bill will achieve significant reforms in the area of defamation law. I propose to elaborate, first, on the nature of those changes and, second, on the timing of the bill. The first change the bill will introduce is an adjustment of the roles of judge and jury in defamation proceedings. What is proposed is that at an early stage in a defamation action a jury will be required to answer two questions. The first is whether the imputations alleged are conveyed by the published material. The second is whether, if the answer to that question is "yes", the imputations are defamatory. If the jury answers either of those questions "no", the judge will enter judgment for the defendant.
That is what occurs now in defamation cases where a jury is empanelled. It is where the jury answers the threshold questions in the affirmative that the change will take place, and it is this. At present the jury is retained to determine some questions of fact inherent in certain defences. Under this bill that will not occur. Having dealt with the preliminary questions the jury will be discharged from further participation in the trial, which will proceed before the judge alone, he or she determining all defences and, in due course, assessing any damages. By allocating to the jury what is a vital decision in the trial the arrangement maintains an appropriate degree of community involvement. At the same time, by providing that the trial shall thereafter proceed before the judge alone, a substantial amount of time and money will be saved and the complexities which now arise in the course of a trial because of the current division of functions of judge and jury will be overcome.
These, of course, give rise to problems which generate appeals and, in turn, new trials. In assessing an imputation a jury reflects the view of the community and is a good safeguard in the process of balancing reputation against freedom of speech. Moreover, by enabling the trial judge and not the jury to determine damages, the bill will ensure that damages awards in defamation proceedings correctly reflect the aim of compensating a person for an injured reputation. Honourable members need have no concern that the legislation now before the House will fetter the proper exercise of judicial discretion. On the contrary, the bill envisages that such discretion will be retained. All it requires is that, in assessing non-economic damages, the judge will take into consideration awards made in other types of cases. Such awards are an important factor, but they are by no means the only factor legitimately to exercise a judge's mind.
In performing the task it is not expected that judges will need to tread the tortuous path of detailed analysis of every personal injury verdict. It would be nonsense to expect any exact equivalence. It is anticipated only that judges will draw on their experience and knowledge of the range of possible verdicts in the light of the seriousness of the cases occasioning them. They will then consider the relative seriousness of the case that they are actually deciding and, having taken into account all other relevant factors, will make an award. The second change the bill will effect is to provide for a justification defence of truth alone.
The additional requirement that has operated to date in this State is that the publication should be justified as either being in the public interest or made to a limited audience in furtherance of some legal, social or moral duty. Its rationale has been that it affords to a plaintiff protection against the distress and embarrassment that may be caused by a vindictive or sensation-mongering disclosure of sensitive private facts. However, the common law rule which allows a defence of truth alone already operates in some jurisdictions. In Victoria, South Australia, Western Australia and the Northern Territory, material which exposes a person to hatred, ridicule or contempt or which causes him or her to be shunned or avoided by others may be published without adverse legal consequences provided the statement is true.
In the High Court's recent decisions of Theophanus and Stephens the majority justices proposed criteria to determine whether the publication of political discussion is to be non-actionable. Their
Honours set out what a defendant would need to establish to escape liability when false and defamatory material about a plaintiff is published. Their Honours did not, however, deal with the question of liability when a defamatory but true statement is made in the course of political discussion. In this State, as I have already indicated, the present law requires that the defendant establish both truth and public interest to avoid liability. It is, however, a corollary of the majority's approach that the restraint of the latter element is likely to be viewed as a restriction on the freedom of political discussion and, provided a statement is true, it will not be actionable.
It is therefore appropriate to take this opportunity to put the matter beyond doubt. For too long the courts have dictated the agenda concerning the freedom of communication. On this occasion the bill provides an opportunity for Parliament to take the initiative. In a society that demands and should expect free and open participation in political discussion, respect for the truth must prevail. It should not be the role of the defamation law to provide protection against the invasion of a person's home life, personal and family relationships, health or private behaviour. Nor should the law of defamation protect undeserved reputations. In Rofe v Smiths Newspapers Limited (1925) 25 SR NSW 4, His Honour Acting Chief Justice Street said at pages 21 to 22:
That this bill be now read a second time.
