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TASMANIA
__________
DEFAMATION BILL 2005
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Objects of Act
4. Interpretation
5. Act to bind Crown
PART 2 - GENERAL PRINCIPLES
Division 1 - Defamation and the general law
6. Tort of defamation
7. Distinction between slander and libel abolished
Division 2 - Causes of action for defamation
8. Single cause of action for multiple defamatory imputations in
same matter
9. Certain corporations do not have cause of action for defamation
10. No cause of action for defamation of, or against, deceased
persons
Division 3 - Choice of law
11. Choice of law for defamation proceedings
[Bill 67]-I
PART 3 - RESOLUTION OF CIVIL DISPUTES WITHOUT
LITIGATION
Division 1 - Offers to make amends
12. Application of Division
13. Publisher may make offer to make amends
14. When offer to make amends may be made
15. Content of offer to make amends
16. Withdrawal of offer to make amends
17. Effect of acceptance of offer to make amends
18. Effect of failure to accept reasonable offer to make amends
19. Inadmissibility of evidence of certain statements and admissions
Division 2 - Apologies
20. Effect of apology on liability for defamation
PART 4 - LITIGATION OF CIVIL DISPUTES
Division 1 - General
20A. Proceedings generally to be commenced within one year
20B. Application of section 20A
21. Election for defamation proceedings to be tried by jury
22. Roles of judicial officers and juries in defamation proceedings
23. Leave required for further proceedings in relation to publication
of same defamatory matter
Division 2 - Defences
24. Scope of defences under general law and other law not limited
25. Defence of justification
26. Defence of contextual truth
27. Defence of absolute privilege
28. Defence for publication of public documents
29. Defence of fair report of proceedings of public concern
30. Defence of qualified privilege for provision of certain
information
31. Defences of honest opinion
2
32. Defence of innocent dissemination
33. Defence of triviality
Division 3 - Remedies
34. Damages to bear rational relationship to harm
35. Damages for non-economic loss limited
36. State of mind of defendant generally not relevant to awarding
damages
37. Exemplary or punitive damages cannot be awarded
38. Factors in mitigation of damages
39. Damages for multiple causes of action may be assessed as single
sum
Division 4 - Costs
40. Costs in defamation proceedings
PART 5 - MISCELLANEOUS
41. Proof of publication
42. Proof of convictions for offences
43. Incriminating answers, documents or things
44. Giving of notices and other documents
45. Regulations
46. Rules of court
47. Administration of Act
48. Savings, transitional and other provisions
49. Consequential Amendments
50. Legislation repealed
SCHEDULE 1 - ADDITIONAL PUBLICATIONS TO WHICH
ABSOLUTE PRIVILEGE APPLIES
SCHEDULE 2 - ADDITIONAL KINDS OF PUBLIC DOCUMENTS
SCHEDULE 3 - ADDITIONAL PROCEEDINGS OF PUBLIC
CONCERN
SCHEDULE 4 - CONSEQUENTIAL AMENDMENTS
SCHEDULE 5 - LEGISLATION REPEALED
3
4
DEFAMATION BILL 2005
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to modify the general law relating to the tort of
defamation, to repeal the Defamation Act 1957, to amend
the Justices Act 1959 and the Criminal Code Act 1924 and
for other purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Defamation Act
2005.
2. Commencement
This Act commences on a day to be proclaimed.
3. Objects of Act
The objects of this Act are -
(a) to enact provisions to promote uniform
laws of defamation in Australia; and
[Bill 67] 5
s. 4 No. Defamation 2005
(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.
