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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-11-17 Daily Xml
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Bills

Defamation (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:22): I rise to speak to this bill and indicate that I will be the lead speaker for the opposition. I indicate that the opposition will by and large be supporting this bill that proposes significant amendments to the Defamation Act, with some related a menace to the Limitation of Actions Act.

The current Defamation Act in South Australia reflects a national model defamation provisions that were adopted by the former state Labor government way back in 2005. That process was initiated by the Council of Attorneys-General (CAG) in November 2004. The CAG appointed a national defamation working party that drafted the first model defamation provisions (MDPs). The MDPs used a harmonised legislation approach, where all jurisdictions seek to agree on a set of provisions, which are then legislated as consistently as possible across the nation.

The year 2005 was the first time that defamation law was uniformly examined on a nationwide level with a view to increase consistency. The CAG reconvened the defamation working party in June 2018 to review the 2005 model provisions. This was to address emerging issues of social media disputes, online publication of defamatory matter and the relationship between defamation, investigative journalism and the public interest.

On 27 July 2020, CAG approved the recommended amendments to the MDPs. In doing this, CAG cited broad consultation with media companies, legal bodies, academics, digital platforms and lawyers. The review of the national provisions sought to increase efficiency, introduce mandatory pre-action steps to save court time and limit courtroom litigation of defamation that does not involve serious harm.

This bill seeks to update the law to reflect changes in technology and to address precedents that have arisen in case law. In particular, it seeks to address precedents about when defamatory matter is deemed to be published online. In doing so, it is proposed that the single publication rule time limit would begin upon the upload of digital material, rather than the most recent download.

The bill also proposes early, non-litigious 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. t introduces two new defences, amends other defences and addresses the cap on damages for non-economic loss that a plaintiff suffers.

The bill amends section 9 of the current Defamation Act which covers certain corporations that do not have a cause for action defamation. Currently, only non-profit corporations with 10 or fewer employees can sue. The bill clarifies the definition of employees to include workers like independent contractors and, therefore, affects the companies which can take action. The bill amends section 10 to allow courts to make orders about costs for actions that end because of the death of a party if such an order is in the interests of justice. In the old act and in the new bill there is no cause of action for defamation of or against deceased people.

Notably, the bill introduces a threshold of serious harm for all defamation claims through the insertion of a new section 10A. This is a considerable amendment to the legislation and the scheme. Under the bill's proposed section 10A, plaintiffs must establish that there has been serious harm or there is likely to be serious harm caused by the alleged defamation.

This harm threshold seeks to avoid lengthy and costly court processes where only minor harm is demonstrated and sustained. It is noted that the bill does not define or quantify serious harm and leaves this up to the courts to determine. The opposition understands that there was not a unanimous position around Australia with regard to leaving this up to the courts.

This change is accompanied by the parallel repeal of the triviality defence contained in section 31 of the act. The bill proposes inserting new sections 12A and 12B about concerns notices. This is one of the new mandatory pre-action steps in the bill. It proposes that plaintiffs must send a formal pre-action concerns notice to a publisher of allegedly defamatory material. This step will be instead of going straight to court and is currently optional rather than mandatory.

After sending the notice, plaintiffs must wait a set time before taking further action, although this period may be reduced by a court. This period is designed to allow for any settlement offers to be made. The bill also amends sections 14, 15 and 18 about valid offers to make amends by setting out the new requirements for publishers about what constitutes a valid offer in response to a concerns notice.

Through amendments to section 21, plaintiffs will be prevented from bringing multiple actions for defamation for the same publication against different but associated defendants. For example, this might stop a plaintiff suing and seeking damages from both a journalist and a newspaper owner or editor who published the same article in the same newspaper. This is intended to stop plaintiffs from attempting to, in effect, circumvent the cap on non-economic damages, and is intended to reduce court caseloads. Whilst the intent is admirable, caution is needed to ensure that this provision is not or could not potentially be abused by those who engage in defamation.

The bill simplifies the contextual truth defence under section 24 of the act. This is where a publication has both true and false defamatory implications but the false allegations do not harm a plaintiff's reputation beyond the true allegations. The new public interest defence appears in the proposed section 27A. Section 27A 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. This is based on the public interest defence set out within section 4 of the United Kingdom's Defamation Act.

In view of the public interest amendment, the existing qualified privilege defence under section 28 will have public interest removed. It is noted that earlier model defamatory provisions intended to cover public interest, but the outcome was not as successful as intended. The lack of success regarding public interest from the previous national MDPs and the courts' decisions on single publication demonstrate why this legislation must be approached carefully. We may not always be legislating for what we think is the intended outcome.

The new section 28A in the bill proposes a new defence for scientific and academic peer review journals. This would occur if the alleged defamatory material relates to academic matter that is published honestly and for the education of the public. The bill updates the honest opinion defence in section 29 to accommodate internet publications as proper material that an opinion can be based on. It states these can be supplied via hyperlink.

Notably, this bill amends section 33 to address the cap on non-economic loss suffered by a plaintiff in defamation. Currently, economic loss is subject to separate uncapped provisions, and separate aggravated damages can potentially be awarded. The bill clarifies that the current maximum amount of $421,000, indexed annually, is to be awarded only in the most serious cases. s such the bill does not seek to change the maximum amount but remind the court that the maximum is not the baseline or standard amount. This bill also allows service documents for a defamation via email and by amending section 41 of the act.

Finally, this bill proposes amendments to the Limitation of Actions Act 1936 regarding the single publication rule. The bill proposes that the time for actions—which is one year or up to three years, if considered just and reasonable by the court—linked to online material starts at the time of the publication or posting of the material, not the time of the most recent or relevant downloading of the material. 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. A number of questions were asked of the Attorney-General in the committee stage of this bill in the other place. We will not seek to relitigate all of those issues in great detail, as a number of the opposition's questions were answered in the other place.

However, one issue we will seek to traverse during the committee stage is assurances that smaller plaintiffs will be protected with the reversal of the new single publication rule and a limitation on suing related parties. The opposition, as I said, largely supports this bill but will require a number of questions to be answered during the committee stage.

The Hon. M.C. PARNELL (15:31): The Defamation (Miscellaneous) Amendment Bill 2020, which amends the Defamation Act 2005 and the Limitation of Actions Act 1936, aims to reform the defamation law in South Australia in response to the recommendations of the Council of Attorneys-General (CAG) earlier this year.

CAG's defamation working party recommended changes to the model defamation provisions, which each state and territory government is now working towards adopting. This bill is South Australia's part in a nation-wide initiative. While these reforms only scratch the surface in addressing the issues with defamation law in Australia, many of the reforms in this bill represent sensible steps in the right direction, and I certainly support the goal of working towards a unified approach across all Australian jurisdictions.

So far South Australia and New South Wales are the first cabs off the rank in introducing the bill to their respective parliaments. I am very much indebted to my Greens' parliamentary colleague and fellow lawyer David Shoebridge MLC of the New South Wales parliament, who spoke to their version of this bill recently. David is a vigorous defender of human rights and the rule of law, and I acknowledge his leadership in our party on this issue.

