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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2025-08-21 Daily Xml
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Defamation (Miscellaneous) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (12:36): I move:

That this bill be now read a second time.

I am really pleased to introduce the Defamation (Miscellaneous) Amendment Bill 2024 to this house. This is a bill that makes a range of very important amendments to the Defamation Act 2005. It follows, and is based on, the results of a national review of the uniform model defamation laws undertaken by state and territory attorneys-general.

At the core of this bill are really important amendments that will strengthen protections and support for sexual assault survivors and survivors of other forms of violence when they make reports to police, a process that we always want to be impactful, effective and safe for those who traverse such terrible experiences and then traverse all that follows as they seek justice.

The most significant amendment in this bill extends the defence of absolute privilege to reports made to police. This means that those who are subject to crimes, or who are witnesses to crimes, will be provided with stronger protection against lawsuits claiming their making of a police report defamed a person involved in the alleged criminal offence.

For very good reason, there is strong public interest in enabling the free flow of information to police. Currently, a person can be sued in defamation for allegations that they make to police as a survivor of, or as a witness to, a crime. Particularly for those who have experienced sexual violence, we want their pathway to justice to be safe and to be free of any worry whatsoever about the consequences of giving evidence or making a report.

Currently, whilst the defence of qualified privilege is available, this requires the person who made the police report to prove the reasonableness of their report. Further, their motives for reporting may be open to scrutiny should the plaintiff allege that they were motivated by malice in providing that report. Even if ultimately successful in proving qualified privilege, a person may face years of legal proceedings and significant expense simply to defend their reporting of a crime. Sadly, particularly again in the cases of sexual assault, this may deter them from coming forward at all.

There is no good reason for members of the public to face such risk nor worry about reporting to police, particularly given a criminal offence of knowingly making a false report to police already exists. Again, the risk of drawn-out defamation litigation and all that means in terms of having to retell their stories and have them scrutinised may well inhibit survivors from coming forward and, alarmingly, this will likely particularly be the case for those who have experienced sexual assault or domestic violence.

We know that there are many new and terrible, insidious ways in which a perpetrator can attempt to coercively control a person with whom they were or are in a relationship. Alarmingly, the threat of defamation proceedings for reporting to police may indeed be used to further silence and entrap a survivor of coercive control. Systems-based abuse is an issue that needs focus and is often cited as an element of coercive controlling behaviour designed to wear a person down.

As our state sets about embracing the generational opportunity for lasting change that comes with the findings of the Royal Commission into Domestic, Family and Sexual Violence in this bill, it is crucial that we take this opportunity to tackle this particular concern. The Defamation Act details that statements made on occasions of absolute privilege have a complete defence to defamation lawsuits. Proving that the statement was reasonable is not necessary, and proving malice will not defeat the defence. Absolute privilege is applied to situations in which the free flow of information is in the public interest, including in court or parliamentary proceedings.

The government believes that members of the public reporting to the police should also elicit absolute privilege. Under the reform proposed in this bill, a person sued in defamation need only prove that they made the relevant communication to a police official whilst they were acting in their official capacity to have a complete defence to defamation.

It should be noted that this provision only defends the report to police. Communicating the allegations from the police report to any other party, including the media, would not attract absolute privilege. Any defamation claim arising out of statements made to the media about a report made to police would still have to be defended using other defences such as qualified privilege.

This reform is rightly intended to empower survivors of crime, and particularly survivors of sexual violence and domestic and family violence, to have confidence in coming forward—a step that can already be utterly fraught—to police without fear of retribution being exacted through a defamation claim.

This bill also rightly makes two amendments to support those who have been defamed by material posted on the internet, an area of growing and deep concern. The bill provides an avenue to have defamatory material on an online platform removed or otherwise made inaccessible.

