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Defamation Amendment Bill 2020

Published on: August 2020

Record: HANSARD-1323879322-111960

Defamation Amendment Bill 2020

Second Reading Debate

Debate resumed from 29 July 2020.

Mr MARK TAYLOR (Seven Hills) (10:23):

:00 It is a pleasure to speak in favour of the Defamation Amendment Bill 2020 that the Attorney General introduced on Wednesday 29 July 2020. The bill seeks to amend the Defamation Act 2005 and the Limitation Act 1969 to implement changes to Australia's uniform defamation law as agreed by the Council of Attorneys-General. In essence, the bill is all about modernising defamation law in New South Wales to reflect journalism in the digital age. It is clear to me that the bill is indicative of the Government's commitment to ensuring that the laws of this State reflect our modern society. That is particularly important when case law begins to drift from community expectations. It then begs the question: How do the reforms contained in the bill respond to the increase in digital communications?

To answer that question, we must go back to 2005 when the State and Territory Attorneys-General agreed to a uniform national approach to defamation law through the adoption of the model defamation provisions. Of course, a lot has happened to technology and communications since that time. For example, in 2005 Myspace turned down an offer to purchase Facebook for a mere US$75 million. Today, Facebook's market capitalisation is around US$660 billion. The laws in 2005 came several months before the first-ever tweet and before a person could be defamed in 140 characters—or, as it is today, 280 characters. According to a 2018 report from the Centre for Media Transition at the University of Technology Sydney, over half of all defamation cases in New South Wales concern digital defamation. The landscape has changed since the model defamation provisions were agreed to. I commend the Attorney General for recognising that the media landscape has evolved and for asking the Council of Attorneys-General to reform the model defamation provisions. The Attorney General asked the Council of Attorneys-General to agree to reform the provisions so that they are fit for purpose in the digital age.

Dow Jones & Company Inc v Gutnick

A major hurdle in the digital age of media that simply did not exist in the analogue age is the problems that exist with respect to the multiple publication rule. A key reform in the bill that reflects the digital age is the proposed introduction of a single publication rule. A cause of action in defamation arises when defamatory matter is published by the defendant. More specifically, [2002] HCA 56 provided that publication occurs when defamatory matter is received in a communicable form by at least one third party. Section 14B of the Limitation Act 1969 provides that a person who has been defamed has one year from the date of publication to commence proceedings. It is simple, therefore, to start the clock on the limitation period for print, radio or TV where the date of publication is fixed.

However, for online material the one-year limitation period begins each time a third party downloads the publication. This means that if a publication exists online then each time there is a subsequent download of the publication the one-year limitation period starts again. If material is downloaded repeatedly a publisher is potentially exposed to indefinite liability. The limitation period is therefore ineffective for digital publications which remain accessible online, as is the case with most publications in the digital age. As webpages may be downloaded many thousands of times, this means there is a separate cause of action for each download and the limitation period applicable to each download will vary even though the same matter is involved. This may enable plaintiffs to circumvent the purpose behind the limitation period by relying on later downloads of the same matter, which may occur many years after the webpage was first uploaded. This is known as the multiple publication rule.

Many stakeholders have raised concerns about the multiple publication rule, arguing that it is ill-suited to the digital age. Some of the main concerns were: firstly, digital publication and online archiving create a potentially endless limitation period as material may be stored, repeatedly downloaded and therefore published for the purposes of defamation for an indefinite period; secondly, there are evidentiary difficulties for publishers responding to a claim if material is downloaded long after the date of upload; and, thirdly, whether the publication is digital or not, plaintiffs should be required to bring a suit promptly before the courts. The solution to the multiple publication rule as embedded in the reforms in the bill, is to introduce a new single publication rule. It is based on section 8 of the United Kingdom Defamation Act 2013 and applies if a person:

first publication

(a)publishes a statement to the public (the ); and

(b)subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.

The single publication rule will mean that the applicable one-year limitation period runs from the date of first publication only and not the date of every subsequent download or publication. For electronic publications, the date of first publication will be the date of upload. This is a more certain marker than the date of download, and reflects the approach taken for traditional print, radio and TV media.

During consultation most stakeholders strongly supported the introduction of a single publication rule similar to the approach taken in the United Kingdom. Ireland and several United States jurisdictions have also had a single publication rule from the date of first publication. Under the single publication rule the date of first publication will be treated as the start date for the limitation period and for all subsequent publications unless a subsequent publication is materially different from the first publication. In determining whether the matter of the subsequent publication is materially different from the matter of the first one and whether new limitations should apply, the court may have regard to the prominence the matter is given and the extent of the subsequent publication.

To address circumstances where a defamed individual could not reasonably bring an action within the one‑year period—for example, the aggrieved person only became aware of the publication after more than one year—the bill also broadens the test for extending the limitation period to a maximum of three years. It is quite right that this is contained in the bill as a safeguard for this particular purpose. The limitation as provided in this bill may be extended in circumstances where the plaintiff satisfies the court it is just and reasonable to allow an action to proceed.

In determining whether the extended limitation period for a period of up to three years, running from the date of the publication, the court is to have regard to all the circumstances in the case but in particular, first, the length of and the reasons for the plaintiff's delay; secondly, when the plaintiff became aware of the matter; thirdly, the extent to which the plaintiff acted promptly and reasonably once they became aware; and, fourthly, whether evidence is likely to be available or less cogent than if the action were to be brought within the limitation period. This will provide a court with greater flexibility and ensure that aggrieved individuals are not unfairly disadvantaged by the new single publication law while at the same time ensuring that publishers are not exposed to indefinite liability for defamation procedures for digital publications.

In closing, I congratulate the Attorney General and the team in his office on the preparation, carriage and oversight of this bill. As I have said, if the bill is enacted it will ensure that the laws of this State with respect to defamation are appropriate for journalism in this digital age. Similarly to the submission by the Attorney General prior to the mentioning of this bill, the Attorney General in this case is making sure that the laws of this great State are modern and cater for our modern society in New South Wales. I commend the bill to the House.

Mr ALISTER HENSKENS (Ku-ring-gai) (10:32):

:32 I am very happy to speak to the Defamation Amendment Bill 2020. Those who know me know that I have a concern with regard to the freedoms in a democratic society. There is no core freedom; there is a range of core freedoms. But one of those core freedoms is, of course, the freedom of expression. The freedom of expression is not an absolute freedom, as with many freedoms within our society. The freedom of expression is not absolute because there is a number of exceptions to unbridled freedom of expression, such as the laws of sedition, the laws of defamation and so on.

When we talk about the laws of defamation there is an important balance between the protection of individual reputation on the one hand, and freedom of expression on the other. What the law of defamation tries to do is provide an acceptable balance between, on the one hand, protecting unfair and unjustifiable attacks on people's reputation that can cause them great financial and psychological harm and, on the other hand, ensuring that we have a society in which people can freely raise matters of public importance so that there can be an appropriate degree of transparency within our community. This balance between the two competing interests of reputation and freedom of expression has been a struggle that has gone on for many hundreds of years.

