Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

Second Reading

[5.57 p.m.]

Mrs JACKSON (Denison - Minister for Justice and Industrial Relations - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

This bill is part of the reform and modernisation of defamation laws throughout Australia which will result in an appropriate balance between free speech and protecting the reputation and character of individuals who are defamed.

The State and Territory defamation laws based on a model bill developed through the Standing Committee of Attorneys-General will mean that there will be uniform laws covering defamation across Australia. In March this year the Standing Committee of Attorneys-General - SCAG - meeting of all States and Territories agreed to implement model reform defamation legislation by the end of this year. This bill, with minor local drafting modifications, is the same as the bills currently before the Western Australian and Queensland parliaments and the model bill has now been passed by the South Australian, New South Wales and Victorian parliaments. Bills based on the model are proposed to be introduced in the Territories shortly.

The attempts to reform defamation law in Australia to provide greater uniformity have been under consideration for at least 25 years. In 1979 the Australian Law Reform Commission published its report Unfair Publication: Defamation and Privacy and the Western Australian Law Reform Commission has also published a report on defamation more recently. There have been various other examinations of the issue since then. This bill takes into account these reports as well as a SCAG July 2004 discussion paper, with the paper and the bill following many of the recommendations of a 2003 inquiry in Western Australia.

While Tasmania has had relatively few defamation cases and thus might not be significantly affected by the changes to the law, the principal obstacle to agreeing on a model bill has been the difficulty in overcoming the difference between jurisdictions on the main defence to defamation. Western Australia, South Australia and Victoria have 'truth alone' as a defence to a defamation action but Tasmania, New South Wales, Queensland and the ACT require the defendant prove that the published matter was 'true' and that it was in the 'public interest' or 'for the public benefit' for the matter to be published. All jurisdictions have now agreed on 'truth alone'.

Rapid technology and other developments in the ease and speed of communications, both in electronic and print forms, across jurisdictional boundaries, dictate that any reforms of this type should be on a national basis so that the same rules apply to whether a publication is or is not defamatory or whether the publisher of the material has the protection of same form of privilege or a defence.

National uniform defamation law reform can be achieved by cooperation between all the States and Territories and after all the work done by SCAG there is now an agreement to implement uniform State and Territory defamation legislation.

There are four main objectives underlying this bill: firstly, to have a uniform law of defamation operating throughout Australia. This is particularly necessary because much of the media is national rather than local and because of the rapid movement of written and oral communications across Australia. The second objective is to encourage and allow early and non-litigious settlements of disputes involving allegations of defamation. The object of defamation proceedings should be to vindicate the reputation of persons who have been defamed, rather than being an avenue for monetary compensation. The third objective is to apply, with appropriate modifications, the common law of defamation. The intention is that the uniform legislation will not affect the operation of the general law concerning defamation except to the extent that the legislation so provides. The fourth objective is to balance the protection of personal reputations with the right to free speech; for example, by not placing unreasonable limits on publication and discussion of matters of public interest and importance while still providing effective and fair remedies for defamed persons.

The central features of the bill which have also been spelt out in the explanatory notes which have been circulated, include:

Retention of the Common Law

This legislation is not an exhaustive or exclusive legislative code on defamation law. Neither was the Defamation Act 1957, which it is replacing. The bill will only affect the common law of defamation to the extent that the bill specifically provides that common law will continue to apply in areas other than those set out in the bill.

There are four main examples. First, the bill does not define what is a 'defamatory matter'. Therefore, the common law test of defamatory matter will remain; namely, that a publication is defamatory if it is likely to cause ordinary, reasonable people to think less of, or shun or avoid, the plaintiff. Secondly, the bill does not define what is a 'publication' of a defamatory matter. Whether there has been such a 'publication' will be determined by the common law. Thirdly, the bill does not define 'public interest' which, for example, is an aspect of the defences of qualified privilege and honest opinion. 'Public interest' will be determined under the common law. Fourthly, the bill will not deal with the circumstances in which a person will be able to obtain an injunction to restrain the publication or republication of material. This will remain a matter to be dealt with in the courts' equitable jurisdiction.