Currently, a court can make an interim or final injunction requiring a publisher of defamatory material to cease publication; however, this order can only be made against a party to the defamation action, meaning that if a person defamed wants a large online digital platform, such as Facebook or Google, to remove or prevent access to defamatory material posted by a third party, they must bring an action for damages against the online platform. If they only sue the author or poster of the matter, they cannot secure a takedown order against the digital platform.

This bill will allow courts to make injunctions against digital intermediary publishers who are not parties to the action. A digital intermediary is any person or any organisation who provided an online service in relation to a digital publication, but who was not the author, originator, or poster of the matter. This includes search engines, email and messaging services, social networking websites, product review websites and video-sharing platforms.

This proposed amendment to the Defamation Act provides that if a person has obtained an interim or final injunction preventing further publication by a defendant in defamation proceedings, the court may also make an order requiring a non-party digital intermediary to take steps to prevent access to the material, or continued publication or republication of the material. This will not prevent a person also suing the digital intermediary; however, to obtain an order for the digital intermediary to act in relation to the defamatory material they are not required to sue the digital intermediary.

Finally, the bill sets out principles that must be taken into account by a court in applications for pre-action discovery relating to a defamatory digital publication. Under the Uniform Civil Rules 2020, South Australian courts may order a person to disclose documents that will allow a potential plaintiff to decide whether, or against whom, to bring a civil action. This could be used to require a digital intermediary to provide details of the person who authored or posted defamatory content online through their platforms or services.

If a pre-action discovery application is brought for this purpose before deciding whether to disclose the author's or the poster's details, this bill provides that a court must take into account the objects of the Defamation Act, which include freedom of expression, fair and effective remedies for persons whose reputations are harmed, and speedy and effective dispute resolution, and privacy, safety or other public interest considerations that may arise if the order is made.

Finally, the bill makes a small amendment to section 15 of the Defamation Act to update language related to the content of an offer to make amends. A person wishing to sue in defamation must first issue a concerns notice to the proposed defendant prior to filing a claim. The defendant then has 28 days during which they may make an offer to make amends. A plaintiff's failure to accept a reasonable offer to make amends can be used later as a defence to the defamation action. This is about encouraging parties to resolve reputation disputes early and without court involvement.

Section 15 sets out what must be included in an offer to make amends, as well as additional optional inclusions. In relation to matters that have been published on a website or otherwise electronically, an offer to make amends may include an offer to remove the matter from the website or location. This bill rewords this clause to refer to an offer to take one or more access prevention steps in relation to the publication. This will align the language of this provision with the new section allowing courts to make orders for access prevention steps to be taken by non-party digital intermediaries. For the information of this house, this change was introduced to the bill through an amendment moved in the other place by the Hon. Robert Simms MLC.

In closing, I thank the Attorney-General and his team for their work on this bill. It is a bill that provides really important steps forward that recognise the difficulties already experienced by many survivors of sexual violence as they come forward, and a bill that also responds to the need to contemplate the more contemporary platforms through which defamation can occur.

I commend this bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Defamation Act 2005

3—Amendment of section 4—Interpretation

This clause inserts new defined terms of access prevention step, digital intermediary, digital matter, online service and poster for the purposes of the measure.

4—Amendment of section 15—Content of offer to make amends

This clause amends section 15 to provide that an offer to make amends in relation to a digital matter can include an offer to take 1 or more access prevention steps in relation to the matter.

5—Insertion of section 21A

Proposed section 21A is inserted into the principal Act.

21A—Orders for preliminary discovery about posters of digital matter

This clause provides that a court must, when making certain orders for, or in the nature of, preliminary discovery, take into account the objects of the principal Act and any privacy, safety or other public interest considerations that may arise if the order is made. This clause does not limit the matters the court may take into account in addition to these matters.

6—Amendment of section 25—Defence of absolute privilege

This clause amends section 25 of the principal Act to extend the defence of absolute privilege to publications of defamatory matter made to a person who, at the time of the publication, is an official of a police force or service of an Australian jurisdiction and it is published to the official while the official is acting in an official capacity.