New York Times v SullivanAustralian Bar Review

I first started to look in some detail at the laws of defamation in about 1987 when I came to write my master's thesis, which was a comparison between the American first amendment protections—particularly jurisprudence, which started with a famous case called —and how political freedom of expression was allowed in New South Wales having regard to our then Defamation Act 1974. That caused me to write an article in about the late 1980s on investigative journalism and the laws of defamation in New South Wales, which was published in the . Ultimately, I was called before a parliamentary inquiry into the laws of defamation in the early 1990s. In fact, I was reminding the health Minister only yesterday that he subjected me to some fairly vigorous questioning. I think the tenor of the questioning was because I was promoting the rights of the media more aggressively than perhaps the health Minister then thought was appropriate.

The article that I wrote in the late 1980s about statutory qualified privilege and investigative journalism essentially made the point that, although we had introduced in the 1974 Defamation Act a defence of statutory qualified privilege that allowed the media to rely upon the notion of reasonableness as to publication, in fact that defence had never succeeded to that point in time. Even to this point in time, although that defence was effectively put into the 2005 Act, it has had very little success. One of the innovations under the bill before the House is the new section 29A, which is proposed to be inserted into the Act. That new section takes away an emphasis under the current statutory qualifier of privilege on the reasonableness of the process of publication and replaces it with a two-pronged test under subsection (1) of the new section 29A, which is that there will be a defence for the publication of defamatory matter if the defendant is able to establish two things.

Chappell v TCN Channel Nine Pty Ltd

The first thing is that the matter published concerned an issue of public interest. It is important to understand that in the court drew a very important distinction between matters that are of interest to the public, which can often relate to people's private lives—their private sexual activity, for example—and matters that are of public interest in a legal sense. Matters that are of interest to the public may not truly be of public interest. The second element of the proposed new defence under new section 29A is that the defendant must reasonably believe the publication was in the public interest. The emphasis has become on the reasonableness of that belief as opposed to the former defence of statutory qualified privilege, which looked at the reasonableness of the process of publication. The new defence in new section 29A contains some very important protections so that it cannot be abused by publishers. Some of those limitations are particularly relevant to the mass media.

One of the considerations which the court may take into account in determining whether the offence is established is the seriousness of the imputation alleged against individuals. For example, very serious allegations will obviously require a higher degree of journalistic conduct informing the reasonable belief in the public interest as against perhaps less serious allegations against an individual. In matters of seriousness I expect it will be the case that courts will require a reasonable belief to be strongly based upon proper research and material because, as the courts have said on many occasions, there is no public interest in publishing serious false defamatory allegations against people without any reasonable investigation or factual foundation. That is just an unreasonable attack upon somebody, possibly causing them great harm, without any reasonableness as a foundation.

Other matters that may be taken into account under subsection (3) of proposed section 29A include the extent to which the published material clearly distinguishes between matters which are suspicions, allegations or proven facts. Where there is doubt, that must be clearly stated rather than conveyed as being matters of truth. Other considerations include whether the matter published relates to the performance of the public functions or activities of the person—there is a clear distinction between people's public activities and functions and their private activities—and whether it was in the public interest in the circumstances for the matter to be published quickly. In other words, the deadlines of the media cycle will not always excuse sloppiness in an investigation.

Extension of time

The integrity of sources is another matter that needs to be taken into account. There is a list of the sorts of matters that must be taken into account which are reasonably protective of individual reputation but would still facilitate matters being aired in the public interest appropriately, and I have gone through some of them. This is a defence that has some background and antecedents in the United Kingdom, Canada and New Zealand. []

Reynolds v Times Newspapers Limited and Others

There is a quite famous decision of the then House of Lords in in 1999. It is an important new defence. Time will tell whether the media will be able to avail themselves of this defence. It is important that an attempt is made to improve the balance between reputation and freedom of expression in our country. I raise one final matter. The bill continues a restriction on some corporations being able to sue for defamation. I have continuing reservations about whether such restrictions are appropriate as they are wholly based upon the number of employees of the corporation.

I have a long experience with the laws of defamation. I have appeared in defamation cases in the District Court, the Supreme Court, the Court of Appeal and the High Court. I have had experience in the area since 1987, having represented large media organisations and individuals. I tell members that the range of circumstances within the community and the range of circumstances in which people can be defamed means that there are occasions when there are corporations that are badly damaged through careless defamation. Australia is the only country in the world that I am aware of that stops some corporations from being able to sue when they are defamed. This is a matter which regrettably has not been addressed in the bill and needs further consideration by the Government. With that caveat for potential future reform, I commend the bill to the House.

Mr RON HOENIG (Heffron) (10:45):

:30 I make a brief contribution to the Defamation Amendment Bill 2020. The member for Liverpool has indicated the Opposition's position on the bill that Labor does not oppose it and I endorse his remarks in their entirety. Several weeks ago a well-respected Fairfax journalist, now Channel 9 media journalist, attended an event in Parliament House organised by the Speaker where he observed the changing media landscape. I cannot do justice to his words but the meaning of his assertions was that in the current media landscape the days of three families and the ABC deciding what society heard and did not hear are over. Everybody with a smart phone is now a publisher and the audience for all those citizens who are now publishers is 17 million or 18 million Australians.

The issue is how does one ensure the balance between freedom of expression and guarding people's reputation. Our common law freedoms have been handed down to us from English history and the most fundamental is freedom of expression and freedom of speech. It cannot and should not be burdened in any way when it comes to protecting people, other than for certain exceptional reasons, as were referred to by the member for Ku‑ring‑gai. One could add hate speech, for example, which is a burden on freedom of speech and freedom of expression. Freedom of speech and freedom of expression means that people are entitled to be wrong. They are also entitled to express a different political view to that of others and to be offensive in their freedom of expression.

In his second reading speech the Attorney General observed the greatest asset that people have is their reputation. Many people jealously guard their reputation and it can easily be removed by a defamatory publication. On the other hand, the balance of freedom of expression and freedom of speech is to ensure that in a democracy such as ours the media and their interests continue to carefully scrutinise governments and oppositions of the day on their activities and their approach to public policy. Whilst there might have been three families and the ABC who were the only people determining what knowledge Australians had of government affairs, by the same token, as a result of what is generally referred to as the rivers of gold—the income derived by those media organisations—they could invest considerable funds and resources into investigative journalism to report and publish material with detailed research that would hold those in government to account.

Unfortunately, with the change of the media landscape, those revenues are no longer there and the volume of people employed in those major media publications continues to diminish. That means that governments and the powerful are not being held to account or scrutinised to the extent that they were. With the closure of most local papers, we now are in a situation where local governments have no public scrutiny at all of their activities. If one goes back 20 years and sees the extent of the scrutiny of, for example, the New South Wales Government and compare that to the extent of scrutiny of the Government now, specifically by media organisations, that is probably one of the things that the Attorney General and, in fact, all the jurisdictions in Australia were seeking to address when it came to determining the extent of damages that are being awarded against media organisations.

