Summary Offences (Prohibition of Publication of Certain Material) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2025.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (15:25): I rise today to speak in support of the Summary Offences (Prohibition of Publication of Certain Material) Amendment Bill 2025, otherwise known as the 'posting and boasting' bill. This bill is aimed squarely at addressing a troubling trend in our society—the publication of material that encourages, glorifies and promotes criminal actions.

We have all seen the impact of social media on the way information is shared. Unfortunately, this has extended to the glorification of unlawful activities where offenders not only commit crimes but also proudly broadcast them to the public. There is justifiable concerns that this encourages copycat behaviour and other crimes to be committed. This bill seeks to ensure that individuals who engage in such reckless and harmful behaviour are held accountable.

The legislation is similar in intent to a bill previously proposed by the Hon. Frank Pangallo, and I acknowledge his contribution to this debate by bringing up this matter previously. The version before us today, as I understand it, focuses specifically on the offence itself. Under this bill, offenders who publicise criminal acts will face a maximum penalty of two years' imprisonment, but it should be noted that the sentence imposed under this law cannot exceed the sentence for the criminal act that is being publicised.

It is also important to note that under this proposed legislation a person may still be charged for this offence, even if they have not been charged with the underlying criminal act. This ensures that those who deliberately seek to glorify or promote crime without necessarily committing it themselves are not allowed to escape justice.

The bill provides explicit examples of the types of offences that fall under its scope. These include the publicising of criminal activities such as dangerous driving, violence, the use of weapons, damage or destruction of property, theft and criminal trespass, among others. Other jurisdictions, such as Queensland and the Northern Territory, have already introduced similar legislation to make the posting and publication of crimes an offence. This move follows international concern about the role of social media in amplifying crime and promoting a society where a criminal activity is rewarded with attention and notoriety.

I acknowledge that the Law Society has raised some concerns regarding the breadth of this offence, and the federal Coalition has proposed to make this nationally consistent if re-elected on Saturday. In particular, they note that an individual can be charged under this law for posting and publicising criminal activity without having personally committed the crime in question. I note also there is concern about the potential for disproportionate impact on young people who may not fully understand the consequences of their actions. Criminalisation alone is not always the best solution. We must also address the underlying causes of youth crime.

To ensure fairness, the question of guilt under this bill would hinge on whether the person's intent was to glorify, publicise or encourage the crime. There are provisions for legitimate defences, such as where the material was published for educational purposes or to inform the public. I understand the Hon. Mr Simms has a set of amendments, which I indicate we will not be supporting.

The Liberal Party believes this bill is designed to tackle the dangerous post and boast culture where the young offenders commit serious crimes and then glorify their actions online. We feel the honourable member's amendments would undermine the bill by exempting key offenders, creating potential loopholes for the glorification of crime and possibly allowing harmful material to spread privately. We therefore oppose the amendments to preserve the integrity and effectiveness of the bill.

The opposition, whilst it supports the bill, will raise some questions, and some of these questions are around whether charges could be retrospectively applied to historical crimes that were publicised years in the past and, indeed, whether it would be an offence to share footage of criminal activity via text message or through private messaging platforms such as WhatsApp. I may have one or two other questions during the committee stage, and I anticipate the Attorney will address these issues then. While the opposition is indeed firm in our stance against the glorification of crime, we, as legislators, must also ensure that the bill is practical, enforceable and just.

In conclusion, the posting and boasting bill represents an important step in curbing the reckless promotion of criminal activity, by ensuring that those who spread a criminal act are held accountable. We as a society will send a clear message that such behaviour will not be tolerated and have a firm deterrent against further crime. Again, as I reiterated, I will seek a few clarifications at the committee stage, but certainly we, the opposition, urge all members to support this bill while continuing to work together to address those final few concerns raised.

The Hon. R.A. SIMMS (15:30): I rise to speak on the Summary Offences (Prohibition of Publication of Certain Material) Amendment Bill on behalf of the Greens. We know that this bill is the government's response to a bill brought to this place by yourself, Mr Acting President, known as 'post and boast' laws. The Greens indicated that we would not be supportive of that bill at that time, and indeed, Mr Acting President, I think I have had a few conversations with you about why we were not supportive of the bill.

Both bills aim to address the issue of people who post videos of crimes on their social media. The Greens believe that the bill that was presented to parliament last year could have some unintended consequences. At that time, I warned the parliament about the risks associated with punitive laws that were targeting young people and the need for young people to have access to services and diversionary programs.

I note that the government has been doing a consultation paper around diversion programs and raising the age of criminal responsibility but seems to have lost their nerve in terms of taking any action on that reform. I think that is very poor, very weak. The Greens will continue to advocate for the government to show some backbone, to stand up against the stupid populist law and order campaigning of the opposition, which is devoid of fact and which actually, by the Attorney-General's own admission, fails to recognise the fact that youth crime is going down in South Australia.

Anyway, I am concerned that this bill will actually compound some of the already punitive policies that we are seeing in South Australia that target young people. We believe that the court should consider the publishing of material as part of the sentencing process and that more early intervention programs should be established to prevent young people in particular from offending in the first place.

The bill the government has brought to us has raised even more concerns than the bill that was put forward by yourself, Mr Acting President. The proposed legislation will capture a number of circumstances that could have wide-reaching implications for our democracy. For example, I understand that this bill captures direct messaging. Imagine a situation where a young person witnesses a crime and sends a picture of it to their friend in a private message, perhaps with a fire emoji or the like, with a description.

The bill creates an offence where someone publishes the material with the intention of encouraging or promoting the conduct. It is difficult for a young person, often, to draw the line. Would the use of an emoji in that context represent glorifying criminal conduct? How will they know whether the fire emoji could be considered promotion? How will they understand whether or not they have committed an offence?

Indeed, the Malinauskas government has argued that if you are under 16 you are not old enough to even be on social media or to understand the risks associated with social media, so how can they apply this offence to that group? Such an example, of course, I should say is probably not the kind of conduct that the government is seeking to target. The problem, of course, is the broad and wide-ranging nature of the laws that the government is proposing for parliament's support.