7—Insertion of section 37A

Proposed section 37A is inserted into the principal Act.

37A—Orders against non-party digital intermediaries concerning defamatory digital matter

This clause provides that in defamation proceedings to which this clause applies, the court may order a non-party digital intermediary to take access prevention steps or other steps that the court considers necessary, to prevent or limit the continued publication or republication of digital matter the subject of the defamation proceedings. This clause provides that orders can be made in relation to a digital intermediary even if the intermediary is not liable for defamation because of a statutory exemption or defence.

Schedule 1—Transitional provisions

1—Absolute privilege amendments

The absolute privilege amendments will apply to publications made after the absolute privilege amendments commence while the existing law will continue to apply to publications made before that commencement.

2—Preliminary discovery or non-party digital intermediary order amendments

With 2 exceptions, the preliminary discovery or non-party digital intermediary order amendments will apply to orders made after the commencement of the amendments regardless of whether the proceedings in which the orders are made—

(a) involve causes of action accruing before or after the commencement; or

(b) were commenced before or after the commencement.

The exceptions, to which the existing law will continue to apply despite the amendments, are—

(a) an order made before the commencement of the amendments;

(b) the variation or revocation of an order made before the commencement of the amendments.

Mr TEAGUE (Heysen—Deputy Leader of the Opposition) (12:49): I rise briefly to indicate the opposition's support. I am the lead speaker, and I indicate at what might be a brief committee stage we might interrogate the circumstances on which it has taken the government this long to come to the part A aspects of the reforms. I refer to the 22 September 2023 communiqué of the Meeting of Attorneys-General, at which time South Australia had agreed to the part B amendment. That got a bit of a run just now by the minister. That is the defence of absolute privilege, the amendment to section 25.

The new sections 21A and 37A in relation to discovery orders and non-party orders have been, as I say, the subject of national consideration, which has been really led by initially Mark Speakman as Attorney-General and following on, of course, the Bolar litigation. The main interest is in, really, how it has taken South Australia and the government this long to settle a view about those part A changes. That might be better dealt with in the committee. With those words, I commend the passage of the bill to the house.

Mrs PEARCE (King) (12:51): I have long been conscious of the growing influence of social media and how legislation may need to be refreshed to ensure that rights are protected and whereby justice is sought. This bill makes various amendments to the Defamation Act 2005, based on the results of a national review of the uniform model defamation laws undertaken by state and territory attorneys-general.

In our digital world, there is no doubt that social media can be used for good—information sharing, building communities and connecting people and families from all corners of the world—but all too often it can be used to enact egregious digital harm upon others. People can use it as a weapon to cause harm and fear and seek revenge, and it is absolutely crucial that our legal and policing systems are equipped to handle online antisocial conduct as our communities digitise and come online.

In order to stamp out vicious online behaviour, victims need to be supported to come forward and report digital harm and abuse. Taking a stand against abuse can often be difficult for victims due to fear of potential adverse repercussions from their perpetrator, which is why the most significant amendment in the bill will extend the defence of absolute privilege to reports made to police. This will provide victims of crime and witnesses of crime with stronger protection against lawsuits claiming that the report defamed a person involved in the alleged criminal offence. This bill also makes two amendments to support people who have been defamed by material posted on the internet, which I am very pleased to see.

Only earlier this year I spoke to a constituent of mine about the negative impacts that social media can have and how there needs to be more incentives to encourage mindfulness about what is said online. Not only can comments be hurtful and lasting, they can also normalise cyberbullying and antisocial behaviour. This means it can continue and spread, which can escalate to unsafe and extremely dangerous situations such as doxxing, stalking and so on.

Once something is posted online, it can be very difficult to erase. The internet remembers much longer than the regular person, and digital legacies can last forever. That is why the bill would provide another avenue to have defamatory material removed from an online platform, which will help to prevent the situation from escalating.