Relying on the common law will ensure that defamation law retains its flexibility, with the capacity to develop in response to changing circumstances. This will not detract from uniformity because in the end High Court decisions effectively determine the common law which applies across Australia.

Corporations

One feature of the bill is its application to corporations. Currently, at common law and under the Tasmanian act, corporations can sue for defamation. Under the bill, corporations will not be able to sue with two important exceptions: firstly, when the corporation is a non-profit corporation; and secondly, where the corporation has nine or fewer employees at the time of publication of the defamatory matter. Part-time employees are taken into account as fractions of a full-time equivalent. In addition, to be able to sue for defamation, such a corporation must be a corporation which is not related, within the meaning of that term in the Commonwealth Corporations Act 2000, to another corporation at that time. In essence, this covers subsidiaries and other relationships.

Local councils or other government or public authorities will not be able to sue in defamation. However, it is important to note that an individual associated with a corporation can still sue for defamation in relation to a defamatory publication about the individual where a publication which may defame the corporation also defames directors or officers as individuals.

There are some who consider that all corporations should be able to sue for defamation, with varying preconditions, depending on whether it is small, medium or large. The States and Territories have not agreed with that position for a number of reasons. Firstly, defamation law is about protecting individual's reputations, not corporate reputations.

Mr Booth - Someone should tell that to Gunns.

Mrs JACKSON - I was waiting for that.

Mr McKim - You'll get a lot more of it in my contribution.

Mrs JACKSON - I thought we might.

Secondly, there may be other remedies available to corporations to recover losses caused by damaged reputations; for example, the tort of injurious falsehood and Commonwealth Trade Practices Act 1974 remedies for misleading, deceptive or unconscionable conduct. Thirdly, large and powerful corporations should not be able to use the threat of defamation proceedings to silence or stifle public debate or criticism. Finally, corporations, unlike most individuals, may well have the ability to engage in advertising to refute alleged defamatory publications and run effective publicity campaigns to protect their public profile and reputation.

On the other hand, it is clear that with some small businesses the future of the firm is very much tied to the reputation of its owner and the defamation of a small business owner can have a severe effect on its operation. While there may be a range of measures of what is a 'small business', for this purpose SCAG considered that the number of employees was a reasonable measure and that fewer than 10 employees was an appropriate cut-off point. This means that the vast majority of incorporated bodies that are still able to sue many of the smaller corporations are in fact owned by only one or two persons and employ no other people in what are essentially family companies.

Limitation Periods

In relation to limitation periods, currently, in this State, there is a six-year limitation period in which to commence a defamation action. SCAG has agreed that the defamation law should have uniform periods for commencement of actions and the bill requires defamation proceedings to be commenced within one year, with a judicial discretion to extend this to three years.

Offer of Amends

Importantly, the bill contains a pre-litigation offer of amends procedure and makes it clear that an apology does not amount to an admission of fault or liability. This is designed to encourage early and voluntary settlement of disputes without resort to litigation. The offer of amends must include an offer to publish a reasonable correction. The provision regarding apologies is similar to that incorporated into civil proceedings legislation in the last few years.

It has been proposed that the courts should be able to order publishers to publish a correction. However, States and Territories consider that the bill should not provide for court-ordered correction orders for a variety of reasons. First, the offer of amends procedure already encourages publishers to promptly publish corrections. The Tasmanian act contains a similar offer of amends process. Second, the bill provides that the publication of a correction can mitigate damages. Third, a prompt and voluntary correction is preferable to a court-ordered correction because court-ordered corrections will necessarily be made a considerable time after the original publication of the defamatory material.

Common Law and Statutory Defences

Importantly, the bill does not exclude any defences to defamation proceedings which may be available at common law or under other legislation and which are not included in the bill. That is, the defences in the bill are additional to and do not exclude other defences to civil defamation proceedings.

