DEFAMATION BILL 2005

Queensland Bills

[Index] [Search] [Download] [Related Items] [Help]

This is a Bill, not an Act. For current law, see the Acts databases.

DEFAMATION BILL 2005

Queensland Defamation Bill 2005

Queensland Defamation Bill 2005 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 Objects of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Part 2 General principles Division 1 Defamation and the general law 6 Tort of defamation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 7 Distinction between slander and libel remains abolished . . . . . . . 7 Division 2 Causes of action for defamation 8 Single cause of action for multiple defamatory imputations in same matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9 Certain corporations do not have cause of action for defamation ................................... 8 10 No cause of action for defamation of, or against, deceased persons ........................................ 9 Division 3 Choice of law 11 Choice of law for defamation proceedings . . . . . . . . . . . . . . . . . . 9 Part 3 Resolution of civil disputes without litigation Division 1 Offers to make amends 12 Application of division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 Publisher may make offer to make amends . . . . . . . . . . . . . . . . . 11 14 When offer to make amends may be made . . . . . . . . . . . . . . . . . 11 15 Content of offer to make amends . . . . . . . . . . . . . . . . . . . . . . . . . 12 16 Withdrawal of offer to make amends . . . . . . . . . . . . . . . . . . . . . . 14 17 Effect of acceptance of offer to make amends . . . . . . . . . . . . . . . 15 18 Effect of failure to accept reasonable offer to make amends . . . . 15

2 Defamation Bill 2005 19 Inadmissibility of evidence of certain statements and admissions ................................... 16 Division 2 Apologies 20 Effect of apology on liability for defamation . . . . . . . . . . . . . . . . . 17 Part 4 Litigation of civil disputes Division 1 General 21 Election for defamation proceedings to be tried by jury . . . . . . . . 17 22 Roles of judicial officers and juries in defamation proceedings . . 18 23 Leave required for further proceedings in relation to publication of same defamatory matter . . . . . . . . . . . . . . . . . . . . 19 Division 2 Defences 24 Scope of defences under general law and other law not limited . 19 25 Defence of justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 26 Defence of contextual truth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 27 Defence of absolute privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 28 Defence for publication of public documents . . . . . . . . . . . . . . . . 21 29 Defences of fair report of proceedings of public concern . . . . . . . 23 30 Defence of qualified privilege for provision of certain information 27 31 Defences of honest opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 32 Defence of innocent dissemination. . . . . . . . . . . . . . . . . . . . . . . . 29 33 Defence of triviality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Division 3 Remedies 34 Damages to bear rational relationship to harm . . . . . . . . . . . . . . 31 35 Damages for non-economic loss limited. . . . . . . . . . . . . . . . . . . . 31 36 State of mind of defendant generally not relevant to awarding damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 37 Exemplary or punitive damages can not be awarded. . . . . . . . . . 32 38 Factors in mitigation of damages . . . . . . . . . . . . . . . . . . . . . . . . . 33 39 Damages for multiple causes of action may be assessed as single sum ........................................ 33 Division 4 Costs 40 Costs in defamation proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 33 Part 5 Miscellaneous 41 Proof of publication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 42 Proof of convictions for offences. . . . . . . . . . . . . . . . . . . . . . . . . . 35 44 Giving of notices and other documents . . . . . . . . . . . . . . . . . . . . 36 45 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 47 Repeal of Defamation Act 1889 . . . . . . . . . . . . . . . . . . . . . . . . . . 37

3 Defamation Bill 2005 48 Acts amended in sch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 49 Savings, transitional and other provisions . . . . . . . . . . . . . . . . . . 37 Schedule 4 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Schedule 5 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

2005 A Bill for An Act to provide in Queensland provisions promoting uniform laws of defamation in Australia, to repeal the Defamation Act 1889, and to amend legislation administered by the Minister for Justice and Attorney-General