Currently, a court can make an interim or final injunction requiring a publisher of defamatory material to cease publication; however, this order can only be made against a party to the defamation action. Therefore, if a person defamed wants a large online digital platform, such as Facebook or Google, to remove the defamatory material posted by the third party, they must bring an action for damages against the online platform. If they only sue the author or poster of the matter, they cannot get a take-down order against the digital platform.

This bill will allow courts to make injunctions against digital intermediaries and publishers who are not a party to the action. A digital intermediary is any person or organisation that provided an online service in relation to a digital publication but who was not the author, originator or poster of the matter. This includes search engines, email and messaging services, social networking websites, product review websites and video-sharing platforms. Because, as the saying goes, once it is online, it is online forever, creating a digital legacy. This way, the post will truly be removed rather than just the original source.

Finally, the bill will set down principles that a court must take into account in applications for pre-action discovery relating to a defamatory digital publication. Under the Uniform Civil Rules 2020, South Australian courts may order that a person disclose documents that will allow a potential plaintiff to decide whether or against whom to bring civil action, because it can be difficult to know who we are talking to online or who is hiding behind the other side of the screen.

As we all know, fake accounts exist: keyboard warriors and 'finstagrams', as the Gen Zs call it. Users do not have to use their full names either. They use an alias, nicknames, part of their name, their first name only, and so on. It makes it incredibly hard to know where to start. Combating cyberbullying and abuse needs to be an all-encompassing approach. Digital intermediaries and social media platforms need to work with legal systems and governments to meet their duty of care to users and ensure a safe and accessible environment on their platform.

This principle could be used to require a digital intermediary to provide the identity and contact details of the person behind the user who authored and/or posted defamatory content through the intermediary service, to help ensure the matter is treated efficiently, effectively and appropriately. As I said earlier, I have long been conscious about the growing influence of social media.

I should also take this time to mention how proud I am that the Malinauskas government is taking action to curb the effects that social media is having on our kids by leading the way in terms of a social media ban, which is now a nation-leading reform. We are all aware of the adverse impact that social media has on our kids, increasing their exposure to cyberbullying and inappropriate content, amongst other things. We want to keep our kids and our communities safe, no matter how old.

That is why legislation needs to be adapted to address our ever-increasing online presence in the community. It must aim to ensure that, when we do use social media, we are using it ethically and we are using it safely and, when social media is used to impose harm, perpetrators cannot hide behind their keyboards. We must do more to find these offenders and penalise them accordingly. Stopping this antisocial conduct in its tracks is vital to creating safe online spaces. I believe this legislation works towards achieving that, which is why I commend it to the house.

Ms HUTCHESSON (Waite) (12:58): I rise in support of this bill, which follows the review of the uniform model defamation laws undertaken by state and territory attorneys-general. The bill introduces several important amendments to the Defamation Act 2005. A key amendment in the bill extends the defence of absolute privilege to reports made to police, offering greater protection to victims and witnesses of crime. This ensures that individuals who report crimes are shielded from defamation claims that may arise from their reports of suspected criminal activity.

Extending absolute privilege to allegations of unlawful conduct, including discrimination and sexual harassment, across all Australian states and territories is a vital step towards fostering an environment where victims feel safe to speak out and seek redress. The existing defamation laws can sometimes be weaponised to intimidate victims, particularly by sophisticated perpetrators, deterring them from reporting offences. This bill aims to make it clear that police reports are not grounds for defamation, simplifying the process for victims and protecting them from potential legal threats.

Victims of crime are often not legal experts and may be uncertain about the protections offered by partial privilege. This bill ensures that victims can report their experiences with confidence, knowing that they are protected. At the same time, concerns about malicious reports are addressed by the Summary Offences Act 1953, which already covers the offence of making false statements to the police, ensuring that individuals who make malicious or false reports are held accountable. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.

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