Truth

Perhaps the most well-known defence to defamation proceedings is truth. Currently, 'truth alone' is a defence in some States. This defence is established when the defendant proves that the defamatory publication was true or substantially true. The bill adopts this 'truth alone' defence by providing that it is a defence if the defendant proves that the alleged defamatory publication was 'substantially true'. This represents a compromise by those jurisdictions including Tasmania, Queensland, New South Wales and the ACT, which currently have 'truth' coupled with 'public benefit' or 'public interest' as a defence.

Privilege

Members will note that the bill continues provisions giving absolute privilege against liability for defamation such as those which are currently in sections 10, 11 and 12 of the Defamation Act 1957. These cover the usual situations such as proceedings of parliaments, courts and tribunals, and royal commissions. The bill also protects publications of fair reports of public documents and of proceedings of public concern. The 1957 act also covered fair reports and matters of public interest in a similar manner.

Currently, the common law qualified privilege applies when the person who makes the communication has an interest or legal, social or moral duty to make a communication and the recipient has a corresponding interest or duty to receive the communication, and the conduct of the defendant in publishing the material is reasonable in the circumstances.

Honest Opinion

The bill protects expressions of opinion which are genuinely held about matters of public interest in three specified situations: firstly, where the opinion was that of the defendant; secondly, where the opinion was that of the defendant's employee or agent; and thirdly, where the opinion was that of a third party. This defence may be defeated if the plaintiff proves that the defence was motivated by malice. This generally reflects the common law defence of fair comment which Tasmania has previously covered by section 14 of the Defamation Act 1957.

Innocent Dissemination

The common law defence of innocent dissemination is retained and supplemented by the bill. That is, although the common law already protects secondary distributors of material who neither knew or ought to have known that the material they distributed was defamatory, the bill specifically accommodates modern means of communications by recognising that some parties involved in the distribution of material, for example, booksellers - who also had some protections under the Defamation Act 1957 - and internet service providers, have no effective control over the material they distribute and should not be liable in defamation.

Damages

The bill contains several significant provisions relating to damages. First, the bill requires that damages awarded to plaintiffs have an appropriate and rational relationship to the harm plaintiffs have suffered. Secondly, the bill imposes a general cap on damages for non-economic loss of $250,000 which will be adjusted annually with reference to a formula in the bill. The courts may, however, award additional aggravated damages in appropriate cases and the bill provides for the full recovery for a plaintiff's economic loss. Finally, the bill abolishes exemplary and punitive damages for defamation. In the Tasmanian context the limit may be seen as quite high, as decided cases in this State, of which there have been very few, have resulted in awards of much less.

Criminal Defamation

The model bill also deals with criminal defamation, which is a crime in this State but not necessarily an offence or crime in all jurisdictions. The SCAG agreement on reforming defamation laws did not extend to the criminal offences so there will no doubt be differences between jurisdictions' criminal defamation laws. It is, however, appropriate to implement reforms to the Tasmanian criminal defamation laws as the Criminal Code provisions apply essentially the same defences to the alleged crime as apply to the civil cases.

Like the various pieces of legislation that have been developed through SCAG towards uniformity in State and Territory criminal laws which have been passed by this Parliament over the last 10 or so years, it is sensible to adopt the generally-accepted approach to the formulation of defences which can apply to criminal defamation.

Intergovernmental Agreement

The State and Territory Attorneys-General have developed an intergovernmental agreement to maintain uniformity in respect of the law of defamation. The model bill was developed cooperatively by the States and Territories, with all jurisdictions having to adjust their positions to get to a final acceptable bill and the agreement should ensure that as far as possible any changes proposed by any of the jurisdictions will be considered and approved by the States and Territories to maintain uniformity.

This reform is long overdue. As noted above, proposals in this bill have been considered and endorsed by all State and Territory Attorneys-General and other persons and organisations, including media organisations. There is broad agreement that these uniform defamation reforms should be enacted.

I draw the attention of members to the amendment I have circulated in relation to clause 6. A drafting error needs to be corrected, as the reference to 'this Act' second occurring should have been a reference to the 1957 act which we are repealing by this bill.

I have much pleasure in commending this bill to the House.

[6.13 p.m.]

Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, as mentioned at the start of the debate this is a very special occasion because in view of the announcement yesterday that the honourable Attorney-General will not be contesting the next State election, there will be an opportunity later for the Parliament to place on record its appreciation for her 20 years of service to the State of Tasmania in this Parliament. I simply say after looking through the list of bills - she has five to deal with over the next couple of days - this is the one national bill and a piece of legislation of very great importance. It is very appropriate that the honourable Judith Louise Jackson, MHA, as Attorney-General has the carriage of this bill. It has been 25 years in the making.

The bill is the result of work that has gone on for a quarter of a century. It started in the year I was elected to the Federal Parliament, you Mr Deputy Speaker were in short pants and the honourable Judith Louise Jackson was not yet -

Mrs Jackson - Not even born.

Mr MICHAEL HODGMAN - The honourable Judith Louise Jackson was still at school.

Mrs Jackson - I don't think so.

Mr MICHAEL HODGMAN - Pretty close to it. I believe it is a case where the time taken has been worthwhile because a couple of massive areas of disagreement which have now been resolved. May I say as Her Majesty's shadow attorney-general for the State of Tasmania that Her Majesty's loyal Opposition will be supporting the bill and the amendment foreshadowed by the Attorney-General.

We note that already this bill has been passed by the South Australian, New South Wales and Victorian parliaments. It is currently under consideration in the Western Australian Parliament and, I believe, the Queensland Parliament. At the end of the day, the Standing Committee of Attorneys-General are to be congratulated on reaching agreement. Probably the main argument, and the Attorney has been involved in this personally for the last three years, was whether or not the law as it applied in Western Australia, South Australia and Victoria, where truth alone was a defence, would be the rule or whether the requirements for Tasmania, New South Wales, Queensland and the ACT, that the defendant prove the published matter was true and that it was in the 'public interest' or 'for the public benefit,' for the matter to be published. Mr Deputy Speaker, all jurisdictions have now agreed to change to truth alone.

Curiously, one of the few reported defamation cases in the State of Tasmania where the argument was public interest was a case called 'Pritchard and Darko'. I do not intend to go into the facts but there was no dispute that the statement made was true, that the plaintiff argued that it was not in the public interest that it should have been published and that was what the case was all about.

It is important to note from the outset that this is not a code. It is not exclusive and exhaustive like the Criminal Code Act 1924 and, secondly, that the common law, as the Attorney-General has pointed out correctly again, is not excluded except where this legislation deals specifically with it. All common law defences remain and common law rights of plaintiffs are preserved. So it is not an exclusive, exhaustive code at all. It is uniform legislation which will operate across the boundaries of the six sovereign States and two Territories of the Commonwealth of Australia. There will be uniformity, and I note with interest the Attorney pointed out that amendments to it will need also to be uniform, and that is as it should be. So it comes to us following a firm decision by the Standing Committee of Attorneys-General that every State and Territory should implement uniform legislation.

In summary, this bill will establish, when it is passed in every State and Territory, a uniform law of defamation operating throughout Australia. Secondly, and I believe wisely, it will encourage and allow early and non-litigious settlement of disputes involving allegations of defamation. Quite frankly, may I say, not as one of Her Majesty's counsel or indeed as Her Majesty's shadow attorney-general, but as one who has seen how expensive defamation proceedings can be, that when somebody told his or her lawyer that they wanted to go to court on a matter of principle, my late distinguished father, the honourable Bill Hodgman QC, OBE, MLC, said to them, 'Sometimes principle can be very expensive. I am in a somewhat fortuitous position that the only time I was sued the matter was very quickly resolved and settled and on the three occasions that I sued as plaintiff I was fortunate enough to be successful. Thirdly, the bill will apply with appropriate modifications to the common law of defamations as I said a few moments ago. Fourthly, which is really the most important point, the bill balances the protection of personal reputations with the right to free speech, for example, by not placing unreasonable limits on publication and discussion of matters of public interest and importance whilst still providing effective and fair remedies to defamed persons. That is the key to the legislation. It is an appropriate balance between free speech and protecting the reputation and character of individuals who are defamed.

