Bills

Defamation (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 August 2024.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (15:48): I rise to speak on the Defamation (Miscellaneous) Amendment Bill 2024. I indicate I am the lead speaker for the opposition and that the opposition supports the bill. The bill would amend the Defamation Act 2005 to reform defamation laws following a national review to create a uniform model of defamation laws. I understand that this bill is the first in a number of reforms being contemplated as a result of that national review.

Clause 5 of the bill notably expands the defence of absolute privilege to include matters reported to police. Absolute privilege applies to public interest matters such as parliamentary and court proceedings and provides an immunity from defamation proceedings. As a result of changes in the bill, a defence of absolute privilege for a person sued in a defamation suit would now only require proof that the relevant statement was made to a police official in their capacity as an official.

This change will not extend absolute privilege to media reporting of criminal matters. A person speaking to the media about a police report they have made will still be subject only to qualified privilege. This change will provide certainty to victims of crime, protecting them from defamation proceedings and allowing them the freedom to make police reports without fear, particularly in cases of domestic violence or sexual abuse. I understand the Hon. Connie Bonaros has amendments filed today to this portion of the amendment bill, and I indicate the opposition will be keen to listen to the debate and the member's contribution but that we do reserve our rights on these amendments between the two houses.

The other tranche of reforms in the bill provide avenues and support for the removal of defamatory material from online platforms. Clause 4 would insert a new section 21A into the act, allowing a person to obtain information to identify authors or assist in locating their physical and digital addresses for the purpose of allowing a concerns notice or defamation proceedings against them to be commenced.

Clause 6 of the bill would insert new section 37A into the act, allowing a person to seek orders against a non-party digital intermediary. Platforms such as Google and Facebook, and other email, messaging and online shopping services, would be considered digital intermediaries; that is, platforms that provide online services allowing for digital publications but are not authors or posters of material. Currently, the act only provides for orders for the removal of publications against digital intermediaries who are party to a defamation action.

The change in the bill will allow for the removal of defamatory publications without the necessity of taking action against tech companies. These changes will not prevent a person suing a digital intermediary if they so choose. I understand the Hon. Rob Simms has filed amendments to prevent defamation action being taken against admins and alike of community groups or similar style pages hosted by digital intermediaries.

For the benefit of the chamber, I indicate that the opposition will oppose these amendments. Legislation in other Australian jurisdictions and further case law will provide additional evidence as to whether or not these reforms should be included in future amendments of the act. I also note the Hon. Frank Pangallo's amendments, again filed today. Again, the opposition reserves our right between the two houses. With that, I commend the bill to the chamber.

The Hon. C. BONAROS (15:52): I rise to speak on the Defamation (Miscellaneous) Amendment Bill 2024. As we have heard, this bill seeks to implement commitments across all states and territories to enact model provisions, specifically the stage 2 reforms that address two key issues: the extension of the defence of absolute privilege to complaints made to police force or services, and the liability of internet intermediaries for defamatory material published online by third-party users. I am focusing my attention on the first part of this, and I think it appears that the Hon. Rob Simms has a keen interest on the second, from what I can tell.

The Attorney has previously spoken of the strong public interest in ensuring individuals can actually provide information to the police without fear of defamation liability. Currently, the defence of qualified privilege applies only when a person can prove their report was reasonable. This bill proposes to extend absolute privilege to complaints made to police officers in their official capacity, which is an important and necessary reform that I support. It follows the development of model defamation laws supported by the attorneys-general of all states and territories.

My principal concern with the bill is its narrow focus on the police as the sole complaint handling body. Much has been said on the national stage about other investigative and regulatory bodies that also deal with very serious complaints, and I do find it curious that the government has not sought to extend absolute privilege to those bodies as well. In the discussions that I have had, it has been explained to me that this will be a separate set of reforms.

In New South Wales and the ACT absolute privilege has been extended to a range of other complaints handling bodies already. I understand a good number existed in New South Wales prior to the latest tranche of reforms. I understand Tasmania is proposing to extend absolute privilege to matters published by its Anti-Discrimination Commissioner or their staff in the first instance. I am informed that protections already apply in South Australia to complaints made to investigative bodies under the Health and Community Services Complaints Act and the Public Interests Disclosure Act.