Thus, the law will become simpler, easier and clearer to apply and the truth of the matter will be the only issue to consider when journalists, editors and lawyers are considering publication. The change will not protect truthful but misleading statements. Take for example a hypothetical prominent headline and picture encapsulated "Member of Parliament in court - child pornography case". Assume also that the member in question was not involved in any criminal activity but had been called as a prosecution witness to pass on certain information that had been conveyed to him or her. The headline would be literally true, but the imputation it conveyed would not, and the defence of truth would not be available to protect against the wrongful imputation.
That brings me to the timing of the bill. The suggestion might be made that defamation law reforms at this juncture are inappropriate and that the Government ought not to pre-empt the recommendations of the Law Reform Commission and its work on the broad reference given to it in this area of the law. As honourable members will recall, the Government introduced the Defamation Bill 1991, which was referred by the former Attorney General to a legislation committee of the Legislative Assembly, comprising members from both sides of the Parliament and the crossbenches, to enable a public evaluation of its provisions. In May 1992, after that bill had been reintroduced, and re-referred, that committee issued a discussion paper canvassing the principal issues raised in submissions made to it, and its final report was tabled in the Legislative Assembly on 14 October 1992.
The approach taken by the committee was to focus not on the attainment of a uniform scheme, which had been a major impetus for the 1991 bill, but on achieving a thorough reform of defamation law in this State. Uniformity was still acknowledged to be a desirable aim but that object was not regarded as being the principal goal. As a result, the committee made a number of departures from the approach taken in that bill. It was the legislation committee that recommended that I refer the Defamation Bill 1992 and the committee's report to the New South Wales Law Reform Commission for a comprehensive review of the bill's provisions. Significantly, the committee also recommended that the commission undertake an empirical study of defamation matters, with the object of ensuring that reform proceeds from a factual rather that an anecdotal basis.
In the light of the committee's recommendations, the Chairman of the Law Reform Commission was given a reference on 4 November 1992. That reference for inquiry and report related to the law of defamation in New South Wales and in particular: the relative roles of the judge and jury; standards, defences, onus and procedure; the determination of damages; non-monetary remedies, including court-ordered correction statements; alternative or additional techniques of dispute resolution; the need for the provision of a separate tort of privacy; the need for the provision of shield laws to protect journalists' sources; and any related matter.
The chairman was advised that the commission should provide drafting instructions for amendment of the bill and, in doing so, take into consideration such empirical data relating to defamation matters as may be available and to have particular regard to the proposals of the Standing Committee of Attorneys-General for uniformity of defamation laws in Australia and the discussion paper and the report of the legislation committee on the defamation bill. The commission formed a separate division with responsibility for the project. Two part-time commissioners, Mr Justice Hunt and Professor Chesterman, Dean of the Law School, University of New South Wales, were appointed because of their specialised experience in the subject matter. The commission published a comprehensive discussion paper in August 1993. It sought submissions by the end of October 1993, and a number of extensions of time for the making of submissions were sought and granted.
The commission is now finalising its report, which will, of course, incorporate its views on significant recent case law, notably the Theophanus decision. The strength of the Law Reform Commission lies in its independence. That independence prevents the Government from dictating compliance with a timetable that would compromise the commission's work towards achieving a consultative basis for comprehensive defamation law reform. It is in that context that the present bill has been framed. The bill accommodates essential reforms to defamation law while anticipating to some extent what the commission may recommend. Any
wider reforms and the resolution of numerous contentious issues in this area of the law should properly await the findings of the Law Reform Commission. Honourable members should appreciate that the present bill merely represents an important interim step in achieving the Government's goal of effective defamation law reform.
On the information that is available to date, I believe that the reforms go some way to meeting the concerns that have been canvassed by both the legislation committee and in the commission's discussion paper. Uniformity in the area of defamation law reform will depend on the willingness of other jurisdictions to embrace reforms eventually put forward in this State on the basis of a recent, thorough and consultative examination of this area of the law. That willingness would doubtless be enhanced if any legislation that was put forward as a model was the result of a considered and comprehensive review. That will be the object of the next stage of defamation law reform in this State. In the meantime, I commend the bill to the House.
Debate adjourned on motion by the Hon. J. W. Shaw.
No wrong is done by telling the truth . . . By telling the truth . . . reputation is not lowered beyond its proper level, but is merely brought down to it.