One of the main concerns around current defamation law is that it can be used as a tool by rich and powerful people to silence their critics. The threat of litigation alone is a significant deterrent for many people, and may prevent them from publishing genuine criticisms of anyone with the resources to go down the defamation path in court.

On two occasions earlier in my time in this parliament I introduced 'protection of public participation' bills as a response to the despicable practice of some corporations and property developers of trying to silence their critics through SLAPP suits. SLAPP stands for 'strategic litigation against public participation', and it involves either threats or actual legal proceedings, which generally have little merit but which are designed to silence your critics into submission.

I used a number of examples in parliament when debating these bills, including the Hindmarsh Island marina developers and some polluting industries in the suburbs of Adelaide. Those bills still have merit, but the South Australian parliament has lacked courage, at least the courage of other jurisdictions, in relation to legislating to protect genuine public participation in public interest matters. Of course there should be a mechanism for people to defend their reputation against genuine defamatory comments and material. It has been clearer than ever in 2020 that baseless and untrue claims about public figures can represent a real threat to justice and democracy.

However, we must acknowledge that the world of defamation law has often been a battleground for the squabbles of the powerful and wealthy. For most of us, defamation is just a proxy for the threat of financial ruin from extended costly court battles, regardless of whether or not anything we said or wrote was actually defamatory. In this way, defamation law can act as a 'paywall' to criticising the rich and powerful, and this is a wall that must come down in the interests of justice and equality.

I am pleased that several of this bill's proposed changes do start to address this paywall to criticism while keeping intact the intent of defamation law which is to prevent and compensate for damage to reputation by false accusations. We still have a lot further to go but this is a sensible step in the right direction.

One of the key reforms of this bill is that it introduces a serious harm threshold so that a case will only go ahead if a preliminary hearing finds that the alleged defamation does cause risk of serious harm. The Greens believe this is a reasonable amendment. While the defence of triviality was a previous attempt at addressing cases where the alleged defamatory statement was unlikely to cause the plaintiff harm, this serious harm threshold goes further and mandates that serious harm must be established before a court case can proceed officially.

For cases where no serious harm can be established, non-litigious avenues will often be more constructive and certainly less expensive. I think it is important to flag that serious harm will have to be carefully defined. The Law Society, for example, expressed concerns about the lack of guidance in the legislation itself about how that threshold is to be approached and that serious harm could be interpreted quite subjectively. However, overall, the Greens think this reform is a sensible step towards preventing public resources being misspent on trivial claims and a step away from wealthy, powerful people using defamation law to shield themselves from valid criticism.

I think this serious harm threshold could also provide a much needed mechanism to scrutinise online cases of alleged defamation where published material can include a Facebook comment, perhaps only seen by four people, and deleted soon after posting. It may be defamatory but, depending on the identity of the four people who saw it, it may not reach the serious harm threshold. In fact, it is unlikely to. While social media has certainly muddied the waters around defamation, I hope that this reform will provide a new avenue for negotiation amid the rapidly changing publication landscape.

Consideration of social media and its role in modern communication is also central to another key reform in this bill, the single publication rule. The current defamation law requires that defamation action must occur within 12 months of publication of the alleged defamatory material. However, current laws also assume that each time online material is accessed or downloaded, it is 'published' afresh, meaning that this 12-month period is reset each time someone accesses the material and, hypothetically, can be 'published' perpetually forever. This amendment would specify that defamation cases based on online content must occur within 12 months of the original content being made public.

Another major aspect of the bill is that it mandates the issuing of a concerns notice before any proceedings occur and it outlines set forms, content and timing for these concerns notices, including offers to make amends. In other words, someone accused of defamation must be notified before any legal proceedings can occur, given the opportunity to withdraw potentially defamatory statements and the opportunity to say, 'Sorry, I didn't mean that.'

Under the current act, the plaintiff does have the opportunity of issuing a concerns notice but under this bill this will become mandatory. This is sensible, and I hope it will encourage non-litigious pathways and establish a few limitations on powerful players automatically retreating behind their paywalls to criticism. I think communication is always a good first step in addressing any dispute and it is a route to resolution that is much more accessible than marathon court battles.

Also included in this bill is a fresh public interest defence, intended to protect information that is otherwise defamatory but clearly in the public interest. For me, it is a no-brainer that we need a public interest test in defamation law. This is also consistent with the Greens earlier 'protection of public participation bills'.

I note that the new defence, which the bill aims to insert into the act, borrows partly from the public interest test in section 4 of the UK Defamation Act 2013 which is broader than South Australia's current 'Defences of fair report of proceedings of public concern' but has had its share of criticisms as being a hard test to meet. It is for this reason I am also pleased to note further additions inspired by New Zealand's defence of responsible communication on a matter of public interest.

It is vital that public interest is protected through a clear and consistent test and that free and robust public debate is not hindered by the threat of defamation proceedings and costly damages. While a clearer and simpler test may be required in future, the Greens are pleased to see this step in the right direction, and we support the reform.

I also want to briefly address the new defence for academic disputes published in peer-reviewed journals. In many ways it is astonishing that we even need to legislate this, but I am pleased that the bill will provide protection for academics who publish critiques of each other in peer-reviewed journals. This is a very reasonable reform. Academia relies on free discussion and the exchange of ideas, and it is vital that this process is not unnecessarily stifled by legal battles.

There are fiercely passionate academic debates in all fields of study, and I hope this new protection will ensure courts and public resources are focused on protecting people's public reputations, not on thrashing out academic disagreements over the excruciating details of the reliability of carbon dating for rice-based pottery glazes.

An honourable member interjecting:

The Hon. M.C. PARNELL: That's a big one. The bill will also clarify the way that the cap on monetary damages for non-economic losses would work. The original intent of the legislation was to provide a sliding scale, where damages are awarded values of between zero and an indexed maximum cap—currently $421,000—depending on the severity of the non-economic loss caused by the defamation.

However, this is not how it is currently used, and it is not how the law has been previously interpreted by the Victorian Court of Appeal. Accordingly, clause 20 of the bill aims to re-establish the original intent of the 2005 act. That is a sensible goal, and we will see if it works this time around.

Having spoken about what is in the bill, we also need to acknowledge what is not included. One particular concern of mine, which the CAG has decided to kick down the road a little further, is the vexed issue of social media and online reviews. When I raised this issue with the Attorney-General's staff, I was advised that:

Issues specific to liability for digital defamation are being progressed in a separate reform process, as per recommendation 15 in the background paper on the Model Defamation Amendment Provisions 2020.

I went to that paper and found recommendation 15, which reads:

The Defamation Working Party will undertake a separate review process to consider potential amendments to the Model Defamation Provisions to address the responsibilities and liability of digital platforms for defamatory content published online. This will include consideration of the issues raised by the Australian Competition and Consumer Commission in the Digital Platforms Inquiry Report published on 26 July 2019. Recommendations will be made to CAG following this process.