The amendments I am intending to advance seek to broaden the application of absolute privilege to complaints made to the following bodies: the Legal Profession Conduct Commissioner, the Judicial Conduct Commissioner, the Ombudsman, the Official Visitor, Public Advocate, Public Trustee and the equal opportunity commissioner. For clarity, the term 'official visitor' includes a community visitor under the Mental Health Act or Disability Inclusion Act, an official visitor under the Correctional Services Act, the visitor under the Youth Justice Administration Act and the Children and Young Person's Visitor under the Children and Young People's (Safety) Act.

Protections would extend to matters published to staff members of these bodies, provided the complaint was made to them in their official capacity, similar to that proposed in relation to police and police personnel. At the heart of this issue is the protection of complainants. The guiding principles for jurisdictions to determine whether to extend absolute privilege to matters published to a complaints handling body, published by the Standing Council of Attorneys-General (SCAG), recommended consideration of human rights and anti-discrimination bodies, statutory investigative bodies and professional disciplinary bodies. This is contingent on the legislated authority having the ability to receive and investigate conduct complaints where there is:

A risk of defamation law having a chilling effect on reporting, including, for example:

sexual violence;

domestic and family violence;

sexual harassment, bullying, discrimination or vilification;

conduct in breach of human rights.

Additionally, those bodies must have appropriate safeguards to prevent the submission of false and misleading reports.

The amendments are consistent with those guiding principles. The intent behind extending absolute privilege is to remove barriers to reporting misconduct and to mitigate that chilling effect that the risk of defamation can have on complainants. It is well documented that the threat of defamation is a contributing factor in discouraging victim survivors from speaking up, we know that. In the legal profession, for example, power and balance is often a factor: victims face speaking up against senior practitioners who are highly experienced, well resourced and deeply familiar with legal processes. In contrast, complainants are often junior professionals with limited resources.

The financial, emotional and professional costs of defending oneself under qualified privilege can also be prohibitively high. This is in black and white, for all of us to see, in the equal opportunity commissioner's review and subsequent update. In the most recent review into the legal profession, published in December of last year, the commissioner in her foreword points to this very issue, and I will quote a little bit of what she said:

Perpetrator responses to allegations such as 'prove it,' 'I'll sue for defamation' and 'no-one will believe you'—reported by victims during interview—show that culture of denial, threat, intimidation and incivility, revealed in the first report, remains [in that profession]. Similarly, the well-known drivers of harassment include the profession's enabling hierarchical structure and lack of gender equality persist.

This is certainly something that has been on the equal opportunity commissioner's radar. There is absolutely no reason we should not be including these bodies. Members in this place know that we have had similar discussions and conversations about conduct in this very place. I think it is very understandable that a victim would be hesitant to speak out, and I do not think anyone disagrees with that. In fact, I think that those reports I alluded to back that up substantially. Encouraging reporting is crucial, not only to hold perpetrators to account but also to drive much-needed cultural and systemic change. Without those sorts of robust protections we are continuing, in effect, to silence victims.

I will say that I toyed with the idea of winding back our privilege in this place to qualified privilege, just for a moment, just to see what the reaction would be—and I see some eyebrows—but also to drive home to members the importance of why we have those sorts of privileges in the first place. They should not be limited to just us or just to some bodies. There are very good reasons—indeed, reasons that we agreed to at SCAG—in terms of broadening the scope of those absolute privileges. So I am hopeful that, in the absence of amendments that would wind back our privilege in this place, members will consider that the very genuine and real basis for these amendments is the consistency with the agreements that we have entered into with other states and territories nationally.

I guess, in terms of the feedback I have received, we are here now. We are debating this bill now, so I do not see the need to go away and come back with another bill when we can appropriately deal with this issue as part of the reforms that are before us. Frankly, if we cannot do that—I do not know, it is lost on me. With those words, I indicate my in-principle support for the bill and look forward to some full and frank discussions about the amendments that I and others have proposed to this legislation.

The Hon. J.S. LEE (16:01): I rise to indicate that I will be supporting the Defamation (Miscellaneous) Amendment Bill 2024. This bill seeks to make changes to the Defamation Act 2005, based on a set of nationally consistent reforms endorsed by the Standing Council of Attorneys-General, following a national review.