However, I venture to say that in respect of defamation caps and those huge verdicts to which the Attorney General referred, most of those and most of the extent of the verdicts relate to economic loss. For example, looking at the Geoffrey Rush and News Corp case, we see that the greatest extent of that verdict related to Mr Rush's economic loss. The same applies to the Wagner case. There is a need to cap defamation verdicts; otherwise we may end up with no effective media oversight of government if media organisations continue to reduce or if they cannot afford to continue to scrutinise the activities of government. The bill tries to present a balance and seeks to remove much of the non-serious matters from defamation cases by imposing a serious harm threshold that plaintiffs need to pass before they can proceed to trial. That is, someone's reputation must be seriously harmed and one cannot maintain a cause of action if one is simply offended by a particular publication. That is an important threshold test.

The other important change to the Defamation Act is to replace the qualified privilege defence with a public interest defence. It is important that publications have as a defence, if they can establish it, that the publication is in the public interest. There are many occasions when the public have a right to know about serious publications that may impact upon a person's reputation or integrity. But if it is in the public interest to know, then that is certainly an important defence to protect genuine publications and to protect the work of genuine journalists whose function it is to expose those things that are in the public interest to know. However, the public interest test requires that those who publish act reasonably. Whilst sources should be protected to enable the public interest test to be available, someone is not acting reasonably if they use as a source somebody who is not credible or somebody who clearly has their own personal motives to assert what they are asserting to a journalist. So public interest is important.

Extension of time

I will give an example of another issue that relates to public interests. When the New South Wales Bar Association holds its continuing professional development seminars, there is always one on defamation. Many of those at the bar who have to attend at the last minute to catch up end up attending the defamation presentation, even though they may not have practised in that field. One typical example is often used, which is clearly defamatory and in which a public interest defence would not be available. []

The example used is the assertion about David Campbell that was broadcast when he was a Minister of the Crown shortly before the State election in 2011 which required him to stand down. That publication exposed his sexual preference, which had nothing at all to do with his duties as a Minister of the Crown and certainly was not in the public interest because the broadcaster would not have been able to reasonably establish that there was any wrongdoing by the Minister. So a public interest test is quite fundamental, as distinct from the defence of qualified privilege. The member for Ku‑ring‑gai mentioned his concern about restricting corporation plaintiffs to either small businesses, based upon the number of employees, or, alternatively, non-profit organisations. I perceive one valid reason to limit corporations bringing proceedings and that is simply the extent of their economic ability to utilise access to courts and to silence an opponent or even to pressure publishers or broadcasters not to run particular matters. So it is one of the checks and balances that are in place.

When the 2005 Act was enacted, one of the objects of that Act was to provide for speedy and quick resolution to defamation proceedings. Of course, as members know, that never eventuated. Most of the people who participated prior to the use of all these electronic publishers were those who could afford it—because the costs of instituting proceedings were tens if not hundreds of thousands of dollars—or, alternatively, those who were so personally offended by a particular remark that they were prepared to lose everything to speculate in respect of proceedings. In order to try to bring the object of the 2005 Act to fruition, this bill proposes new sections 12A and 12B, which set out the provisions for serving a notice of concerns upon publishers to specify what is asserted to be the defamatory material and to facilitate settlement of those matters.

At times publishers do not like to admit that they are wrong—it is only human nature—and people get offended by the slightest criticism bestowed upon them. That does not make it defamatory. It seems to me that most matters can be resolved amicably by the service of a notice and that if both parties agree to deal with these matters in a rational way then much of the proceedings should be able to be avoided. There is no skin off a publisher's nose to publish either a retraction or a qualification. In those circumstances these matters could be resolved far more amicably. The bill provides for defamation proceedings not to be commenced without such a notice and that may well cause proceedings to be resolved. As I indicated, Labor does not oppose the bill but the provisions need to be monitored to ensure that they work as the attorneys in this country hope they will.

Mr JUSTIN CLANCY (Albury) (11:00):

:42 The Defamation Amendment Bill 2020 seeks reforms to assist with clearing the courts of trivial and vexatious claims arising out of petty social media and neighbourhood disputes. Recent years have seen a significant rise in the filing of defamation proceedings over trivial and vexatious social media disputes, often between neighbours or in community forums. In his second reading speech the Attorney General referenced a study which found that superior courts in Sydney considered defamation more than 10 times as frequently as in London between 2014 and 2018. In that period there were 268 references to defamation law in the decisions of superior courts in the United Kingdom, compared with 577 in Australia. Of those 577 references, 312 came from New South Wales. It is for this reason that Sydney is now regarded as the defamation capital of the world.

Defamation laws have not kept up with the development of mass online communications where everyone can publish their thoughts every day and night. Members of Parliament on all sides will be aware of how vicious many of these thoughts can be. As the Attorney General said in his second reading speech, "social media has democratised defamation". A 2018 report by the University of Technology, Sydney, the Centre for Media Transition, found that it is becoming more common for private individuals to be the plaintiffs in defamation actions. The report also found that in 2017 more than 50 per cent of defamation matters involved digital publications such as social media posts.

Defamation law is supposed to maintain a balance between reputation and freedom of expression. If a person's reputation has been seriously harmed, then they should have recourse by way of defamation law. However, the threshold for bringing a defamation action has been too low. Some people have spent years in court defending a comment or post online they made spontaneously and from which the actual harm suffered was really not all that great. There is a difference between hurt feelings and actual reputational harm. Defamation law should focus on the latter. Courts are not a forum for mere hurt feelings. Trivial disputes about minor social media posts are not the best use of our courts' time. Litigation is stressful, time consuming and expensive. Defamation litigation should be restricted to resolving disputes about reputational harm.

The bill seeks to modernise the model defamation provisions to be better suited to digital communications and to streamline the resolution of defamation complaints generally. One of the key amendments introduced by this bill includes the introduction of a new serious harm element to the tort of defamation. This means that the plaintiff must prove that the publication caused, or is likely to cause, serious harm to them. This is an important correction for the model defamation provisions [MDPs]. Prior to the introduction of these provisions, plaintiffs had to prove material loss, known as "special damage", to bring a suit in relation to a potentially slanderous publication. However, the MDPs did away with this threshold, providing that all publications are actionable without proof of special damage. While defendants could rely on defences, this did not stop litigation in the first place.

As the explanatory note to the bill makes clear, the purpose of the proposed serious harm threshold procedure is to encourage the early resolution of defamation proceedings by enabling this to be dealt with as a threshold issue. The serious harm threshold has already been introduced in the United Kingdom and is regarded as having operated successfully. Section 1 of the Defamation Act 2013 of the United Kingdom requires a plaintiff to prove in an action for defamation that the defamatory publication has caused, or is likely to cause, serious harm to the reputation of the plaintiff. The approach taken in this bill is consistent with the approach taken in the United Kingdom.

As far as possible, where are raised by a party, the court will be required to determine the serious harm question before the trial in the early stages of proceedings. It is intended that matters which do not reach the standard of serious harm will be filtered out early, saving both time and costs. The court can determine that a publication, by its nature and in the context of the publication, is likely to cause serious harm. For example, if the type of allegation made against a person is very serious a court may find that it is likely that the publication is likely to cause serious harm to the person's reputation. The person does not have to show that serious harm actually occurred.

