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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Defamation (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2020.)

The Hon. V.A. CHAPMAN: Mr Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Mr PICTON (Kaurna) (16:17): I rise to speak in relation to the Defamation (Miscellaneous) Amendment Bill 2020 and indicate that I am the lead speaker for the opposition, as usual, on behalf of the Hon. Kyam Maher. I also indicate that the opposition is supporting the legislation. Defamation law is something that members of parliament and people involved in the political process have an interest in from time to time either as a plaintiff or as a defendant, depending upon the circumstances.

It is not something you generally want to be involved in, but it is an important piece of legislation. This is obviously a piece of legislation that originally derived from the common law but has been codified in a national model law situation since the mid-2000s, and this is now seeking to take this further in relation to a number of other amendments that have been moved around the country. The Defamation (Miscellaneous) Amendment Bill 2020 amends two acts: it makes substantial amendments to the Defamation Act 2005 and has related amendments to the Limitation of Actions Act 1936.

By way of background, the current Defamation Act in South Australia reflects the earlier national model defamation provisions that were adopted in each state and territory in 2005. I distinctly recall during law school, in studying defamation law, that the model act was coming in at the same time, which is always one of those interesting things when you are studying something that is about to become completely defunct. Clearly, there are issues from time to time, but those amendments and the model legislation that was adopted in 2005 have generally been regarded as a positive step.

The earlier work was intended to increase consistency in defamation laws across Australia. Prior to that legislation, there was always different shopping around for jurisdictions in which you would want to launch your defamation action, given that you therefore had the best opportunity for the highest payouts, etc., which is not a desirable outcome for anybody.

This used a harmonised legislation approach where all jurisdictions agree on a set of provisions, which are then legislated in each jurisdiction. That early process was initiated by the Council of Attorneys-General, known as CAG, in November 2004. It was not called that then, was it? It was called SCAG.

The Hon. V.A. Chapman: It has changed its name too many times.

Mr PICTON: Yes, that's right. I think it was SCAG back then, the Standing Council of Attorneys-General. They appointed a national defamation working party that drafted the first model defamation provisions on which the laws were based.

The 2005 national provisions were then introduced and enacted in each state, and in South Australia this was undertaken by the former Labor government and former Attorney-General Atkinson. This was the first time that defamation law was uniformly reviewed and implemented on a national level. It marked a move towards a genuine Australian defamation law and moved away from eight jurisdictions with a variety and mixture of common law statutes and codes.

As explained by the Attorney in her second reading explanation, the new bill arises from a national review of the model defamation provisions that commenced in 2018. In June 2018, CAG, the Council of Attorneys-General, reconvened the Defamation Working Party to review the 2005 national provisions. Two years is pretty fast in the Council of Attorneys-General world to get something to be law, I suspect.

This was intended to address issues that had arisen since 2005, including social media disputes, online publication of defamation matter and the relationship between defamation and investigative journalism and the public interest. Of course, while there was the early beginnings of social media back in 2005, it was very primitive compared with today's bombarding of social media in all our lives. I think it is very timely to look at that in the context of how defamation law works in the digital age, in particular in social media where everybody is publishing all the time.

On 27 July 2020, CAG approved the recommended amendments to the national provisions. The recommendations cited wide consultation and over 70 submissions from stakeholders across Australia over the previous years. Stakeholders included media companies, peak legal bodies, academics, digital platforms and lawyers for defamation plaintiffs and defendants. The bill seeks to rely on South Australian legislation with the updated national provisions.

These provisions have already been enacted in New South Wales and are being considered or progressed in other jurisdictions. The review of the national provisions sought to achieve a range of outcomes. These included increased deficiency, saving court time through pre-action steps and limiting defamation actions in court where there have been no serious consequences or harm. They also seek to improve the balance between protecting individual reputations and the freedom of information in matters of public interest.

This bill updates the law to reflect changes in technology and to resolve anomalies that have arisen in case law. The latter of these deals with court precedents about when online material is deemed to be published. This bill proposes early non-litigious measures and methods of dispute resolution. It contains a new pre-action threshold and requires out-of-court processes, including the compulsory use of concerns notices and offers to make amends.

It introduces two new defences while amending others, and seeks to circumvent the cap on damages for non-economic losses suffered by a plaintiff. It also clarifies the single publication rule to begin upon upload of digital material rather than its download.

The bill amends section 9 of the current Defamation Act, which covers certain corporations that do not have a cause of action for defamation. I believe that over the years and decades there has been a dispute about whether or not corporations should be able to sue for defamation, and from time to time there have been arguments, particularly on the conservative side of politics, that that should be the case, which I would strongly disagree with.

Currently, only non-profit corporations with 10 or fewer employees can sue in defamation, so it is limiting that to small companies. The bill clarifies which small companies can sue by defining employees to include workers like independent contractors. You would not want people to be able to get around that rule by virtue of the fact of a different employment relationship than a standard employment relationship.

The bill amends section 10 of the act to allow courts to make orders about costs for actions that end due to the death of a party if it is in the interests of justice. In the old act and the new bill, there is no cause of action for defamation of, or against, deceased people. I also recall that this has been something that has been debated from time to time.

I believe that when the original piece of legislation was being debated, former federal Attorney-General Philip Ruddock was very keen that deceased people be able to sue, if my recollection serves me correctly, but that was decided not to be allowed, which I also agree with. I am glad that has not changed in this legislation.

The bill introduces a threshold of serious harm for all defamation claims through the insertion of new section 10A. This is a major amendment to the Defamation Act. Under new section 10A, plaintiffs must establish that serious harm has been caused or is likely to be caused by the alleged defamation. The definition of 'serious harm' will be determined by courts and seeks to avoid costly processes where only minor harm occurs. This change is accompanied by the repeal of the triviality defence at section 31 of the act. It is noted that there were different views at the national level about whether the definition of 'serious harm' should be defined in statute or left to the courts.

The bill proposes new sections 12A and 12B regarding concerns notices. Plaintiffs will be required to send a formal pre-action concerns notice to the publisher of allegedly defamatory material instead of going straight to court. This is currently optional, rather than mandatory. After sending the concerns notice, plaintiffs must then wait a set time, with provision for the court to reduce the period before bringing legal action. This will allow publishers to make a settlement offer before court action begins.

The bill also amends sections 14, 15 and 18 about valid offers to make amends. It sets out new requirements to publishers about a valid offer to make amends in response to a concerns notice that is received from a plaintiff. The bill clarifies the content requirements and time limits for a valid offer to make amends through changes to sections 14 and 15 of the act.