4. Interpretation
In this Act, unless the contrary intention
appears -
"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) a Territory; or
(c) the Commonwealth;
"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 or affirmation
6
2005 Defamation No. s. 4
(including a Royal Commission or other
special commission of inquiry);
"country" includes -
(a) a federation and a state, territory,
province or other part of a
federation; and
(b) an Australian jurisdiction;
"court" means -
(a) the Supreme Court; or
(b) the Magistrates Court;
"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
7
s. 4 No. Defamation 2005
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;
"offer to make amends" means an offer to
make amends under Division 1 of Part 3;
"Parliamentary body" means -
(a) a parliament or legislature of any
country; or
(b) a house of parliament or
legislature of any country; or
(c) a committee of a parliament or
legislature of any country; or
8
2005 Defamation No. s. 5
(d) a committee of a house or houses
of a parliament or legislature of
any country;
"substantially true" means true in substance
or not materially different from the truth;
"Territory" means the Australian Capital
Territory or the Northern Territory;
"this jurisdiction" means Tasmania.
5. Act to bind Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
9
s. 6 No. Defamation 2005
PART 2 - GENERAL PRINCIPLES
Division 1 - Defamation and the general law
6. Tort of defamation
(1) This Act relates to the tort of defamation at
general law.
(2) This Act 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 Act had never been enacted.
7. Distinction between slander and libel abolished
(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.
Division 2 - Causes of action for defamation
8. Single cause of action for multiple defamatory
imputations in same matter
A person has a single cause of action for
defamation in relation to the publication of
defamatory matter about the person even if more
10
2005 Defamation No. s. 9
than one defamatory imputation about the person
is carried by the matter.
9. Certain corporations do not have cause of action for
defamation
(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), section 50 of the Corporations
Act 2001 of the Commonwealth 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
11
s. 10 No. Defamation 2005
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.
10. No cause of action for defamation of, or against,
deceased persons
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.
12
2005 Defamation No. s. 11
Division 3 - Choice of law
11. Choice of law for defamation proceedings
(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 one 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
13
s. 11 No. Defamation 2005
(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 (c); or
(b) the geographical area of Australia
that lies within the territorial
limits of a particular Territory
(including its coastal waters), but
not including any territory, place
or other area referred to in
paragraph (c); or
(c) 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;
"geographical area of Australia" includes -
(a) the territorial sea of Australia;
and
14
2005 Defamation No. s. 11
(b) the external Territories of the
Commonwealth;
"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.
15
s. 12 No. Defamation 2005
PART 3 - RESOLUTION OF CIVIL DISPUTES
WITHOUT LITIGATION
Division 1 - Offers to make amends
12. Application of Division
(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.
13. Publisher may make offer to make amends
(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.
16
2005 Defamation No. s. 14
(3) If 2 or more persons published the matter in
question, an offer to make amends by one 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.
14. When offer to make amends may be made
(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
17
s. 15 No. Defamation 2005
(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.
(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.
15. Content of offer to make amends
(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
18
2005 Defamation No. s. 15
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
19
s. 15 No. Defamation 2005
(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
one 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
20
2005 Defamation No. s. 16
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.
16. Withdrawal of offer to make amends
(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 14).
(5) However, the time limit specified in section 14
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.
21
s. 17 No. Defamation 2005
17. Effect of acceptance of offer to make amends
(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.
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2005 Defamation No. s. 18
18. Effect of failure to accept reasonable offer to make
amends
(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
23
s. 19 No. Defamation 2005
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.
19. Inadmissibility of evidence of certain statements
and admissions
(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.
24
2005 Defamation No. s. 20
Division 2 - Apologies
20. Effect of apology on liability for defamation
(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 38.
25
s. 20A No. Defamation 2005
PART 4 - LITIGATION OF CIVIL DISPUTES
Division 1 - General
20A. Proceedings generally to be commenced within one
year
(1) Notwithstanding anything contained in any other
Act, an action on a cause of action for
defamation is not maintainable if brought after
the end of a limitation period of one 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 one 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.
20B. Application of section 20A
(1) Section 20A applies to the publication of
defamatory matter after the commencement of
that section, unless subsection (2) provides
otherwise.