In the bill there is no definition of "serious harm". This will be for the courts to determine in the circumstances of each case. What is serious harm in any case will depend on a range of factors that the courts already use to look at damages in defamation.For example, the court could look at seriousness of an allegation or claim on its face, the size of the audience and other factors. A plaintiff can, but does not have to, bring evidence of actual harm such as loss of job opportunities caused by the publication. In the online context, the court may consider whether the publication "went viral" or whether there is likely to be a grapevine effect of people retweeting or reposting the defamatory material.

As the explanatory note to the bill makes clear, the principal features of the serious harm threshold

procedure are as follows: the judicial officer is to determine whether the element is established rather than the jury, if there is one; whether the element is established can be determined either before trial or during the trial of defamation proceedings on the judicial officer's own motion or on the application of a party; and if a party applies for the element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings, including during the trial. I congratulate the New South Wales Attorney General and the Council of Attorneys-General for listening to stakeholder feedback and for including this provision in the model defamation amendment provisions this bill seeks to implement. I commend the bill to the House.

Ms JENNY LEONG (Newtown) (11:08:35):On behalf of the Greens I contribute to debate on the Defamation Amendment Bill 2020.The bill amends the Defamation Act 2005 and the Limitation Act 1969 to implement changes to Australia's uniform defamation law as agreed by the Council of Attorneys-General. The proposed reforms include:providing that serious harm is an element of the cause of action andrequiring that, if raised by a party, the question of serious harm is generally to be determined by a judicial officer as soon as practicable before trial; making it mandatory to issue a concerns notice before proceedings can be commenced andto clarify the form, content and timing for concerns notices and offers to make amends; introducing a new defence for the publication of defamatory matter concerning an issue of public interest, based on section 4 of the United Kingdom Defamation Act 2013; and introducing a new defence for peer-reviewed matters published in academic or scientific journals. They also include introducing a single publication rule, so the one-year limitation period runs from the date of first publication. For online publications, this is the date of upload. This may be extended if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed. Lastly, clarifying that the cap on damages for non-economic loss operates as a scale not a cut off.

The Greens agree that defamation law needs to be reformed. While we support the changes provided for in this bill, we do not feel that they go to the heart of the problem and significantly rebalance the scheme in a way to achieve all of the changes that are needed. We recognise that this is a challenging and difficult space. As members have heard, things have moved very rapidly in this space from when these laws were first put in place to where we find ourselves now, with what has been described in other forums as the democratisation of the ability for people to engage in and be subject to defamation in a way that once upon a time would have been the privileged space of certain media outlets, owners of the printing press and other such activities.

We recognise that these changes are needed and support them. However, we say that more changes are required and more work needs to be done. The change to the scheme that requires the establishment of serious harm may work to limit some inconsequential or unmeritorious use of the system. Likewise, the requirement to issue a concerns notice may lead to some smaller matters settling, thereby freeing up court time. We also support the single publication rule, which will mean the limitation period expires a year after the first publication of the content and is not reactivated by republishing that material online. We all know that defamation action is largely the privilege of the rich, well connected and powerful, and that the regular person often has a very hard time receiving anything near justice if they are publicly defamed. The provisions on online defamation are still being formulated. These are going to be a very significant aspect of this scheme and this space into the future.

In theory, these laws should strike a sensitive balance between the protection of the reputation of individuals from unfair slurs, and the rights of freedom of expression and freedom of the press. I appreciate that it is slightly outside the scope of the bill, but it is worth noting here that further consideration needs to be given to the powers and strength of vilification laws in this State and other laws regarding vilification that seeks to cause significant amounts of harm and damage to people's reputation that may not be on an individual basis, but as a result of their association with certain communities, groups or issues. I urge the Attorney General and others who are putting effort into this to consider the prevalence of racial vilification, racial harassment and racial attacks in our society. I urge them to ensure that enough attention is being paid to that space.

It is clear that this balance is not currently being achieved. There is substantial concern that the laws have been used in Australia to shut down legitimate reporting of behaviour and misconduct of certain public figures, including coverage and reporting of sexual harassment and sexual assault. While I do not want to go into detail about the case in relation to Geoffrey Rush, which has been mentioned on numerous occasions, I think it must be pointed out. I acknowledge the comments made by Jamila Rizvi in relation to this, who wrote:

It's important to remember that Rush's victory is one over defamatory reporting.

Media Watch

Much of the complexity around how that case was reported demonstrates the absolute failures of so many in our society who engage with these systems to respect the consent of women, in terms of them being brought into these discussions and then as survivors and victims of harassment and assault. Instead, they turn these cases into powerful players trying to battle it out for their own position. We forget that at the heart of this are issues of serious allegations and serious findings of concerns of sexual assault and sexual harassment. As Paul Barry from ABC's program commented:

… any future victim of sexual misbehaviour who is genuine and wants to make a complaint to the newspapers, or any newspaper that wants to write about such a thing, will be severely discouraged from doing so because the consequences are just so extreme.

We also know that threatening defamation is a common response for some political figures. It is used by those who wish to silence criticism and do what they can to prevent damaging albeit truthful comments. I am sure that many members in this place could talk about personal examples where they have been the subject of such threats or have had other issues of people coming down on them on one side of this debate or the other. I do not feel like having a scandal today, so I am not going to talk about a recent incident involving a member in the other place in relation to an attempt that I made to express my views and their attempts to use these laws to silence me. I just do not feel like having that battle today—and that is part of the problem. I am sure that member will be very relieved. Part of the problem that we have in our society is that we need to make sure that people are free to express views and that those in powerful positions are unable to use their positions to silence people and shut down genuine views.

We do not actually know how much defamation law impacts on what is reported, how many dodgy donations or other financial dealings have been hidden because of a conservative approach to the law by a publisher. We also need to consider the number of recent cases where media companies have been ordered to pay large compensation payouts following defamation proceedings, despite significant reliance on public statements and the facts available to them. The need for a national model is strongly supported by The Greens. A person's access to a legal remedy when they are defamed should not depend on their postcode. Similarly, a person's ability to be able to defend a comment that they have made should not rely on their ability to be able to take up a response to that from a legal perspective because the other side has much more power, much more access to wealth and, therefore, the legal support to be able to silence them.

Finally, I think it is important to recognise that too often the real harm caused in defamation proceedings is not the final judgement or any damages that are awarded. The greatest financial impact of most defamation proceedings is the crippling legal costs that are often three, four or five times higher—sometimes even more—than the damages awarded. This must be the focus of any future legal reforms if we want this law to work for all people in our community. We hope the work done in this area is just the start, and that a comprehensive reform by the NSW Law Reform Commission is undertaken to rebalance these laws.

A person's access to justice or ability to express their views without being silenced should not be dependent on their ability to engage and pay for high‑end lawyers. That is not equality, when it comes to how we are working with this system. While I have expressed that The Greens are supportive of the changes before the House in the Defamation Amendment Bill, I urge continued work in this space to ensure that we see the changes needed in this continually changing landscape to make sure that the community is protected and it is not just those with the wealth to be able to pay for big lawyers who benefit from these kinds of protections and laws.