Mr Deputy Speaker, to make the point quickly, what is the first thing that happens when a dictator assumes control of a country?

Mr McKim - They take over the media outlets.

Mr MICHAEL HODGMAN - They take over the fourth estate - the media outlets. The second thing they do is to remove the judiciary, or subjugate it. A dictator who can control the media, who can control the judiciary, is very hard to remove from power. I might just say in passing that this honourable Parliament passed a motion unanimously three weeks ago respectfully requesting the Government of Singapore not to execute the young Australian Van Nguyen. I am as appalled as I think each and every one of you would be to hear that there has been hardly any publicity in Singapore about the enormous upsurge of public opinion in Australia against the pending execution. Indeed, had it not been for the appearance of a distinguished member of the Opposition in the Parliament of that country last night on the ABC Lateline program, my understanding is that coverage would be absolutely minimal. I will be saying more about that in another time and place.

Turning now to the retention of the common law, which I regard as absolutely vital, I repeat that this bill is not an exhaustive or exclusive legislative code. The bill wisely does not define what is defamatory matter. Therefore the common law test will remain; that is, is the publication of the defamatory matter likely to cause ordinary reasonable people to think less of or shun or avoid the plaintiff. The old words going back a century and a half I thought were better: hatred, ridicule and contempt were the three criteria for defamatory comment. Today we are a bit more politically correct and we talk about thinking less of, or shunning or avoiding.

The bill correctly does not define public interest. I think that is a classic matter which is to be dealt with by the court, be it a judge sitting alone or a judge and jury. Public interest is in fact determined under the common law. It does not deal with the circumstances in which a person will be able to obtain an injunction to restrain the publication or republication material. This will remain a matter to be dealt with in the court's equitable jurisdiction. That is behind closed doors, in chambers, when a judge of the Supreme Court of Tasmania hears what it is that is about to be published. He or she can ask questions, can make a decision on whether the publication is likely to effect seriously and even irreparably the reputation of the plaintiff, and then make an order.

Bravo to the Federal and State Attorneys-General for preserving so much of the common law. I have no doubt that my comments on corporations suing will be much briefer than perhaps the next speaker, but for my part I think they have got it right in that the bill does enable non-profit corporations, such as the Red Cross, to sue, and secondly, it will allow the majority of small businesses with nine or fewer employees at the time of publication to protect their name. That is important because there is a plumber in Tasmania who was put out of business as a result of defamatory comment made about him and his work. The Attorney is quite right, the damage that can be done to a small operation can be absolutely fatal to it.

I do not make any further comment in relation to corporations. I do have to say in relation to the limitation period that personally I think it is a bit short. The current law in the State of Tasmania is that persons can sue for defamation providing they commence their proceedings within a six-year limitation period. It is now going to become a one-year limitation period with the judicial discretion to extend this to three years. I think that is a bit short but the advice must be to all litigants and to lawyers to issue a writ to protect the right of your client. You can issue the writ and sit on it for one year before it becomes stale, so you could issue your writ and hold it for 11 months before you actually served it. Once you serve that writ, proceedings get under way and if the defendant is rich and powerful he, she or it will use his, her or its resources to try to intimidate you, the young or old, poor, impoverished plaintiff, out of court.

I think there is nothing sadder than to hear, as I once heard a very elderly client say to me when I was a very young lawyer, 'I can't afford to go on with this case because if I lose it I am going to lose my house,' and he had been appallingly defamed and he had to walk away. The truth, as defined by this bill, is provided that the publication is substantially true. That is as it should be - no nitpicking, no pettifogging, no down to the last detail. Providing it is substantially true, that is sufficient. Absolute privilege remains as it should in relation to proceedings of the Parliament, courts and tribunals and Royal Commissions.

Honest opinions genuinely held are protected. Qualified privilege remains unless it turns out the defendant was motivated by malice. We have put a ceiling on damages at $250 000. I do not know of any award in Tasmania, as the Attorney has pointed out, that has got anywhere near $250 000. There is full recovery for plaintiffs' economic loss. I am pleased that criminal defamation remains. In conclusion, a lot of people do not realise that the great Power Without Glory case, which involved Frank Hardy and the things he wrote about the family of John Wren, came to public attention because there was in fact a criminal prosecution of Frank Hardy for criminal defamation of John Wren, or John West as he was referred to, and Frank Hardy was acquitted.