The definition of 'published' in the bill includes sharing material via the internet. Again, this is very broad and we believe that there is a huge difference between sharing a message with a friend and publishing something on a public Instagram profile. I indicate here that the Greens will move an amendment to remove direct messaging so that it is not captured by the bill.

Another element that is potentially captured here but we believe should not be is the promotion of protest actions. We know, of course, that the Malinauskas government has form when it comes to trying to curtail the right to protest here in our state. Back in 2023, the Malinauskas government launched an extraordinary attack on the right to protest by introducing draconian anti-protest laws. Indeed, all of us on the crossbench did what we could to try to resist those draconian laws. Indeed, you, Mr Acting President, I think delivered a very interesting speech, which went for five hours or more, covering a wide range of topics, including Meghan Markle and a range of other matters that were of great interest to myself and other members.

We are concerned that this bill is once again part of the government's broader approach to crack down on protest here in our parliament. We know the bill has significant implications for someone who is engaging in protest action. We know that some of the most important changes that have taken place in history have been as a result of civil disobedience. Take the suffragette movement. We have a piece of history here in the grille that Muriel Matters chained herself to. As a result of that movement, of course, we have a more inclusive parliament and more representation in our democracy. But if Muriel Matters had Instagram, would we criticise her for sharing the image of her chained to a grille? That would offend these laws.

The new penalties for the offence of obstruction that passed here two years ago have the potential to impact protest actions that are aimed at social change, but this bill introduces a compounding offence, saying you cannot even share images of those engaging with these protest actions on social media. Of course, we are not just talking about Extinction Rebellion protesters who might well obstruct traffic to make a point. There is a range of other protest actions that could be captured by this legislation, and that is why the Greens will be moving to amend the bill to ensure that there are protections for people who are caught up in the Malinauskas government's anti-protest laws, by expressly carving out political communication and lawful assembly.

I urge members to consider that amendment in conjunction with amendment No. 3 [Simms-1]. This is where we provide guidance to ensure that our exemption does not apply to conduct that is designed to incite violence or hate speech against groups that are protected under the Racial Vilification Act or the Equal Opportunity Act. We note expressly through our amendment that, without limiting the grounds on which a court may find material was not published for a legitimate public purpose, material published for the purpose of political communication will not be published for a legitimate public purpose if the material was also published for the purpose of inciting violence or for promoting any form of unlawful vilification or discrimination.

My amendment makes clear what we are contemplating here—for example, racial vilification under the Racial Vilification Act 1996 or any form of discrimination that is unlawful under the Equal Opportunity Act. For instance, my amendment would not provide an exemption for people who choose to broadcast Nazi propaganda or Nazi protest actions.

We will also move an amendment to ensure this legislation does not apply to anyone under the age of 16. The Malinauskas government claims that people under the age of 16 should not be allowed on social media, as I indicated earlier, yet it is creating an offence for them to share material on social media sites. It is inconsistent, so our amendment will clear that up.

I would also like to highlight that this bill includes a provision that captures posting about offences in other jurisdictions. I think it is important to note that surely if an offence is not an offence in the state of South Australia, a reasonable person cannot be expected to know the offences of other jurisdictions when they are posting a photo or sharing a video or content from something that may have occurred in another jurisdiction.

So we have serious concerns with the wideranging nature of the bill. We do believe that our amendments ameliorate the risk somewhat and we encourage members to support those amendments and we reserve our right to make a decision on the bill at the third reading.

I should say, of course, that the Greens do not support people promoting criminality. Of course, that is an issue that is a concern for all members of the community. However, we are really concerned about the disproportionate effect this will have on young people, the disproportionate chilling effect this could have on protest actions in our state and the unintended consequences these laws might well have because they are so broad in their remit.

The Hon. J.S. LEE (15:40): I rise to speak on the Summary Offences (Prohibition of Publication of Certain Material) Amendment Bill 2025. Social media is changing rapidly and in some instances some of those changes are negatively impacting on the public safety and wellbeing of our community. This bill seeks to address and prohibit a growing trend of people posting material on social media to brag about their involvement in crime, commonly known as the posting and boasting bill.

I also want to take this opportunity to acknowledge the Hon. Frank Pangallo for his strong advocacy of this measure. I believe most honourable members would have seen or heard of instances of hoon drivers or their admirers posting videos of dangerous and illegal driving online and heard of people trying to one-up each other by undertaking more and more dangerous activities to post the videos online for their followers. Not only does this trend risk exposing community members to offensive material but it has also raised concerns across the community about the harm of promoting crime and encouraging and glorifying those who commit prescribed offences.

The bill proposes to create a new standalone offence for publishing material depicting an offence, with the maximum penalty of two years' imprisonment. Prescribed offences include offences that involve driving a vehicle or vessel, violence, weapons, damage or destruction of property, theft and criminal trespass. This offence would apply to anyone who publishes material online that appears to depict conduct constituting a prescribed offence and has the intention of encouraging, glorifying or promoting that conduct.

Material posted, uploaded or shared via the internet on a social media platform or other electronic platform will be captured by this legislation, even if, for example, posted to a group chat or a closed Facebook group. Additionally, a person who reposts or re-shares material originally published by someone else would also be captured by this legislation. Under this legislation, a person could be charged with this posting and boasting offence even if they were not involved in the prescribed offence that is depicted in the material. Equally, a person could be charged with this offence whether or not they, or another person, have been, or will be, charged with the related prescribed offence.

Of course, there are exemptions for publishing material for a legitimate public purpose, such as educating or informing the public, publishing a fair and accurate report of any event or matter of public interest or a work of artistic merit. Further, the prosecution must prove that the publication was intended to encourage, glorify or promote the conduct or to increase a person's involvement in the conduct depicted.

I note that concerns have been raised by the Law Society that young people may be disproportionately impacted by this legislation and I understand that one of the amendments that will be proposed by the Hon. Robert Simms would seek to exempt children under the age of 16 from this offence. From my briefing with the government, I understand that there is a strong intention for the Department for Education to deliver a significant education campaign. This will be crucial to ensure that young people understand the consequences of filming, posting and sharing material that depicts an offence.

