Defamation Amendment Bill 2023

17 November 2023

Ms JODIE HARRISON (Charlestown—Minister for Women, Minister for Seniors, and Minister for the Prevention of Domestic Violence and Sexual Assault) (15:42): I speak in support of the Defamation Amendment Bill 2023. I congratulate the Attorney General, the Hon. Michael Daley, on introducing it to the House. It is an important piece of legislation that looks at a range of different aspects of defamation, aiming to bring our defamation legislation into the modern age. I will talk later on about how one particular aspect of the bill affects victim‑survivors of sexual assault and sexual harassment, but first I address the social media part of the bill.

We are privileged to live in a healthy liberal democratic country that values free expression and diversity of opinion. We cherish those values and recognise the importance of balancing those interests with protecting a person's reputation. The bill is designed to ensure that we maintain that balance, particularly during a time of significant technological change that has opened up new communication channels. With the ongoing evolution of social media platforms, ordinary people are reaching new audiences at an unprecedented rate. Who would have thought that the member for Tweed would be able to reach as many people as he does on Facebook in any other form 10 years ago?

Social media can often be a cause for good. It can help people raise awareness of important issues and it can cut straight to the human side of a story. It is a tool that empowers us to be more connected to the world than ever before. But it also presents challenges. It can be used to enable bullying and hate speech and to diminish personal reputations. For those reasons, our defamation laws need to keep pace with a changing media and communication landscape to remain fit for purpose. All Australian governments have invested a significant body of work into achieving that objective, and on 22 September the Standing Council of Attorneys-General approved by majority the amendments in this bill.

Uniform defamation laws should always be a key objective in this space. The bill aims to move us in the same direction that most states are moving, enacting amendments that provide clarity and address the liability of digital intermediaries for the publication of third‑party content. Digital intermediaries include a broad range of persons and organisations such as internet service providers, internet content hosts, social media platforms, search engines and review websites, among others. Digital intermediaries also include forum administrators—individuals or organisations that use online platforms to host forums that invite or encourage third parties to post comments.

The need to move forward with the reform stems in part from the High Court decision in the case ofFairfax Media Publications Pty Ltd v Voller. In that case the High Court held, following the common law's traditionally broad approach to the element of publication, that the media companies were the publishers of third‑party comments responding to news stories they posted on their Facebook pages. The fact that no editorial staff drafted those comments was not relevant to the finding. Clearly, the state of defamation law as it applies to digital intermediaries needs to be updated to provide clarity and to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression.

I now move to why the bill is of particular interest to me as Minister for the Prevention of Domestic Violence and Sexual Assault. The bill provides protections for victim‑survivors of abuse, including victim‑survivors of sexual harassment or sexual assault. Currently the potential threat of defamation action can have a chilling effect on victim‑survivors coming forward to make a report to police. That is why the bill extends absolute privilege to matter published to police. Importantly, the extension of absolute privilege provides a complete defence to defamation and cannot be defeated under any circumstance. It is the strongest possible protection from defamation liability and will provide a very strong defence for victim‑survivors making reports to police. That is in contrast to the current available defence of qualified privilege, which can be defeated if a plaintiff proves that a defendant is motivated by malice.

Guiding principles will be used to determine whether to extend absolute privilege to matter published to any other complaint‑handling bodies. New South Wales has already extended absolute privilege to a wide range of circumstances under schedule 1 to the Defamation Act. Some are in scope of the part B reforms such as matters arising under the Anti‑Discrimination Act 1977. There are many and varied reasons why sexual, domestic or family abuse victims do not raise their abuse with others, let alone report it to relevant authorities, including to police. Often they are afraid that they will not be believed or that the person who perpetrated the abuse, or indeed the supporters of that person, will take further action against them in retribution. I am keen to see another one of those barriers—that is, fear of defamation when making a report to the police—be removed.

Extending absolute privilege to matter published to police is a vital and significant step in improving protections available to victim-survivors and removing barriers for women reporting abuse. In closing, I reiterate my support for the bill. It strikes a better balance between the right to free expression and the protection of reputation. All members in this place, including me, recognise that we live in an era of evolving digital communications, and our defamation laws must keep up. As Minister for Women, and Minister for the Prevention of Domestic Violence and Sexual Assault, I am very pleased to see and will always support reforms that remove barriers and empower victim-survivors to report abuse to police. I commend the bill to the House.