Amendments to section 21 will stop plaintiffs from bringing multiple actions for defamation for the same publication against different associated defendants. For example, it will stop a journalist and their newspaper both being sued for the same publication and the plaintiff seeking damages from both. This is intended to stop plaintiffs circumventing the cap on damages from individual actions and will lessen court case loads.

The bill simplifies the contextual truth defence under section 24 of the act where a publication has both true and false defamatory allegations. Specifically, it creates a defence where the false allegations do not harm a plaintiff's reputation beyond the true allegations.

A public interest defence is also proposed in this bill under section 27A and that is based on section 4 of the United Kingdom's Defamation Act. It provides that publishers are not liable if the matter concerns an issue of public interest and the defendant reasonably believed that publishing it was in the public interest. The existing qualified privilege defence under section 28 of the act was unsuccessfully intended to cover public interest matters under the 2005 national provisions. This is being amended.

A new defence for scientific and academic peer review journals is proposed under section 28A of the bill. I would love to read the scientific and academic journals that defame people, but they must have been around for this to now be a provision. This would occur if the allegedly defamatory material relates to academic matter that is published honestly for the public's education. The bill updates the honest opinion defence to accommodate internet publications as proper material that an opinion may be based on under section 29 of the act. It amends that such internet publications can be supplied as a hyperlink.

Notably, the bill also addresses the cap on non-economic loss suffered by a plaintiff in defamation by amending section 33. Currently, economic loss is subject to separate uncapped provisions, and separate aggravated damages may also be awarded. The bill clarifies this by stressing that the statutory maximum is to be awarded only in the most serious case. The current statutory maximum is $421,000 and is indexed annually.

The bill also allows service of documents for defamation by email by amending section 41 of the act. The bill also proposes amendments to the Limitation of Actions Act 1936 regarding the single publication rule. The time limit for actions is currently one year, or up to three years if considered just and reasonable by the court. The change to the act overrides recent court precedents that found the time limit for online publications commenced at the most recent download.

This change will start the clock at the time of publication or posting rather than download, which seems perfectly reasonable given that things might be on the internet that were published a decade ago. Just because you are downloading them today does not seem reasonable where you could have taken action against such a thing 10 years ago.

The time limit may be restarted if there are subsequent publications of the same or substantially similar content, or if a subsequent publication or its manner of publication is sufficiently different from the original. The bill automatically extends the limitation period for pre-action negotiation due to the added time periods linked to compulsory concerns notices and subsequent offers to make amends.

The opposition will not be moving amendments, but we will be seeking clarification and assurances—we have a few questions for the Attorney on various clauses—about the proposed law and how it is going to operate, particularly when a single entity owns multiple platforms or mastheads. The opposition also wants to ensure that the bill does not disadvantage smaller plaintiffs in disputes with large, sometimes multinational organisations, in a David v Goliath-style dispute. The opposition are therefore supporting the bill and its intent to improve efficiency and modernise defamation provisions in Australia.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:31): I thank the member for the solitary extra contribution and his indication of general support for the bill that is before us. As he quite accurately points out, there has been a development earlier this century towards a national model for defamation law in the country. I think that has served us well.

We now have challenges in relation to social media and other platforms. In particular, the capacity to identify the author sometimes of a statement or material that is published creates a number of challenges. I know that my predecessor, the Hon. Michael Atkinson, certainly expressed his concern that as that technology developed it would present us challenges as lawmakers in how that is regulated, restricted where necessary and, of course, remedied.

I do note two things at the national level; one is that whilst this has been led through meetings of Attorneys-General around the country, the Hon. Philip Ruddock was very heavily involved in the early days of the reform in this regard. I have a hazy recollection of the direction he was proposing at the time. The member might be quite accurate that it related to his view as to the right to pursue actionable damages. My recollection is that he was moving in the direction that perhaps this is an area of law and compensation entitlement that should not necessarily be available to corporations as distinct from individuals, but it does not really make any difference to where we are going at the moment; it is just that that is my recollection.

The second thing the federal government have done during this time is to establish the office of the eSafety Commissioner. I have only recently—in the time I have been here in the parliament in recent years—understood the benefit of this office and its capacity to assist when uninvited and unwanted published material is online and needs to be removed. It was actually brought to my attention as a remedy to contact this eSafety Commissioner when a constituent reported to me photographs of her then 16-year-old daughter at one of the hotel outlets purportedly enjoying a happy occasion and consuming alcohol.

Obviously, the constituent was very concerned about this. It had been put up on a website or some other social platform of the hotel. I was advised, to assist her, to get in touch with the eSafety Commissioner. The eSafety Commissioner makes a request that it comes down and it is removed. It would have been Facebook or some other more old-fashioned platform than is available today. I think it is an important initiative of the federal government. I hope successive federal governments will keep it up because we are really at the cutting edge of how we are going to manage these platforms in future, how they are going to be regulated and probably even how they are going to be taxed.

In any event, at the moment we are just looking at how we can trace material presented that is otherwise anonymous and also how we can bring to account some of the owners of these platforms. That said, I would also like to indicate in response that, of all the extensive consultation that was done in relation to this, one would expect the usual suspects. Lots of lawyers who work in the defamation area presented submissions and, indeed, law councils, law societies, bar associations and the like—all the usual suspects in that regard.

I want to acknowledge that the Australian Press Council, which have been very active in relation to a number of these matters, as they represent mainstream media across the country, and also generally supportive of the material being presented in these reforms, have been very helpful in their monitoring of developments in this area. I am pleased to see that two other groups, Communications Alliance and Digital Industry Group Inc., are both generally supportive. They both presented submissions.

But here is what is pleasing: Facebook, Google and Microsoft also all put in submissions. It is really important that we continue to have these entities or the representative advocates on their behalf at the table because we are never going to be able to deal with this issue comprehensively unless the players are there and we work through how we protect the reputation of their business, their industry and the products they provide together with this bigger question of protecting the reputation of members of the public and/or corporations.

In any event, the member has also outlined a summary of the terms of the reforms in this bill. I now seek that the bill be read a second time. I indicate that there are no amendments being proposed by the government but, if the member has foreshadowed he wants to ask questions, we will require a committee.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: I note that I have sent the Attorney an article in relation to the former Attorney-General Philip Ruddock's views. Originally in the consultation for the model law, I believe he proposed that defamation of the dead would be included. That was a proposal originally, but I am very glad that did not occur, for a variety of important public policy reasons.

The first question is to the Attorney. Obviously, there was a consultation process run nationally, but has the Attorney or her department conducted any additional consultation in relation to the South Australian move of this legislation? If so, can she outline who that has been with?

