Businesses in Victoria are set to lose their rights to defend themselves against egregious defamation.
The Bracks Government has submitted a bill to Victorian Parliament which among other things removes the right of corporations, employing more than 10 people, to sue for defamation.
This will potentially affect many thousands of small-to-medium business including farms, as well as larger corporations.
Most businesses today rely on their reputations as ethical, honest operators to retain customer and employees. Indeed for many businesses reputation is everything. This has not gone unnoticed. Activist groups and lobbyists are increasingly resorting to undermine the reputation of firms to achieve their aims.
As the Victoria Bar stated in its submission on the bill "the removal of the rights (under the bill) simply gives the green light to publishers of the world to defame Australian companies at will".
Importantly the main perpetrators of corporate brand mail -- unions, non-government organisations (NGOs) and vexatious individuals -- retain their rights. While most unions and large NGOs are corporations, they are registered as non-profit corporations and under the bill retain the right to sue for defamation. The bill also maintains the right of individuals to defend themselves.
Thus the bill not only creates an incentive for activist and vexatious individuals to defame corporations with impunity, it provides a defence for these groups against retaliation. That is, it removes a business corporation's ability to defend itself in the court of law and in the court of public opinion.
Why the bill? The official explanation is that it is part of an initiative by the states to put in place uniform defamation laws.
The defamation laws across the nation are complex and vary enormously. This has created incentives for forum shopping by litigants, caused a high degree of uncertainty about the law and resulted in vastly different decisions. Thus experts have long pushed for a higher degree of uniformity.
However, a move to a uniformity does necessitate or justify removing the rights of corporations. Moreover, the adoption of uniform laws has merits only if it puts in place good law.
The bill's removal of the rights of people undertaking legitimate business activity through a corporate structure makes it bad law.
Indeed as the Victorian Bar stated, in law "There is no justification for this (aspect of the bill)".
It can only be explained as an attempt by the Bracks Government to distort the law to favour its political supporters -- the unions, green groups and other activist groups. As such it is undemocratic, destructive and discriminatory.
This is not the first example of bad, anti-business law proposed by this Government. In 2001 it introduced a Corporate Manslaughter Bill which would have made employees of corporations criminally responsible for workplace accidents even if they had not been involved.
During the same year it enacted the Racial Vilification and Tolerance Act which holds businesses responsible for imposing draconian restrictions of speech in their workplaces.
Luckily for Victorian businesses Federal Attorney-General Philip Ruddock is planning federal legislation to override the states and reinstate their rights to defend themselves.
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