Mr LEE EVANS (Heathcote) (11:18):

:01 I contribute to debate on the Defamation Amendment Bill 2020. The reforms will encourage the resolution of disputes without the need for litigation. One of the objectives of the Defamation Act 2005 is promoting speedy and non-litigious methods of resolving disputes. Consultation with stakeholders on the review of the Model Defamation Provisions highlighted that defamation law is increasingly being used for trivial or vexatious claims. This includes neighbourly disputes and instances where individuals sue for comments made on digital platforms.

This is a problem because it places undue pressure on our courts. Some matters are relatively minor, with low damages, but result in disproportionately high legal costs for both the plaintiff and the defendant, and should be resolved outside the court system. Often the cost of defending a defamation claim can be exorbitant and prohibitive for a private individual. While the introduction of a serious harm threshold is critical to addressing this problem, more can be done to encourage and incentivise non-litigious dispute resolution so, where possible, parties can resolve their disputes without going to court. Part 3 of the Act already establishes a procedure to enable parties to settle disputes without the need for expensive litigation by encouraging publishers to make a reasonable offer to make amends to the aggrieved person. If the aggrieved person does not accept an offer that is reasonable in all the circumstances, the publisher may establish a defence in any subsequent defamation action. However, issuing of a concerns notice by the aggrieved person currently is not mandatory. This is an issue because the offer to make amends, which may be a sufficient remedy for the aggrieved person, is made in response to the concerns notice. If the latter is not provided, the former may never be made.

The amendments are intended to keep matters out of court. This bill proposes to strengthen and enhance the dispute resolution mechanisms in the Act thereby reducing the number of disputes that proceed to litigation. The bill provides that defamation proceedings cannot be commenced unless a concerns notice has been issued. The amendments in the bill will make it mandatory for an aggrieved person to issue a concerns notice. This means an aggrieved person cannot commence defamation proceedings in court unless they have given the proposed defendant a concerns notice that particularises the imputations of the defamatory material and they have waited for the applicable period of time proposed for the defendant to make an offer of amends, which is usually 28 days. The court may grant leave for proceedings to be commenced earlier than the applicable period if it is just and reasonable to do so, or the commencement of proceedings after the applicable period would contravene the limitation law because the court will have ceased to have power to extend the limitation period. These requirements enhance the dispute resolution procedures in the Act by requiring the parties to consider the purported defamatory material and possible non-litigious remedies before commencing proceedings in court.

The bill also strengthens the concerns notice provisions. The bill amends the Defamation Act 2005 to provide that the concerns notice must specify the location where the matter in question can be accessed—for example, a webpage address; inform the publisher of serious harm to reputation caused, or likely to be caused, by the publication or, if it is a corporation, the serious financial loss caused, or likely to be caused, by the publication; specify the imputations to be relied on by the aggrieved person; and, if practicable, provide the publisher with a copy of the publication together with the notice. The requirements mean the aggrieved person must provide the publisher with sufficient information on which to make a reasonable and relevant offer of amends, thereby making it more likely that the issue can be dealt with outside of court.

The requirements encourage the aggrieved person to turn their mind to the serious harm threshold at the time of preparing the concerns notice and therefore encouraging them to consider whether the matter is likely to satisfy the essential element of serious harm to their reputation. An aggrieved person also will be required to specify the location where the matter in question can be accessed—for example, the webpage address. This is to address the challenges identified by stakeholders in identifying the publication that is the subject of a concerns notice. The process for receiving and responding to reasonable further particulars also will be clarified. If a concerns notice fails to adequately particularise the information required, the publisher may give the aggrieved person a further particulars notice requesting that the aggrieved person provide reasonable further particulars.

If the aggrieved person has provided further particulars in response to a further particulars notice more than 14 days since the concerns notice was given, then the publisher will have 14 days from the date of receiving the further particulars in which to make an offer of amends. This extends the 28-day period for making an offer to make amends if the further particulars are provided within 14 days of its expiry. The extension applies only once in respect of the first request for reasonable further particulars. The limitation period will be automatically extended in certain circumstances to allow the dispute resolution process to be completed before proceedings commence.

Some stakeholders suggested that protection should be provided to the aggrieved person to ensure that the limitation period does not expire while the dispute resolution process is running; otherwise the aggrieved person may have no option but to commence proceedings prior to the completion of the process. To address this, the bill provides a one-year limitation period to be automatically extended to provide the proposed defendant time to consider the concerns notice and the aggrieved person to consider any offer to make amends. The period of extension is calculated by subtracting from 56 days any days remaining after the concerns notice is given until the one-year limitation period expires. These amendments to the defamation law will encourage the speedy and efficient resolution of defamation claims wherever possible before legal actions are commenced.

I congratulate the Attorney General for preparing the Defamation Amendment Bill 2020. I look forward to further amending legislation to assist courts so that matters may be expedited and are not held up by unnecessary defamation cases. I commend this amending bill to the House.

Ms KATE WASHINGTON (Port Stephens) (11:26):

:24 I join in debate on the Defamation Amendment Bill 2020 and note the considered contributions of the Attorney General and the shadow Attorney General. As my colleague the shadow Attorney General outlined, Labor members will support the bill, which is the result of a cross-jurisdictional working group established by the Council of Attorneys-General. I note the calibre, standing and experience of those who have contributed to the formulation of this bill and the changes that are sought to be made to New South Wales defamation laws and thank them for their contribution to the changes being considered by the House today.

Defamation laws are important. Their aim is to strike a balance between the right to protect our reputation and our right to free speech and expression. This balance is important for a strong and well-functioning democracy. The reason for discussing significant amendments to the current defamation laws is that the balance is way out of whack. Because it is so easy for claims to be brought, the current law is being used in ways that were never intended and has impacts that were entirely unintended, and that must be stopped. Increasingly the laws have been used by wealthy and powerful people to silence critics. They have become an additional barrier to people seeking justice, people calling out corruption, people raising allegations of sexual assault and people simply calling out bad behaviour.

Australia is well known for its wide brown lands but unfortunately we have also become known as the defamation capital of the western world with New South Wales being the peak place for people to bring defamation lawsuits. Most of the defamation actions and discussions centre around Sydney but I have seen how the trend to sue for defamation is rife in regional areas too. Since current New South Wales laws of defamation were introduced in 2005 there has been a marked rise in defamation claims—an increase that has mirrored the rise in social media. In 2018 the University of Technology Sydney's centre for media transition reported that it is becoming more and more common for private individuals to bring defamation actions and that in 2017 more than 50 per cent of defamation matters involved digital publications. That is a tripling of those types of cases since 2007, which is unsurprising given the increasing uptake and use of social media.

But our laws have failed to keep up with the development of social media and digital communications. Correction is well overdue. Under the law as it currently stands people have been paying too high a price for telling the truth.