The Hon. V.A. CHAPMAN: No, there has been no further consultation but, as I indicate, a number of the 44 written submissions received in response to the discussion paper from all around Australia obviously represent industries that are participatory from our point of view as well. Something like the Australian Press Council, for instance, represents across the nation.

Mr PICTON: Are there any additional parts that have been added to this when compared with the national proposal, or anything from the national proposal that has been omitted compared with the model defamation provisions? Essentially, are we just enacting what has been agreed to nationally, or are there any changes, plus or minus? If there have been changes, what are they and where have they come from?

The Hon. V.A. CHAPMAN: I am advised, firstly, that there are some minor stylist changes to fit in with the South Australian style of legislation. Yes, there is the removal of 'civil juries'—juries for civil trials—which we do not have in South Australia, as I am sure the member is aware. It is the continuing view of the Chief Justice and myself that we do not explore that as an option. As you know, we make them available. Someone has the right to have a jury trial for an indictable criminal charge in this state and we also offer judge alone.

We also prosecute commonwealth cases in our state courts that are of a criminal nature. They have juries; they do not have the option of judge alone. There is a role for juries but this is civil litigation and we do not have them in South Australia. Some other jurisdictions still do. I do not think we have ever had them, actually. I cannot be certain on that, but I do not think we have them in South Australia. In any event, we do not want them. That is the only significant change that has been removed.

Mr PICTON: Does the Attorney have any update in relation to the other states and territories? As mentioned, I believe New South Wales has passed theirs. Where are the others up to, and has there been any indication made to us that other states are making changes when they are enacting their provisions?

The Hon. V.A. CHAPMAN: The only information we can be certain of is in relation to the passage of the New South Wales legislation. Can I say, though, that as an attendee at the Council of Attorneys-General—

Mr PICTON: You are a participant, aren't you?

The Hon. V.A. CHAPMAN: Yes, indeed, I am. I have attended; in fact, I chaired them last year. They do change their name regularly. At the last one we had, which I think was in June, we had obviously canvassed this issue and had a general update. The regions indicated their progressing of the matter.

In the short time that I have been Attorney-General, there have only been two or three of these meetings, but I cannot recall that there has been any other identified difference. There have not been any special carve-outs that states were arguing for that I can recall. I am not aware of any more recent indication that they are suddenly going to be adding on special areas.

South Australia seems to be the one that does this from time to time. I have often mentioned the plano lenses which are under our health practitioners' regulations—I think for opticians—that the Hon. John Hill introduced. Those regulations are still there to protect children from having plano lenses and putting in cat eyes without a prescription.

Mr PICTON: Do you not support it?

The Hon. V.A. CHAPMAN: I have no issue with it. I just make the point: in South Australia, I suppose we are very protective of the standards that we have in this state and we always argue for the right to be able to add on or detract, if we need to in our national law, all these uniform laws that we are having.

Clause passed.

Clause 2.

Mr PICTON: I understand the commencement date is to be fixed by proclamation. Does the Attorney have in mind a goal date on which she is hoping to have this enacted?

The Hon. V.A. CHAPMAN: Not specifically other than the fact that with the support of the opposition and its passage today, we would certainly be hopeful that we could report to the national meeting sometime in November. We do not have a date yet for our national meeting, but we have advanced it.

We have had a indication of support from the opposition even if it has not got through the Legislative Council, but I think there is an opportunity in the current lists, unless we get bumped by other urgent COVID matters or the unusual aspects of budgets being at the end of the year. I think there is hopeful expectation that all the jurisdictions would have dealt with this matter by the end of the year.

Clause passed.

Clauses 3 to 5 passed.

Clause 6.

Mr PICTON: I wonder if the Attorney can outline in what type of circumstances might this amendment, which I understand clarifies the power of the court to award costs but not damages, be applicable 'in the interests of justice'?

The Hon. V.A. CHAPMAN: I suppose I can only identify what I would see as a possibility. As with existing proceedings, a party dies and, on the principle that you do not have an action, a dead person is not capable of being defamed, but there may well have been conduct in the lead-up to that which provides for the eligibility of one party or another to receive costs.

That may be of an advantage to a deceased estate or the other party would not want to be deprived of having the right to seek costs. If that was meritorious, the court could still make a determination on it. That is the way I see it, but I will check whether there is anything else that could assist. No. My adviser is thinking that is a reasonable consideration. I cannot think of any others immediately, but that is what I would suggest it is there for.

Clause passed.

Clause 7.

Mr PICTON: This is the new section dealing with the serious harm element. I wonder if the Attorney can outline how would the threshold of serious harm operate in practice, and what were the views of the stakeholders who argued for the definition to be detailed in the statute?

The Hon. V.A. CHAPMAN: I am not sure I understood the second part of that question. Can you repeat that?

Mr PICTON: I understand that this was something that there were arguments about at the national level in terms of whether this should be left up to the courts or whether there should be a more statute-based definition of what serious harm is. Presumably there were arguments about it on either side. What were the stakeholders saying in relation to that?

The Hon. V.A. CHAPMAN: I do not recall any debate in relation to that issue in the short time I have been there, but it may of course have predated this because this whole review process has gone over a period of time. I do not know what arguments were put if they were put by various attorneys-general at those meetings or indeed by their advisers in those other ancillary meetings that they have and working parties and the like. New section 10A(1) is to set out, rather than a definition, an element of what a serious harm element is to be.

I just make the point that whilst 'serious harm' needs to be identified or assessed, I suppose, for the purposes of accepting whether or not an application is able to validly proceed—so there is a judicial determination on that aspect—it is not a new phenomenon to the law. We have 'harm' and 'serious harm' already extensively in our criminal law, so it is not a foreign concept to judges to have to deal with those matters, and I expect they will develop a body of law that sits around it. I will see if there is anything else I can add to that.

My understanding from the advice I have received is that some of the stakeholders, whilst they were not seeking a definition, were seeking a question of whether there should be factors identified for the purpose of 'seriousness'. I think there would be the obvious ones that even any other layperson would see, and that is that in 'serious harm' a factor may be how extensive the publication was, whether in fact it went to millions or whether it was just published on a piece of paper to one other person—that type of thing. In the end, it was the resolution of the proposal here that we would not be seeking to be definitive in that regard.

Mr PICTON: Perhaps I can be of some assistance to the Attorney, because I understand that in a submission about the draft model defamation provisions in January 2020, the Law Society of South Australia expressed its concern that the definition of 'serious harm' was not discussed in the legislation and was being left to the courts to determine. The Law Society considered that serious harm could be interpreted subjectively by a court and potentially lower the threshold of the test, defeating its intention. Why, therefore, is there no discussion of the meaning of 'serious harm' in the bill and how can the government ensure that it will remain true to its purpose of improving the efficiency of this measure?