I also appreciate that this legislation is intended to address a concerning trend that is prevalent among young people, with many vehicle offences that become viral videos being committed by the 20 to 30-year-old age group. Too often we see terrible footage of school bullying and violent assaults circulating on social media, and we must do something to prevent the additional harm that these viral videos can have on the victims.

We certainly must do everything to stop copycats potentially amplifying antisocial behaviours. Such conduct is both extremely harmful and dangerous. In the interests of protecting community safety, I indicate that I will be supporting the bill and will consider the Hon. Robert Simms' amendments, because he makes some very interesting points. I hope the minister might be able to provide some clarification to address the issues and concerns that have been raised by the Hon. Robert Simms in his speech. With those remarks, I commend the bill.

The Hon. F. PANGALLO (15:45): I thank the Attorney-General for his acknowledgement of my interest in this legislation. Just to set the record straight, and as members in this place have already recalled in their speeches today, I introduced this bill in May last year and it was passed. It lay dormant in the House of Assembly, but I am glad it has made its way back here.

The Attorney-General did give me the courtesy of a briefing earlier this year on his intentions with the government's bill, and I am happy with what he has done in that regard. Nonetheless, I am pleased that the government decided to support it then and have now decided to do it themselves, effectively giving themselves another notch on their belt about being tough on crime, especially juvenile crime, where offenders break the law and then brag about it on social media platforms, which in themselves have changed the nature of post-crime behaviour of a particular cohort or generation of young criminals in our midst. They have utter disregard for the law and a disgusting lack of any decency or respect for their victims.

My bill sought changes to the Bail Act to restrict the presumption of bail for youth offenders for prescribed offences like stealing cars, criminal trespass and home invasions. That was opposed by more progressive moderates in the legal profession as perhaps going too far. However, I see that it is now gaining some strong support in other jurisdictions like the Northern Territory and Queensland, where they are having to battle the relentless wave of recidivist youth crime and bail breaches going unpunished in their communities.

How often do we hear vicious crimes against persons being committed, only to learn these ratbags have already been bailed for similar crimes? Our court system is far too soft on youth crime. The dilemma is, though, what do you do with them? Where do you put them when our jails are full and there are record numbers of offenders put on home detention?

Shocking figures were released recently through freedom of information sought by the opposition showing the true extent of repeated bail breaches. SAPOL tell us it is usually the same small group of the usual suspects who commit the crimes, then emerge from the revolving door of the Youth Court or other courts. So what? I still believe there should be no statutory presumption of bail for them.

As I stated, the dilemma for the government is: where do we hold them? Certainly not in adult prisons and remand centres. Regional police I spoke to earlier this year expressed their alarm at the youth crime rate. I was told of one youth offender in Port Augusta who was arrested on more than 50 occasions and blatantly breached their conditions of release.

The police I spoke to were very supportive of having a dedicated centre for these offenders where they could be put through meaningful rehabilitation programs. Youth offending can lead to a lifestyle of youth recidivism, adult offending, escalating serious offending, substance abuse, mental illness and even homelessness. That may be food for thought for our new corrections minister, the Hon. Emily Bourke.

There is also evidence that criminals recruit vulnerable children on social media to commit crimes. Being remanded in custody puts the brakes on this. From a safety perspective, it protects these kids from themselves and the dangers inherent in reoffending—but that is for another day. If offenders are stupid and brazen enough to post and boast about their crimes, encouraging others to follow their infamy, they should face stiff penalties.

Queensland has had success in rounding up hundreds of young offenders under its post and boast laws introduced last March. New South Wales quickly followed and there was a private members' bill that has stagnated in the federal parliament since March last year, and then I had my legislation drafted and introduced to follow other like-minded jurisdictions. I applaud the Attorney-General for supporting my initiative and I would also hope that once it is in place the government can allocate resources and funding to provide pathways out of the justice system for these offenders.

There is a still a way to go, however, in getting violent and extremist material removed from online sites. In saying this, I acknowledge the comments made by the Hon. Rob Simms and also his amendments. I think he made a compelling argument regarding the unintended consequences when it comes to political protests, and I will seriously give that consideration for supporting it. However, I will not be supporting the amendment regarding children under 16. I commend the bill.

The Hon. R.P. WORTLEY (15:51): There have been instances across Australia, including locally, of people posting material on social media platforms to brag about their involvement in crime—e.g. posting and boasting. This sort of conduct is fuelled by the recognition and notoriety that people receive for criminal conduct. It also further harms victims of offending who not only have to deal with the loss, injuries and other harm they suffer directly but the public humiliation dealt out by those who publish criminal material.

Other jurisdictions have taken steps to criminalise posting and boasting, including New South Wales, Queensland and the commonwealth. The draft bill creates a new posting and boasting offence in the Summary Offences Act.

People who publish photos, videos or audio of a prescribed offence with the intention to encourage, glorify or promote the conduct it portrays, whether or not they were involved in the offending themselves, will face a penalty of up two years' imprisonment so long as the penalty imposed does not exceed the maximum penalty that may be imposed for the relevant prescribed offence. This ensures that somebody who commits a post and boast offence is not held to stricter account than the person who commits the crime. A prescribed offence includes:

an offence involving driving or operating a vehicle or vessel, which we have seen in high-speed joyriding and theft of vehicles;

an offence involving the use of or the threat of using violence, which captures fights and coward attacks;

an offence involving a weapon;

an offence involving interference, with damage to or destruction of property;

theft or an offence of which theft is an element, such as a robbery; and

criminal trespass or an offence of which trespass is an element.

The new offence applies to a person who has posted material depicting a prescribed offence as long as it is proved that they published the material for a prohibited purpose, to encourage, glorify or promote the conduct. The offence will not cover the publication of offending material if the publication was for a legitimate public purpose including:

whether the publication was for the purpose of educating or informing the public;

whether the publication was for the purpose of making or publishing a fair and accurate report of any event or matter of public interest;

whether the publication was for the purpose of a work of artistic merit;

whether the publication was for a purpose connected to law enforcement or public safety; or

whether the publication was for a medical, legal or scientific purpose.