Finally, I commend the Attorney for her work on this legislation. I commend the Standing Committee of Attorneys-Generals. This is a new step forward and I think it is good legislation and I am very proud that the Opposition will support it. I congratulate Her Majesty's Attorney-General for the State of Tasmania for bringing this into the Parliament.

[6.30 p.m.]

Mr McKIM (Franklin) - Mr Deputy Speaker, the Greens will also be supporting this bill and like the Liberal Party, embodied as always on justice issues by the honourable shadow attorney-general, Mr Hodgman, we also understand that this is model legislation based on the SCAG agreement in March. It is fair to say that this has been a long time coming; in fact, just a fraction too long for the brave defendants in the Gunns 20 case. If this bill had been tabled a year ago in Tasmania and passed and made law, I do not think they would be in the position that they are in today.

The major effect of this bill is that truth alone is now a defence in Tasmania without the necessity to satisfy any kind of public interest test. Like the honourable shadow attorney-general and clearly the honourable Attorney-General, because she has brought in this bill, we think that is very much as it should be. I notice the public interest comes into the test for another couple of defences that are established in this bill and we think, again, that is as it should be. Defamation law necessarily treads a fine line between protecting reputations and empowering the fourth estate to hold to account those whom they are charged to hold - that is, politicians, political parties, corporations and other participants in Tasmania's public debate.

I noted with interest a couple of matters the Attorney raised in her second reading speech and I quote:

'Large and powerful corporations should not be able to use the threat of defamation proceedings to silence or stifle public debate or criticism.'

Well, I could not agree more. Members will be aware that Gunns not only took action against a number of conservationists in this State but had the gall to go across Bass Strait and do it in Victoria. That is something which I further note they would not have been able to do if this law had been passed. Clause 11 makes it clear that if a matter is published within an Australian jurisdiction the substantive law that is applicable in that area must be applied in that jurisdiction to determine any course of action. If there is multiple publication, which it is probably arguable that there was in a couple of matters in relation to which Gunns have acted, the jurisdictional area to be assessed under this clause would be the area in which the harm as a whole has its closest connection.

My reading of that is that Gunns could not have gone across Bass Strait and taken action over there; they would have been required to do it in this State. If they had had the courage of their convictions, they would have done so. It was a cowardly act in my view to take action in Victoria in relation to these matters. Clearly the Attorney does not think corporations ought to be able to sue, the shadow attorney does not think corporations ought to be able sue because he is going to support this bill, as are his colleagues, so today Parliament is united in believing that corporations ought not to be able to take action for damages in relation to defamation.

Mr Michael Hodgman - Is the Gunns case only on defamation?

Mr McKIM - I do not make any comment about the specificity of the Gunns case except to say that there are certainly defamation actions contained within it. Just to be clear, Mr Hodgman, I am not suggesting that that is the totality of the action that they have taken or the claims they are making, but I can say with full confidence that defamation is part of the claim that they are bringing. Clearly, all members of this Parliament, by passing this bill, are making it very clear that corporations - which are not excluded corporations, I should add - ought not to have a course of action for defamation. That is a landmark event in the Tasmanian Parliament because there has been a lot of debate about the merits of the Gunns 20 action. Can I say that I regard it as an act of extreme corporate bastardry, one of the lowest corporate acts that I have witnessed. It is an action that a company which really valued its place in the Tasmanian community would not have taken. It is an extreme act of corporate bastardry.

It is a matter of immense satisfaction to me that this Parliament clearly believes that the action taken by Gunns should have no basis in State law because of course we are right now amending State law so that Gunns could not have taken this action. If anyone wants to take any issue with my analysis of the bill in relation to Gunns, then I welcome their rebuttal.