My understanding, from the briefing received by my office from the Attorney-General's office, is that the most important change to the legislation is the extension of the defence of absolute privilege to reports made to police. This will provide victims of crime and witnesses of crime with stronger protection against defamation lawsuits. Under these reforms, a person sued for defamation regarding the allegations they made to police about a crime will only need to prove that they made the report to an official of a police force. This change makes the defence ironclad and will prevent victims having to spend significant time and money in defending themselves against a defamation suit for making a report to police.

It is vital that victims and witnesses have confidence to come forward to the police without facing the risk of litigation from a person involved in the alleged criminal offence. It is particularly important to empower victims of domestic violence or sexual assault, who may otherwise have been silenced by the threat of drawn-out legal proceedings.

This bill also makes two reasonable amendments to support people defamed by material posted online. Firstly, the bill will allow courts to make injunctions against digital intermediaries and publishers that are not a party to a defamatory action. This will allow courts to order online platforms, such as search engines, email providers or social media websites, to remove the defamatory content or take access prevention steps, without the person having to sue the digital intermediary for damages. Finally, the bill also reasonably sets out the principles that a court must take into consideration in applications for preliminary discovery about the poster or author of defamatory matter.

I believe that these are all sensible changes to the Defamation Act that will bring South Australia more closely in line with legislation in other jurisdictions. I understand that there are a number of amendments being proposed by a number of honourable members in this place, and I will consider those amendments during the debate and the committee stage. I commend the bill.

The Hon. M. EL DANNAWI (16:05): I rise to speak in support of the Defamation (Miscellaneous) Amendment Bill. In the past few years there have been a number of high-profile defamation law cases, and we have seen laws related to defamation updated and reformed through the 2020s. It is appropriate that these laws be updated as our relationship to the internet and large online platforms is constantly changing the landscape of defamation. Huge shifts have occurred in the way we consume and publish media, and our defamation laws must fit these changes.

The amendments in this bill today are based on the result of a national review of the uniform model defamation laws which was undertaken by state and territory attorneys-general. The bill will make two amendments to support people who have been defamed by material posted on the internet.

Currently, a court can make an interim or final injunction requiring a publisher of defamatory material to cease publication. This order can only be made against a party to the defamation action. In practice this means that if the defamatory content has been posted to a large digital platform and the subject wants that material removed, the court cannot order it unless the subject brings an action against the digital platform in addition to the person who authored the defamatory content. If they only sue the author or poster, they have no means to get the material taken down.

The bill provides another avenue to have defamatory material removed from an online platform. It will allow courts to make injunctions against digital intermediaries and publishers who are not directly party to the action. The digital intermediary category includes search engines, email and messaging services, social networking websites, product review websites and video sharing platforms.

The bill also sets down principles that the court must take into consideration in applications for pre-action discovery relating to digital publication of defamatory material. Under the Uniform Civil Rules 2020 South Australian courts may order that a person disclose documents that would allow a potential plaintiff to decide whether or against whom to bring a civil action. This could be used to require a digital intermediary to provide identifying or contact details of the person who authored or posted defamatory content online through intermediary services.

Finally, the most significant amendment contained in this bill will extend the defence of absolute privilege to reports that are made to the police. This will provide victims of crime and witnesses of crime with stronger protection against lawsuits claiming that the report defamed a person involved in an alleged criminal offence. This sensible change will allow victims of crime to make their police reports without fear of any potential legal action relating to defamatory content. The amendments in this bill represent necessary updates and reflect our ongoing commitment to a modern and balanced model for defamation law. I commend the bill to the chamber.

The Hon. F. PANGALLO (16:08): While I understand one of the main intentions of this bill is to further protect individuals making reports to police from civil action, I am still to be convinced why it is necessary given they attract qualified privilege provided they are made reasonably and without malice. The threat of defamation is not a known approach to thwarting someone from making a police complaint. I have also not heard of a case where a person has sued for defamation following a complaint to police that was found to be unsubstantiated. Legislating confidentiality provisions would have been more effective than a blanket cover.

While absolute privilege would not apply to making allegations to other parties like the media under this bill, it is my concern that these reforms will result in the ability for persons with an axe to grind to make baseless and vexatious complaints with no recourse. I suspect this will only increase the number of false complaints made to police to investigate.

I note there are other amendments proposed that want to extend the absolute privilege to other statutory officers, departments and agencies, including integrity agencies. I will not support them, and I can give a clear, real life experience for this that has affected my own family and constituents I have advocated for.