The Hon. V.A. CHAPMAN: I cannot answer that. Just to be clear, is the indication that the Law Society's reference that you are referring to is the Australian Law Council's submission?

Mr Picton: I am informed it is the Law Society of South Australia but I could be incorrect.

The Hon. V.A. CHAPMAN: I do not have a separate submission by the Law Society of South Australia. There may be one but I have not seen one. In the document I am referring to, they set out at page 5 of their submission a submission from the Law Society of South Australia and then outline other members of their group. Is that what you are referring to?

Mr Picton: That may be it, yes.

The Hon. V.A. CHAPMAN: I will just quickly have a look at it. I note that they say that the Law Society of South Australia considers the draft amendments to be appropriate and supports them in principle. It sets out comments concerning some of the key amendments, including suggestions for improvement and identification of areas for further clarification, and one of those is serious harm required for cause of action of defamation.

Mr Picton: I am told that there is a Law Society letter dated 8 January 2020. Is that the same?

The Hon. V.A. CHAPMAN: It may be. Let's have a look here to see if that is identified—31 January 2020 is the Law Council. It is under the heading of Submission of the Law Society of South Australia, within their submission. That is all I have at this point.

Mr Picton: Maybe we can provide this to you between the houses.

The Hon. V.A. CHAPMAN: It says here:

The Model Defamation Amendment Provisions 2020'—

that is the background paper—

notes that it was a deliberate decision not to include the legislative guidance as to the factors to be considered in deciding what constitutes serious harm, on the basis…

I think the reference you make, which may be it, is in paragraph 9 of the Australian Law Council's submission. It states:

The LSSA is concerned there is a real risk that simple statutory interpretation may result in the courts taking a different view.

I think we are on the same document. It further goes on to say that they suggest the inclusion in the legislation of some guiding commentary capturing some of what appears in the background paper, or a list of non-exhaustive factors for the court to consider. I will have a look at it in more detail. If there is anything else that I think I can add, I will forward some correspondence to you.

It seems as though the summary of the information we have is that they support the material in principle. I cannot say that I am personally in favour of doing a non-exhaustive list of examples. If we are going to leave it to the courts to decide, then we would leave it for them to do just that. In any event, I will have a look at it and if there is anything further to add I will forward it to the member.

Mr PICTON: I refer the Attorney to the letter from the Law Society dated 8 January and in particular paragraphs 6 to 8 of that letter. It states:

6. The Model Defamation Amendment Provisions 2020 (Consultation Draft) Background Paper (Background Paper), notes that it was a deliberate decision not to include legislative guidance as to the factors to be considered in deciding what constitutes serious harm, on the basis of an expectation that the courts would take those factors into consideration in any event.

7. The Society is concerned that there is a real risk that simple statutory interpretation may result in the courts taking a different view. While there is some UK jurisprudence on the term, it won't necessarily be binding in Australian courts. Furthermore, given that 'serious harm' could be interpreted quite subjectively, this may in practice lower the threshold and defeat the purpose of the amendments. The Society notes the defence of contextual truth and cap on damages in this regard, where the intention behind the provision isn't sufficiently clear and subsequent statutory interpretation doesn't reflect the initial intention.

8. The Society notes that the Law Council in its submission of 14 May 2019—

which may be the document that you have—

noted that it may be preferable for the legislature to be explicit in relation to the matters that the court may take into account in considering whether a publication has caused or is likely to cause reputational serious harm. The Society supports this approach.

We will make sure that that is available to the Attorney, if she has not seen that, between the houses. I am sure you will take that in regard before we get to the other place.

My last question, and this is the last time I get to speak on this clause, is whether there has been an analysis done in relation to what is happening in the courts at the moment in South Australia. Are there minor defamation cases that the government believes will therefore not meet the serious harm criteria and has there been any analysis in terms of what this might mean for how many cases would not get to the courts under this new provision?

The Hon. V.A. CHAPMAN: My response to that question is specifically that I am not aware of that data. There is certainly, in some of the submissions presented—I think by one of the legal firms, and I do not think it was a South Australian firm—a very long list of online digital defamation cases. I just cannot find it quickly. If you are interested in looking through the submissions, you will see that there is some information in relation to that.

If I can just return to the Australian Law Council's submission, it is dated 31 January 2020 and it incorporates a submission from the Law Society, amongst others. The reference that you make is to a Law Society submission earlier that month, which may be the same letter that was sent to the Australian Law Council. I do not know because you have not indicated who the letter you are quoting is from. It sounds as though it is the same one because those issues are paraphrased in the summary of the submission.

I will refer the member to the Australian Law Council's submission of 31 January 2020, which seems to be the last of the material that has come in for consideration from the Australian Law Council, including the Law Society of South Australia's submission, which I think covers the point. Whilst I accept that they have raised that, it has been dealt with in a major submission.

Clause passed.

Clause 8 passed.

Clause 9.

Mr PICTON: This is in relation to 12A—Concerns notices, and 12B—Defamation proceedings cannot be commenced without the concerns notice. Can the Attorney outline how the mandatory waiting period for concerns notices and offers to make amends could act against the interests of plaintiffs in urgent matters? Presumably, some matters need to be addressed very urgently, but now this will put a number of mandatory waiting periods in there. Will there be an issue in terms of those urgent matters, and has that been considered?

The Hon. V.A. CHAPMAN: I invite the member to have a look at new section 12B(3) which allows the court to grant permission for proceedings to be commenced, notwithstanding noncompliance with preceding paragraphs, but only if the proposed plaintiff satisfies the court:

(a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or

(b) it is just and reasonable to grant permission.

There is capacity for the court to work around what is now proposed to be a mandatory concerns notice pre-trial process.

Mr PICTON: How difficult or costly might it be to waive the waiting period when a time sensitive matter arises?

The Hon. V.A. CHAPMAN: I could not answer that other than to say that if you have a good case I suppose it would be different from whether you have a weak case. The courts are quite used to dealing with waivers in relation to time and are often are able to issue proceedings out of time and are also able to take urgent action for a hearing to be granted early. We do it on a regular basis in our South Australian Employment Tribunal to deal with asbestosis cases and claims because of the circumstances. Sadly, people who have conditions arising out of asbestos exposure, once they are diagnosed, are usually at a stage where they have a very short life expectancy. The courts are very capable of hearing applications quickly and determining whether there is merit in abrogating time limits and/or extending them.

Clause passed.

Clause 10 passed.

Clause 11.

Mr PICTON: Given this is new legislation, or significantly revised legislation, what guidance will there be to ensure that defendants do not inadvertently make an invalid offer to make amends?

