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| Bill presented and read a first time. Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time. The purpose of this bill is to reform the law of defamation in the Territory so that it is uniform with the law in place elsewhere in Australia. This bill will repeal and replace the Defamation Act currently in operation in the Northern Territory, and make consequential amendments to the Juries Act and Limitations Act. This bill reforms the law of defamation in accordance with the model provisions agreed by all state and Territory Attorneys-General over the course of 2004-05. It is substantially the same as bills passed in other states and the Australian Capital Territory. Currently, the law of defamation in the Northern Territory is substantially the common law with minor modifications made by the Defamation Act. Prior to the passage of new Defamation Acts in the states over the last year, the law of defamation in Australia was inconsistent amongst the jurisdictions. In some jurisdictions, the common law was the source of defamation law with either minor or substantial statutory amendment, while in Tasmania and Queensland, the law had been codified. The principal differences were not in relation to what constituted defamatory statement but as to the defences that applied. These differing defamation regimes were complex and worked poorly in practice. The model defamation provisions reflected in this bill have primarily been driven by the rapid growth in technology. We now live in a world where communications are no longer confined to individual jurisdictions or nations. The lack of uniformity in this country was routinely criticised for leading to unfair and disproportionate results. For example, this inconsistency allowed a plaintiff suing a national newspaper or media association to choose or 'forum shop' the jurisdiction which had the most attractive laws. This ensured the best chance of a favourable verdict and the highest damages. Implementation of the model Defamation Bill remedies most of these anomalies by ensuring the same law will apply regardless of the place of publication or the place where the court action may take place. Long-term uniformity will be underpinned by an inter-governmental agreement. In developing this bill, the Attorneys-General of the states and territories have also considered the policy principles applying to the law of defamation. We have sought to develop defamation legislation that achieves an appropriate balance between free speech and protecting the reputation and character of individuals. Importantly, the uniform legislation has the support of all the major print and electronic media stakeholders in this country. By way of background, the cause for the reform of defamation law in Australia and problems associated with its lack of uniformity have been under national consideration for at least 25 years. In 1979, the Australian Law Reform Commission published its report Unfair Publication: Defamation and Privacy. The ALRC concluded that significant changes were needed in the substantive law governing rights of action and defence. In July 2004, the Standing Committee of Attorneys-General released the proposed framework for uniform defamation law to the public for comment. This was after substantial agreement by SCAG on the core principles that would form the basis of the new model provisions. The proposed framework received considerable support from stakeholders and led to the development of the model provisions which form the basis of the bill. As all members will appreciate, the reform of defamation laws in this country is essential and any such reform should be uniform throughout Australia. I shall turn now to discuss the four main objectives of this bill set out in Part 1 which are as follows:
2. to ensure that the law of defamation provides an appropriate balance between protecting personal reputations and does not place unreasonable limits on freedom of expression; 3. to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and 4. to promote speedy and non litigious settlement of disputes which avoid costly court trials. Before setting out the main features of the Defamation Bill, I note that the model provisions developed by the states and territories do not completely codify the operation of the common law in relation to civil defamation. Defamation is a torte and the law in this regard will continue to apply subject to the modifications provided for in this bill. Thus, essential matters such as definitions of defamatory matter, publication or public interest will continue to be determined by the common law. In other areas, such as corporations suing for defamation and damages, for example, the bill will change the common law. A significant advantage in not completely codifying the law of defamation is that the law will retain its flexibility, with the capacity to develop in response to changing circumstances. This will not detract from uniformity because the High Court enunciates the law for all jurisdictions. I will now set out the key features of the bill, in particular where it modifies the current Northern Territory Defamation Act. First, the ability of corporations to sue for defamation. This bill amends the common law which, at present, allows corporations to sue for defamation if they can show that the defamatory statements injured them in their trade or business. Under the bill, corporations will not be able to bring these types of actions. There are two exceptions. Corporations that do not operate for financial gains, or which employ fewer than 10 employees, and that are not related to another corporation. This exemption will allow small business entities, such as family businesses or non-profit community organisations to protect the business or trade by bringing defamation actions where necessary. These exceptions do not include local council or other governmental or public authority. These entities will not be able to bring defamation actions. Defamation is aimed at protecting the personal reputation of the individual, and it is entirely consistent with the focus of this bill that defamation operates to restore the reputation of individuals where they have been defamed. Defamation action has the potential to be used by large corporate bodies to stifle criticism of their action. Such organisations have the ability to stop public comment as they have the resources to pursue costly litigation against private individuals who have no capacity to defend themselves. Corporations also have other options available to them to refute allegedly defamatory publications, such as publicity campaigns to promote their public profile and reputation. Second, the bill provides for the resolution of disputes without litigation. This bill contains provisions designed to facilitate the speedy resolution of disputes without litigation. These provisions encourage alternative dispute resolution by establishing a voluntary offer of amends settlement process between a publisher and an aggrieved person that may before or as an alternative to litigation. The offer of amends must include an offer to publish a reasonable correction, and must include an offer to pay the reasonable expenses incurred by the aggrieved person before the offer was made, and those incurred in their consideration of the offer. This pre-litigation offer of amends procedure provides a strong incentive for timely corrections to be published and differs from the current process in that it operates before any litigation has commenced. Under the bill, an apology does not amount to admission of fault or liability, and the evidence of an apology is not admissible in civil proceedings as evidence of fault or liability. At present, the Defamation Act only provides for post-litigation apologies. Third, the