It was never my intention to air personal family matters in this place but, amongst its relevance to this legislation, I have been pushed to it because the false complaints, stalking, threats and harassment of me and my family by a family member, my brother-in-law Dimitri Economos, has been relentless. As a lawyer at the Australian Tax Office he should be aware of his ethical responsibilities.

While I will not go into the details, the extremely hurtful accusations levelled against me, my wife and my children are utterly false and defamatory, designed purely to cause us reputational damage, particularly as I have a public profile. As a result of his destructive, pathological obsession my wife was medically diagnosed with PTSD.

His intent has always been to affect my ability to discharge my role as a trusted member of parliament and seek re-election. His narcissistic, malicious actions since 2011 have included blackmail, threats, vile and slanderous verbal abuse in public spaces, physical assaults and false complaints to integrity agencies. Demonstrating his pathological obsession, in one threat he said, 'I'm now obligated to call in the armed forces.'

He has even produced a fraudulent legal document only he could have created on behalf of another family member and got them to sign it without them being aware of its contents, then distributing it widely in the community and to members of parliament using an email he created in the name of the family member. This family member has limited English and does not own a computer, let alone know how to create an email. Last year, the family member provided us with a written apology, rejecting all the accusations levelled against us in that document. Still, the damage had been done.

One of his lowest acts was an attempt to discredit a not-for-profit charity for autistic children started by my wife 18 years ago and for which she received an Order of Australia, by sending this outrageous document to some charity sponsors. Of course, these sponsors knew the truth and ignored him.

We have tried to ignore him, have gone to police and avoided any direct communications, keeping a dignified silence hoping he would eventually go away and go on with his own miserable life, but that does not stop the false complaints to integrity agencies from being investigated and significant time, energy, money and effort being expended having to defend myself from these false complaints. If there is one saving grace it is that his allegations were found to be unsubstantiated and were dismissed. In fact, we have accumulated a mountain of incontrovertible evidence in the event that it would ever reach the courts. Yet he persists, causing constant distress to us.

My complaint to the Legal Practitioner Conduct Commission was dismissed because they wanted me to provide them with more information I had, which they would have passed on to him. What did he do? He then sent a defamatory email to a lawyer who had once acted for us, threatening to issue a concerns notice. That threat went nowhere.

I thought the offence of criminal defamation within the Criminal Law Consolidation Act might provide us with some remedy. The act makes it clear that it is a criminal offence if a person knowingly and recklessly makes allegations designed to deliberately and maliciously damage a person's reputation. I reported him to the police, but they would not take a report because it sets too high a bar for a successful prosecution, so they suggested I seek a civil remedy.

As an extension of the protections that this bill would afford complaints to police, in my position and despite incontrovertible evidence that the complaints to the integrity agencies were false, I would have no recourse. He would be protected completely. How is that safe legislation? How is it safe legislation to allow absolute privilege to any and all complaints to police? Does that really encourage people to come forward or does it allow the truth of a complaint to be skewed or changed altogether?

In my example, yes, a civil claim of defamation is a financially prohibitive option, made more difficult when the person you want to sue is impecunious. But there should be recourse in circumstances where a complaint is blatantly false and defamatory. That is a good check and balance weighing out the rights of all parties. In May 2021, the then President of the Law Society, Rebecca Sandford, made submissions to the Law Council of Australia in relation to the national review on model defamation provisions. Here is what she had to say in part in that letter. In part B, extending absolute privilege, on page 4:

14. We note the above part of the Discussion Paper deals with privilege for reporting allegations of misconduct to proper authorities such as police, ICAC or employers. Such reports already attract qualified privilege, provided they are made reasonably and without malice. In many cases they are also confidential and in some cases subject to extensive and strict statutory confidentiality requirements. A claimant would bear the onus of proving malice in order to defeat the defence. The question that is asked is whether absolute privilege should apply (similar to what applies to things said in Court or in Parliament) to encourage reports and avoid risk of the threat of defamation suits. The report notes that there are no authorities in which a defamation claim has been successfully pursued over such a report.

15. We query whether this is a reasonable or proper basis for the expansion of the absolute privilege. We suggest qualified privilege appropriately balances protection for complainants/whistleblowers with the significant reputational harm that could be caused by false and malicious reports or allegations. We note also that in many cases, complaints or reports are kept confidential unless the matter proceeds to an advanced stage, in a manner which already tips the balance effectively in favour of the complainant.