These caveats are to ensure that the legitimate use of photos, videos and audio of criminal activity by law enforcement or journalists is not curtailed. Although these laws will apply to everyone equally, we are determined to work with the Department for Education to ensure our youngest South Australians understand the risks involving filming and publishing offences. This comes on the back of the ban on phones during school hours and the ban on social media for people under 16. It is imperative that, now that every young person is essentially walking around with a film production studio in their pocket, they understand and appreciate what is and what is not acceptable. I support the bill.

The Hon. C. BONAROS (15:55): I rise to make some brief remarks and observations and, in so doing, echo many of the sentiments that have been expressed by my colleague the Hon. Rob Simms with respect to the breadth of the proposed offences and scope of this bill, and note queries that have been raised, particularly by the Law Society, as to the evidence to suggest the causal link between young people posting online, the commission of the classes of offences covered at an increasing rate, as well as the increased rates of crime more generally to justify the changes.

Of course, that is against the backdrop of the Attorney often telling us in this place, particularly in question time, that crime rates are actually on the decrease. We have heard that time and time over, particularly in response to questions from the opposition on this very issue. We canvassed that very well during our knife law reforms very recently. We are actually looking at a decrease in crime rates and, more specifically, a particular cohort of offenders committing the majority of crimes that we are seeing reported. I do find that rather curious, given that has been one of the justifications for the legislation.

I support the Hon. Rob Simms' sentiments with respect to the age, the social media bans and the scope of this bill. In saying all this, none of us support—in fact, I am sure we all condemn—the glorification and spreading of violence online, and there needs to be a way to address this behaviour. It does take me back to a conversation we often have in this place about maintaining the status quo and expecting things to change. Simply introducing more penalties, in the absence of all the things that those individuals who are committing these crimes need, we know does not work because that is why we are here debating all these different rafts of laws so often.

It is not that I am opposed to the idea of posting and boasting laws, but I am certainly concerned about the scope of those laws as they have been proposed here. I am concerned that we have a situation where we do not know the answer to what would happen in relation to where something has been filmed internationally and then reposted here, and we do not know what the responses are—in fact, there is a presumption of innocence that would not apply to conduct not prosecuted or charged. There are concerns around shifting the onus to the young person to prove the conduct did not constitute a prescribed offence. You would have thought that, as an absolute minimum, the prosecution should have to at least prove the published material depicted was a criminal offence.

They are issues that have been the subject of consultation and discussion, not only by the Law Society but also by the Guardian for Children and Young People and Training Centre Visitor submissions, which raised a number of concerns with respect to this bill. The elephant in the room is our protest laws and the amendments that the Hon. Rob Simms has moved and I indicate now that I will be supporting all of the Hon. Rob Simms' amendments for the very reasons that he has highlighted.

It was not that far back when the government made an absolute mess in this jurisdiction of our protest laws. It certainly did not expect the backlash it received from its own rank and file in respect to how far they were willing to take those protest laws. Those who were around will recall that there was a lot of backtracking after a lot of pressure, particularly from the union movement—or actually from the union movement—with respect to those laws.

So I am very hopeful that the Attorney is considering with an open mind the amendments that the Hon. Rob Simms is moving, because these laws are intended to be limited to the posting and boasting of violent criminal offending online, for want of better words—I am paraphrasing now. No-one would expect or anticipate that they could possibly or conceivably apply to innocent protests: to protests that occur for very democratic reasons on our streets each and every day of the week. I am sure that if the government does not support those amendments they will be subject to the same sort of criticism that they were subject to when they passed those laws in the first place.

I just genuinely hope that between now and the committee stage they can actually think back to—I know things are good for the government, but the backlash was great. The majority of that backlash, I think it is fair to say, came from Labor Party supporters, rank and file union members, and here we are again, in a position where we could possibly be curtailing, prohibiting and criminalising certain elements of protest laws. That is not something I am willing to accept, and I do not think it should be acceptable to any of us in this place if that is the position we took when we dealt with those laws. Of course, that was not the position the government took when we debated those laws; they took a rather peculiar decision, as a government, at the time.

Notwithstanding that, I think that overall we cannot overlook some of the very genuine concerns that have been raised in respect of these laws. That is not to say, again, that we support this sort of behaviour, and it is not to say that that behaviour should be glorified in any sort of way, and it is also not to say that the spreading of violence online does not need a response. I think what the commentators on this bill have said is that they are just not sure that we have nailed it with this particular piece of legislation. It is against that backdrop that I make these comments.

I did look at Queensland with some interest when these laws were first passed, and I note the sort of commentary that has been made since then, particularly around social experimentation. I think that was quoted in the comments of the Guardian for Children and Young People and in the comments of others. Really, what it comes down to, I think, is that whilst these laws may work in some way, shape or form, their breadth and scope are concerning to many of the stakeholders who are watching and paying attention to this debate.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:03): I thank all honourable members who have contributed to this debate. I know that there were some points raised and some questions asked by a number of the people who contributed, and I will be happy to answer those and, I suspect, other questions at clause 1.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: Given the government has stated that it wants to ban young people under the age of 16 from using social media, why is this legislation applying to young people under the age of 16? Why not simply carve that out, consistent with the government's views?

The Hon. K.J. MAHER: I am advised that if the only possible way anyone could ever publish something was social media, that would be a very good point, but of course there are many other ways that things can be published that are outside social media.

While I am on my feet, it might be useful to answer a question that I think the Hon. Robert Simms raised during his second reading contribution. It was certainly touched upon by the Hon. Connie Bonaros as well in relation to offences that are published here in South Australia but do not occur in South Australia. My advice is that the bill applies to the prescribed offences which this bill covers in South Australia.

So if something occurred somewhere else and it was published here, yes, it could be covered, but it would have to be an offence here. My advice is it does not apply to something, for instance, that occurred somewhere else and may be some sort of offence in another jurisdiction or another country, but is not a prescribed offence here in South Australia. So in regard to the idea that in publishing these someone would have to be understanding of every offence everywhere around the world, it has to be a prescribed offence covered by this bill in South Australia for it to apply.