bill changes the law for juries and judicial officers. At present, in the Northern Territory the Juries Act provides that a court may, on its own or by application to a party, order the civil case be tried by the court with a jury. In the last 30 years, however, it seems there has only been a single case in which a civil jury has been employed. Use of juries is one issue on which national uniformity could not be agreed. Ultimately, it was decided that it was a procedural issue and that jurisdictions that wish to retain juries could do so and others could operate without them. Those jurisdictions that have retained juries have limited them to deciding liability and not assessing damages. Because civil juries have so seldom been used in the Northern Territory, and because it was determined by SCAG that juries are necessary for uniform defamation laws, the use of civil juries for defamation proceedings in the Northern Territory has been abolished by this bill. Fourth, changes to the limitation period. The Northern Territory currently provides for a three year limitation period in which to commence a defamation action. This bill reduces that to one year to encourage immediate attention of an alleged defamation. However, there are circumstances where it may not be reasonable for a plaintiff to commence an action within that period. The bill therefore provides that a court is able to extend that period for up to three years. This change will be implemented via an amendment to the Limitation Act. Fifth, common law defences. This bill contains a number available defences to an action in defamation. These are in addition to defences that already exist under the common law, and are not intended to limit the operation of those defences in any way. This means that defences available under the common law are not excluded from operation even though they are not included in this bill. For example, the truth alone defence to an action in defamation is presently the common law in the Northern Territory. This defence is established when the defendant proves that the defamatory publication was true or substantially true. This defence is maintained in the bill. Sixth, the defence of contextual truth. In addition, the bill provides for a new defence of contextual truth. This provides that where defamatory imputations arise from a publication, it is a defence for the defendant to show in the context where some of the defamatory statements or true or substantially true, and others are not true, that the plaintiff's reputation has not been further harmed by the untrue statements. An example is a publication which states that a person was a convicted murderer which was true and had a drink driving conviction which was false. The defendant could argue that in the context of the whole publication the plaintiff's reputation as a convicted murderer was not further harmed by the untrue statement that he or she was also a drink driver. This differs from the current position in the Territory where the plaintiff can separate statements in the publication and sue on the minor defamatory statement which is if considered in the wider context of the publication does not actually harm the plaintiff's reputation. This state of affairs potentially operates unfairly. The plaintiff may recover damages for the untrue statement even though no further harm to the plaintiff's reputation occurred in the context of the publication as a whole. The new defence of contextual truth addresses this problem by ensuring courts have reference to wider circumstances and content of the publication. Seventh, the defence of innocent dissemination. Another defence contained in this bill is innocent dissemination. This already exists under the common law but the bill clarifies the position of those who distribute the material but who are not necessarily aware of the content of the material they distribute, such as internet service providers, book sellers or librarians. These providers will no longer be automatically treated as the primary distributor of the defamatory material. They will be able to rely on this defence if they can prove that they did not know or could not reasonably be expected to know that the material was defamatory and that their lack of knowledge was not due to any negligence. This defence recognises that some distributors of material from Internet providers to the local newsagent have no effective control over the material they distribute and should not be liable to defamation. Eighth, the defence of absolute privilege. The bill maintains the current statutory position in the Territory in relation to absolute privilege. This defence will continue to apply to situations such as proceedings in parliament and those before tribunals and courts. This defence recognises that in these circumstances it is in the public interest that freedom of speech be safeguarded from the threat of litigation. Ninth, damages. The bill contains several significant provisions relating to damages. The bill requires that damages awarded to plaintiffs have an appropriate rational relationship to the harm sustained by the plaintiff. And further, damages for non-economic loss are capped at $250 000, which will be adjusted annually with reference to the formula in the bill. This is consistent with reforms to the tort law of negligence as contained in the Personal Injuries, Liability and Damages Act 2002. Finally, the bill abolishes exemplary or punitive damages but retains the ability of courts to award aggravated damages. This will occur in circumstances where the conduct of the defendant has been either improper, unjustifiable, or lacking in bona fides. Their conduct must be misconduct and the misconduct must have caused a further actual harm to the plaintiff. The bill also sets out some mitigating factors to assist in the assessment of damages. This includes whether the defendant has made an apology, whether the defendant has published a correction, and whether the plaintiff has already recovered damages from the same or similar matter from any other publication. None of these are intended to limit the matters a court may take into account in mitigation of damages as is the case currently in the Territory under the Defamation Act. Tenth, criminal defamation: The uniform state and territory legislation deals with the law of civil defamation. Criminal defamation is dealt with under a variety of laws outside each jurisdictions defamation act. It is not intended that the uniform defamation legislation reform or make uniform criminal defamation laws. However, some states have taken the opportunity to amend the law relating to criminal defamation within the body of the defamation bill. The Territory did not consider it necessary to amend its criminal defamation provisions which are contained in the Criminal Code. The intergovernmental agreement in order to maintain uniformity in defamation law the state and territory Attorneys-General have developed an intergovernmental agreement. This agreement provides for a consultative process to respond to change in circumstances and it will ensure that any further reforms on defamation law will occur on a uniform basis throughout Australia. In conclusion, this bill represents a milestone for defamation law in the Northern Territory and throughout Australia. This bill will ensure at the national level an appropriate and fair balance between free speech and the protection of personal reputations. The reform is long overdue and represents a significant achievement by the states and territories. It is an essential step based on broad agreement between jurisdictions and is supported by a broad spectrum of stake holders in the print and electronic media. Madam Speaker, I commend the bill to honourable members and table a copy of the explanatory statement. Debate adjourned. |