The Hon. V.A. CHAPMAN: I am not sure I quite understand the question. If someone does not comply with the process and it results in the invalidity of any particular step in it, and if the member is concerned that someone's time might be running, for example, then again it is open for the court to deal with it so that there is no undue prejudice or, in the words of this, that 'justice is served' to ensure that people have a turn.

Let's assume somebody comes in, they have not had legal advice, they completely stuff up the process and the first 14 days is gone. It is by means of no contribution from the other party; they should not be prejudiced by that. These sorts of things are built into the capacity of the court to manage those on an interlocutory basis.

Clause passed.

Clauses 12 passed.

Clause 13.

Mr PICTON: This clause deals with permission required for multiple proceedings in relation to publication of same defamatory matter. For example, one company owns multiple platforms—for instance, a newspaper in Hobart, a website in Sydney, a radio station in Perth. Who does the plaintiff sue and what is the justification for reducing the exposure to non-economic damages where the owner derives multiple sources of income from the channels from which the defamatory material was published? Does the Attorney believe that this might protect larger organisations at the expense of smaller plaintiffs?

The Hon. V.A. CHAPMAN: Again, I will just be clear that I understand the question, that is, that the defendant has multiple entities, some of which may have been a carrier or a publisher of the defamatory material, if I am following this correctly.

Say they are a large mainstream media outlet. They may have a rather complex structure in relation to the holding of their assets, and someone comes along, an individual. He is the David in the David v Goliath scenario, and we assume he has legal advice that he can take action and proceeds lawfully to take that action. Is the member's concern that there may be some way in that scenario of Goliath hiding assets for the purposes of having to pay or to be found responsible for the defamation? I am not quite sure which, or maybe both.

Mr PICTON: Well, to clarify, I do not think it was necessarily about hiding assets but more about multiple companies that have multiple revenue streams and there are multiple places where the defamation has occurred. However, my understanding is that you would not be able to take multiple actions for defamation even though there might be multiple economic loss through those multiple different platforms. Could that be protecting those larger organisations? If somebody defamed the Attorney-General—which, of course, I hope would never occur—and it was by a number of different media organisations or platforms, how would you work out who to sue and where?

The Hon. V.A. CHAPMAN: It may be, and my adviser just pointed out, that the purpose of this is not to stop you taking action against those parties; it is just that you do not do it in separate proceedings. Let's assume there are five different entities that are owned, say, by News Corp (I will try not to be too unhelpful to them) and four of them have published the material, although these days online it is hard to distinguish the borders. In any event, there have been multiple outlets of publication. So in that scenario young David, who has been defamed on these multiple platforms, would sue each of them as co-defendants in the one set of proceedings.

This provision here is setting out permission to be required for multiple proceedings in relation to the same publication of a defamatory matter, rather than the fact that you might have four, 10, 50 defendants in the one set of proceedings. Is that made it clear?

Mr PICTON: Sort of. The bill requires a plaintiff to seek leave from the court to bring further proceedings in relation to publications of the same or like matter by the same or associated defendants. What will the impact be on the aggrieved parties in terms of cost and time delays to seek this permission? Has the government put any thought into how this could be expedited or streamlined?

The Hon. V.A. CHAPMAN: The whole concept here is that instead of having the four sets of proceedings (and we were talking about the News Corp example) that David has to issue against, all of which have costs, all open new files, all have court fees, etc., he would be obliged under this set of proceeding to bring all those defendants in the one set of proceedings.

On the face of it, that should actually make it cheaper for the David in this David v Goliath scenario because there will only be one set of proceedings and he is not forced to go off and take separate proceedings against each company. Really what the courts are doing here is imposing an obligation to have to go through a gatekeeping arrangement if you, as the defendants, are insisting that there be separate sets of proceedings for each company that might be under the same ownership structure.

Clause passed.

Clause 14.

Mr PICTON: I wonder if the Attorney can outline how this amendment makes the defence of contextual truth clearer?

The Hon. V.A. CHAPMAN: I cannot say that I am the best person to answer that because I do not think contextual truth is very clear already, but I am advised that this does help. Of the submissions that I have had a look at in relation to this, the position here is to try to streamline the process, so the information I specifically have I will recount for the record in case it helps. It states:

On the current version of the contextual truth defence, the defendant can only rely on the truth of an imputation that is 'in addition to' the imputations pleaded in the plaintiff's claim. Plaintiffs can deliberately plead that all the published allegations are defamatory (even if they know some will be defensible based on substantial proof). This ensures there is no non-pleaded imputations left for a defendant to rely on to establish the contextual truth defence.

Similarly, if a defendant raises contextual truth relying on substantially true imputations that have not been pleaded by a plaintiff, the plaintiff may amend their statement of claim to also plead those imputations and deprive the defendant of the defence. During the national discussions, all jurisdictions agreed that this situation is unworkable and was likely a drafting error. The changes to the bill will allow the contextual truth defence to apply regardless of what the plaintiff has pleaded.

I do not think that even Sir Humphrey Appleby could have described something in a more obtuse way in the sense of clarity and what that means, to me anyway, but it might be illuminating to the member. I hope you are reassured by the last sentence and that is that it seems it all got too hard and so this removes that from the procedure.

Clause passed.

Clause 15.

Mr PICTON: Maybe you will like this one more. The defence of publication of matter concerning the issue of public interest, which we are generally—

The Hon. V.A. Chapman interjecting:

Mr PICTON: We are generally aware of public interest through a number of pieces of legislation. I am thinking of the FOI bill coming up later, in terms of public interest, as well. In relation to how this is going to work in the law for defamation, how do you believe this defence will operate in practice and how will it balance the interests of public interest versus serious harm defamation that may be caused in these matters?

The Hon. V.A. CHAPMAN: Obviously, all these issues relate to the balance between harm to someone and public interest, but in response to the discussion paper released by CAG both media and legal stakeholders, including the Law Council of Australia, pointed out that qualified privilege has never successfully been established by a media defendant. Whilst each case is different, there are several broad reasons why it is difficult for public interest journalism to meet the requirements of the defence.

Firstly, the defence requires each person who received the material to have 'an interest or apparent interest in receiving the material'. This is harder to prove than a publication that is made to the general public. Secondly, the list of factors to be considered when deciding if the conduct was reasonable is often applied as a checklist of steps the media should have taken, rather than simply guidance as to relevant consideration. Courts apply the standard of reasonableness in a very stringent way and often apply the benefit of hindsight.