That was Rebecca Sandford, who was then President of the Law Society of South Australia, in a letter to Margery Nicoll, Deputy Chief Executive Officer, Law Council of Australia, in Canberra. I seek leave to table that letter, Mr President.

Leave granted.

The Hon. F. PANGALLO: I, too, query why the already available qualified privilege does not appropriately balance protections for both parties.

I note that there are other amendments from the crossbench, the Hon. Rob Simms, relating to posts on Facebook designed to provide a layer of protection for the moderator or creator of the page. The amendment seeks to give the site at least seven days to remove offensive and defamatory material. While there is merit to it, I do not think the honourable member has a real understanding of the responsibilities of being a publisher, whether they are a newspaper or magazine publication, radio, TV, and on social media platforms where there is a plethora of citizen journalists who behave like literal cowboys.

Publishers have a responsibility to moderate their sites constantly. If slanderous material is published, they need to remove it immediately upon being notified. Even then, they should still be liable for civil damages should it proceed to court. Again, it comes down to the financial status of the Facebook moderator. If they do not have the means to defend an action, what is the point of spending $200,000 suing them?

Here is an example of where a Facebook site has so far escaped legal action. I will not go into detail on the site's posts, but it knowingly published false and malicious claims that hundreds of criminal charges were filed and pending against a council and its members—patently false and designed to cause reputational harm.

I spoke to members of the council about this only last week when I was there. The distress it has caused those members is inconsolable, to be quite honest. They are totally distressed by what has been going on and the fact that there is nothing they can do about it. It should actually fall under the criminal Defamation Act, but who is going to act on that? There should be just cause for the Facebook moderator operator to be prosecuted under the Criminal Law Consolidation Act, but it will not happen. As for civil action, the council knows it would be a forlorn exercise and a waste of ratepayers' money.

As for the digital giants, Facebook and Google, there should be legislation forcing them to also remove allegations published on other media platforms against individuals that were found to be baseless or were thrown out of court. A case in point is a former public servant, Trent Rusby, who had corruption charges levelled against him by ICAC withdrawn. You can still Google Mr Rusby's name today and up pops an article that was published in The Advertiser before Mr Rusby and others had appeared in court, that painted him as nothing more than a thief, that he and others had conspired to steal an Aladdin's cave of goods from a government department. It was totally unsubstantiated against Mr Rusby and, when the matter did reach the court, it was thrown out, but today, to this very day, Mr Rusby suffers the ignominy that it remains available on online platforms or through Google.

It goes without saying that Mr Rusby since then has suffered problems with employment, having checks on his character, he cannot even travel overseas without having to declare and disclose that there had been criminal charges levelled against him, even though he was totally innocent. As a consequence of that, Mr Rusby now has PTSD, so that gives you an indication of the extent of the damage that defamatory and slanderous accusations when levelled, whether they be by individuals or even government agencies, can cause to people.

I do not think this legislation contemplates that. I do not think they have thought of that. I do not know what the motives for this are. I suspect I know what it is for a bill that is coming up, but I do not know why it is necessary to go to this point and, further to that, amendments to extend it to other government agencies, because it is going to be exploited by the vexatious.

The creation of the Defamation Act precedes the explosion of social media platforms like Facebook, Twitter X, Instagram and TikTok, as it is more than 25 years old. To my knowledge, it has only been used once in these circumstances but it did not proceed. I would call on the Attorney-General, in considering his suite of legislation, to also consider an overhaul of this act to bring it into line with the digital media landscape of the 21^st century, if he is really serious about what is going on with defamation. In short, I am opposed to the extension of absolute privilege in this bill and have provided an amendment as such. The current bill swings the pendulum too far and completely removes any protection for those in the community subjected to malicious and vexatious complaints made against them.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:24): I thank honourable members for their contributions. I look forward to addressing during the committee stage some of the issues that have been raised.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. F. PANGALLO: I ask the Attorney-General: what necessitated the change to this legislation? What were the reasons that prompted this amendment being required?

The Hon. K.J. MAHER: This comes as a result of national work that has been done by the Standing Council of Attorneys-General. Some states have adopted different parts of what the Standing Council of Attorneys-General's work has done. We have adopted the parts that we see in the legislation before us. So what precipitated it was national work.

The Hon. F. PANGALLO: Does the Attorney acknowledge that in fact the legislation, should it pass, would actually benefit government departments if there are allegations that have been filed against them?