The Hon. R.A. SIMMS: I understand the government will be rolling out national-first curriculum dealing with social media awareness in schools. As part of this education program, given the broad nature of the laws the government is proposing, will they be providing advice to children in a school environment on what might constitute an offence under these laws? In particular, I am thinking about group chats and direct messages on social media. I referenced in my second reading contribution whether emojis could be used and seen to be glorification of violent crime. Can the minister elaborate on how he foresees those things being interpreted?

The Hon. K.J. MAHER: As with these sorts of matters of criminal law, it is not something I am going to go in and say, 'This is how a court would interpret something,' in a particular circumstance. My advice is it would have to be a matter for the court that there was the intention for that promotion or glorification of that act.

In relation to the honourable member's questions about curriculum being rolled out, I will certainly pass that on to the Minister for Education, who has responsibility for these matters in South Australia. But certainly the intention for these sorts of pieces of legislation partly is that educative and deterrence piece. We have talked about it a lot in the things that we have passed. I know the Hon. Connie Bonaros and I have talked about it significantly in some of the things that we have talked about in terms of respectful and consensual behaviours. Part of what we do here is send that message about what sort of behaviour is acceptable or not. I certainly will pass on what the honourable member has raised in terms of inclusion in curriculum.

The Hon. R.A. SIMMS: Am I to understand from the minister's reply, if you are simply going to pass on the question, that this is not an issue that has been canvassed before the legislation has been brought to this place? Given the legislation is dealing with children, in particular people under the age of 16, that the government has already said are not able to understand social media or be potentially culpable for their actions because they should not be on social media, why has the government not already worked out a plan to integrate this into the education system?

The Hon. K.J. MAHER: I thank the honourable member for his question and I appreciate being 'verbalised'—as the opposition leader would say—by the honourable member in relation to these sorts of things.

The Hon. N.J. Centofanti interjecting:

The Hon. K.J. MAHER: Yes, I knew that was coming. Of course, this legislation has not passed. These offences are not in operation yet, but in terms of what is acceptable behaviour, I will certainly pass that on. I am not aware of what is planned in curriculum in terms of any changes or making younger people aware of what the exact details are through the education system, of what is in the curriculum, but I am very happy to pass that on to the member. Certainly, once things pass and there are new laws and new legislation, many areas of society, including the education system, adapt to those.

The Hon. R.A. SIMMS: Legislate first and plan later by the sounds of it. It does not fill one with much confidence when we are dealing with these matters. I am keen to understand the implications for protest action, and I touched on this in my second reading contribution, as did the Hon. Connie Bonaros. How can the government assure us that those who are engaging in protest actions, who are sharing protest material—by its very nature protest material is often designed to be shared. It is meant to capture public attention. How can the government assure us that this is not going to curtail protests? Surely the amendments that I have suggested, in terms of providing some clarity around that, would provide some additional level of protection?

The Hon. K.J. MAHER: I am advised that if it is not a criminal offence, this is not going to cover it. If it is not one of the prescribed offences, these laws have no work to do. With the regular lawful protests that we see occurring frequently in Adelaide, as they should, if nothing is breaking the law or committing a prescribed offence under this act, it is not going to be covered by the sharing of these sorts of acts or the publication. It has to be a criminal act that is covered, a prescribed offence under these laws.

It does get difficult when you talk about wanting to extricate something that is very broadly for the purpose of political communication. Of course, that is a wide spectrum that can be interpreted very widely. I am sure some would argue that some of the actions that we have seen that do constitute criminal offences, in terms of far right wing extremism and the Nazi symbol bills we have here, were political communication. We think the balance is right. If you are not doing anything that is a prescribed offence under this act, then there is nothing to fear from it.

The Hon. R.A. SIMMS: What about the scenario that I detailed my second reading speech: the suffragettes who chain themselves to public property? Sure, they are committing an offence. If these activists were to engage in that conduct these days, they would be potentially committing an offence. If someone is going to share that on social media, they are then potentially committing an offence under the government's new laws. Is that not a troubling impediment on the right to protest in our state, particularly when you take it in conjunction with the anti-protest laws?

The Hon. K.J. MAHER: I know that there were all sorts of scenarios thrown up when the Summary Offences Act was changed and we were here to almost 7am a couple of years ago—for instance, that having a picnic in a park was going to land you in jail. I would be keen to know if the honourable member has instances of any effect that has had on people who have protested in South Australia. I am certainly not aware of it.

The Hon. C. BONAROS: Just following on from that, you may very well have some members of the Greens who chain themselves to a tree, potentially. That could potentially involve offences involving interference with, damage to or destruction of a tree. I know you would not intentionally damage or destroy a tree, but certainly interference could fit in with that. I am thinking of examples where we blockade roads with trucks or vehicles or motorbikes, or drive them onto the pathways outside Parliament House to make a point, all as part of an authorised and approved protest.

Surely the Attorney can see how they would fit within—I can see how they would fit within a prescribed offence, an offence involving driving or operating a vehicle or vessel. If you are blockading the road using five or six trucks, then you may very well be committing an offence, so that may very well be covered by these provisions. If I am standing there filming these truckies doing that and then posting it online to say, 'Go you!' how could that not be captured by these provisions?

The Hon. K.J. MAHER: I thank the honourable member for her invitation to act as a trier of fact and a judge in deciding a specific example, but as per usual I will not take her up on that. These things are not always easy. As I have said, far right-wing extremist groups could think it was political communication to destroy an Aboriginal statue. These are not fanciful sorts of things. Yes, that would be a criminal offence, but I would hate to see someone argue it is for political communication.

The Hon. R.A. SIMMS: Yes, but the amendments that I am putting forward make it expressly clear that the scenario that the Attorney has raised would not constitute genuine political communication. I reference breaches of the Racial Vilification Act, or indeed any form of discrimination that is unlawful under the Equal Opportunity Act. So that is kind of a red herring, because my amendment would deal with that scenario.

I think the issue here, too, just to carry on from the point made by the Hon. Connie Bonaros, is the potential chilling effect that this might have as well. The Attorney-General invited us to provide examples of people who may not participate in protest because of the anti-protest laws. I have heard of lots of people in our community who have been concerned about participating in protest actions because they have been scared about the scope of the Malinauskas government's draconian anti-protest laws.

