Ms Lesley Caplin:

I may start at the end. There have been quite a few cases in which we have acted where non-disparagement clauses and defamation have been alleged. The starting point for the different treatment is the fact that in the case of a non-disparagement clause there are two parties contracting. There are two private individuals and they have signed an agreement in which one agrees not to disparage the other. This is a very different realm to defamation, which is certainly codified in law and in legislation, and through the courts if there is an issue. They interact in that often when somebody says something defamatory about somebody else, if they have contractually agreed not to disparage them, they are doing that as well and there is a private action in damages there which in the case the Senator refers to would be on the part of the employer. I agree with the Senator that it is difficult to see, in the context of legislation like this, how non-disparagement is dealt with. The answer probably is that it is not.