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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 32 (1993) - Defamation
Discussion Paper 32 (1993) - Defamation Table of Contents
THE COMMISSION'S REFERENCE The current law in this State The law in other Australian jurisdictions Past attempts at reform in Australia The current reform process THE COMMISSION'S APPROACH The focus of the Commission’s work The purpose of this Discussion Paper General theme of this Discussion Paper Outline of contents of this Discussion Paper 2. ALTERNATIVE REMEDIES AND PROCEDURES INTRODUCTION Why do we have a law of defamation? Why don’t defamation actions actually restore reputation? The problems of the emphasis on damages Reducing the emphasis on damages Terminology VOLUNTARY CORRECTIONS The position in New South Wales The position in other Australian jurisdictions Promoting the use of voluntary corrections Voluntary corrections in overseas jurisdictions The Annenberg Proposal Could a correction defence work in New South Wales? The special position of replies Promoting the use of a correction defence: allowing courts to recommend corrections COURT-ORDERED CORRECTIONS Rapid correction orders: the best way to satisfy plaintiffs Correction orders as a remedy at trial A summary judgment procedure for correction orders ? DECLARATORY JUDGMENTS United States proposals for declaratory judgments A proposal for consideration: two separate remedial regimes Onus of proof Should truth be the only defence to a declaratory judgment action? Costs of proceedings seeking a declaration Would a declaratory judgment vindicate reputation? Will declarations be an adequate deterrent? POSSIBLE PROCEDURAL AND REMEDIAL STRUCTURE Declaratory judgment procedure Action for damages ISSUES ARISING IN CHAPTER 2 - ALTERNATIVE REMEDIES AND PROCEDURES
3. ALTERNATIVE DISPUTE RESOLUTION INTRODUCTION The benefits of Alternative Dispute Resolution (ADR) in the defamation context The problem of ADR in the defamation context CURRENT ALTERNATIVES TO LITIGATION Direct negotiation with publishers Media complaints bodies Non-media dispute resolution bodies Summary ISSUES TO BE RESOLVED Giving mediators a more active role AN ARBITRATION SYSTEM? The Libel Dispute Resolution Program ISSUES ARISING IN CHAPTER 3 - ALTERNATIVE DISPUTE RESOLUTION
4. THE ROLES OF JUDGE AND JURY INTRODUCTION OPTION ONE: CONDUCT DEFAMATION TRIALS BEFORE JUDGES ALONE Problems with using juries in defamation trials Benefits of conducting defamation trials before judges alone The requirement of using juries in defamation trials OPTION TWO: RETAIN A LIMITED ROLE FOR JURIES Can juries assess liability while the judge assesses damages? The jury’s most important function: assessing what is defamatory Basing the cause of action on pleaded imputations OPTION THREE: RETAIN JURIES IN THEIR CURRENT ROLE Deciding whether imputations are conveyed and are defamatory, as a preliminary step before any other evidence is heard Hearing opening addresses from both sides at the start of the trial Controls on the assessment of damages Do juries make excessive awards of damages? Should damages be capped? Other methods of ensuring rational awards ISSUES ARISING IN CHAPTER 4 - THE ROLES OF JUDGE AND JURY 5. OTHER PROCEDURAL ISSUES INTRODUCTION A SHORTER LIMITATION PERIOD FOR DEFAMATION CLAIMS The current limitation period in Australian jurisdictions The limitation period in overseas jurisdictions Arguments in favour of a shorter limitation period for defamation Arguments against a shorter limitation period for defamation Summary “STOP WRITS” The limited effectiveness of stop writs The prevalence of stop writs The best solution to the perceived problem of stop writs EXPRESS POWERS TO STRIKE OUT DEFAMATION ACTIONS The court’s current powers to strike out actions Is an express power to strike out defamation proceedings desirable? FILING AGREED STATEMENTS OF ISSUES AND WITNESSES' STATEMENTS ISSUES ARISING IN CHAPTER 5 - OTHER PROCEDURAL ISSUES
INTRODUCTION VERSIONS OF THE DEFENCE IN AUSTRALIAN JURISDICTIONS Truth alone Truth and public benefit The position in New South Wales SHOULD NEW SOUTH WALES ADOPT A DEFENCE OF TRUTH ALONE? The compromise in the Defamation Bills 1991 The recommendations of the Legislation Committee THE COMMISSION'S APPROACH Reasons for retaining the current justification defences until privacy is examined separately ONUS OF PROOF ISSUES ARISING IN CHAPTER 6 - JUSTIFICATION
STATEMENTS MADE IN THE COURSE OF JUDICIAL OR QUASI-JUDICIAL PROCEEDINGS Statutory modifications COMMUNICATIONS CONCERNING MATTERS OF STATE STATEMENTS MADE IN THE COURSE OF PARLIAMENTARY PROCEEDINGS The scope and meaning of the phrase “proceedings in Parliament” The scope and meaning of “impeached or questioned in any court or place out of Parliament” A separate Act dealing with parliamentary papers and proceedings? ARGUMENTS AGAINST EXTENDING ABSOLUTE PRIVILEGE Abuse of absolute privilege Availability of alternative defences ISSUES RAISED IN CHAPTER SEVEN: ABSOLUTE PRIVILEGE
Protected official and public documents Publication of court notices and official notices Should the defence of protected report be extended or modified? ISSUES RAISED IN CHAPTER EIGHT: PROTECTED REPORTS
9. STATUTORY QUALIFIED PRIVILEGE INTRODUCTION THE CURRENT POSITION IN NEW SOUTH WALES The purpose of s 22 How can media defendants gain the protection of s 22? Should these requirements be relaxed? PROPOSALS FOR A SPECIFIC MEDIA DEFENCE The Defamation Bills 1991 The recommendations of the Legislation Committee A better defence for the media THE PROTECTION OF JOURNALISTS' SOURCES The wider issues raised by the question of protecting journalists’ sources Protecting sources before trial when statutory qualified privilege is raised Protecting sources at trial Summary BASING THE LAW OF DEFAMATION ON NEGLIGENCE The proposal Assessment of the proposal ISSUES ARISING IN CHAPTER 9 - STATUTORY QUALIFIED PRIVILEGE
INTRODUCTION Elements of the Public Figure Test The Commission’s provisional view THE AMERICAN CONTEXT OF THE PUBLIC FIGURE TEST The birth and growth of the doctrine The lack of a First Amendment in Australia Features of United States law balancing the operation of the public figure test WEIGHING THE EFFECTIVENESS OF THE PUBLIC FIGURE TEST The practical operation of United States libel law WHAT EFFECT WOULD A PUBLIC FIGURE TEST HAVE IN NEW SOUTH WALES? Would other justifications of the public figure test be persuasive in New South Wales? IS THE PUBLIC FIGURE TEST NECESSARY? How are “public figures” treated by the current law? Alternatives to the public figure test ISSUES ARISING IN CHAPTER 10 - THE PUBLIC FIGURE TEST
INTRODUCTION The Defamation Bill 1992 METHODS OF PROTECTING INNOCENT PUBLISHERS Option One: Defence of innocent dissemination Option Two: Liberalising the offer of amends defence ISSUES ARISING IN CHAPTER 11 - INNOCENT PUBLICATION
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