I am concerned that this is going to just further compound that potential. In particular, the effect that this could have on activist groups is really significant, where people may well obstruct traffic, may well chain themselves to buildings and the like and as part of the promotion strategy have that streamed online as a way of trying to capture public attention. Surely the minister can see the potential chilling effect this could have on democratic rights in our state and protest.

The Hon. K.J. MAHER: Again, I appreciate the honourable member's rhetoric. My advice is that it is not the promotion of a particular cause that is captured; it is the promotion of the criminal offence that is captured. Whilst I appreciate the member's views, they are certainly not ones that the government agrees with.

The Hon. C. BONAROS: Just to be clear, though, in relation to that chilling effect that the member speaks of, it is the individual who is actually posting and boasting who is subject to the offences in this bill, regardless of whether there are any offences laid against the person who potentially could be committing an offence by driving the vehicle or potentially could be committing an offence by interfering with, damaging or destruction of property, or any of the other things listed.

Regardless of whether you lay charges to the driver of the truck who has blocked the road, the person who has filmed that and is posting and boasting about it is the one who is, regardless of charges over here, subject to charges irrespective, so we are very clear.

The Hon. K.J. MAHER: So we are very clear, my advice is if you are doing the posting or boasting or the glorifying of the criminal offence, yes, that is the exact intent of the law.

The Hon. C. BONAROS: In the absence of criminal offences potentially being laid against the person who is actually undertaking the prescribed criminal offending.

The Hon. K.J. MAHER: Sure, and let me give another example which I think would be important. If someone had filmed a fight occurring in a school with 30 people beating up another student—and these are not fanciful situations—and people's faces are maybe somewhat blurred in the video, if someone glorifies that sort of offending you do not need to have someone convicted of an offence for doing that for this to apply. It is the glorification of that act that applies.

The Hon. C. BONAROS: I appreciate that clarification very much because that I think is the intent of what all of us thought this bill would cover as opposed to the potential impacts and ramifications it can have on our protest laws. Do we understand that there is a difference here between the scenario that has just been pointed out where there is a bunch of kids who are beating on and there are others egging them on and they are filming and they are putting that online, and we are saying, 'Well, that is an offence,' as opposed to our protest laws and how these may apply to our protest laws?

The Hon. K.J. MAHER: I am happy to repeat again: if you are doing the glorification of the criminal offence—not of the vibe of a view such as a political view; if it is the glorification of that criminal offence—then yes, it will apply, if it is a prescribed offence under this act.

The Hon. R.A. SIMMS: I think we are understanding, but the frustrating thing is that the government is not conceding the effect that this could have on protest in our state. So to be really clear—and I will use the Hon. Connie Bonaros as an example, if she does not mind—let us say the Hon. Connie Bonaros is chaining herself to the steps of Parliament House to protest an issue that is going on here in the parliament. She is potentially committing an offence. Let us say she is not charged with an offence, but I come along and I think, 'Wow, the Hon. Connie Bonaros is doing a great job on this.' I share it on my social media: 'Power to you, Connie. We are all with you,' and then I get charged with an offence. Is this not an absurd situation we find ourselves in in the state of South Australia?

The Hon. K.J. MAHER: I think we can agree to disagree with the Hon. Rob Simms. It has the shades of the debate that we had a couple of years ago. We just do not agree with the Hon. Robert Simms' proposition. Similarly, if there were far right-wing extremists using Nazi symbols, if that is a prescribed offence under here that would be covered. I understand the Hon. Robert Simms' view. It is just that we do not agree with the Hon. Robert Simms.

The Hon. C. BONAROS: Just for a matter of the record, though, the government may not agree but the Hon. Rob Simms is right: if I am potentially committing that offence and he is filming me potentially committing a criminal offence under the prescribed offences, and regardless of whether I get charged or not if he is going, 'More power to Connie,' and he posts that online, he can be charged under this bill.

The Hon. K.J. MAHER: I will give the other example: if someone has been filming that kid being attacked in the schoolyard, regardless of someone being convicted of that offence, this can still apply, yes.

The Hon. N.J. CENTOFANTI: Can the Attorney advise whether or not charges can be retrospectively applied to historical crimes that were, say, perhaps publicised years in the past?

The Hon. K.J. MAHER: My advice is the offence—the posting and boasting—is not retrospective; that is, if it has been published previously, no, but it can still apply to criminal offences that have occurred in the past that you post and boast about in the future, if that makes sense.

The Hon. N.J. CENTOFANTI: Can the Attorney advise whether it would be an offence to share footage of criminal activity via text message or through private messaging platforms—things like, you know, WhatsApp or Signal?

The Hon. K.J. MAHER: Yes, and I think this is something the Hon. Robert Simms raised as well and where I think he has an amendment to this effect, if I am correct. It does include sharing through an electronic means. This is something we did consider when drafting the bill about what the extent of 'publishing' should mean. The reason it is like this in the bill is to keep it consistent with what 'publishing' means across other pieces of legislation; for example, child exploitation material has a definition of publishing and it is 'sharing by electronic means'. The reason we have chosen this particular definition of publishing is to keep it consistent with how it works in other legislation where publishing can constitute an offence.

The Hon. N.J. CENTOFANTI: My final question to the Attorney is: how feasible does he believe enforcement will be given that obtaining evidence from social media companies can be challenging as highlighted by the Criminal Lawyers Association of the Northern Territory?

The Hon. K.J. MAHER: I thank the honourable member for her question. Certainly, obtaining evidence in a whole range of areas can be challenging, but it is something I know the South Australian police work very hard on and, as we are doing here and as we did yesterday with one of the Hon. Connie Bonaros' bills, we need to make sure we are doing what we can to make sure our legislation is keeping track with changes in technology and changes in the way people communicate and that is what the police do as well.

The Hon. R.A. SIMMS: Today is May Day, a day that honours the struggles of the union movement and, in particular, protest actions. Has the minister sought the views of anyone in the union movement about these changes and the effect they might have on protest in our state?

The Hon. K.J. MAHER: I thank the honourable member for his question. As I have said, the advice is that it is not the publication of a particular political point of view that is the subject of this bill; it is criminal activity that is prescribed criminal activity.