I also look forward to seeing what they come up with, because all of us who maintain social media sites, especially those who allow for third parties to write comments on our sites, need to be aware of what liability might be attached to that practice.

Clearly, in the modern world every one of us is a potential publisher, and our audience could be national or even global. That is why it is important that we commit to a national effort to update defamation laws around Australia. We need to make sure plaintiffs cannot shop around each state or territory jurisdiction looking for the defamation laws that suit them best.

I will finish by saying that while defamation law is still generally the realm of the powerful and wealthy to legitimise their squabbles or silence their critics, the proposed reforms in this bill are a step in the right direction. For these reasons, the Greens will be supporting the bill.

The Hon. C. BONAROS (15:43): I rise to speak in support of the second reading of the government's Defamation (Miscellaneous) Amendment Bill 2020. As we have heard, the bill seeks to update South Australia's defamation law consistent with the model national uniform defamation law, developed by the Council of Attorneys-General following their review of current defamation laws, which was released in July this year.

While responsibility for defamation law falls to individual states and territories, a national approach to reform has been called on as an essential feature for some time. Of course, with nationally consistent approaches also comes some limitations in terms of what we should and should not tinker with.

New South Wales, as the lead state for these reforms, were first out of the blocks, passing these amendments in August of this year. The bill we have before us now was put out by CAG for public consultation and extensive comments were received. I am especially pleased that the proposal did receive more than 70 submissions from media companies, digital platform corporations and users, plaintiff and defendant defamation lawyers and academics. It gives us some confidence that the bill has been well thought through and is informed by experts in the field, unlike much of the legislation the government pushes us to rush through this place with.

That said, there are some areas of the bill which, at first glance, certainly raise some questions with me which I have sought further clarification from the Attorney on and will no doubt be canvassed a little further in the committee stage.

The basic premise of defamation law is simple. It is to strike a balance between a person's private right to protect reputation and the public's right to freedom of speech and expression. The New South Wales Attorney-General, when introducing the bill in New South Wales, said this balance is 'to ensure that reputations are protected while responsible speech is as free as it needs to be to shine lights into the dark corners of our society'.

It is always important that we shine lights into those dark corners. These reforms, the first in 15 years, are considered a reset of the balance between protecting an individual's reputation and the right of free and fair speech. Defamation disputes are notoriously adversarial, complex, emotive, drawn out and extremely costly, and my main concern in this area is really ensuring that we do not exacerbate any of these factors with any new measures. Indeed, we should be doing the opposite.

As I said, there are some measures in this bill which I discussed at length with the Attorney's office, because the last thing we want to be doing is enshrining in legislation any measures which make it even harder to pursue one of these actions. But we do need reforms, and these are, as I said, nationally consistent reforms, which I understand have been the subject of lengthy consultation.

The need for these reforms has been well publicised, particularly in light of recent high profile cases in the media, most notably Geoffrey Rush's almost $3 million victory against the publisher of The Daily Telegraph. With the proliferation of new and emerging social media forums, the 24/7 news cycle and highly accessible electronic means of cheap and fast dissemination, the contexts and potential for actions in defamation have multiplied exponentially since the current law was passed in 2005.

Highly respected ANU College of Law lecturer and communications law expert Brett Walker has pointed out the law is struggling to adapt the traditional principles of defamation law to new technologies in a consistent manner. Defamation laws also need to keep pace with our ever-changing community standards of what is and is not defamatory content. This is no different to any other area of the law where we have struggled to keep up with the explosion of online technology.

While we do not want every neighbourhood or interpersonal dispute to make its way into the courts, at the same time there needs to be remedies available and accessible to those who are defamed. Importantly, the bill provides some pre-action alternatives to litigation and a new threshold test of serious harm to ensure defamation actions are commenced after procedural requirements and the preliminary threshold test of serious harm is met.

The requirement that a concerns notice must be issued and that it must be served with sufficient time and detail for an offer to make amends to be made before proceedings can be commenced is, I think, a sensible and practical reform in this bill. It is hoped that this measure will provide a valuable opportunity to resolve the dispute at the earliest opportunity and for the parties to negotiate and agree on remedies rather than to litigate, which we all know ends up costing an extraordinary amount of money.

Similarly, the introduction of a serious harm threshold test for a defamation claim being determined by the judicial officer as soon as practicable before a trial is a good initiative. It should weed out those actions with no merit, or limited prospects of success, before a plaintiff and/or defendant incur, again as I said, what can quickly become crippling legal costs.

The proof, of course, will be in the court's interpretation of serious harm. As the new section 10A of the new bill makes very clear, this is for the judicial officer to determine. These pre-action steps are intended to enable judges to stop defamation cases that do not involve serious harm as quickly as possible. The current law has a defence of triviality for smaller cases, but this amendment inverses that. Rather than it being something for the defendant to argue in response to a plaintiff, the plaintiff needs to overcome the threshold up front. The highly subjective triviality defence is thus redundant.

There will be instances, still, where damages for economic and non-economic loss are awarded, and I understand a separate award of aggravated damages can be made if the defendant's conduct is particularly egregious. I think this is a particularly important aspect of this bill, given some of the other changes. Geoffrey Rush's history-making defamation damages payment has no doubt contributed to the clarification of capped damages for non-economic loss in this bill. The separation of the economic and non-economic loss components and clarification of the cap on non-economic loss is, therefore, a welcome enhancement.

Perhaps one of the most interesting aspects of the bill is that it takes the first step towards defamation law being able to deal with publications on digital platforms. The introduction of the single publication rule clarifies that the limitation period runs from the first publication or posting of the alleged defamatory material rather than the time of the download. However, the limit can restart if there are subsequent publications of the same, or substantially similar, content, and if the material is substantially new then the clock would also restart.

One of the perhaps more exciting aspects of the bill is the two new defences and minor amendments to existing defences, because these will need to be tested in the courts to see how they will actually operate in practice. The introduction, for instance, of a new public interest defence, modelled on the UK defamation act, will challenge the courts to make the distinction between what is in the public interest, not what is of public interest.

Courts will have to decide if a defendant publisher's conduct satisfies the public interest test, by considering factors like the integrity of the sources, the efforts the publisher made to get both sides of the story, and what the public interest in the publication is claimed to be. Courts will also need to keep up to date with current community standards of what is or is not considered defamatory.

However, the new law is not intended to protect the kind of journalism that led to comedian/actress Rebel Wilson's massive defamation win after gossip magazines went after her. Although most of her huge $4.7 million payout was later overturned on appeal, Wilson said it was never about the money and that she was satisfied the jury had restored her reputation. I say well done to her.

The second new defence for peer-reviewed matters published in academic or scientific journals should foster the robust and vigorous intellectual debates and contest of ideas that lead to innovation and invention. As I have said, this bill is just the first step in reforming defamation law so that it is fit for purpose in a rapidly evolving digital age. There are already new challenges on the defamation law horizon, with a need to further level the playing field between traditional media like television and print, and techno companies like Google.