Thirdly, journalists often rely on confidential sources and so in litigation they will refuse to reveal the identity of their informant, consistent with their ethical and professional obligations. A use of confidential sources is sometimes used as an argument that a publisher has failed to meet the standard of reasonableness. I hope that answers it. If not, no doubt you will give me another question, remembering here that publication in scientific journals and public interest are eroding in a bit more to the protection of the party's reputation. They think they are doing a carve-out to enable that to occur.

Mr PICTON: I wonder if in addition to that you are aware of any particular cases that have led to the calls for these reforms in relation to public interest, either here in SA or in other jurisdictions?

The Hon. V.A. CHAPMAN: No, I am not aware of any.

Clause passed.

Clause 16 passed.

Clause 17.

Mr PICTON: What is the definition of a journal?

The Hon. V.A. CHAPMAN: A journal can be in an electronic format pursuant to the wording of new section 28A(1)(a). As the term is undefined, it will be given its natural and ordinary meaning in the context of the provision. The defence is based on a very similar clause in the UK's Defamation Act 2013.

Mr PICTON: Are you aware of any circumstances or examples that called for this amendment in the bill? It seems astonishing that you would have defamatory journals, but maybe there are such things.

The Hon. V.A. CHAPMAN: I am not aware of any. I think, though, that perhaps the objective here, because it has been referred to in the general discussion papers, etc., is to ensure that we do not restrict publication of academic and professional journal articles by the parties who prepare these because they may be, as a consequence of the publication of their scientific findings, defamatory even inadvertently of other parties.

If I were to think of something that might be reasonably controversial in its time—it is not so much now, although I suppose some would argue otherwise—it would be genetically modified crops. If a scientist published something in an article saying that there is absolutely no downside/side-effects from genetically modified crops and you can grow them to be more productive, salt resistant, disease resistant, use less water, etc., so that crops can be cheaper and better in the food production for the world, and that is published, and comments are made in that, in relation to someone else's article, that is being dispelled in the article, that may be seen as defamatory. This is just an example that went through my mind at the time of some consideration of this as to why we need to specifically provide for this in our defamation law.

It seems that there is sufficient impetus to ensure that we have free-flowing thought from these scientific geniuses and academics to make sure that they do not feel impeded by the desire to publish their findings even if it might offend in some way or potentially harm the reputation of another. I suppose it is implicit just by saying, 'Here is the evidence I present, here is my paper, here is my finding, and it's inconsistent with someone over here who has otherwise had the body of knowledge in the scientific world on that matter.'

We would see that as certainly pressing against the findings of the body of knowledge author, but that is science. People do have new ideas and if they present their theories, often published in medical journals and the like, then they have peer review. It is a process that I think is seen as desirable and that brings about the great inventions that we have the benefit of.

Clause passed.

Clause 18.

Mr PICTON: This is in relation to a clarification of the defence of honest opinion. What circumstances arose for this clarification to occur?

The Hon. V.A. CHAPMAN: I am not aware of any particular cases or circumstances from which this was developed. I am assuming that there has been—

Mr Picton: It came out of nowhere.

The Hon. V.A. CHAPMAN: No, certainly not. I am just not aware of them. I make the point, though, that we had lots of submissions from people who work in this field, from different lawyers, that went into the review of this, to the working party. I think there were 44 submissions and a large bulk of them were from lawyers, who would be raising the fact that this is in the real world of what they deal with and the actions they take or defend on behalf of their clients. Someone who has a genuine, honest opinion about a matter needs to have that prescribed or set out in the code for the purposes of accessing that defence.

Mr PICTON: If this did come from consultation with lawyers, etc., what did they raise as the issue that needed to be addressed as part of that consultation?

The Hon. V.A. CHAPMAN: As I say, as I am not familiar with it, I can only hazard a guess. The best I can do is that someone has published the material, it is determined on the face of it that it causes serious harm in reputational damage, and the author then seeks to rely on this defence that it was, whether it was notorious or all these other things, based on honest opinion. The bill provides:

(5) For the purposes of this section, an opinion is based on proper material if—

and then it sets out the things that can be relied upon to construct that defence or to be able to meet the threshold for that defence to apply. That is the best I can do because, as I say, I am not privy to any examples.

Clause passed.

Clause 19 passed.

Clause 20.

Mr PICTON: Can the Attorney explain how this section is intended to operate differently from the current statute?

The Hon. V.A. CHAPMAN: Basically, the current system, which is the section we are deleting, provides, 'Unless the court orders otherwise under subsection (2),' and it puts in a new provision. The effect of that is to make it clear that the cap should be considered at the top end of the scale of damages for non-economic loss representing the appropriate award in the most serious type of case. Further, under the bill, the cap may not be exceeded in any circumstances; however—this is typical of the law: they always have some exception—if aggravated damages are appropriate, they may be separately awarded and the combined general and aggravated damages may exceed the cap.

This is to ensure there is an option for extra compensation where the conduct of the defendant has been deliberately false or otherwise unreasonable, but it also makes the individual elements of the award transparent. If I could try to paraphrase, that means the new regime has a cap on it, but if you are going for aggravated damages—which is where they get punished for doing something really deliberately—then, as a punishment and not just a recovery for the harm, that appears not to have the cap on it. That is the summary of what the differences are.

Mr PICTON: Welcome back, Mr Chair.

The CHAIR: Thank you, member for Kaurna. It is good to be back.

Mr PICTON: The member for Colton did his best to replicate you.

The CHAIR: I am sure he did very well.

Mr PICTON: He was a lot tougher; I am glad you are back.

The CHAIR: Firm but fair.

Mr PICTON: That's right. In relation to this, clearly the key definition is 'a most serious case'. What constitutes 'a most serious case'?

The Hon. V.A. CHAPMAN: This means that when the court is considering the damage, there is a case, so it is zero to a cap. Only the most serious cases are up at the cap. An example that shows up when judges do not use it is the discount of sentencing. For seven years, until yesterday, they could offer up to a 40 per cent discount on a sentence if they were satisfied that someone pleaded guilty within four weeks for major indictable offences.

It seemed to be a situation by the case law and the cases coming through that it was almost the exception, rather than the rule, that anyone would get less than the 40 per cent if they complied with the four-week plea of guilty. In other words, you got it automatically. There are some exceptions to that, but when something is up to 40 per cent—or up to the cap in this case—the expectation is that the judges would say that, if it is a reasonable case, perhaps it could be deserving of half. If it is a really serious case, then it might get up to the cap.

That is what it is requiring, and that is why new subsection (2) says the maximum damages amount, which is what we are talking about with this cap, 'is to be awarded only in a most serious case'. I hope that helps.

Mr PICTON: I do not think that has necessarily defined for us what 'a most serious case' is. I am not sure that the reference to criminal law helps. Can you give an example of a defamation action that you or the government would regard, in drafting this, would be 'a most serious case'?

