2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Part 1.1 Crimes Act 1900 41

Part 1.2 Limitation Act 1985 43

2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend the Civil Law (Wrongs) Act 2002, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Civil Law (Wrongs) Amendment Act 2005 (No 2).

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Civil Law (Wrongs) Act 2002.

Note 1 This Act also amends the following legislation (see sch 1):

• Crimes Act 1900

• Limitation Act 1985.

Note 2 This Act also repeals the Defamation (Criminal Proceedings) Act 2001 (see s 23).

The objects of this chapter are—

(a) to enact provisions to promote uniform laws of defamation in Australia; and

(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; and

(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.

Note The Human Rights Act 2004 provides for the following human rights that are particularly relevant to this chapter:

• privacy and reputation (see s 12)

• freedom of expression (see s 16).

Under the Human Rights Act 2004, s 28 human rights may be subject only to reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society.

In this chapter:

aggrieved person, for division 9.3.1 (Offers to make amends)—see section 124.

Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).

Australian jurisdiction means—

(a) a State; or

(b) the Commonwealth.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath (including a royal commission or other special commission of inquiry).

Note Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1).

country includes—

(a) a federation and a state, territory, province or other part of a federation; and

(b) an Australian jurisdiction.

document means any record of information, and includes—

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph.

electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both.

general law means the common law and equity.

matter includes—

(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and

(b) a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; and

(c) a letter, note or other writing; and

(d) a picture, gesture or oral utterance; and

(e) any other thing by means of which something may be communicated to a person.

matter in question, for division 9.3.1 (Offers to make amends)—see section 124.

offer to make amends means an offer to make amends under division 9.3.1.

parliamentary body means—

(a) a parliament or legislature of any country; or

(b) a house of a parliament or legislature of any country; or

(c) a committee of a parliament or legislature of any country; or

(d) a committee of a house or houses of a parliament or legislature of any country.

publisher, for division 9.3.1 (Offers to make amends)—see section 124.

substantially true means true in substance or not materially different from the truth.

this jurisdiction means the Territory.

Note The Legislation Act, s 121 deals with the binding effect of Acts.

(1) This chapter relates to the tort of defamation at general law.

(2) This chapter does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).

(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if this chapter as in force immediately before the commencement of this section had never been enacted.

(1) The distinction at general law between slander and libel remains abolished.

(2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.

(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.

(2) A corporation is an excluded corporation if—

(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or

(b) it employs fewer than 10 persons and is not related to another corporation;

and the corporation is not a public body.

(3) In counting employees for the purposes of subsection (2) (b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.

(4) In determining whether a corporation is related to another corporation for the purposes of subsection (2) (b) the Corporations Act, section 50 applies as if references to bodies corporate in that section were references to corporations within the meaning of this section.

(5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.

(6) In this section:

corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body.

public body means a local government body or other governmental or public authority constituted by or under a law of any country.

A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to—

(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or

(b) the publication of defamatory matter by a person who has died since publishing the matter.

(1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.

(2) If there is a multiple publication of matter in more than 1 Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.

(3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account—

(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and

(b) the extent of publication in each relevant Australian jurisdictional area; and

(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and

(d) any other matter that the court considers relevant.

(4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section.

(5) In this section:

Australian jurisdictional area means—

(a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (b); or

(b) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

geographical area of Australia includes—

(a) the territorial sea of Australia; and

(b) the external territories.

multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.

(1) This division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).

(2) The provisions of this division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.

(3) Nothing in this division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this division.

(1) The publisher may make an offer to make amends to the aggrieved person.

(2) The offer may be—

(a) in relation to the matter in question generally; or

(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries or may carry.

(3) If 2 or more persons published the matter in question, an offer to make amends by 1 or more of them does not affect the liability of the other or others.

(4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.

(1) An offer to make amends cannot be made if—

(a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person; or

(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.

(2) A notice is a concerns notice for the purposes of this section if the notice—

(a) is in writing; and

(b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern).

(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.

Note For how documents may be served, see the Legislation Act, pt 19.5.

(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.

(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

(1) An offer to make amends—

(a) must be in writing; and

(b) must be readily identifiable as an offer to make amends under this division; and

(c) if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited; and

(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and

(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and

(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer; and

(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to)—

(i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; or

(ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or

(iii) the particulars of any correction or apology made, or action taken, before the date of the offer.

