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Defamation remains not for the dead

Defamation remains not for the dead

THE STATES’ continued resistance to allowing the estates of deceased persons to bring an action in defamation has angered federal Attorney-General Philip Ruddock.Proposals for uniform defamation…

THE STATES’ continued resistance to allowing the estates of deceased persons to bring an action in defamation has angered federal Attorney-General Philip Ruddock.

Proposals for uniform defamation laws from the states and territories are a positive development, Ruddock said, but still fall short of what is really needed.

The Bill entrenches the common law’s anomalous treatment of defamation against the dead despite the recommendations of law reform commissions in Australia and overseas to provide a cause of action for defamation of the deceased, Ruddock said.

He said it is still not clear “why defamation actions should not be able to be continued by a person’s legal representative after the person has died, while other actions in tort can be”.

The draft Bill, released last week, in some respects mirrors the Commonwealth Bill and in many ways is a “step in the right direction” because it clarified some of the issues that were previously a problem, Ruddock said. But areas of concern still existed, he said.

Ruddock’s comments come after the states and territories agreed on the model Bill last week, bringing them into the closest alignment that they have been for 100 years on the matter, at the Standing Committee of Attorneys-General (SCAG) meeting in New Zealand.

The model bill, which is to be taken to state and territory cabinets over the next year, will rule out the controversial defamation of dead people, remove the right of corporations to sue individuals, and shorten the time limit for suits to 12 months. It will also cap damages and encourage quick settlement.

Ruddock said he would give constructive consideration to the provisions, “and to any points of difference that exist between the State and Commonwealth proposals”, he said.

Differences between the states’ plans for defamation and what the Commonwealth has been pressing for includes restricting remedies courts can grant in defamation by having no provision for courts to make or recommend corrections. Ruddock said it would appear communities would be much better served by courts having a range of remedies, particularly non-monetary ones, available.

Ruddock also said that the states’ intention to restrict the right of corporations to sue for defamation stripped sole traders and small family businesses of the law’s existing protection.

Ruddock said that leaving each jurisdiction to determine whether juries should be involved in hearing defamation actions is a major departure from uniformity.

In an apparent warning not to get too excited about the model Bill, Ruddock has warned that “in this area, good intentions have frequently come to nothing.

“Even in less contentious areas of reform, such as a national legal profession, agreement has not so far resulted in uniform laws,” he said.

If the Bill were to be enacted, Ruddock announced, radical changes to legislation in each of the states would be needed. “The codes in Queensland and Tasmania, for instance, would have to be ripped up and the common law would have to be resurrected,” he said.

Ruddock said the model provisions in themselves were no guarantee the states and territories would enact legislation conforming to those provisions. He cited the introduction of similar defamation Bills into the parliaments of NSW, Queensland and Victoria in 1991 as examples.

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