I did want to go to a couple of the defences. I will do it in my second reading debate contribution and perhaps the Attorney can respond and negate the need to go into the clauses. In clause 29, which is 'Defence of fair report of proceedings of public concern', in subclause (2) I just want it clarified that there has not been a drafting error. The clause as it reads in the bill with which I have been provided says that:

'It is a defence to the publication of defamatory matter if the defendant proves that -

(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and

(b) the matter was, or was contained in, a fair copy of …'

I just wanted to ask whether the 'and' at the end of (a) should in fact be an 'or'?

The matters contained in this bill have indeed been a long time coming. It is fair to say that the wheels of most bureaucracies do grind very slowly. I also wanted to raise in the second reading debate, if I might, Mrs Jackson, a matter in clause 31, which is 'Defences of honest opinion'. As I understand it, this is a defence whereby if a defendant expressed an opinion, and if that opinion related to a matter of public interest - which is the public interest component of the test - and if that opinion is based on proper material, then those matters would constitute a defence. I did want to ask whether there is any attempt to define somewhere else in Tasmanian law what 'proper material' might be, because it is not defined in this bill.

You may and probably will tell me that that will be a matter for the courts to decide, which would be a perfectly satisfactory answer. We have to leave some matters in the hands of the courts. I for one have enormous trust in our judicial officers to make fair and reasonable findings in relation to the laws we pass in this place, but I would be interested to know what in fact you think 'proper material' may be, particularly in relation to that matter.

Mr Deputy Speaker, we will of course wholeheartedly support this bill because it contains many of the provisions contained in the Protection of Public Participation Bill 2005, which I tabled in this Parliament not many months ago. Members will recall that the drafting and tabling of that bill was a response to the attempts by Gunns Ltd to silence debate in this State by suing a large number of conservationists, including Greens Leader Peg Putt and Greens Senator Bob Brown, for comments it is alleged they had made. It saddens me that a corporation would think that that is an appropriate course of action to take and it gladdens me to think that this Parliament is now united in a condemnation of Gunns Ltd's decision to sue the Gunns 20. We are here united and passing a bill which would prevent Gunns from taking that action. I want to make it very clear that that is what we are doing here today.

Mrs Napier - We don’t believe in retrospective decision making.

Mr McKIM - No, I understand that, Mrs Napier. Of course, as so often happens, Mrs Napier shoots and misses the mark by a fair margin. Until her interjection, no-one had mentioned retrospectivity in relation to this matter. She is quite welcome to bring it up if she likes, but I know this bill is not retrospective. In fact, I am not even going to try to make it retrospective because retrospectivity is something that I, along with other members of this Parliament, would only support in extreme circumstances to correct a grievous wrong. I have no doubt I would not be able to get the numbers anyway, Mr Deputy Speaker, so I am not going to try, given the hour.

But it is a good bill. We do support it and I thank the Attorney for the advice she is about to give in relation to the matters I have raised.

[6.43 p.m.]

Mrs JACKSON (Denison - Minister for Justice and Industrial Relations) - I thank the members for their support. It is great that we have unanimous support for this legislation. Your observation about Gunns is totally correct; if this legislation had been law they would not have been able to sue for defamation, but it was not law and they could, so they are.

Mr McKim - Bastards!

Mrs JACKSON - We do have to go into committee. I am sorry, but I will be very quick because I have an amendment. But just to pick up on your question about clause 29(2)(a) and (b), where 'and' should be an 'or', Mr Armsby thinks it probably should be an 'or', but we need to check that because it is uniform legislation and every other State has passed it as it is with 'and'. We will move that amendment in the upper House if he checks with the other States and sees whether they are happy with that, but he agrees with you. How did you pick that up?

Mr McKim - Because I read the bill very carefully, like I always do, Mrs Jackson.

Mrs JACKSON - Well, congratulations, very well done. You get a star for that.

Mr McKim - That'll be the second McKim amendment, because you've got one in the Misuse of Drugs Act too, I understand.

Mrs JACKSON - The other issue was about 'proper material'. Of course it will be decided by the court, but it means it has to be a proper document with a properly based opinion. The court will look at the evidence and make its decision on that. Again, I thank members for their support