Ms O’CONNOR (Hobart) – As the Greens spokesperson for Attorneys‑General and Justice, I am pleased to say that we have no issues with supporting this bill as we did in the other place. We recognise it is part of a national Standing Council of Attorneys‑General reform process which seeks to have consistency in defamation law across the country, which is indeed one of the objects of the current act.
Under the Defamation Act 2005, the objects are:
(a) to enact provisions to promote uniform laws of defamation in Australia;
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance;
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and
(d) to promote speedy and non‑litigious methods of resolving disputes about the publication of defamatory matter.
On all of those objects, the amendments that we will debate today are consistent.
I think all members who were elected representatives in September 2021 when the High Court handed down its decision in Fairfax Media Publications Pty Ltd and Ors v Voller will recall the confusing and chilling effect that that decision had on every user of social media who was, in effect, and still is, in effect, a publisher. It certainly impacted on the way members of parliament managed their social media. We have all said it, and other members have referenced it ‑ people can feel much freer behind the anonymity of a keyboard and potentially a false name to slur, impugn the motives of, and defame others, particularly people in public life. It changed the way that we used social media. It also had a chilling effect on community groups. People who were running Facebook pages on a particular issue suddenly were made aware that they could be held liable for content that was placed on those pages that wasn’t placed on the page by them, but that may have been defamatory.
It is a positive that the Standing Council of Attorneys‑General (SCAG) has sought to modernise defamation law in this country.
We acknowledge that the bill establishes exemptions from defamation liability for a range of digital intermediaries, including conduit, i.e. people through whom a message is transmitted, caching and storage services, and for search engines in relation to organic search results. It does point to what a huge decision Voller was, because it captured also, for example, entities like Meta and Twitter.
We can all have a view on some of the garbage that ends up on those online services, and we could also have a view on the need to regulate them in the future, because at the moment the ‘war over truth’ is being lost on platforms like Facebook and Twitter (which I will never call ‘X’), but –
Ms Rattray – Except, you just did.
Ms O’CONNOR – I never describe it as X. I will say, ‘I saw that on Twitter last night’ or ‘I saw someone tweet this’. I will not buy into Elon Musk’s rebranding and language.
There is another whole issue here for society, and it is something that the European Union is taking on: an understanding of the dangers of unregulated, unchecked social media platforms that are allowed to not only promulgate disinformation and falsehoods but can also lead to significant community harm. We have seen the role of social media, for example, in whipping up the far right in the United Kingdom and causing ruptures in society on the basis of race and culture and difference ‑ but I digress.
The bill does provide that a digital intermediary can be ordered by a court to take steps to prevent access to the offending material. It provides for reparation. If not reparation, it provides for the opportunity for the publisher to remove the material, as it should.
The bill also provides amendments in respect of circumstances where the offending material is published online, and it provides for an extension of absolute privilege to matters published to police and the Anti-Discrimination Commissioner. That is section 27 of the principal act, which is in Division 2 ‑ defences to defamation law, which are reasonably confined defences, as they should be.
The defence of absolute privilege under the act currently captures matters published in the course of the proceedings of a parliamentary body, including (but not limited to):
- the publications of a document by order, or under the authority, of the body; and
- the publication of the debates and proceedings of the body, by or under the authority of the body, or by any law; and
- the publication of matter while giving evidence before the body (which is very important for the work of parliamentary committees and the protection of people who are witnesses to those committees); and
- and the publication of matter while presenting or submitting a document to the body; or
- the matter is published in the course of the proceedings of an Australian court or Australian tribunal; or
- the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section (which reinforces the need, of course, for national consistency); and
- the matter is published by a personal body in any circumstances specified in Schedule 1 (which are the statutory bodies which we need to provide the defence of absolute privilege to).
The capture of absolute privilege will now apply to the Anti‑Discrimination Commissioner as well.
Schedule 1 of the current act says, ‘Additional publications to which absolute privilege applies.’
And it says:
Currently there are no provisions in the schedule, but it has been included for consistency with national model legislation.
I made an error before. I thought that is where our other statutory bodies would be covered. Perhaps the Minister could detail to the Council how entities such as the Ombudsman, the Integrity Commissioner, the National Preventive Mechanism, and Health Complaints Commissioner are currently protected by the defences under Division 2 of the Anti-Discrimination Act.
It is a complicated issue in its way, but in essence it is quite simple. We need to protect freedom of speech. We need to respect people’s right not to have their reputation damaged, and we need to modernise our law to incorporate the fact that publication now comes in many forms. With those few comments, I am very happy to support the bill. I look forward to going to the Committee and hearing the Acting Leader of Government Business’s response to my question.