With everybody now having the power of publication at their fingertips, it is important that we get the balance right. For too long defamation has been used as a tool by the wealthy and influential to silence critics and shield their misdeeds from public view. It has been wielded against members of the public and against journalists in equal measure. It is in this Chamber, outside the jurisdiction of defamation law, where I have had the ability to call out the behaviour of powerful and vindictive people in my community. Others outside of this Chamber have not had that benefit. They have not had the protections that we are so fortunate to have in this place and that we use carefully and very rarely.

Instead of having those protections when others have mentioned similar activities, as I have in this place, they have been forced to incur eye-watering legal bills—all because they told the truth. I know of local families brought to their knees financially just for calling out bad behaviour. In many circumstances a defamation matter never makes it to trial as the cost is too much even for an innocent person to bear. Instead matters are settled, nondisclosure agreements are signed, payments are made and apologies issued—even though they are not necessarily backed up by goodwill, as they know they were telling the truth—and information is deleted. The truth is not debated; it is too expensive. That is the system we currently have. That is why these changes are so important.

In considering the bill before the House and, in particular, the introduction of a serious harm threshold, the notion of a public interest defence and the honest opinion defence, I ask members to consider how those amendments would have influenced cases that proliferated in Port Stephens courtesy of a former mayor. This man's poor character and many misdeeds are a matter of public record, yet he took defamation proceedings against a fellow councillor, a councillor from another local government area and two local residents. As a wealthy man and an elected official, he was in a position to fund these legal actions himself. The two councillors were covered by the council's insurance but the two residents were self-funded against this wealthy and influential public official.

What was so insulting and damaging to the character of the former mayor that a defamation action was warranted? In one case, during a discussion about forced council amalgamations, a Port Stephens councillor sent his honest opinion of the mayor to a councillor on the council with which they were proposing to merge. That councillor forwarded the email to a few colleagues. That was the substance of a defamation action. That occurred during the heat of this Government's forced council amalgamations. Another matter concerned an unrecorded debate in the council chambers, resulting in a defamation action against the same councillor. The former mayor relied on witnesses, many of whom the former mayor had helped to elect. The toll taken on the sued councillor and his family was intended, malicious and by design.

In the third action a local resident was sued about a Facebook post in which she reported what she had seen at a local awards night involving the former mayor and the inappropriate behaviour that she had witnessed. Another resident, a political candidate running against the former mayor, was sued for defamation for sharing that Facebook post on his site. It was a simple Facebook post by a member of the public, without any political background or political intention, who was merely calling out behaviour that she saw as inappropriate and she was sued for defamation. It nearly caused her family to break apart and the loss of her home. To my mind all three of these cases were based on comments made in the public interest and involve the honest opinions of those involved.

The changes being discussed today, if implemented, would mean that these three defamation situations would not meet the threshold test for serious harm to reputation. In this case, the plaintiff's notoriously poor character and many breaches of community standards are well documented to larger public audiences than those involved in the actual claims. I am hopeful that these reforms would have resulted in those defamation actions not seeing the light of day. We should remember that for the wealthy and powerful a courtroom win is often not the goal. For the wealthy and powerful, the threat of defamation itself is frequently used to silence those who cannot afford the cost, time or stress to defend their comments or the truth.

These plaintiffs often do not care what the judge will eventually say because they know that they can withdraw the allegation at any point. What they seek to do is to create fear in those who are prepared to stand up to them. They issue this threat and make the process so expensive that it does not matter how true, accurate or important the issue, the person will not risk their future to defend it. We must ensure that those who seek to use defamation laws as a weapon, as a threat, are prevented from doing so. These amendments are a step in that direction. When my political opponents realised that I had a chance to secure the electorate of Port Stephens in the 2015 State election, I was threatened by four different people with defamation actions. The threats were designed to intimidate.

The amendments being considered today will go a long way towards improving the current defamation process. Goodness knows, it is needed. The ability to test the serious harm threshold early in proceedings will bring a quick resolution to vexatious actions. Hopefully these amendments will go part way towards restoring the balance between freedom of expression and the protection of reputation. I am pleased that the Attorney General has mentioned in the House his continuing work focusing on the liabilities and responsibilities of digital platforms for content published online. I join with my Labor colleagues in supporting this bill. I trust that further improvements to the defamation process will continue.

Ms FELICITY WILSON (North Shore) (11:36):

:26 I speak in support of the Defamation Amendment Bill 2020. I acknowledge the work of the Attorney General and the leadership position he has taken in implementing the decision of the Council of Attorneys-General last month. I will talk about the reform process and the nature of this bill, given that it is subject to a uniform law scheme. People will be aware that that the review of the model defamation provisions was agreed to in November 2004 by the Council of Attorneys‑General [CAG]. In 2005 all States and Territories, including New South Wales, enacted legislation to implement the model defamation provisions. These provisions were developed by the model defamation law working party, with the ultimate acronym CAG. CAG endorsed the model defamation provisions in 2004. It was not until 2005 that all the States and Territories enacted the uniform law.

In the lead‑up to the creation of the uniform law, CAG recognised that the increasing use of the intent to publish and distribute information made defamation legislation, which was at the time inconsistent across Australian States and Territories, increasingly unwieldy and unsuited to modern situations. That was set in 2005. When we consider modern situations, a lot has changed since then. CAG recognised the benefit of a uniform scheme for promoting certainty for defendants and prospective defendants, limiting forum shopping and recognising that online publications are not territorially confined in the same way as in the past with newspapers, magazines and other traditional media. It recognised that even in 2002 traditional media did cross State and Territory borders significantly.

In 2018 New South Wales undertook a statutory review of the Defamation Act 2005 which identified that the core policy objectives of the model defamation provisions—balancing freedom of expression and publication of public interest with protecting reputations—remained valid and that the laws would benefit from amendment and modernisation. In June 2018, on the recommendation of the New South Wales Attorney General, the Council of Attorneys-General agreed to reconvene the defamation working party to consider opportunities for modernising Australia's uniform defamation law. Later that year an ambitious time line was agreed that would enable all jurisdictions to begin enacting changes to the defamation legislation by the middle of 2020.

Today New South Wales is leading the way by debating the Defamation Amendment Bill 2020 to implement these reforms. These reforms address the longstanding and well-known concerns with defamation laws in Australia. We know that the current system results in too many trivial matters in our courts and results in costs often not proportionate to the award of damages, if any. It can mean that social media and other small‑scale disputes can take years to resolve. Who can forget the multimillion dollar payout in recent defamation cases involving high-profile Australian actors Rebel Wilson and Geoffrey Rush. Ms Wilson initially recovered $4.75 million, which was reduced on appeal. Mr Rush recovered more than $2.8 million.

The last review of defamation laws in Australia was 16 years ago. At the time, social media was still emerging and the way we communicate now has changed drastically. The current laws require an update. New South Wales has led the defamation working party through both rounds of consultation and negotiated final provisions that all jurisdictions agree will modernise our defamation laws and restore balance. The work that the working party has done over the past 18 months is intended to ensure that our defamation laws are fit for the twenty-first century.