The Hon. R.A. SIMMS: Has the minister's department done any modelling on the disproportionate impact this law might have on high-risk groups? In particular, I am thinking of high-risk groups of young people who may be more likely to engage in this conduct.

The Hon. K.J. MAHER: This legislation is intended to apply to anyone who wants to glorify the prescribed offences and criminal activity that it covers.

The Hon. C. BONAROS: Referring back to the bill again in relation to prescribed offences, I do note there is a regulation-making power to enable additional classes of offences to be prescribed by regulation. Has the Attorney any idea what we are anticipating might be included that is not already included here?

The Hon. K.J. MAHER: I thank the member for her question. I can advise that we do not have any that are intended to be included through that regulation-making power. It is there so that, if there are offences that are changed in other areas of the criminal law over time, they can be added if necessary through the regulation-making power, subject to the disallowance by this parliament of those regulations.

The Hon. C. BONAROS: Are these measures that require additional resourcing for police, for instance? Have they been budgeted in any context?

The Hon. K.J. MAHER: I am not aware that there is specific budgeting for the introduction of these particular new laws. Similarly, as with the laws we passed yesterday, there is not a specific budget line for changing laws to cover wholly artificially created deep fakes, although that is a growing area. Overall, when police make submissions about more resources about a whole range of things, they are considered by the government in responses to budgets.

The Hon. C. BONAROS: Finally—and I may have missed this, it may have been canvassed already—is the application of this to various platforms. Is it clear that it will not apply to, for instance, private messaging groups like WhatsApp or it will apply to private messaging groups like text message or WhatsApp?

The Hon. K.J. MAHER: I am happy to reiterate. We canvassed this a little while ago. It will apply to publishing by electronic means and, as I explained previously, this was something we considered in the drafting of how it should apply and decided to go with what 'publication' means in a range of various other statutes, such as child exploitation material, to keep this consistent.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 2, line 12 [clause 3, inserted section 21AA(1)]—After 'A person' insert 'of or over the age of 16'

I explained my rationale in the second reading stage.

The Hon. K.J. MAHER: We have traversed this quite extensively when we were discussing matters generally at clause 1, but the government opposes these amendments. The bill does not prevent the sharing of political protest or communication unless the shared material depicts certain criminal offending and it is shared with the intention to glorify or promote that criminal conduct.

Amendment negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 2 [Simms–1]—

Page 3, after line 20 [clause 3, inserted section 21AA(5)]—After paragraph (e) insert:

(ea) whether the publication was for the purpose of publicising a lawful assembly;

(eb) subject to subsection (5a)—whether the publication was for the purpose of political communication;

I talked a little bit about the rationale for this amendment in my second reading contribution. In effect, what this does is makes it clear that if you are sharing material that is publicising a lawful assembly or sharing material that is promoting legitimate political communication then you will not face prosecution or you will not be committing an offence.

This amendment should be taken into consideration in conjunction with my subsequent amendment, amendment No. 3 [Simms-1], which makes it clear that, without limiting the grounds on which a court may find the material was not published for a legitimate public purpose, material published for the purpose of political communication will not be taken to be material for a legitimate public purpose if the material is published for the purpose of inciting violence or promoting any form of unlawful vilification or discrimination.

The CHAIR: Move that one as well.

The Hon. R.A. SIMMS: I move:

Amendment No 3 [Simms–1]—

Page 3, after line 21 [clause 3, inserted section 21AA]—After subsection (5) insert:

(5a) Without limiting the grounds on which a court may find that material was not published for a legitimate public purpose, material published for the purpose of political communication will not be taken to be published for a legitimate public purpose if the material was also published for the purpose of inciting violence or promoting any form of unlawful vilification or discrimination.

Note—

For example, racial vilification under the Racial Vilification Act 1996 or any form of discrimination that is unlawful under the Equal Opportunity Act 1984.

It is important to highlight that because the Attorney has repeatedly referenced potential conduct that would fall foul of those definitions, so I am certainly not intending for political communication that is vilifying people or inciting violence to be given a get-out-of-jail card, but legitimate protest actions I think are worthy of protection.

This is an important amendment, particularly given the fact that the Labor government is pursuing this on May Day, a day that celebrates the struggle and activism of workers, many of whom have engaged in conduct in the past that might well be captured by Labor's draconian anti-protest laws and their latest efforts to try to stamp out protest in our state. So I encourage the Labor Party to support this amendment. I indicate that I will be calling a division so that their views will be put on the public record.

The Hon. K.J. MAHER: For the reasons we previously stated, the government will be opposing the amendment. I understand the purpose of the honourable member moving these amendments, and I think the example that has been given here was if someone was causing property damage as part of a lawful public assembly and that was shared. As I have said previously, it is not intending to cover the sharing of political protest or communication unless it depicts criminal offending and it is shared with the intention to glorify or promote the depicted criminal conduct.

I guess there is a difficult range under that scenario, where it is a lawful public assembly and someone is actually interfering and damaging property. I think the example that the Hon. Robert Simms has given was that it ought not be covered. If the lawful public assembly resulted in scuffles and there was serious violence and clashes with police, and 20 protesters beat up a police officer, I do not think you would want to promote that as part of it. If the destruction of property during a lawful public assembly ought to be protected, where does one then draw the line about an assault occurring during that?

Whilst I understand the intention of the honourable member, I think there would be practical difficulties if you are saying you can glorify any criminal conduct that occurs during that lawful protest. I think that becomes problematic. As I said, it is our view that if it is a lawful assembly, as the Hon. Robert Simms proposes in amendment No. 1 [Simms-2], and you are not promoting or glorifying criminal conduct as part of the lawful assembly, this should have no work to do.

The Hon. R.A. SIMMS: I just want to clarify that the amendment actually makes it clear that the question is whether the publication was for the purpose of publicising a lawful assembly. It is not going to cover the situation where somebody is publicising a punch-up happening at an assembly and saying, 'This is great,' but if they are publicising the actual lawful assembly action, that is a different proposition.