(2) Without limiting subsection (1) (g) (ii), an offer to pay compensation may comprise or include any 1 or more of the following:

(a) an offer to pay a stated amount;

(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person;

(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person;

(d) an offer to pay an amount determined by a court.

(3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine—

(a) if the offer provides for a court to determine the amount of compensation payable under the offer—the amount of compensation to be paid under the offer; and

(b) any other question that arises about what must be done to carry out the terms of the offer.

(4) The powers conferred on a court by subsection (3) are exercisable—

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question—by that court in those proceedings; and

(b) except as provided in paragraph (a)—by the Supreme Court.

(1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person.

(2) A publisher who has withdrawn an offer to make amends may make a renewed offer.

(3) A renewed offer may (but need not) be in the same terms as the withdrawn offer.

(4) A renewed offer is to be treated as a new offer (including for the purposes of section 126).

(5) However, the time limit specified in section 126 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if—

(a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer; and

(b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person.

(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.

(2) A court may (but need not)—

(a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer; and

(b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.

(3) The powers conferred on a court by subsection (2) are exercisable—

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question—by that court in those proceedings, and

(b) except as provided in paragraph (a)—by the Supreme Court.

(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—

(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and

(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and

(c) in all the circumstances the offer was reasonable.

(2) In determining whether an offer to make amends is reasonable, a court—

(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account—

(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and

(ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and

(b) may have regard to—

(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and

(ii) any other matter that the court considers relevant.

(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).

(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine—

(a) any issue arising under, or relating to the application of, a provision of this division; or

(b) costs in defamation proceedings.

(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person—

(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and

(b) is not relevant to the determination of fault or liability in connection with that matter.

(2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

(3) Nothing in this section limits the operation of section 139G (State of mind of defendant generally not relevant to awarding damages).

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

(1) A defence under this division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.

(2) If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if—

(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)—

(i) the publication of a document by order, or under the authority, of the body; and

(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law; and

(iii) the publication of matter while giving evidence before the body; and

(iv) the publication of matter while presenting or submitting a document to the body; or

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and

(ii) the publication of matter while giving evidence before the court or tribunal; and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal; or

(c) 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.

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

(2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for noncompliance with a provision of that law about—

(a) the formal requirements for the content or layout of the report or document; or

(b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body;

the report or document is a public document despite that noncompliance.

(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section:

public document means—

(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law; or

(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including—

(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and

(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination; or

(c) any report or other document that under the law of any country—

(i) is authorised to be published; or

(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body; or

(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public; or

(e) any record or other document open to inspection by the public that is kept—

(i) by an Australian jurisdiction; or

(ii) by a statutory authority of an Australian jurisdiction; or

(iii) by an Australian court; or

(iv) under legislation of an Australian jurisdiction; or

(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section.

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(2) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and

(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and

(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section:

proceedings of public concern means—

(a) any proceedings in public of a parliamentary body; or

(b) any proceedings in public of an international organisation of any countries or of the governments of any countries; or

(c) any proceedings in public of an international conference at which the governments of any countries are represented; or

(d) any proceedings in public of—

(i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations; or

(ii) any other international judicial or arbitral tribunal; or

(e) any proceedings in public of a court or arbitral tribunal of any country; or

(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country; or

(g) any proceedings in public of a local government body of any Australian jurisdiction; or

(h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—

(i) a member or members of the society; or

(ii) a person subject by contract or otherwise by law to control by the society; or

(i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—

(i) a member or members of the association; or

(ii) a person subject by contract or otherwise by law to control by the association; or

(j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—

(i) a member or members of the association; or

(ii) a person subject by contract or otherwise by law to control by the association; or

(k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act held anywhere in Australia; or

(l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office; or

(m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman; or

(n) any proceedings in public of a law reform body of any country; or

(o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section.