The Voller (Voller v Nationwide News Pty Ltd, Voller v Fairfax Media Publications Pty Ltd, Voller v Australian News Channel Pty Ltd in 2019) decision, which is under appeal at the moment, should provide further guidance from the courts in regard to whether news media providers will continue to be liable for defamatory third party comments on their social media pages.

This is certainly something that has been of huge interest to me. In that case, the New South Wales Supreme Court found the news outlets were the primary publishers of the allegedly defamatory comments on their Facebook pages, in the same way as if the comments had been published on their own websites or in their own hardcopy newspapers.

The news outlets argued they should be considered as secondary publishers, for obvious reasons. The distinction here is a primary publisher is liable for defamatory comment from the moment of publication. The ongoing protection of a secondary publisher is a fertile area of interpretation for the courts and one which, again, given the explosion of online platforms, becomes very relevant to us as legislators.

Another very interesting case that will not only test the defamation laws but no doubt lead to further reforms, I think, is Kabbabe v Google, which is a 2020 case. In this case, the court confirmed publication of an allegedly defamatory review was taken to have occurred where the words were heard, read or downloaded and therefore the defamation occurred in Australia even though Google is an American-based company.

Furthermore, the court found Google was likely to have had control of the reviewer's information and that Dr Kabbabe had a prima facie case for defamation against the reviewer. Dr Kabbabe will now be able to use the information obtained from Google in legal proceedings against the anonymous reviewer.

This case may see American social media conglomerates, such as Google, Instagram and Facebook, forced to divulge personal information about keyboard warriors who have used digital platforms to defame others. It may also have a dampening effect on the keyboard warriors, bullies and trolls who seem to have found their calling on the internet.

There is absolutely more that needs to be done to modernise defamation law. This is a first step—it is a good first step—but there is certainly a lot more that needs to be done. While cases like the ones I have mentioned are coming thick and fast, we do not have another 15 years to take the next step. I think it is an area that we need to keep a vigilant eye on. I look forward to the outcomes of CAG's second stage of this reform in particular, which will focus on the responsibilities and liabilities of digital platforms for defamatory comments published online, something I am sure we all have similar concerns in relation to.

In the meantime, I thank the Attorney-General's office for providing me with responses to some of my concerns—I think I just kept calling them the Rebel Wilson examples—particularly as they relate also, though, to contextual truth, something which I might ask some further questions about during the committee stage debate, and more generally around ensuring that what we are doing is in fact fostering access to justice, particularly for those who cannot afford costly legal actions and defamation actions, in particular. With those words, I indicate again our support for the second reading of the bill.

The Hon. F. PANGALLO (15:58): I rise to speak on the Defamation (Miscellaneous) Amendment Bill and offer my general support for the reforms it contains. These will help streamline and expediate civil actions and hopefully lead to a reduction in costs for both plaintiffs and defendants. The new law will be applied by all the states, although in some will continue to be trials by judge alone, as happens in South Australia, while others have juries. My preference would be to also have jury trials in these proceedings in South Australia.

As a journalist on newspapers, radio and television, I have had some experience in this area of the law in having to address defamation claims made in broadcasts and publications. These are costly for all parties involved in the proceedings. However, to mitigate costs, it is pleasing there is now provision in this bill that clarifies the requirements from a publisher to make an offer to make amends; that is, to make a reasonable offer within a specified period that would be acceptable to the plaintiff who claims to have been defamed.

I am unsure what constitutes a reasonable or acceptable offer and what would happen if it is not accepted, as often happens; however, mediation is quite important in settling these emotive cases. My understanding of what currently applies is that a defendant can make a settlement offer, also known as a Calderbank offer, and, if it is rejected and the plaintiff fails to win more in damages than the offer made, the plaintiff could be liable for the other party's costs.

The State of South Australia and SA Health may well have saved taxpayers millions of dollars had they attempted to make amends and quickly settle a defamation action taken against it a few years ago by the iconic baker Vili Milisits and his wife, Rosemary. It is incumbent on the South Australian government to conduct itself as a model litigant; however, it fell well short of the standard in this case.

SA Health had, without a shred of evidence, implied that custard Berliners believed to have been responsible for an outbreak of food poisoning had come from Mr and Mrs Milisits' Mile End plant. They had tried to argue that, because of the high volumes produced there, the contaminated products must have been Vili's on the balance of probabilities—absurd, and of course the court had to agree.

As the Vili's business is a partnership of Vili and his wife, and not a corporation, they successfully sued for the damage to not just their business but to their own reputations. But it was a torturous seven-year process for them, taking on a government not prepared to concede they got it wrong and trying to de-pocket the plaintiffs all the way to the High Court, just for the plaintiffs to get proper disclosure of documents.

Mr Milisits and his wife are principled business operators. Their Mile End bakery must meet, and does meet, exceptionally high health and safety standards. They undergo regular inspections by various agencies. Their sophisticated production equipment would have made it extremely unlikely that their products would have been the source of the contamination, while SA Health could not distinguish Vili's Berliners from those of any other cake manufacturers, except to say that they had yellow icing. Well, they all have yellow icing.

The reputational damage was ongoing. Mr Milisits told me that, even when the matter was still before the courts, the University of Adelaide, through its Regency Park campus, continued to highlight the food poisoning incident and slandered the business in its food science and technology lectures. So they were prepared to go all the way to restore their reputations and the credibility of their business, which they had built up over 52 years.

They told me that they would have accepted a prompt public apology, yet that never came. Even though it has since been settled in their favour, still leaving them with considerable legal bills, there has been no formal public apology or acceptance that the government got it wrong. As Mr Milisits jokingly tells me, each day he looks into the mirror he says, 'Can I trust you?'

This bill retains the threshold where only small or not-for-profit corporations can sue. Had Vili's been a for-profit corporation with more than 10 employees, they may not have been able to sue for defamation. The bill now expands the definition of an 'employee' to also include independent contractors to provide more clarity over what constitutes a small business. It also introduces a serious harm test, where plaintiffs need to prove that publication has caused, or is likely to cause, serious harm to their reputation, as Mr and Mrs Milisits were able to do.

However, for a corporate plaintiff this harm must be demonstrated through proof of financial loss. Up until the national defamation reforms were made in 2005, the media ran the very real risk of being sued by larger corporations with more than 100 employees if they published allegations of malpractice, misconduct or corruption in the context of fair comment or public interest. They would use their considerable legal muscle as a shield to stop truth and silence criticism.

I will use a couple of examples I encountered. s a journalist with Seven Network's Today Tonight, and only after these significant changes were introduced, I was able to expose the bastardry and deception committed on customers by banks and other lending institutions.

One big bank threatened to pull millions in advertising revenue if a story about them was broadcast on national television. My nervous boss at the time, David Leckie, called me and just asked, 'All I want to know is: are you right about this?' I said, 'Yes, the evidence stacks up.' Bravely, Mr Leckie chose editorial independence over financial gain or loss, telling me, 'That's good enough for me. I'll tell their CEO where he can stick it.' The story ran and was watched by an audience of close to 1.8 million. Others like it followed, yet we still had to wait 15 years for a royal commission into the banking and financial industry to expose the insidious, criminal, unethical and immoral behaviour.