The Hon. V.A. CHAPMAN: This is highly subjective, but let me try to give you an example. If there was reputational damage, in a non-economic way, by saying that someone had been promiscuous and a consequence might have been, as part of their damages, that their fiancée dumped them and they did not progress, that is pretty serious. Is it the most serious case?

Compare this with someone who might be accused, through a national newspaper, of having paedophilic tendencies and that has seriously impacted on their capacity to have personal relationships or even on the survival of some of the existing personal relationships. I would think that is quite different. I would put one in a case to be considered, perhaps, under the new rules.

Maybe a judge would say the loss of a fiancée is not sufficient. I do not know, but I am just trying to give you an example, as distinct from someone who has the whole of the Australian public exposed to the fact that there is an allegation that they have paedophilic tendencies. Good luck to that person in being able to get a job, keep a partner, get a new partner and have friends. I hope that helps.

Clause passed.

Clause 21 passed.

Schedule 1.

Mr PICTON: In relation to part 2, clause 2, based on the national consultations, what kind of circumstances have been envisaged that would result in proceedings being commenced after more than one year?

The Hon. V.A. CHAPMAN: I think the example that is recorded there in the draft legislation does just that. I must say I am not a big advocate of having examples in drafted legislation, but this one might be quite helpful. It seems to me that the example that is given sets out the circumstances in which you have that extension. It says:

Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.

Mr PICTON: I cannot remember how we do schedules. Do we do each section individually, or do we just roll the whole thing in?

The CHAIR: All at once, member for Kaurna. It is like a clause, so you have three on the schedule.

Mr PICTON: You are a tough Chair.

The CHAIR: Firm but fair, member for Kaurna.

Mr PICTON: Firm and fair. I have three so I will have to double-barrel them into two.

The CHAIR: If the Attorney is agreeable, I am sure we can make something work.

Mr PICTON: That is why you are tough but fair. In relation to part 2, clause 3—Insertion of sections 37A, 37B and 37C, while this amendment addresses a more modern understanding of technology and downloading or uploading content, how effective are the safeguards for plaintiffs for strict time limits like the materially different test of 37B?

The Hon. V.A. CHAPMAN: Apparently the ill we are trying to remedy here—and it is coming back to me at the discussion paper level on this—is that if, say (and we will go back to News Corp and the person who might have four entities) the first entity publishes the defamatory material, that is the first publisher, and then the second entity does it three months later, the time limitation would run from the second publication again, so your time starts again.

This first publication rule is designed to say that your time starts from the time of the first publication. Apparently what has happened, which is probably not unreasonable, is that because of the electronic age we are in every time someone republishes it, even online or on another platform or someone else's Facebook, this keeps going, and of course it just means you have an almost indefinite time limit. That is the ill it is trying to address here.

You can sue on the first publication. Obviously the number of other publications may be a factor in the award of damages you may be successful in getting if you get above the threshold, but you do not get time to then keep going to extend your normal time limit, which I think is a three-year period, one year to be extended to three.

Mr PICTON: Are you aware of any circumstances where the single publication rule could negatively affect a plaintiff in serious defamation instances that run out of time where the defendant does not become aware of the material early enough but they could still experience serious harm?

I guess an example of that might be that you could have the situation where something has been on the internet somewhere, not many people have seen it, but then it becomes drawn to public attention at a later time whereby serious harm does occur but, because it was on the internet earlier and no-one noticed it, you have missed your opportunity here.

The Hon. V.A. CHAPMAN: Can I just refer the member to new section 37C, which deals with the manner of publications, and that might help him in the scenario of multiple subsequent publications. The reason the relaxation of the time limit rule of a year to be extended out to three years is to cover the fact that we are going to a first publication scenario. Again, what we are balancing here is the reasonable capacity to identify reputational damage within a time limit.

The reason we have limits on civil proceedings, at different levels, is so that there is fairness to all parties to deal with the matter—find the witnesses, etc. If you can sue somebody 20 years after the event, you may not even have the people around to be able to defend what happened in the circumstances. In any event, the relaxation of the limitation rules of a year being able to extend out to three is to cover the scenario where there would be an initial publication and then subsequent ones to flow. Really, you have up to three years to cover that.

Ms WORTLEY: With this new ruling, what happens in a situation where, for example, there was a publication but it did not impact significantly on that person at that given time but, further down the track, when the limitation was exceeded, it impacted on their career or on their life somehow because of circumstances, and it is republished? For example, it is republished—

The Hon. V.A. CHAPMAN: So let assume—and we will use the member for Kaurna as an example—that he is a lowly aide to a minister and someone says, 'Look, he's hopeless,' and publishes it. Is there reputational damage? His feelings are hurt, but is there reputational damage? Possibly not. Let's assume he is a minister of the Crown at another time, some years later, and then someone makes the statement and publishes that he is hopeless.

I suppose implicit in that is that in the circumstances he is now in there is likely to be more reputational damage than when he was in his previous occupation. That is the type of situation I think you are referring to, is it not? That is, it becomes a serious harm at a later time if that is still out in the arena. Again, what the law has always done is try to ensure that if you are going to take action against, it has to be within the circumstances back at the time of the initial publication.

What is the situation? You cannot wait 20 years and say, 'Now I'm in an important position and so that which is still sitting on Facebook or the website is now hurting me.' Do you see what I mean? You did not take any action to deal with that or remedy it 20 years; you cannot come along and sue for damages now—is my point.

Ms WORTLEY: But it appears as though at the moment, if it is republished, then you can continue. So the last publication and the 12 months or the time limit is from—

The Hon. V.A. CHAPMAN: That is what this rule is stopping.

Ms WORTLEY: Yes, that is what the rule is stopping, but into the future it would only be three years; is that correct? It would be stopped at the three-year mark.

The Hon. V.A. CHAPMAN: Essentially, that is the expanded time that you can get up to. That is why it is relaxed to be up to three years, to give you time to do that. The other example is that, rather than a change of occupation at a later time—that is, it is published in the local school library on the noticeboard, but then it is republished online, say a year later, and it goes around Australia or around the world. Then it may affect the viewers there and their assessment of your reputation at a much higher level because of the proliferation of that information going out.

I am trying to give you an example of where that may then stimulate you to say, 'Well, now I am going to do something about this. Originally, this was just my local staff colleagues in the staffroom who saw this. Now it has gone—' Do you see what I mean? I can see there would be situations where someone might not be interested, persuaded or even advised to issue a concerns notice and/or follow-through proceedings in the first instance, but republication or expanse of the publication may do that.