(2) The provisions of section 20A do not apply to a
cause of action for the publication of defamatory
matter that accrues after the commencement of
that section (the "post-commencement action")
if -
26
2005 Defamation No. s. 20B
(a) the post-commencement action is one 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) one or more of the other causes of action
in the proceedings accrued before the
commencement of section 20A (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 section 20A not been enacted:
(a) any cause of action that accrued before
the commencement of section 20A;
(b) any post-commencement action to which
section 20A does not apply because of
subsection (2).
(4) In this section -
"existing limitation law" means the
provisions of Tasmanian law that applied
in relation to the limitation period for
defamation actions immediately before
the commencement of section 20A.
27
s. 21 No. Defamation 2005
21. Election for defamation proceedings to be tried by
jury
(1) Unless the Supreme Court orders otherwise, a
plaintiff or defendant in defamation proceedings
may elect for the proceedings to be tried by jury.
(2) An election must be -
(a) made at the time and in the manner
prescribed by the rules of court for the
court in which the proceedings are to be
tried; and
(b) accompanied by the fee (if any)
prescribed by the regulations for jury
trials in that court.
(3) Without limiting subsection (1), a court may
order that defamation proceedings are not to be
tried by jury if -
(a) the trial requires a prolonged
examination of records; or
(b) the trial involves any technical, scientific
or other issue that cannot be conveniently
considered and resolved by a jury.
(4) If the defamation proceedings are to be tried in
the Magistrates Court, the parties may not elect
for the proceedings to be tried by jury.
22. Roles of judicial officers and juries in defamation
proceedings
(1) This section applies to defamation proceedings
that are tried by jury.
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2005 Defamation No. s. 23
(2) The jury is to determine whether the defendant
has published defamatory matter about the
plaintiff and, if so, whether any defence raised
by the defendant has been established.
(3) If the jury finds that the defendant has published
defamatory matter about the plaintiff and that no
defence has been established, the judicial officer
and not the jury is to determine the amount of
damages (if any) that should be awarded to the
plaintiff and all unresolved issues of fact and law
relating to the determination of that amount.
(4) If the proceedings relate to more than one cause
of action for defamation, the jury must give a
single verdict in relation to all causes of action
on which the plaintiff relies unless the judicial
officer orders otherwise.
(5) Nothing in this section -
(a) affects any law or practice relating to
special verdicts; or
(b) requires or permits a jury to determine
any issue that, at general law, is an issue
to be determined by the judicial officer.
23. Leave required for further proceedings in relation
to publication of same defamatory matter
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
29
s. 24 No. Defamation 2005
or like matter, except with the leave of the court
in which the further proceedings are to be
brought.
Division 2 - Defences
24. Scope of defences under general law and other law
not limited
(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.
25. Defence of justification
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.
30
2005 Defamation No. s. 26
26. Defence of contextual truth
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, one 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.
27. Defence of absolute privilege
(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
31
s. 27 No. Defamation 2005
(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;
or
(d) the matter is published by a person or
body in any circumstances specified in
Schedule 1.
32
2005 Defamation No. s. 28
28. Defence for publication of public documents
(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 non-
compliance 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 non-compliance.
(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
33
s. 28 No. Defamation 2005
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
34
2005 Defamation No. s. 29
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; or
(g) any document of a kind specified
in Schedule 2.
29. Defence of fair report of proceedings of public
concern
(1) It is a defence to the publication of defamatory
matter if the defendant proves that the matter
35
s. 29 No. Defamation 2005
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
36
2005 Defamation No. s. 29
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
37
s. 29 No. Defamation 2005
(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
38
2005 Defamation No. s. 29
(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 2001 of the
Commonwealth 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; or
39
s. 29 No. Defamation 2005
(p) any proceedings of a kind
specified in Schedule 3.