In 1998, before the defamation reforms, Seven took a huge risk taking on international giants James Hardie. I investigated the tragic case of Ron De Maria, a victim of asbestosis, who worked as a tip driver for James Hardie at their Elizabeth factory. Mr De Maria was dying. Being aware of his medical condition, James Hardie stalled and frustrated his legal claim for damages. Had he died while the claim was unresolved, his family would have received significantly less than he was entitled to. This was pure corporate bastardry—and that is being kind to them.

As part of my investigation, Ron took me on a shocking tour of parts of the northern suburbs where, on their orders, he regularly illegally dumped asbestos waste. It included sites at Andrews Farm, where there is now a housing estate, and at St Kilda, which has since been redeveloped into a popular playground. There we discovered asbestos fragments leaching to the surface. They had also provided crushed asbestos to use as fill on pathways around the city of Elizabeth during its development.

James Hardie threatened to injunct the story because they had objected to the claims being made that asbestos was lethal and killed people. Our defence was contextual truth. In this bill, a longstanding drafting anomaly is tightened up for the defence of contextual truth, allowing an ultimate weighing up of the matter to determine whether any unproven defamatory allegations lower the plaintiff's reputation overall. It will enable defence to be judged on its merits and the truth of any imputation. For instance, if one of the claims Seven had made against James Hardie was unproven, the overall strength of other claims could be taken into consideration for the defence of contextual truth defence to succeed.

My executive producer, Graham Archer, made the call and it was the right one: publish and be damned. This was a matter of immense public interest. James Hardie did not follow up on its threat of an injunction or follow-up defamation action. Their action was an attempt to intimidate and suppress criticism of a publicly listed company that behaved abominably. They quietly settled with Ron De Maria, and sadly he passed away a short time later.

Another worthy amendment is the new defence for reasonable public interest, while modifying but retaining the existing qualified privilege defence. For instance, under the new changes, should the federal Attorney-General, Christian Porter, carry out his threats to sue the ABC for the salacious investigations into his private affairs, the ABC's defence could be contextual truth arising from the charges made that reflected on his alleged overall behaviour, that the report was an issue of public interest because of Mr Porter's stature as the nation's top legal officer, and that the ABC reasonably believed that the publication was in the public interest.

These new changes are based on the UK model. We saw how that played out spectacularly badly for actor Johnny Depp in the mother of all UK defamation actions against the British tabloid The Sun, which accused him of being a wife-beater and assaulting his ex-wife Amber Heard. he nearly 600-page judgement, which Mr Depp is foolishly appealing, will no doubt be a centrepiece of judicial interest and a discussion in legal studies everywhere.

The media landscape has changed considerably since the rapid evolution of the internet and the explosion of social networks and their many platforms. As we have seen in recent times, particularly in the US presidential elections, platforms like Google, Twitter and Facebook can be, and are, a hotbed of malicious untruths, unhinged abuse and misinformation disguised as commentary, opinion or free speech which can be spread globally in an instant.

It has given rise to a new term popularised by one of Twitter's biggest trolls, the incumbent President, Donald Trump—fake news. You only need to look at the warnings that Twitter has attached to his latest bombasts attacking the integrity of the elections. There are online news sites or live streams encouraging feedback from anonymous users that is not effectively moderated or corrected.

This is still a new and mostly unregulated world for slander. Under existing laws, the owner of the website or search engines like Google and Yahoo could be classified as publishers and be litigated. Google was sued in South Australia after arguing that they were innocent disseminators of the offending material.

For some reason, some participants in elections seem to think that defamation either does not apply or they are ignorant of the law itself. Take the last state election where we at SA-Best witnessed a tirade of abusive commentary. Some of our candidates were subjected to unfounded and slanderous remarks by individuals, other political parties and the horde of pile-on trolls who populate these places, who think they are immune to legal action.

Their mistaken belief is that all is fair in love and war online. Well, it is not. For those who could afford it, legal letters flew between candidates and their accusers, including our own besieged leader, Nick Xenophon. But, of course, the prospect of any proceeding is usually commercially unrealistic. You just cop it and move on.

Our candidate in Giles, Tom Antonio, was savaged and had his reputation sullied in false Facebook posts that we believe were orchestrated to cause him enough reputational harm to prevent him from taking a winnable seat. Tom lost; however, he later instigated legal action against one of these Facebook trolls, Kerri Pollock-Morgan, who in one of her rants accused him of forcing her late father, Jim Pollock, to resign as mayor of the steel city.

Had she chosen to check the facts, she would have discovered the real story. By then the damage had already been done to Tom's campaign. Ms Pollock had also claimed that Mr Antonio abused her at the Whyalla pre-poll. There were no witnesses to this. Mr Antonio vehemently denied the accusation, yet the media still chose to report it, hurting his candidacy. Recently, Ms Pollock-Morgan had to issue Mr Antonio an apology. It reads:

Mr Antonio, I regret publishing a Facebook post suggesting Mr Tom Antonio forced my father Mr Jim Pollock to resign as Mayor of the City of Whyalla. This post has caused us both considerable personal distress for which I am sorry.

After discussions with Mr Antonio I understand that my father had to resign because of the requirements of the legislation as governs local government matters and his ill health. Signed Kerri Pollock-Morgan.

I seek leave to table that document.

Leave granted.

The Hon. F. PANGALLO: The Labor Party also accused Mr Antonio of being a highly disruptive and damaging figure during the period when the Whyalla Steelworks was in administration. Those remarks got plenty of media attention, too, further eroding Mr Antonio's prospects as a candidate. Again, this was false, and I will base this on a letter written on 25 June 2018 by Arrium's administrator, Mr Mark Mentha, of KordaMentha. Allow me to read that letter:

Dear Tom,

As lead administrator of Arrium Group Limited I write to personally thank and acknowledge you for your contribution to the KordaMentha team in saving of the Whyalla Steelworks and associated iron ore mines in the South Middleback Ranges. Arrium Australia is Australia's leading steel long products manufacturing and distribution business, with circa 6,500 employees across 150 sites in Australia, 2.6 million tonnes per annum of steel making capacity and 10 million tonnes iron ore export capacity. The Whyalla Steelworks and mining operations are central to this business.

KordaMentha were appointed voluntary administrators over Arrium in April 2016, Australia's largest insolvency. Post our appointment, on day one I remember disembarking at the Whyalla Airport to be greeted by a concerned and passionate acting mayor [a civic duty brought about by the illness of the incumbent mayor, Jim Pollock]. You stepped into the breach at a tumultuous time in the history of the city. The future of Whyalla and its 22,000 residents was inextricably linked to Arrium and the successful outcome of the administration.