Consultation on these reforms has been extensive. A discussion paper was released in early 2019 inviting stakeholder submissions about issues affecting the model defamation provisions. Forty-four submissions were received and three round tables were held. The defamation working party, which was led by the NSW Department of Communities and Justice, considered the issues raised by stakeholders and developed draft options for reform. In late 2019 draft amendments to the model defamation amendment provisions were released for public consultation. Thirty-six submissions were received and a further round table was held. Adjustments were then made to address stakeholder feedback. On 27 July 2020 the final model defamation amendment provisions were agreed by the Council of Attorneys‑General.

Stakeholders who have engaged with the review include media companies, peak legal bodies, academics, digital platforms, consumer groups, legal representatives for plaintiffs and defendants, and individuals with experience in bringing or defending defamation claims. There is broad stakeholder support for the reforms, particularly from media companies and legal stakeholders, in recognition of the need to address the increasing number of trivial matters proceeding to trial and to modernise the model defamation provisions to suit the digital age. The defamation working party sought to engage plaintiff representatives throughout the reform process to ensure that their views were considered and that the reforms were balanced.

Voller v Nationwide News Pty Ltd

The reforms presented in the Defamation Amendment Bill 2020 do not mark the end of the Attorney General's review process. A second stage of reforms focusing on the responsibilities and liabilities of digital platforms for defamatory content published online is currently underway. This is a critical issue affecting the operation of defamation law in 2020. Nobody in our community would be unaware of the impact that these online platforms can have in allowing this information to be disseminated. However, I am sure that everyone would agree that this is not an issue that can be easily identified or rectified. The recent decision in [2020] NSWCA 102 found that corporate news publishers are responsible for comments made by third parties on their Facebook pages. While it is open to members to decide whether that sounds like an appropriate decision, there are at least two competing views: firstly, that Facebook should be liable for defamatory comments made on its platform, albeit on the Facebook page of the news publisher; and, secondly, that the news publisher is liable, as was decided.

This goes to larger issues affecting the media landscape in 2020. Digital platforms often drive social media users to traditional media outlets. However, traditional media outlets cannot necessarily control how digital platforms distribute their content. If defamatory content is published, who should be responsible for removing it? Who should be liable? Stage two of the review of the model defamation provisions will consider those key and challenging questions. Key to the discussion will also be reforms led by the Commonwealth Government, particularly with respect to competition law issues between traditional and new media. I look forward to seeing what the Attorney General presents to Parliament in mid-2022 when the second stage is due to be finalised. Once again, I reiterate my support for the bill. I congratulate the Attorney General on the work that he has put into this process and on the leadership position that New South Wales has taken.

Mr ADAM CROUCH (Terrigal) (11:43):

:40 From the outset I acknowledge that the Opposition supports the Defamation Amendment Bill 2020. That goes to show the incredibly high calibre of the work being done by the Attorney General, who I note is in the Chamber, and his excellent team who have worked on this great piece of legislation. I thank the member for Seven Hills, the member for Ku-ring-gai—who is also in the Chamber—and the member for Albury, the member for Heathcote and the member for North Shore for their excellent contributions. It is important to understand by way of background why this piece of legislation is so important. It dates back to 2005 when the State and Territory Attorneys-General agreed to model defamation provisions [MDPs] which were subsequently enacted in the legislation of each jurisdiction.

In 2018 the Council of Attorneys-General [CAG] convened the defamation law working party, comprised of representatives from each of those jurisdictions. I congratulate the Attorney General as New South Wales led the way on this. That is not surprising—this Attorney General does an amazing job. The review into the MDPs, led by New South Wales, has evolved into detailed policy work. There were two rounds of stakeholder consultation, which is so important when looking at amending legal parameters. In February 2019 the discussion paper was released and in November 2019 the exposure draft was put forward. I congratulate the Attorney General and his department on engaging a wide range of stakeholders including legal representatives for plaintiffs and defendants, peak legal bodies, media companies, digital platform companies, academics and private individuals in public consultation on the amendments that are being put forward today.

Damages for non-economic loss are to be capped in this bill. One of the most high profile issues affecting the model defamation provisions has been the cap on damages for non-economic loss. The Defamation Act 2005 imposes a limit on the amount of damages that may be awarded for non-economic loss. That is adjusted annually and currently sits at around $421,000. Damages for non-economic loss are aimed at providing compensatory damages to cover the intangible matters of consolation for hurt feelings, damage to reputation and the vindication of the plaintiff's reputation. Damages for non-economic loss are separate to aggravated damages and damages for economic loss, which may also be awarded to a defendant. As the Attorney General said in his second reading speech:

The purpose of introducing the cap on damages for non-economic loss was to ensure that the amounts awarded would be commensurate with awards of general damages in personal injury claims. The amount of damages awarded for non-economic loss should vary according to the harm to reputation in each case. At the same time, it is important that exorbitant amounts are not awarded. This is why there is a set limit.

When the Defamation Act 2005 was introduced, it was intended that the cap would operate as a scale rather than a cut-off. That means that the cap was there to set the upper limit of the scale, with the maximum amount now of $421,000 only to be awarded in the most serious case. In other words, the most serious case of reputational harm conceivable would result in $421,000 worth of damages for non-economic loss, with less serious reputational harm to be awarded accordingly less. It is a scale of harm. That is the interpretation supported by the vast majority of stakeholders who responded to the defamation working party throughout the two rounds of consultation undertaken on these reforms. Again, that highlights the Attorney General's absolutely dogged determination to get the best outcome for the people of New South Wales with regard to these reforms.

The alternative, which was not intended but which courts have subsequently applied, was that the cap function as a cut-off. In that scenario, if someone suffered a great deal of reputational harm—but not necessarily the most serious case—they would be awarded the full $421,000 damages for non-economic loss. Any harm that is significant would hit that limit. There is no distinction between significant harm and the most serious harm. This means that the full $421,000 will be awarded far more frequently than if a scale were applied. The purpose behind specifying a maximum amount for non-economic loss was to ensure a level of parity with the award of other damages—for example, for personal injury—while still providing for appropriate compensation for this intangible loss.

Wilson v Bauer Media Pty Ltd

There have been two recent high-profile cases which have highlighted the problem with the cut-off interpretation. The first was the matter of (No 2) [2018] VSCA 154. The basic issue in that case was the contended imputation that the actor Rebel Wilson, whom of course we all know of, was a "serial liar" who had "fabricated almost every aspect of her life". Ms Wilson succeeded and was awarded an initial sum of $4.75 million, reduced to $600,000 on appeal, consisting of $650,000 in general damages, being damages for non-economic loss as well as aggravated damages, and $3.917 million in special damages—that is, damages for economic loss—for roles Ms Wilson lost as a result of the defendant's publications. Unsurprisingly, this was the largest award of damages for defamation in Australian history. In that case, Justice Dixon found that, because aggravated damages applied, the cap on damages for non-economic loss did not apply. This was upheld on appeal.