(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;
40
2005 Defamation No. s. 29
"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
paragraph (a) of the
definition of "learned society" in
this subsection; or
(b) in relation to a sport or recreation
association, objects of the kind
referred to in paragraph (a) of the
definition of "sport or recreation
association" in this subsection; or
(c) in relation to a trade association,
objects of the kind referred to in
paragraph (a) of the
definition of "trade association"
in this subsection;
"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
41
s. 29 No. Defamation 2005
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.
42
2005 Defamation No. s. 30
30. Defence of qualified privilege for provision of
certain information
(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
43
s. 30 No. Defamation 2005
(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.
44
2005 Defamation No. s. 31
(5) However, a defence of qualified privilege under
subsection (1) is not defeated merely because the
defamatory matter was published for reward.
31. Defences of honest opinion
(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
45
s. 31 No. Defamation 2005
(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 a defence
under this section or section 28 or 29.
46
2005 Defamation No. s. 32
(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 material if the
opinion might reasonably be based on such of
the material as is proper material.
32. Defence of innocent dissemination
(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.
47
s. 32 No. Defamation 2005
(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 news vendor;
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 programme
(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 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
48
2005 Defamation No. s. 33
which the matter is transmitted, or made
available, by another person over whom
the operator or provider has not 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.
33. Defence of triviality
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.
Division 3 - Remedies
34. Damages to bear rational relationship to 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.
35. Damages for non-economic loss limited
(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
49
s. 35 No. Defamation 2005
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, by order published in the Gazette, 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) 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.
(6) If the Australian Statistician fails or ceases to
estimate the amount referred to in subsection (4),
50
2005 Defamation No. s. 36
the amount declared is to be determined in
accordance with the regulations.
(7) 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.
(8) A declaration made or published in the Gazette
after 1 July in a year, and specifying a date that
is before the date it is made or published as the
date from which the amount declared by the
order is to apply, has effect as from that
specified date.
36. State of mind of defendant generally not relevant to
awarding damages
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.
37. Exemplary or punitive damages cannot be awarded
A plaintiff cannot be awarded exemplary or
punitive damages for defamation.
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38. Factors in mitigation of damages
(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.
52
2005 Defamation No. s. 39
39. Damages for multiple causes of action may be
assessed as single sum
If the court in defamation proceedings finds for
the plaintiff as to more than one cause of action,
the judicial officer may assess damages in a
single sum.
Division 4 - Costs
40. Costs in defamation proceedings
(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
53
s. 40 No. Defamation 2005
(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.
54
2005 Defamation No. s. 41
PART 5 - MISCELLANEOUS
41. Proof of publication
(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.
42. Proof of convictions for offences
(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
55
s. 43 No. Defamation 2005
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.
43. Incriminating answers, documents or things
(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
56
2005 Defamation No. s. 44
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.
44. Giving of notices and other documents
(1) For the purposes of this Act, a notice or other
document may be given to a person (or a notice
or other document may be served on a person) -
(a) in the case of a natural person, by -
(i) delivering it to the person
personally; or
(ii) sending it by post to the address
specified by the person for the
giving or service of documents
or, if no such address is specified,
the residential or business address
of the person last known to the
person giving or serving the
document; or
(iii) sending it by facsimile
transmission to the facsimile
number of the person; or
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s. 45 No. Defamation 2005
(b) in the case of a body corporate, by -
(i) leaving it with a person
apparently of or above the age of
16 years at, or by sending it by
post to, the head office, a
registered office or a principal
office of the body corporate or to
an address specified by the body
corporate for the giving or service
of documents; or
(ii) sending it by facsimile
transmission to the facsimile
number of the body corporate.
(2) Nothing in this section affects the operation of
any provision of a law or of the rules of a court
authorising a document to be served on a person
in any other manner.
45. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
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2005 Defamation No. s. 46
46. Rules of court
For the purposes of this Act, rules of court may
be made under the Supreme Court Civil
Procedure Act 1932 and the Magistrates Court
Act 1987.
47. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
48. Savings, transitional and other provisions
(1) This Act applies to the publication of defamatory
matter after the commencement of this Act,
unless subsection (2) provides otherwise.
(2) The provisions of this Act (other than this
section) do not apply to a cause of action for the
publication of defamatory matter that accrues
after the commencement of this Act (the "post-
commencement action") if -
(a) the post-commencement action is one of
2 or more causes of action in proceedings
commenced by a plaintiff; and
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s. 48 No. Defamation 2005
(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) one or more of the other causes of action
in the proceedings accrued before the
commencement of this Act (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 this Act not been enacted:
(a) any cause of action that accrued before
the commencement of this Act;
(b) any post-commencement action to which
the other provisions of this Act do 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 Act.
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2005 Defamation No. s. 49
49. Consequential Amendments
The legislation specified in Schedule 4 is
amended as specified in that Schedule.
50. Legislation repealed
The legislation specified in Schedule 5 is
repealed.
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sch. 1 No. Defamation 2005
SCHEDULE 1 - ADDITIONAL PUBLICATIONS TO
WHICH ABSOLUTE PRIVILEGE APPLIES
Section 27(2)(d)
Currently there are no provisions in this
Schedule but it has been included for
consistency with national model legislation.
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2005 Defamation No. sch. 2
SCHEDULE 2 - ADDITIONAL KINDS OF PUBLIC
DOCUMENTS
Section 28(4)
Currently there are no provisions in this
Schedule but it has been included for
consistency with national model legislation.
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sch. 3 No. Defamation 2005
SCHEDULE 3 - ADDITIONAL PROCEEDINGS OF
PUBLIC CONCERN
Section 29(4)
Currently there are no provisions in this
Schedule but it has been included for
consistency with national model legislation.
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2005 Defamation No. sch. 4
SCHEDULE 4 - CONSEQUENTIAL AMENDMENTS
Section 49
Criminal Code Act 1924
1. Chapter XXIII of Part V is repealed and the
following Chapter is substituted:
Chapter XXIII - Criminal defamation
196. Criminal defamation
(1) A person who, without lawful excuse,
publishes matter defamatory of another
living person (the "victim") -
(a) knowing the matter to be false or
without having regard to whether
the matter is true or false; and
(b) intending to cause serious harm
to the victim or any other person
or without having regard to
whether such harm is caused -
is guilty of a crime.
Charge: Defamation.
(2) In proceedings for an offence under this
section, the accused has a lawful excuse
for the publication of defamatory matter
about the victim if, and only if,
subsection (3) applies.
(3) This subsection applies if the accused
would, having regard only to the
circumstances happening before or at the
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sch. 4 No. Defamation 2005
time of the publication, have had a
defence for the publication if the victim
had brought civil proceedings for
defamation against the accused.
(4) The prosecutor bears the onus of
negativing the existence of a lawful
excuse if, and only if, evidence directed
to establishing the excuse is first adduced
by or on behalf of the accused.
(5) On a trial before a jury for an offence
under 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 judge; 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.
(6) A prosecution under this section must not
be commenced without the consent of the
Director of Public Prosecutions.
(7) In this section -
"publish" and "defamatory" have the
meanings that those terms have in
the law of tort (as modified by the
Defamation Act 2005) relating to
defamation.
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2005 Defamation No. sch. 4
197. Proceedings for an offence do not bar civil
proceedings
The commencement of criminal
proceedings for an offence under
section 196(1) does not prevent -
(a) the commencement of civil
proceedings for defamation
against the accused; or
(b) the determination of the civil
proceedings pending the
determination of the criminal
proceedings.
Justices Act 1959
1. Section 37A(1) is amended by omitting "section
13 of the Defamation Act 1957" and substituting
"the Defamation Act 2005".
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sch. 5 No. Defamation 2005
SCHEDULE 5 - LEGISLATION REPEALED
Section 50
Defamation Act 1957 (No. 42 of 1957)
68 Government Printer, Tasmania