Of course, one of the objectives of issuing the concerns notice to be mandatory pre-trial procedure or pre-proceedings action is to ensure that alert is given and clear notice is given to the author or the person responsible for the publication so that they desist any further dissemination occurring. If they do not, of course, and there is a threshold reached and the claim is substantiated, of course the damages could be significantly greater if they have failed to do that after they had the notice.

It is a bit more complicated now. Where something used to be in a newspaper or in a book, it can now go online and it can be republished many times in different platforms and the idea here is to say, 'Your time limit in the time you take action has to be at this point of first publication.' There is some relaxation of the time on that to cover the issues that you have raised.

Ms WORTLEY: Attorney, that would mean then in the example that you gave earlier that that person would no longer be able to pursue defamation?

The Hon. V.A. CHAPMAN: Correct.

Mr PICTON: I do share some of the concerns that the member for Torrens is raising. Let me return the favour for the Attorney-General. Say somebody wrote on a blog somewhere 25 years ago that the Attorney-General, in her previous career, was a really hopeless family lawyer. You never saw that, you never read it and you never heard about it. People then picked up on that later and republished it everywhere and that affected your business.

You would not be able to take any action on the republication of that because it had originally been published or existed—even though you were not aware of it, even though hardly anybody saw it—on some random blog or something 25 years ago. That is it and people can republish that defamatory information as much as they like.

The Hon. V.A. CHAPMAN: Let's be clear here. I suppose if there had been a statement made like that and it did not translate to any reputational damage—that is, there was no real knowledge of it and nobody suggested, 'Well, I am not going to come and see you anymore because you are hopeless. I have listened to that and your reputation now is damaged sufficient for you to take action'—if that has occurred and then later the same person republishes it, the time limit is lost. You may have exhausted your time limit. If a different person entirely says that 25 years later and publishes it, then your time starts again. That is a different person. You can then take action against a different person publishing it.

What has been identified as the weakness here is that, in this day and age in the electronic world, if there has been a republication, even by the same party, then there will continue to be that time in which you can take action as distinct from the same person, the same platform and the same author. Do you see what I mean? That is what it is designed to remedy.

Mr PICTON: Does that not create this perverse incentive, though? If I want to defame somebody, I create the Chris Picton blog that nobody sees and I put all my defamatory information on there about somebody. As long as people do not see it, and I just wait my years down the track until this clicks in, then I have a free right to go around defaming whoever I like because I previously defamed them and nobody picked up on it. So I have a defence for all my future defamation that I will do and I could letterbox everybody in South Australia with all my defamatory allegations against somebody.

The Hon. V.A. CHAPMAN: I am not sure that I can make it any clearer. Currently, we have a situation under the current law where the plaintiff has to show that it is not reasonable for them to have more than more than the 12 months; it is hard to get past that spot. By virtue of introducing this rule, there is a corresponding relaxation of what they have to prove. Under the new test they must consider whether it is generally just and reasonable to allow a person to proceed outside the time limit, allowing for a more flexible approach. There is an offsetting of this rule to deal with a 21st century problem.

Mr PICTON: One more question, on indulgence, Chair. It is a bit of a trap, this putting lots of things into the schedule.

The CHAIR: Not for me, it is not.

Mr PICTON: We need to raise in the Standing Orders Committee whether we allow more discussion on what is in the schedule. A lot of this now turns on what was published on a particular website or social media platform at a particular time. How will courts have evidence of that? It is not the same as having a question about what was in The Advertiser, where you can pull out the microfilm at the State Library and have a look. How do you definitively know what was on the internet at particular times when it is a constantly updating and not a static medium?

The Hon. V.A. CHAPMAN: I suppose you call those genius young people who understand all these things and are able to give evidence about when something was first apparent, published, and trace that material. There are experts in evidence who are able to do that. You used to just tender a page of The Advertiser or call the journalist—these types of things. Again, this is part of the modern evidentiary obligation.

I am just checking something because I think we were talking before about your early career of some years ago. I want to remind you that, although I stand by that scenario from here on, this is not to apply retrospectively. Your right to claim for anything else at an earlier date would have already expired. It is a very hard test. Up until now, it has been a really hard test. If there was a publication against you and you did not take any action, and it was some years ago, bad luck, you are out of time. From now, once this bill is passed, you will have your year, with a lot more flexibility to extend it up to three.

Ms WORTLEY: Can I seek clarification on that? Not if it is republished; is that the case?

The Hon. V.A. CHAPMAN: Let me read it out to make it as clear as possible. Generally, the bill will apply only to matters published after the commencement—so new things that are published. However, the single publication rule may affect matters that were published before the legislation commenced. For example, consider if a plaintiff sued because of an internet article posted after the legislation commenced, if the article had been posted online prior to the commencement but there were also downloads after commencement. The limitation period for that article would be deemed to have begun prior to the commencement of the legislation. There can be an exception to that but, largely, this is prospective law.

Ms WORTLEY: Point of clarification.

The CHAIR: Point of clarification, and this is it, member for Torrens.

Ms WORTLEY: Another point of clarification, yes. If the article was published prior to the legislation and then, following the legislation, that article was republished, it would be governed by the new legislation?

The Hon. V.A. CHAPMAN: It could be. That is the best I can describe it. There is an exception. I suggest you go back to have a look at what I said. I hope that is as clear as it can be put because that is what the experts tell me is the best way to explain it. There are always transitional issues with these things, but the objective here is to set a new regime which says that, if you are to be bound by this first publication rule, so that you do not get the benefit as the plaintiff of going on forever and being able to sue News Corp, for example, for years to come, it will ensure the relaxation of the right to apply to the court for an extension of time outside the one-year period. That is the set-off.

Ms WORTLEY: Again, I have a point of clarification. An article was published two years ago, the legislation comes into place and it is republished in a couple of years' time. What is the situation then? Does the new legislation apply? Because it has been republished and it had originally been published prior to the legislation, which way does it go?

The Hon. V.A. CHAPMAN: Giving you a 'it depends on the circumstances' answer is not helpful to you. Four years between and a change to the law in the middle is really what you are saying and that would depend on who republishes it. If it is the same person, I think you are completely gone. If it is a different person, you may be able to, but that is probably more the exception than the rule.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (17:51): I move:

That this bill be now read a third time.

I would like to thank those who contributed to the debate, particularly my adviser, who has been very helpful—thank you so much—to ensure that we bring about a uniform defamation action across the country. We will be playing our part, with the support of the opposition, to bring that into account and, again, to essentially contemporise, taking into account modern publication opportunities, so that those who seek to diminish the reputation of others are brought to account. I thank them for that contribution.

Bill read a third time and passed.

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