The Hon. K.J. MAHER: I thank the honourable member for his question. Maybe he can expand, because I am just not sure how that is the case.

The Hon. F. PANGALLO: If there were allegations that were made to government agencies, integrity agencies, or whatever, and having the absolute privilege. If they were found to be false and charges that were laid were perhaps even false, the people would have no recourse, would they? They would not be able to sue.

The Hon. K.J. MAHER: If there were allegations made to government agencies that were found to be false, people have no recourse; I think that is what the honourable member is suggesting. I know that there are amendments being put forward by other members of this chamber in relation to extending the absolute privilege. I am happy to put on record now that the government will not be supporting those amendments that extend it further than police, but we will not be supporting the amendments that the honourable member has put forward to remove it from police, if that provides some clarity.

The Hon. C. BONAROS: To confirm or to clarify what the Attorney just said, I understand that there are issues in terms of the penalties, which can be addressed but have not been addressed in these amendments. Is there another body of work that is going to follow this body of work that will look at those other bodies in line with the guiding principles for jurisdictions to determine whether absolute privilege be extended to bodies that have already been outlined as part of that SCAG process?

The Hon. K.J. MAHER: We will not rule it out, but we have no current intention of extending it anywhere beyond police. One of the reasons is I think it was in the Standing Council of Attorneys-General recommendations that it ought not to be extended to a body that does not have some sort of sanction for making false complaints.

If you make a false or misleading complaint to the police, there are sanctions against it. If you make a complaint to police and then go and repeat it somewhere else, you can still be liable for defamation. It is only in the making of it to police that it attracts the absolute privilege that we are proposing here, and we are not proposing to extend it anywhere else. We are open to discussion in the future, but we do not have any intention. We do not have a policy or intention to do that.

The Hon. F. PANGALLO: Another question for the Attorney: regarding the timing of this, is this a precursor to the introduction of the coercion bill that the government has been working on?

The Hon. K.J. MAHER: They are unrelated pieces of work.

Clause passed.

Clauses 2 and 3 passed.

New clause 3A.

The Hon. J.S. LEE: On behalf of the Hon. Robert Simms, I move:

Amendment No 1 [Simms–1]—

Page 3, after line 25—After clause 3 insert:

3A—Amendment of section 15—Content of offer to make amends

Section 15(1a)(b)—delete paragraph (b) and substitute:

(b) if the matter is a digital matter—an offer to take 1 or more access prevention steps in relation to the matter; or

The ACTING CHAIR (The Hon. I.K. Hunter): Do you intend to speak to it, the Hon. Jing Lee?

The Hon. J.S. LEE: I have not been provided any notes.

The ACTING CHAIR (The Hon. I.K. Hunter): I am sure you mean that it is self-evident.

The Hon. K.J. MAHER: I thank the Hon. Jing Lee for moving the amendment on behalf of the Hon. Robert Simms and, as has been indicated, the self-evidency of the amendment in the Hon. Robert Simms' view. We are not going to oppose this amendment. We will look at it again more closely between the houses. Essentially, the current Defamation Act section 15(1a)(b) states:

(b) if the matter has been published on a website or any other electronically accessible location—an offer to remove the matter from the website or location…

That is in relation to the content of an offer to make amends. By virtue of the bill that is before us, we are introducing a new concept of an access prevention step, which is a step:

(a) to remove the matter; or

(b) to block, disable or otherwise prevent access, whether by some or all persons, to the matter…

What the Hon. Robert Simms is doing is capturing a new concept we are putting in the bill and extending that to the offer to make amends in relation to digital matters. We think it is actually a sensible step and we are happy to accept it so it can go to the lower house while we do a little more work on it.

The Hon. N.J. CENTOFANTI: I rise to say that I may have been somewhat hasty in my second reading speech in suggesting that the opposition will oppose the entirety of the Hon. Robert Simms' amendments. On reflection of this particular amendment, we tend to agree with the government that it is somewhat of a technical amendment and seems quite sensible, so we, too, will not be opposing this amendment.

The Hon. F. PANGALLO: I rise to say that I will be opposing the Hon. Robert Simms' amendments.

The Hon. J.S. LEE: I indicate that I will be supporting this amendment by the Hon. Robert Simms.

New clause inserted.

Clause 4 passed.