Tom, from day one you understood the symbiotic relationship of Whyalla with Arrium, and stood by a simple creed: 'Closure is not an option', and you never strayed from that message, privately or publicly. As a civic leader of Whyalla, at the time you continually publicly laid bare the catastrophic consequences of a closure of the steelworks and mines, and accordingly kept the issue at the forefront of public policy and media. This in turn went a long way to keeping the issue front and centre in the minds of policy makers and influencers at both state and federal level. Even after stepping down as acting mayor, you kept this mantra alive in your role as a city councillor.

The end result of a successful restructure and sale of Arrium could not have been achieved without contribution from many key stakeholders. Employees, management, unions, banks, governments both state and federal, courts, suppliers and creditors all played their role. Tom, you played a critical part, and all stakeholders, including the City of Whyalla and we the administrators, will be forever grateful.

On behalf of Sebastian Hams, Scott Langdon and the entire KordaMentha team—a big thank you.

Yours sincerely, Mark Mentha, Partner.

I seek leave to table that document.

Leave granted.

The Hon. F. PANGALLO: The Tom Antonio I know is a good family man, a well respected and successful businessman in the town and on the West Coast, and has served as a councillor for 12 years and as acting mayor. But politics is a dirty game. When the mud flies, it usually sticks.

Some years ago Mr Antonio was also accused of sending a racist fax, which was tabled in parliament. He denied being responsible for it. The authenticity and source of that document, which contained his business fax number, was impossible to verify, even after a police investigation. This bill does allow the publishing of honest opinion, but it must be accompanied by material supporting the views expressed. However, I do not believe this bill goes far enough in restoring reputational damage, particularly when it comes to publishing or making apologies.

We all make mistakes of judgement, and we should be prepared to own up to them. I have. Channel 7 lost a defamation case I was involved in nearly 20 years ago. It was one of those stories that in hindsight we should have dropped. I will point out that any litigious-type stories were always put before 7s lawyers before they were aired. However, the final call to broadcast usually comes down to the decision of senior producers. I regretted that one. Some time after the dust had settled, I made it a point to seek out the person who had been defamed and I made him a personal apology, which he graciously accepted. In fact, he later provided me with assistance in a local government corruption investigation I was undertaking.

As it now stands, publishers may not be required by a court to publish an apology and I am of the view that legislation should also order remedies, with apologies of the same prominence as the offending material. When you compare the enormous national and international coverage that was initially given to cases like that of the distinguished Oscar-winning actor Geoffrey Rush, compared with the coverage received when he won his libel case and a subsequent appeal, it seemed quite distorted and unbalanced.

Furthermore, I believe a court should also order that defamatory material must be fully expunged from the internet. A welcome new feature in this bill is the single publication rule. This is particularly pertinent in the world of Google, Yahoo, Facebook, Twitter, TripAdvisor, Instagram, TikTok and the plethora of other social platforms, including dating sites where narcissistic keyboard warriors abound.

As it stands now, each time an individual accesses the defamatory material on different sites or different publications after the original source, it is considered as a separate publication and can give rise to fresh litigation long after publication. The effect of this was that, particularly with digital online content, it nullified the one-year limitation to bring on an action. That has now been extended to three years. However, there is still a provision for a fresh action to be commenced if a publication is sufficiently different.

Cases like Geoffrey Rush versus News Limited, actor Rebel Wilson versus Bauer magazines and Wagner v Harbour Radio, in which broadcaster Alan Jones had accused a prominent Queensland family of being responsible for flooding which caused deaths, certainly set high benchmarks for damages awards into the millions. This bill also clarifies the purposes and operation of the cap on damages for non-economic loss. I think the reforms will be, and probably have been, welcomed by media proprietors and the legal sector. I commend this bill.

The Hon. R.I. LUCAS (Treasurer) (16:22): I thank the honourable members for their extensive contributions to the second reading debate and look forward to its speedy passage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I have what I hope is a very simple question. During my second reading contribution, I pointed to how difficult defamation actions can be, how complex they can be to prove and obviously how expensive they can be as well. During the briefing, one of the points we discussed was ensuring that nothing in this bill made that process even more difficult.

I note that in the answer that was received from the Attorney's office to that question, the response was that some actions may actually become more difficult as a result of the provisions. However, of course, that has to be balanced against freedom of expression and so forth. So my question is: in what sorts of instances are we expecting that these actions will become more difficult as a result of the bill's provisions?

The Hon. R.I. LUCAS: I am advised that for low-level cases the concept of serious harm may well be more difficult for someone to prove. That would be an example of the type of issue where an individual might have greater difficulty in relation to potential action.

The Hon. K.J. MAHER: I was going to ask this at clause 7, when it came up, but as it is being addressed at clause 1 I might ask it now. In terms of the serious harm element that this bill proposes to change, is there evidence in South Australia that this has been a problem? Are there cases clogging up the court system that will no longer be clogging up the court system with this serious harm element being brought in?

The Hon. R.I. LUCAS: I am advised that there have been some cases in South Australia, and some examples might relate to social media type cases, where there have been exchanges on social media. The advice is that a number of those may find it quite difficult to prove serious harm in relation to those particular claims.

The Hon. K.J. MAHER: My final question on clause 1 is: are there any statistics or numbers kept, on a yearly basis, on how many cases have been brought before the courts and litigated in the courts that will no longer be able to be litigated as a result of this? Is there any evidence of the numbers?

The Hon. R.I. LUCAS: The frank answer to the member's question is no; there is little information. It may be possible that with the introduction of the new ECMS (the electronic case management system) that sort of information might be more available in the future. In terms of what information currently exists, there is no information we are able to share with the member.

The Hon. C. BONAROS: My understanding is that we do not have a definition of serious harm, is that correct?

The Hon. R.I. LUCAS: Yes; that is correct.

The Hon. C. BONAROS: Given that is something that is going to be left to the courts to determine, effectively, can the minister tell us what level of consultation occurred on that at CAG? What kind of commentary did we receive in terms of what we thought would constitute serious harm? Surely that must have been the subject of some debate during the consultation period. Do we have any details about that?

The Hon. R.I. LUCAS: I am not really in a position to provide much clarity in relation to the nature of the discussions. I am sure the member is correct that in the consultation stage at officer level, before it got elevated to CAG, this would have been one of the issues that would have been discussed, but I am not in a position to provide any detailed information to the honourable member's question.

The Hon. C. BONAROS: I imagine it was also the subject of some discussion during the New South Wales debate that occurred as well, being the first out of the blocks in terms of the passage of these amendments. Could the minister undertake perhaps to get some information for us, subsequent to this, in relation to any of the information we have around the definition of serious harm? I suppose what I am trying to get to is whether we have given any indication to the courts of the sorts of factors that we would anticipate would be taken into consideration by the courts in their deliberations.

The Hon. R.I. LUCAS: I am happy to refer the honourable member's question to the Attorney-General, and, if she is in a position to provide any further information, ask her to do so. This is the Attorney's area, not mine, but my understanding of the situation is there is not going to be any clarity or guidance provided to the courts. It is as the member indicated in the brief to her first question; that is, it is being left to the courts to interpret what serious harm is.

