“Bring out yer dead.” Bring out yer dead. The words come from Jabawocky or a Monty Python skit in a grim portrayal of a dog-eat-dog world.
It is about to come to the ACT, at least metaphorically, if the ACT Community Law Reform Committee has its way. The committee recently brought out its recommendations for defamation law reform. One of its recommendations was that it should be possible to take an action for defaming the dead. The personal representatives of the dead person could bring the action.
Also, the committee thought that legal action for defamation by living people should not cease just because the person dies. The dead person’s representatives should be allowed to continue the action.
Of what possible use is this, aside from damning the obituary industry? Well, it increases the number of court actions which keeps lawyers in money.
In fact that is the major theme of the committee’s report. The second theme is to be anti-free speech, in that it rejected all of the significant submissions from media or free speech bodies.
Okay, so it is self-serving to seek an easier run for the media, so let’s look at the pro-lawyer recommendations.
Of eight major recommendations, all eight will put money into the pockets of ACT lawyers.
Let’s go through them.
1. Defamation of the dead:
No other state has it. The ACT Supreme Court will be littered with interstate corpses. Families of the stars of the obituary columns (the one time the media can put pen to paper without the fear of being sued) will be coming to the ACT to seek vindication for the departed loved one. Who could have suggested such a thing, other than someone seeking a wider clientele of interstate plaintiffs?
2. A separate action for invasion of privacy:
More work for ACT lawyers, especially those with interstate clients wanting to sue interstate media here where they would have a cause of action.
3. Replace existing common law with a statutory code:
History shows that all legal codes require a create deal of working through the courts before stability and predictability return. More work for lawyers to test the new code.
4. Taking the correction process away from direct informal dealing between the parties into a court-supervised arrangement:
More time-consuming appearances of lawyers before judicial officers.
5. Indemnity costs in some circumstances if corrections are published:
The higher level of costs will help lawyers because plaintiff clients will have nothing to lose by going through the costly court-supervised correction process instead of dealing directly with the defendant.
6. Widening the scope of defamatory meaning beyond the general common-law one to include things that affect a person’s reputation, office, profession, calling, trade or business:
A lot more business for ACT lawyers from top interstate business and professional people seeking a wider cause of action in the ACT.
7. Better chances for plaintiffs to get exemplary or aggravated damages.
It speaks for itself:
8. Insisting that defamation actions begin within six months, as against the present six years:
On its face, it looks like one that might help media defendants. Not so. It will make people otherwise hesitant to rush into filing a writ and cause lawyers to encourage them to “protect their interests”. Once started it is hard to extract without large legal costs. A two-year limit would get rid of genuinely stale actions without rushing defendants into costly action.
The so-called community law reform committee is dominated by lawyers. Let’s hope the ACT Attorney-General sees through this self-serving tripe. After more than 20 years or reform attempts and calls for uniformity in Australia, it is time to give up. The army of politicians, law reform bodies, committees, chatterers and the like have failed dismally. The only worthwhile changes have been done by the judges of the High Court in the freedom-of-political communication case. Let us leave it at that.
And incidentally, one of the committee’s recommendations attempts to reverse a part of the High Court’s reforms … probably without realising it.
(The report is available at ACT Government shopfronts and libraries.)