Clause 5.

The ACTING CHAIR (The Hon. I.K. Hunter): The Hon. Frank Pangallo, I understand you have an amendment that this clause be opposed. You do not need to move it. You just need to oppose the clause when I call for the vote. You can speak to the reasons why you will be opposing it.

The Hon. F. PANGALLO: As I pointed out in my second reading speech, in opposing absolute privilege, the threat of defamation by an accused to stop a complainant making a police report is not a common issue, and no-one has been able to present any evidence in this chamber so far to show that there has been any action taken as a result of that.

In the case of defamation proceedings, there is a defence of qualified privilege, requiring the person making a police report to prove it was reasonable. Extending absolute privilege to all reports made to police swings the pendulum very far towards protecting victims. There will be—and I suspect this will happen—an increase in false reports that will be wasting a lot of the time and resources of police. Finally, criminal defamation, under the Criminal Law Consolidation Act, is hardly ever used or prosecuted.

The Hon. K.J. MAHER: We will be supporting the clause that was in our bill in relation to extending the absolute privilege to making complaints to police. In that national consultation that occurred as part of the Standing Council of Attorneys-General, as I informed the honourable member before on the reason that this work started, I am advised there was evidence provided by a number of organisations in relation to the chilling effect the threat of defamation has on those who might report incidents of domestic violence.

So even if there are not actions that are taken or actions that are prevented, due to the fact that—as was reported by a number of organisations that support victim survivors of domestic violence—perpetrators of domestic violence use the threat of defamation to try to prevent people making complaints to the police, we want to make sure that people have that comfort that that will not be used against them. Of course, if someone makes a false complaint, there are criminal sanctions against the person making that false complaint. Also, if a person makes a complaint to police but then publishes that complaint—puts it on a website or broadcasts it in some other form—they can be subject to defamation proceedings. It is only the making of that complaint to police that attracts the privilege and no other form of publication of it.

The Hon. F. PANGALLO: So the Attorney is saying that the threat of violence is the problem, not the threat of defamation?

The Hon. K.J. MAHER: Let me be clear here: the evidence that I am advised was presented during the national consultation was that the threat of defamation has a chilling effect of then preventing victim survivors, particularly of domestic violence, from making those reports.

The Hon. F. PANGALLO: Did the Attorney consult with the Law Society of South Australia about this, and what was the extent of the consultation process with the legal profession?

The Hon. K.J. MAHER: Along the stages, this has had a lot of consultation, particularly national consultation, with many legal bodies that have presented their views. I know that there are some legal representative bodies during that national consultation that presented their view that the qualified privilege, in their view, was enough. However, certainly a number of other states have already changed to implement the recommendation that we are putting forward here. If I remember correctly, I think a number of other states have gone further than it just being the police that attracts that absolutely privilege.

The Hon. F. PANGALLO: Did the Attorney consult with his friends at the bar?

The Hon. K.J. MAHER: I am happy to double-check, but I am quite sure that the Bar Association of South Australia would have been consulted as part of that national work.

The Hon. F. PANGALLO: Did they provide a submission to the Attorney-General about this and, if so, can he table it or refer to it?

The Hon. K.J. MAHER: I am happy to check and bring back a reply for the honourable member. They may have done in one of the discussion papers, but I suspect they may well have as well to the national work that preceded my appointment as Attorney-General in relation to work on these defamation changes.

The Hon. F. PANGALLO: What about also the Law Society? Before introducing this legislation, would it not have been prudent for the Attorney-General to consult with the legal fraternity to see what they thought about it?

The Hon. K.J. MAHER: The Law Society I am sure—but I am happy to double-check—would have had the ability to provide a lot of information, a lot of their views, during the national consultation that occurred on this.

Clause passed.

The Hon. J.S. LEE: The Hon. Robert Simms would like me not to move the amendment to insert new clause 5A.

Clause 6 passed.

New clause 7.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 6, after line 4—After clause 6 insert:

7—Amendment of Schedule A1—Additional publications to which absolute privilege applies

Schedule A1—after clause 1 insert:

2—Matter published to Legal Profession Conduct Commissioner etc

Without limiting section 25(2)(a) to (c), matter that is published—

(a) to any of the following:

(i) the Legal Profession Conduct Commissioner;

(ii) a person in their capacity as a member of staff of the Legal Profession Conduct Commissioner; and

(b) for any of the following purposes:

(i) making a complaint under the Legal Practitioners Act 1981;

(ii) an investigation of a complaint under that Act;

(iii) anything else that may be done under that Act in relation to the complaint.