So there is nothing in the legislation or the statute. As you said, there is no definition of it, and there is nothing which says, 'Here are the principles upon which you should guide your judgements as to what serious harm is.' But if the Attorney is in a position to provide any further information about the level of discussion and consultation which was provided in the preparation of this final bill, then I will refer the question to the Attorney and see what she might be able to provide.

The Hon. C. BONAROS: Thank you. And given the level of interest that has been expressed about phase 2, if you like, of the reforms, can the Treasurer give us any indication of the likely time frame of consideration of those both by CAG and parliament? Has a time frame been put on these discussions in terms of phase 2?

The Hon. R.I. LUCAS: Again, I will refer that to the Attorney. My advice is that it was possibly late 2022, but I will take that on notice and ask the Attorney to correspond with the honourable member. I think it is best we leave it to the Attorney to correspond.

Clause passed.

Clauses 2 to 12 passed.

Clause 13.

The Hon. K.J. MAHER: On clause 13, which requires permission for multiple proceedings in relation to publication of the same defamatory matter, I just want to check we are understanding this correctly. If someone has initiated a defamation action against a publisher—let's say, for example, that someone had said that Rob Lucas is a terrible bloke, and that was considered defamatory and for some reason a court did not accept that as completely true; let's just say that a court did not—and that was published in a newspaper in New South Wales, there would presumably be a cause of action for Rob Lucas, if he was indeed not a terrible person, against that newspaper in New South Wales.

If a completely unrelated radio station in Perth published the same defamatory material, and they were completely unrelated companies, could Rob Lucas take action against both of those completely unrelated companies for the same material?

The CHAIR: I am sure he is referring to the Hon. Rob Lucas.

The Hon. K.J. MAHER: A different Rob Lucas.

The CHAIR: A different Rob Lucas?

The Hon. R.I. LUCAS: I certainly hope so. I certainly hope I would be able to, or the hypothetical Rob Lucas could take action, and I am advised that would be the case. In the circumstances the Leader of the Opposition has outlined, that individual would be able to take action against each of those outlets in each of the jurisdictions, in separate actions, if he chose to.

The Hon. K.J. MAHER: In that same scenario, if it was an FM radio station in Sydney and a sister station, or a Fairfax station in both cities, would the fictional Rob Lucas then be able to take two separate courses of action against the station owned by the same company in both cities, under this legislation?

The Hon. R.I. LUCAS: I am advised that the individual would need to seek court permission to institute separate actions, so with the court's permission you could institute separate actions in the circumstances that the member has outlined. Certainly, the individual has the capacity to join them as codefendants in one action, but would have the option, if that individual chose, to seek the court's permission to take two separate court actions in those circumstances.

The Hon. K.J. MAHER: If they sought to join them as codefendants in the one action, does that have the effect of limiting the $421,000 non-economic loss to that one action, whereas if it were two separate actions you have, essentially, up to two lots of that $421,000?

The Hon. R.I. LUCAS: I think the honourable member probably knows the answer to that question. Yes, you would double the prospects if you got two separate actions.

The Hon. K.J. MAHER: If those radio stations were not owned by the same corporate entity, if they were, as in my very first example, a newspaper in Sydney completely unrelated to a radio station in Perth with the same material, would that same potential plaintiff have to seek court approval to initiate two separate actions?

The Hon. R.I. LUCAS: Even I think I can answer that one. No, they are two separate actions, two separate companies. In the first example, you would not need court permission in those circumstances.

The Hon. K.J. MAHER: This is what, I think, I am coming to. If it was a newspaper in Sydney and a radio station in Perth, that had completely different individual structures for those two media outlets but somehow had a governing ownership structure where there was one company that owned them, that would mean, would it not, that the potential plaintiff would have to get court permission to take an action against two seemingly separate companies in a separate newspaper and a separate radio station, and if it was not for the largely unknown corporate ownership structure, they now have to seek court permission whereas otherwise they would not. Is that correct?

The Hon. R.I. LUCAS: I do not propose to go too far further down this ferret hole or rabbit hole, but it depends, I am advised, on the definition of 'associated entity' under the commonwealth Corporations Act legislation. I am not in a position to provide detailed advice to the Leader of the Opposition about how the associated entity provisions of that particular legislation have been interpreted in any number of examples the member might like to come up with. As a general principle it is pretty clear how it would be interpreted. I think the member might need to take his own legal advice if he has any particular examples in mind.

The Hon. K.J. MAHER: I thank the Treasurer for that. I do not propose to ask any more questions on this, but might the Treasurer take it on notice and provide those answers as to how that has been interpreted? For the purposes of this legislation, what is, I guess, at the outside the most tenuous link as an associated identity that would be captured by the definition in this bill?

The Hon. R.I. LUCAS: I will refer the honourable member's question to the Attorney, but I will not give an undertaking on her behalf at this stage; I will leave it to her. There may well be a lot of precedents which are easy to turn up which her officers can refer the honourable member to and she may well be quite happy to do so, but I will leave it ultimately to her judgement to see the honourable member's question and see whether or not there is information that she is readily able to provide without having her officers go to too much extra work in relation to it.

The Hon. C. BONAROS: The Leader of the Opposition was on the same path as I was heading. In that context, I think that is a very important point because, if I understand correctly, an associated entity could also include a contractor or an employee of the defendant. So it is not just necessarily two radio stations owned by the same brand, if you like, but it could extend to a contractor or to an employee of the defendant in this case, which is one of those. Can we just confirm that that is the case, or am I completely wrong?

The Hon. R.I. LUCAS: I think the honourable member is confusing a number of different concepts. What we have just been talking about is associated entity. I do not see how an employee would be an associated entity within the Corporations Act. The honourable member, however, might be referring to new section 21(3), which does talk about (a) an employee, and then under (c) talks about the associated entity concept, which we have just been talking about, but they are two different subsections.

I think the honourable member might be conflating the employee issue in relation to (a) there with the associated entity discussion, which we have just had with the Leader of the Opposition. I do not see how an employee would be an associated entity under the provisions we have just been discussing.

The Hon. C. BONAROS: Perhaps, for my benefit then, can we just explain the difference between those two provisions in terms of the associated entity and the associate of a previous defendant, which does include the individuals that I mentioned?

The Hon. R.I. LUCAS: I do not know that I can add too much more. New section 21(2) states:

The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous defendant…

Then it goes on to outline other provisions. Then, subsection (3) in essence explains what an associate of a previous defendant might be. It states, 'A person is an associate of a previous defendant if, at' etc. and it goes on, (a) 'an employee of the defendant' and then paragraph (b) and then (c) 'an associated entity of the defendant'. The questions that we were addressing with the Leader of the Opposition was this issue the notion of an associated entity and that is when, by way of answers, we indicated that was an associated entity within the context of the commonwealth Corporations Act.

The honourable member was then asking a question as to whether an employee was an associated entity under paragraph (c). As I said, I think the honourable member, with great respect, is conflating paragraphs (a) and (c). We were talking about associated entities under the Corporations Law. The member then asked me whether an employee was an associated entity under that particular provision. I have referred her now to paragraphs (a) and (c) and said that is where this issue of employee might come up.

