Tuesday 29 November 2005
DEFAMATION BILL 2005
Mr FINCH (Rosevears) - Mr President, I wish to make a couple of observations. My mother always used the sticks and stones but words will never hurt you analogy. She was rarely wrong, but she could well have been in this case because words can hurt and they can cause financial damage. There has to be some legal remedy. We have to ask ourselves this: is this bill the correct remedy? Clause 7 of this bill does away with the distinction between libel and slander, but many people did not understand the difference in any case. However, the legal profession certainly did. At common law, libel was actionable without proof of special damage, whereas in slander special damage had to be proved.
Clause 7(2) provides that publication of defamatory matter of any kind is actionable without proof of special damages, but I am afraid I cannot judge if this is desirable. Clause 9 may well be a blow for the little man and little woman because previously a powerful corporation was able to silence criticism of its actions by the simple process of launching a claim for defamation.
Clause 10 seems eminently logical as a cause of action for defamation dies with its victim. If a person defamed dies there seems no reason for the person's estate to benefit, but the dead then become an easy target. One clause that concerns me is the virtual limit of the $250 000 damages in clause 35 and this would seem to take away the flexibility of a judge in assessing economic loss.
Mr Wilkinson - I doubt whether any court in Tasmania has gone anywhere near that.
Mr FINCH - It is a little bit like legislation setting mandatory sentences. We should make every effort to maintain judicial discretion but I heard what the Deputy Leader said about the scale, and there may be some discretion in this new set-up in clause 35. It is obvious that I am no legal expert. Can you tell? Is the message starting to come through to you?
Mr Aird - You have good advice though.
Mr FINCH - It does seem to me that provisions in the bill free up the right of persons to make fair comment on matters of public interest without fear of action for defamation. Quite frankly, Mr President, I have a feeling that I have been rushed with this legislation and in trying to get a handle on its implications.