3—Matter published to Judicial Conduct Commissioner etc

Without limiting section 25(2)(a) to (c), matter that is published—

(a) to any of the following:

(i) the Judicial Conduct Commissioner;

(ii) a person in their capacity as a member of staff of the Judicial Conduct Commissioner; and

(b) for any of the following purposes:

(i) making a complaint under the Judicial Conduct Commissioner Act 2015;

(ii) an investigation of a complaint under that Act;

(iii) anything else that may be done under that Act in relation to the complaint.

4—Matter published to Ombudsman etc

Without limiting section 25(2)(a) to (c), matter that is published—

(a) to any of the following:

(i) the Ombudsman;

(ii) a person in their capacity as a member of staff of the Ombudsman; and

(b) for any of the following purposes:

(i) making a complaint under the Ombudsman Act 1972;

(ii) an investigation of a complaint under that Act;

(iii) anything else that may be done under that Act in relation to the complaint.

5—Matter published to official visitor

(1) Without limiting section 25(2)(a) to (c), matter that is published to an official visitor for the purposes of the person performing the functions of the official visitor under the relevant Act.

(2) In this clause—

official visitor means any of the following:

(a) a community visitor under the Mental Health Act 2009;

(b) an official visitor under the Correctional Services Act 1982;

(c) a community visitor under the Disability Inclusion Act 2018;

(d) the Visitor within the meaning of the Youth Justice Administration Act 2016;

(e) the Child and Young Person's Visitor under the Children and Young People (Safety) Act 2017.

6—Matter published to Public Advocate etc

Without limiting section 25(2)(a) to (c), matter that is published to a person in their capacity as—

(a) Public Advocate; or

(b) a person employed, engaged or assigned to assist the Public Advocate in the performance of their functions.

7—Matter published to Public Trustee etc

Without limiting section 25(2)(a) to (c), matter that is published to a person in their capacity as—

(a) Public Trustee; or

(b) a person employed or engaged to assist the Public Trustee in the performance of their functions.

8—Matter published to Equal Opportunity Commissioner etc

Without limiting section 25(2)(a) to (c), matter that is published to a person in their capacity as—

(a) Equal Opportunity Commissioner; or

(b) a member of staff of the Equal Opportunity Commissioner.

I acknowledge the contributions that have already been made. Referencing what the Attorney said in his previous explanation, I also remind members what the equal opportunity commissioner reflected in terms of the chilling effect we are talking about, particularly on victims, when it comes to this issue, especially victims involved in cases of sexual offending, domestic violence, bullying, discrimination and vilification. I understand the Attorney's rationale in terms of there being no penalties for those frivolous or vexatious complaints.

I do have a question for the Attorney. I might be off the mark here, but I am hoping the Attorney might clarify. We have some protection from civil liability for complaints made to investigative bodies here in South Australia, as I outlined already. They apply to the Health and Community Services Complaints Act, specifically section 83, and the Public Interest Disclosure Act 2018. Obviously, they provide that those disclosures have to be made in good faith, for whatever reasons are outlined in those bills. Can the Attorney clarify whether any penalties apply in terms of complaints that are made already under the two existing areas in South Australia where they can be made?

The Hon. K.J. MAHER: I am not sure we have that information before us right now, but I will be happy to take it on notice and bring back an answer for the honourable member. I reiterate that, as I have already said, for the reasons outlined before, although we can understand the rationale for the honourable member's amendment, the government will not be supporting it.

The Hon. N.J. CENTOFANTI: I ask the Attorney where the government is at in regard to absolute privilege and other complaint handling bodies?

The Hon. K.J. MAHER: I outlined this earlier to the Hon. Connie Bonaros, I think during clause 1. We are happy to look at other complaint handling bodies, but I do not want to create a false impression that we are intending to make further amendments. We are happy to look at it, but we do not have a policy to extend it any further.

The Hon. N.J. CENTOFANTI: Does the Attorney have any timeline as to when they might form some policy regarding those other complaint handling bodies?

The Hon. K.J. MAHER: We do not have a timeline. We are looking at further aspects of defamation law reform, but there is not a timeline as to when we might do that.

New clause negatived.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.