Mr GAFFNEY (Mersey) - I rise to voice my support for the proposed Defamation Amendment Bill 2021 (No. 34) and whilst some people have struggled with today's briefing, I found it easy. Thank you to the gentlemen for providing us with that information.

The proposed reforms to defamation law in Tasmania are necessary to bring our state into uniformity with the rest of Australia. Much of the commentary surrounding this bill has noted the need for consistent law across our jurisdictions. With the drafting of the Defamation Act in 2005 we never could have imagined how vast the reach of publications, both online and otherwise, would become. Defamation occurring through online publications now largely transcends jurisdictions. Uniformity will promote a consistency of law so that Tasmanians and indeed Australians may be well informed of the potential impacts and outcomes of defamatory publications. Also, it serves to provide greater certainty for publishers in determining whether they should publish particular material as the courts continue to interpret statutes.

This bill is the combination of combined efforts from many jurisdictions, and New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory have all already adopted the suggested stage 1 reforms of the Model Defamation Amendment Provisions 2020.

I congratulate all involved in leading the development of these provisions and for their efforts in producing robust recommendations for reform. I am satisfied the consultation on the proposed amendments has been significant and the proposed amendments have not been made lightly.

The Defamation Working Party of the then Council of Attorneys-General considered more than 70 submissions informing the recommendations. All ends of the community who encounter defamation law were consulted. Media companies, peak legal bodies, lawyers for both the defendants and plaintiffs and digital platforms, among others. In terms of consultation with Tasmania, the Department of Justice facilitated the public and targeted stakeholders in expressing their view and potential concerns.

I will now turn to briefly comment on some of the most notable amendments proposed. Firstly, the preclusion of defamation actions to be brought for or against deceased persons is a long overdue clarification of Tasmanian law. At this time, we are the only jurisdiction that allows a deceased person's defamation action to survive their death. As has been noted by the Attorney-General, it is the common law position that reputation is a significant personal attribute that cannot survive death.

Insertion of section 10 will finally confirm the principles set out in the common law and bring Tasmania in line with the rest of Australia. In further modernising our legislation, the proposed single publication rule will serve to limit claims from multiple posts that have substantially had the same content. The one-year limitation on these publications again aims to streamline the burden on our courts. I believe any concerns about impacts of this on access to justice are well managed by the introduction of section 20AC. This section allows the limitation period to be extended to three years, if the court finds it is just and reasonable to do so.

Most controversially, a further amendment will see the introduction of 'serious harm' threshold that must be established for a cause of action. I support the notion, but the introduction of this higher requirement will reduce the number of insignificant defamation claims going before our courts in Tasmania and ultimately save Tasmanians and their businesses from undue stress and financial costs.

This is effectively inversing the onus of proof on the defendant to prove triviality, to the plaintiff to prove serious harm. However, I do note the concerns raised by the Tasmania Law Reform Institute in their submission on 6 July this year, where they stated that defamation law:

favours well-resourced litigants over poorly resourced ones, in fact, it appears likely to broaden the gap between those who can access justice and those who can't.

This is a point worth noting. The concern is that a plaintiff, by having the onus of proof placed on them to establish serious harm, may be dissuaded from pursuing defamation proceeding at all. It is no secret legal disputes are enormous financial burdens. It is important these amendments do not increase the financial and power disparity between larger organisations compared to the individual.

It is a timely reminder of the need for increased community legal service support and resourcing in Tasmania. Perhaps the Leader or Deputy Leader, could in the Government's response, make mention of this possible conundrum or need for extra resourcing. In viewing the bill as a whole, rather than focusing on a single provision, we see these concerns are mitigated through other mechanisms. I am pleased to see the bill proposing amendments that are hoped to increase the rate of early resolutions, before they add to the demand on our judicial officers and become a financial burden to parties involved.

The introduction of written concern notices before defamation proceedings begin will allow not only the opportunity to informally resolve the grievance, but also provide an opportunity for the plaintiff to succinctly detail their concerns and turn their mind to the serious harm threshold. In doing so, the number of defamation proceedings commencing without the necessary proof of serious harm may be reduced and thus save our justice system considerable time and money. This may serve to minimise power imbalances between parties as they will have the opportunity to resolve their concerns before it becomes financially draining.

Finally, I would like to note the introduction of a dedicated public interest defence in section 29A. The twofold test requires the defendant to establish both objectively that the statement was on a matter of public interest and further, subjectively, they reasonably believe the published statement was in the public interest. The protection of our journalists is paramount to freedom of speech and democracy within Tasmania. Public interest is both defined in statute and through the common law and will offer an extra degree of certainty for journalists in publishing their work.

It is essential our laws do not unreasonably restrict freedom of expression on matters of public interest, but this must always be carefully balanced with our duty to provide fair and equitable remedies to those who have suffered harm to their reputation. We must ensure Tasmanians have equal access to pursue defamation proceedings if they choose, but the freedom of speech remains protected. I believe the Defamation Amendment Bill of 2021 will do so. I look forward to bringing Tasmania into uniformity with other Australian jurisdictions.