The Hon. C. BONAROS: Perhaps I could just clarify. It was not so much the associated entity, my question was—and perhaps I did not frame it well—in the same sorts of situations as those described by the Leader of the Opposition, could the court grant permission for an action against an associate of a previous defendant, that being a contractor, an employee of the defendant or an associated entity of the defendant? Does that make sense?

The Hon. R.I. LUCAS: I think the honourable member has clarified the question now. If the question is more attuned to whether the honourable member wanted to sue The Australian and a particular journalist at The Australian, then the best explanation is that you would co-join them, if that is the right word, and that would be part of one action: sue them both at the same time.

If you wanted to, for whatever reason, sue The Australian and the journalist separately, you would need to get the permission of the court to do it separately. The one that I am more familiar with is where they sue both The Australian and the journalist at the same time, but, if you get the court's permission, you can actually sue The Australian and the journalist separately, if you wanted to do that.

The Hon. C. BONAROS: So, in that instance where they are not co-joined but you are suing them separately, the heads of damages—the caps—then apply to each suit.

The Hon. R.I. LUCAS: Theoretically, yes; but I am advised that, in this particular circumstance, the court might take a range of other issues into account, which might mean that whilst it is theoretically possible it might not in practice occur in the sort of way the honourable member is saying. That is, by doing it separately you are going to automatically maximise your chances of getting two maximum payments in that particular way. If the member was thinking that way, then the advice would be: it is possibly not likely.

The Hon. C. BONAROS: It is possibly not likely, except that the court would be making that decision, because they have the discretion.

Clause passed.

Clauses 14 to 21 passed.

Schedule 1.

The Hon. K.J. MAHER: Under schedule 1, part 2, clause 3, the proposed insertion of section 37A, it refers to the single publication rule. It is similar to the area we have just traversed—an associate of the first publisher. I want to check that I understand this correctly, whether this is the intention of what we are doing. As I understand it, if a publisher or an associate publisher publishes something, it is taken from the very first publication, regardless of where in Australia that happens or what form in which that happens; is that right?

The Hon. R.I. LUCAS: My advice is that essentially the answer to the honourable member's question is yes.

The Hon. K.J. MAHER: This is a concern that has been raised with us. For example, if it is a very big, national media company, and some allegedly defamatory material is published in a newspaper in Toowoomba, for example, and then that same material is published 18 months later in a newspaper again in Hobart, and the person who is taking offence to the defamatory material lives in Hobart.

They did not see, as they probably would not see, the publication in the Toowoomba. They saw it Hobart, but it is 18 months later. Does this then effectively, without more, according to this, stop them from taking action because the time limit started from that Toowoomba publication? The fact that it was published in the same manner in a newspaper in Hobart means that the time limit is set from that first publication, not the one that they see in the state in which they live?

The Hon. R.I. LUCAS: My advice is, in the example the honourable member has given, if there was a defamatory article in Toowoomba and the person who was living in Tasmania did not see it, and then 18 months later the same article was published in the Hobart Herald or whatever it is, and he takes action, or wants to take action, against theHobart Herald—it was exactly the same article—

The Hon. K.J. Maher:The Mercury.

The Hon. R.I. LUCAS: Whatever it is called; I am calling it the Hobart Herald. We are talking fictional here. If he finds out, through the course of that, that it was originally published 18 months ago in theToowoomba Bugle, then he or she can seek permission of the court to take action against both. If it is outside the 12 months but within another period of three years, he can seek court permission to take action in that particular case.

The Hon. K.J. MAHER: As the law currently stands, without this bill, in the example that has been given and without this new single publication rule, would that potential plaintiff who reads it in the 'Hobart Herald' have to seek court permission, or is the publication deemed from that second publication by the same company in the Hobart newspaper? My question is: does the passage of this bill put a hurdle in front of someone who is being defamed and did not or could not know that they were earlier defamed?

The Hon. R.I. LUCAS: I am advised, in the circumstances the member has outlined, it is potentially an additional hurdle.

The Hon. K.J. MAHER: And is that the government's intention, to put these additional hurdles in the way of someone who would have had no way of knowing that an interstate newspaper had published this?

The Hon. R.I. LUCAS: I am advised that under 37A(3) there is another option available to the individual in the circumstances; that if the manner of the publication is materially different the plaintiff could argue that it was either more prominently published in the Hobart Herald as opposed to the Toowoomba Bugle or it was published in a different jurisdiction which was more damaging perhaps to greater extent, that that individual could use 37A(3) to argue to a court that the limitation period should start again—so there is a further option available to the individual. It is not as black and white as perhaps the initial question and answer were leading us down a particular path; I now introduce my trump card of 37A(3) to say that there is a further option available to the individual in the circumstances the member has outlined.

The Hon. K.J. MAHER: I thank the Treasurer, and I am not doing this in a flippant manner. I think these will be serious issues that potentially people who have had harm caused to their reputation may seek a remedy for. I think it would be useful because I can well envisage this matter becoming a matter before a court in deciding if someone can take action or not. I just want to make sure that that is the government's intention when implementing this.

I do not think we have to implement everything, even though it is model defamation law. The Treasurer may correct me if I am wrong but in the original ones 15 years ago, Tasmania differed from the national law, so it is up to jurisdictions to decide which elements they may have. I just want to make sure that it is the government's intention that in at least some circumstances it will make it more difficult for a potential plaintiff to take action as a result of a single publication law.

The Hon. C. BONAROS: Having looked at subclauses (3) and (4) it appears, on the face of it, as if it is supposed to overcome—it is like we thought of this and we are trying to overcome that hurdle, but it does raise an interesting point and I think the Leader of the Opposition has made an interesting point in that regard. If it is not more prominent or more widely publicised then the hurdle does become more difficult to overcome in terms of getting a time extension from the courts, making an application to the courts to extend that time period.

The two factors that we are effectively looking at are: is there a level of prominence that is higher than the one that was previously given; and is the extent of the subsequent publication perhaps more prominent than the first one? If you do not reach those two thresholds then potentially you are faced with a hurdle in terms of getting your application for an extension of time increase granted or approved.

The Hon. R.I. LUCAS: I am not sure that I can add too much more that will provide additional clarity and benefit for members, other than to say that I am advised that one of many examples that might be used in a particular argument that an individual might have might be, for example, in the example the Leader of the Opposition has given that someone is living in Tasmania and might be doing business in Tasmania and all their friends and acquaintances are in Tasmania, therefore the publication of exactly the same material in Tasmania is likely to do more reputational damage to an individual who is living and working in Tasmania as opposed to exactly the same article having been published 18 months earlier in Toowoomba, where no-one in Toowoomba knows who Kyam Maher is, or wherever it might happen to be. It might well be one of a number of issues that might be able to be pursued by an individual under this particular provision. I am told there are many possible examples, but that might be one example.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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