(5) In this section:

law reform body, of a country, means a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country.

learned society means a body, wherever formed—

(a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field; and

(b) authorised by its constitution—

(i) to exercise control over, or adjudicate on, matters connected with those objects; and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

ombudsman, of a country, means a person (however described and whether or not permanent or full-time) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country.

relevant objects, of a learned society, sport or recreation association or trade association, means—

(a) in relation to a learned society—objects of the kind referred to in this subsection, definition of learned society, paragraph (a); or

(b) in relation to a sport or recreation association—objects of the kind referred to in this subsection, definition of sport or recreation association, paragraph (a); or

(c) in relation to a trade association—objects of the kind referred to in this subsection, definition of trade association, paragraph (a).

sport or recreation association means a body, wherever formed—

(a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime; and

(b) authorised by its constitution—

(i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime; and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

trade association means a body, wherever formed—

(a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling; and

(b) authorised by its constitution—

(i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling; and

(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a) the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes, on reasonable grounds, that the recipient has that interest.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

(a) the extent to which the matter published is of public interest; and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and

(c) the seriousness of any defamatory imputation carried by the matter published; and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and

(f) the nature of the business environment in which the defendant operates; and

(g) the sources of the information in the matter published and the integrity of those sources; and

(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and

(i) any other steps taken to verify the information in the matter published; and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

(2) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

(3) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—

(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or

(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or

(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—

(a) is substantially true; or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(c) was published on an occasion that attracted the protection of—

(i) a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or

(ii) the defence of fair comment at general law.

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person—

(a) was not the first or primary distributor of the matter; and

(b) was not the author or originator of the matter; and

(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

(3) Without limiting subsection (2) (a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of—

(a) a bookseller, newsagent or newsvendor; or

(b) a librarian; or

(c) a wholesaler or retailer of the matter; or

(d) a provider of postal or similar services by means of which the matter is published; or

(e) a broadcaster of a live program (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; or

(f) a provider of services consisting of—

(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or

(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form; or

(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or

(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.

(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, in writing, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).

(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.

(5) A declaration under subsection (3) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(6) An amount declared for the time being under this section applies to the exclusion of the amount of $250 000 or an amount previously adjusted under this section.

(7) If the Australian statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations.

(8) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.

(9) A declaration may provide that it commences retrospectively.

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.

A plaintiff cannot be awarded exemplary or punitive damages for defamation.

(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—

(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or

(b) the defendant has published a correction of the defamatory matter; or

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.

If the court in defamation proceedings finds for the plaintiff as to more than 1 cause of action, the judicial officer may assess damages in a single sum.

(1) In awarding costs in defamation proceedings, the court may have regard to—

(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and

(b) any other matters that the court considers relevant.

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

(3) In this section:

settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.

(1) If a document appears to be printed or otherwise produced by means adapted for the production of numerous copies and there is in the document a statement to the effect that the document is printed, produced, published or distributed by or for a particular person, the statement is evidence in defamation proceedings that the document was so printed, produced, published or distributed.

(2) Evidence that a number or part of a document appearing to be a periodical is printed, produced, published or distributed by or for a particular person is evidence in defamation proceedings that a document appearing to be another number or part of the periodical was so printed, produced, published or distributed.

(3) In this section:

periodical includes any newspaper, review, magazine or other printed document of which numbers or parts are published periodically.

(1) If the question whether or not a person committed an offence is in question in defamation proceedings—

(a) proof that the person was convicted of the offence by an Australian court is conclusive evidence that the person committed the offence; and

(b) proof that the person was convicted of the offence by a court of any country (other than an Australian court) or a court martial of any country is evidence that the person committed the offence.

(2) For the purposes of this section, the contents of a document that is evidence of conviction of an offence, and the contents of an information, complaint, indictment, charge sheet or similar document on which a person is convicted of an offence, are admissible in evidence to identify the facts on which the conviction is based.

(3) Subsection (2) does not affect the admissibility of other evidence to identify the facts on which the conviction is based.

(4) In this section:

conviction, for an offence, includes a finding of guilt, but does not include—

(a) a conviction that has been set aside or quashed; or

(b) a conviction for an offence for which a person has received a pardon.

(1) A person who is required to answer a question, or to discover or produce a document or thing, in defamation proceedings is not excused from answering the question or discovering or producing the document or thing on the ground that the answer to the question or the discovery or production of the document or thing might tend to incriminate the person of an offence of criminal defamation.

(2) However, any answer given to a question, or document or thing discovered or produced, by a natural person in compliance with the requirement is not admissible in evidence against the person in proceedings for criminal defamation.

(1) Chapter 9 as in force after the commencement of this section (replacement chapter 9) applies to the publication of defamatory matter after that commencement, unless subsection (2) provides otherwise.