Rush v Nationwide News Pty Ltd

The second was the matter of [2018] DCA 357. In that case, the court applied the same understanding of the cap as in the Wilson matter. That is to say the court found that because aggravated damages were appropriate the cap on damages for non-economic loss ceased to exist. This is contrary to the policy intent. In 2017 Professor David Rolph, who has contributed extensively to these reforms by way of his position on the defamation working party's expert panel, noted, "Assessing damages for defamation is a difficult task." This is because defamation law protects reputations and reputations are subjective, which means they are difficult to quantify. The broad goal is to put the plaintiff in the place they would have been had they not been defamed. Nevertheless, multimillion dollar payouts seem excessive. Excessive damages chill public interest journalism. The Council of Attorneys-General was not opposed to large damages payouts in principle. Rather, the CAG was concerned that the prospect of large damages payouts may chill the media's willingness to investigate and report on matters of public interest. This is so important in our community.

Media organisations must take care not to report recklessly or negligently. They must have regard to potential reputational harm. However, there may be cases where a high-profile person has done something about which there is a legitimate public interest but about which the mass media are afraid to report lest they be liable for vast sums of damages, as in the cases mentioned. This bill seeks to make it easier for the media to publish on such matters by providing greater certainty about the operation of the cap on damages for non-economic loss. This is an important reform in support of public interest journalism. As I said at the outset, this is an excellent piece of legislation. I commend the Attorney General for leading the way in this. It is great to see New South Wales again at the forefront of making necessary reform to existing legislation. I thank his team for working so diligently on it. With that I commend the bill to the House.

Mr MARK SPEAKMAN (CronullaAttorney General, and Minister for the Prevention of Domestic Violence) (11:53):

—:40 In reply: I thank the members for the electorates of Liverpool, Seven Hills, Heffron, Ku-ring-gai, Albury, Heathcote, Newtown, Port Stephens, North Shore and Terrigal for their important contributions to the debate. While I note that the member for Liverpool suggested that there was some purple prose involved in this debate, I am pleased that the Opposition does not oppose the bill. The member for Ku‑ring‑gai reflected on the Council of Attorneys-General's agreement to preserve the restriction on the right of corporations to sue for defamation.

Under the common law all corporations could sue for defamation and recover damages for financial loss. In 2002 New South Wales introduced legislation which precluded corporations, including statutory bodies, from suing in libel, with the only exception being a corporation that employed fewer than 10 persons at the relevant time and had no subsidiaries. This question was subsequently considered at length in the development of the model defamation provisions. The then Standing Committee of Attorneys-General agreed that only what it called "excluded corporations" should retain the right to sue.

The defamation working party's discussion paper of February 2019 asked stakeholders whether the model defamation provisions should be amended to either broaden or narrow the right of corporations to sue for defamation, or whether the 2005 laws strike the right balance. The vast majority of stakeholders supported either narrowing the scope of "excluded corporations" or removing the ability of corporations to sue altogether. Few stakeholders supported broadening the right of corporations to sue. The policy rationale for preventing corporations from instigating defamation proceedings is well known. Defamation is a tort directed to the right of individuals.

Stakeholders argue consistently that the concepts of personal distress and hurt have no application to corporations. Moreover, corporations have recourse to alternative causes of action such as the tort of injurious falsehood, misleading and deceptive conduct claims and other consumer protection claims in the Commonwealth Competition and Consumer Act 2010. Where a business is excluded from bringing a claim for defamation, the company may be able to take action for injurious falsehood. For a company or individual to succeed in a claim for injurious falsehood of false online publications it must establish that the defendant has made a false statement concerning the company or individual's property or business or goods, the false statement was published maliciously and the false publication has injured the company's or individual's business or goods and has caused them to suffer "actual damage".

Unlike defamation claims, damages for a claim in injurious falsehood are not capped and court proceedings for injunctive relief and/or damages must be commenced within six years after the publication of the false statements. A statutory cause of action in relation to misleading and deceptive conduct is broadly available. It does not require, for example, the proof of malice, unlike with injurious falsehood. Corporations can take action claiming injunctive relief, an apology and correction and damages under the Australian Consumer Law against those involved in publication or dissemination of misleading material or false representations about that business.

The bill amends the definition of "excluded corporation" to provide that "employees" include individuals engaged in the day-to-day operations of the corporation and subject to its direction and control. This will mean the courts will be able to consider contractors as employees if they meet the above definition. It will also ensure that large corporations do not engage in employment practices solely for the purpose of retaining their ability to sue for defamation—for example, by only engaging contractors. Excluded corporations will be required to show that the defamatory publication has caused serious financial loss when determining if the serious harm element is met. This is similar to section 1 of the United Kingdom's Defamation Act 2013, which specifies that harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.

I acknowledge the member for Newtown's comments about racial vilification and understand her concerns. The Government introduced through the Parliament the offence of inciting violence in section 93Z of the Crimes Act 1900. The new offence commenced in August 2018. It replaced four serious vilification offences in the Anti‑Discrimination Act 1977 with a single indictable offence in the Crimes Act. Section 93Z provides that a person who by a public act intentionally or recklessly threatens or incites violence towards another person or a group of persons on specified grounds is guilty of an offence. The specified grounds are race, religious belief or affiliation, sexual orientation, gender identity, intersex status, and HIV or AIDS status.

The intention of creating the single indictable offence was to demonstrate the seriousness of threatening and inciting violence; to broaden the grounds of protection to include religious belief or affiliation and intersex status in addition to the grounds of serious racial, homosexual, transgender and HIV/AIDS vilification, while updating the terminology of "homosexual" and "transgendered" with "sexual orientation" and "gender identity" to reflect modern terminology; to remove disparities between maximum penalties for serious vilification of different protected groups; and to reflect community standards through an increased maximum penalty. The maximum penalty for an individual is three years imprisonment or 100 penalty units, or both. For a corporation the maximum penalty is 500 penalty units. A community education campaign to raise awareness among the wider public about section 93Z is being delivered by Legal Aid NSW with the Office of Community Safety and Cohesion. The campaign launched on 26 May.

The Stop Public Threats campaign raises awareness that threats or incitements of violence against people because they belong to a particular group is a crime and carries tough penalties. It includes an educational component to inform those who might be victims or witnesses about how to make a complaint. I note the comments by the member for Newtown about the high-profile decision in Rush. The member noted the views of many commentators that defamation law is not an ideal or even easy forum to deal with the experience of victims of sexual assault and harassment empathically. The Council of Attorneys-General is mindful of this issue, and I thank the member for Newtown for her observations.

The bill amends the Defamation Act 2005 and the Limitation Act 1969 to amend changes to the law of defamation agreed by the Council of Attorneys-General. The reforms are the result of a detailed policy development, including two rounds of stakeholder consultation. Once enacted, the provisions of the bill will restore the balance between protecting reputations on the one hand and, on the other hand, ensuring that defamation law does not limit freedom of expression, particularly regarding matters of public interest. The bill does not mark the end of the Council of Attorneys-General review of model defamation provisions. A second stage focusing on the liabilities and responsibilities of digital platforms for defamatory content published online is progressing. I commend the bill to the House.

TEMPORARY SPEAKER (Ms Felicity Wilson):

The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

Mr MARK SPEAKMAN:

I move:

That this bill be now read a third time.

Motion agreed to.