The Hon. K.J. MAHER: I understand and accept that, but I think the example that was given was where property damage was occurring and that ought to then not fall foul of this. It is a difficult continuum where you would draw the criminal offending that you allow during the public assembly and the criminal offending you do not allow to be glorified during the public assembly.

The Hon. C. BONAROS: I just note that it is not necessarily property offending, but we may have interference with property and we may have trespass with property, so it may not actually be damage to. I do not think any of us support the sorts of examples that the Attorney has given. None of us would support or condone glorifying the ripping down of any structure. The Attorney used the example of an Indigenous statue or monument. These are not things that any of us in this place would support, and we certainly would not support the glorification of that.

In the spirit of standing up for everything that the suffragettes stood for and the examples that we have relied on, on this side of the chamber in this debate, I indicate that I will be supporting these amendments because there are plenty of examples where, during a peaceful protest—and it is during a peaceful protest that would otherwise not be captured—there is some element of behaviour in there, whether it is a blockade or whether it is chaining myself to a tree.

I have no intention of chaining myself to anything, but whether it is chaining myself to the outside of Parliament House or whatever it may be, just as people have done before in protests, that could, under these definitions, constitute criminal offending. The criminal offending itself is not subject to any charges, but the Hon. Rob Simms who films me doing that and posts that in support of what I am doing, albeit at a very peaceful protest, could be charged with offending as a result. It is that element that I am certainly not supportive of and, for that reason, I will be supporting the member's amendments.

The Hon. F. PANGALLO: I might say that I do support the Hon. Robert Simms, but something that this debate has not actually quite touched upon is, firstly, it is the type of offender that is being targeted, and it is usually the person who is filming themselves or has somebody filming them committing the offence and then them posting it on there and boasting about what they had done. They are the targets of this.

Something that we have not touched upon—and I would like clarification from the Attorney, and I imagine it will come through the regulations—is if a person uses footage, vision that has been shot, for instance, by a television news crew of a particular event or a particular violent event, and then uses that footage to put it online and make some particular commentary about that, I imagine there would be exemptions in that regard, particularly when the material was taken from another source.

The Hon. K.J. MAHER: In the bill, clause 3(5)(a) to (f) include a whole range of areas that essentially provide exemptions—whether the material was for the purpose of educating or informing the public, whether it was for the purpose of making fair and accurate reporting of any event or matter of the public interest, a work of artistic merit, or a purpose connected to law enforcement or public safety. My advice is that the purpose of these laws relates to promoting or glorifying criminal conduct, not the fair and accurate reporting of something.

The Hon. C. BONAROS: For the sake of further clarity, following on from that question, can the Attorney confirm that, in all of those instances, the onus is on the defendant to prove—effectively, we have a defendant having to prove—that the conduct did not constitute a prescribed offence as opposed to the prosecutors or police having to prove that it did constitute that sort of offending?

The Hon. K.J. MAHER: The honourable member is not talking about the application of the exceptions, the available defences. I think the honourable member is asking whether the onus is on the prosecution to prove that what has occurred is a prescribed offence; is that the question?

The Hon. C. BONAROS: In the relevant section 21AA that the Attorney refers to, subsection (5) is followed by subsection (6), which provides:

It is a defence to a charge of an offence against subsection (1) for the defendant to prove that the conduct depicted did not constitute a prescribed offence.

In the explanation of clauses it states:

An exemption is provided where the publication of the material was for a legitimate public purpose. The clause also provides a defence against a charge of an offence against this clause for the defendant to prove that the conduct the material depicted did not constitute a prescribed offence.

Who has that onus?

The Hon. K.J. MAHER: My advice is that the onus is on the prosecution to prove, firstly, that it was a prescribed offence being depicted and, also, that it was the intention to promote or glorify that prescribed offence. My advice is that that section is a fail-safe, so that it is available to a defendant to use. It does not mean, on my advice, that the onus has now been reversed at first instance on the defence to prove it was a prescribed offence—that still remains with the prosecution.

The committee divided on the amendments:

Ayes 4

Noes 14

Majority 10

AYES

NOES

Amendments thus negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 5 [Simms–1]—

Page 4, line 13 [clause 3, inserted section 21AA(7), definition of publish]—After 'electronic platform' insert:

(but does not include any communication to a particular person, or a particular group of people, by email, text message, private message or direct message)

I talked a little bit about this in the second reading stage. This is based on some concerns expressed by, my recollection is, the Law Society and a few other groups that were concerned about the broad scope of direct messaging being captured. I do understand, of course, with respect to certain offences, that that is already captured.

For instance, the Attorney referenced the sharing of child sex material through direct messages and the like; that is already a criminal offence. But we were concerned that the sharing, just to an individual, of material that is supposedly glorifying criminal conduct in circumstances that are not already an offence could be a fairly broad interpretation. In particular, it could have a disproportionate effect on young people, and I talked a bit about that earlier.

The Hon. K.J. MAHER: I thank the honourable member. We understand the intention behind the honourable member moving this amendment. I might also add, too, that part of the things that need to be considered when a prosecution takes place is whether part of what is considered by the DPP or SAPOL in their prosecutorial discretion is public interest. One person texting something to another person may well fall outside of being in the public interest to prosecute.

Despite understanding the honourable member's intention, one of the other difficulties of what the honourable member has put in the amendment but does not include is that it might be a group of messages where there are 3,000 people in the group—it could be 10, it could be 100, it could be 3,000—and a lot of people might think that that is actually glorifying criminal conduct. The sort of abhorrent behaviour where there are 30 people setting upon someone and beating them up and then sending that out to a group of a thousand people is something I think we would all want to see captured by this.

Under what the honourable member has put forward, and again I understand the intention, that sort of one-to-one messaging may well not be in the public interest in the prosecutorial discretion, but sending it to thousands of people is probably something we would want to see captured.

The Hon. F. PANGALLO: I rise to say I will not be supporting the amendment of the Hon. Robert Simms.

Amendment negatived; clause passed.

Title passed.

Bill reported without 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) (16:50): I move:

That this bill be now read a third time.

The council divided on the motion:

Ayes 15

Noes 3

Majority 12

AYES

NOES

Third reading thus carried; bill passed.