(2) Replacement chapter 9 does not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this section (the post-commencement action) if—

(a) the post-commencement action is 1 of 2 or more causes of action in proceedings commenced by a plaintiff; and

(b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); and

(c) 1 or more of the other causes of action in the proceedings accrued before the commencement of this section (a pre-commencement action); and

(d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued.

(3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had the Civil Law (Wrongs) Amendment Act 2005 not been enacted:

(a) any cause of action that accrued before the commencement of this section;

(b) any post-commencement action to which replacement chapter 9 does not apply because of subsection (2).

(4) In this section:

existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this section.

(5) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(6) This section expires 3 years after the day it commences.

aggrieved person, for division 9.3.1 (Offers to make amends)—see section 124.

Australian court, for chapter 9 (Defamation)—see section 116.

Australian jurisdiction, for chapter 9 (Defamation)—see section 116.

Australian tribunal, for chapter 9 (Defamation)—see section 116.

country, for chapter 9 (Defamation)—see section 116.

document, for chapter 9 (Defamation)—see section 116.

electronic communication, for chapter 9 (Defamation)—see section 116.

general law, for chapter 9 (Defamation)—see section 116.

matter, for chapter 9 (Defamation)—see section 116.

matter in question, for division 9.3.1 (Offers to make amends)—see section 124.

offer to make amends, for chapter 9 (Defamation)—see section 116.

parliamentary body, for chapter 9 (Defamation)—see section 116.

publisher, for division 9.3.1 (Offers to make amends)—see section 124.

substantially true, for chapter 9 (Defamation)—see section 116.

this jurisdiction, for chapter 9 (Defamation)—see section 116.

The Defamation (Criminal Proceedings) Act 2001 A2001-88 is repealed.

• s 439 (Offence of criminal defamation)

(1) A person must not publish matter defamatory of another living person (the victim)—

(a) knowing the matter to be false; and

(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused.

Maximum penalty: 300 penalty units, imprisonment for 3 years or both.

(2) Subsection (1) does not apply to the publication of defamatory matter about the victim if, and only if, the defendant would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the defendant.

Note Under the Criminal Code, s 58 (3) a defendant who wishes to rely on this exception has an evidential burden in relation to the matter.

(3) On a trial before a jury for an offence against this section—

(a) the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judicial officer presiding; and

(b) the question of whether the matter complained of does bear a defamatory meaning is a question for the jury; and

(c) the jury may give a general verdict of guilty or not guilty on the issues as a whole.

(4) A proceeding for an offence against this section must not be begun without the written consent of the director of public prosecutions.

(5) However, a person may be arrested for, charged with, or remanded in custody or on bail in relation to, an offence against this section before the consent has been given.

(6) In a proceeding for an offence against this section a consent purporting to have been signed by the director of public prosecutions is, without proof of the signature, evidence of that consent.

(7) The commencement of criminal proceedings for an offence against this section does not prevent—

(a) the commencement of civil proceedings for defamation against the defendant in the criminal proceedings; or

(b) the determination of the civil proceedings pending the determination of the criminal proceedings.

(8) In this section, publish and defamatory have the meanings that they have in the law of tort (as modified by the Civil Law (Wrongs) Act 2002) relating to defamation.

(9) In this section:

harm—see the Civil Law (Wrongs) Act 2002, section 40.

(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

(2) However, a court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of the publication.

(1) Section 21B as in force after the commencement of this section (replacement section 21B) applies to the publication of defamatory matter after that commencement, unless subsection (2) provides otherwise.

(2) Replacement section 21B does not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this section (the post-commencement action) if—

(a) the post-commencement action is 1 of 2 or more causes of action in proceedings commenced by a plaintiff; and

(b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); and

(c) 1 or more of the other causes of action in the proceedings accrued before the commencement of this section (a pre-commencement action); and

(d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued.

(3) The existing limitation law continues to apply to the following causes of action in the same way as it would have applied to those causes of action had the Civil Law (Wrongs) Amendment Act 2005 not been enacted:

(a) any cause of action that accrued before the commencement of this section;

(b) any post-commencement action to which replacement section 21B does not apply because of subsection (2).

(4) In this section:

existing limitation law means the provisions of this Act that applied in relation to the limitation period for defamation actions immediately before the commencement of this section.

(5) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(6) This section expires 3 years after the day it commences.

Presentation speech made in the Legislative Assembly on 2005.

Notified under the Legislation Act on 2005.

For the latest republication of amended laws, see www.legislation.act.gov.au.