s1 6 s3 Defamation Bill 2005 The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 1 Short title 3 This Act may be cited as the Defamation Act 2005. 4 2 Commencement 5 This Act commences on 1 January 2006. 6 3 Objects of Act 7 The objects of this Act are-- 8 (a) to enact provisions to promote uniform laws of 9 defamation in Australia; and 10 11 Note-- 12 To maximise uniformity between this Act and Acts enacted in 13 other jurisdictions to promote uniform laws of defamation in 14 Australia-- 15 · the numbers of some provisions that are not enacted in this 16 jurisdiction have not been used in the numbering of this Act 17 · this Act includes 3 references to schedules that are not 18 enacted. (b) to ensure that the law of defamation does not place 19 unreasonable limits on freedom of expression and, in 20 particular, on the publication and discussion of matters 21 of public interest and importance; and 22 (c) to provide effective and fair remedies for persons whose 23 reputations are harmed by the publication of defamatory 24 matter; and 25 (d) to promote speedy and non-litigious methods of 26 resolving disputes about the publication of defamatory 27 matter. 28

s4 7 s7 Defamation Bill 2005 4 Interpretation 1 (1) The dictionary in schedule 5 defines particular words used in 2 this Act. 3 (2) Notes do not form part of this Act. 4 5 Act binds all persons 5 This Act binds all persons, including the State and, as far as 6 the legislative power of the Parliament permits, the 7 Commonwealth and the other States. 8 Part 2 General principles 9 Division 1 Defamation and the general law 10 6 Tort of defamation 11 (1) This Act relates to the tort of defamation at general law. 12 (2) This Act does not affect the operation of the general law in 13 relation to the tort of defamation except to the extent that this 14 Act provides otherwise (whether expressly or by necessary 15 implication). 16 (3) Without limiting subsection (2), the general law as it is from 17 time to time applies for the purposes of this Act as if the 18 Defamation Act 1889 had never been enacted. 19 7 Distinction between slander and libel remains abolished 20 (1) The distinction at general law between slander and libel 21 remains abolished. 22 (2) Accordingly, the publication of defamatory matter of any kind 23 is actionable without proof of special damage. 24

s8 8 s9 Defamation Bill 2005 Division 2 Causes of action for defamation 1 8 Single cause of action for multiple defamatory 2 imputations in same matter 3 A person has a single cause of action for defamation in 4 relation to the publication of defamatory matter about the 5 person even if more than 1 defamatory imputation about the 6 person is carried by the matter. 7 9 Certain corporations do not have cause of action for 8 defamation 9 (1) A corporation has no cause of action for defamation in 10 relation to the publication of defamatory matter about the 11 corporation unless it was an excluded corporation at the time 12 of the publication. 13 (2) A corporation is an excluded corporation if-- 14 (a) the objects for which it is formed do not include 15 obtaining financial gain for its members or corporators; 16 or 17 (b) it employs fewer than 10 persons and is not related to 18 another corporation; 19 and the corporation is not a public body. 20 (3) In counting employees for the purposes of subsection (2)(b), 21 part-time employees are to be taken into account as an 22 appropriate fraction of a full-time equivalent. 23 (4) In determining whether a corporation is related to another 24 corporation for the purposes of subsection (2)(b), the 25 Corporations Act, section 50 applies as if references to bodies 26 corporate in that section were references to corporations 27 within the meaning of this section. 28 (5) Subsection (1) does not affect any cause of action for 29 defamation that an individual associated with a corporation 30 has in relation to the publication of defamatory matter about 31 the individual even if the publication of the same matter also 32 defames the corporation. 33 (6) In this section-- 34

s 10 9 s 11 Defamation Bill 2005 corporation includes any body corporate or corporation 1 constituted by or under a law of any country (including by 2 exercise of a prerogative right), whether or not a public body. 3 public body means a local government body or other 4 governmental or public authority constituted by or under a law 5 of any country. 6 10 No cause of action for defamation of, or against, 7 deceased persons 8 A person (including a personal representative of a deceased 9 person) can not assert, continue or enforce a cause of action 10 for defamation in relation to-- 11 (a) the publication of defamatory matter about a deceased 12 person (whether published before or after his or her 13 death); or 14 (b) the publication of defamatory matter by a person who 15 has died since publishing the matter. 16 Division 3 Choice of law 17 11 Choice of law for defamation proceedings 18 (1) If a matter is published wholly within a particular Australian 19 jurisdictional area, the substantive law that is applicable in 20 that area must be applied in this jurisdiction to determine any 21 cause of action for defamation based on the publication. 22 (2) If there is a multiple publication of matter in more than 1 23 Australian jurisdictional area, the substantive law applicable 24 in the Australian jurisdictional area with which the harm 25 occasioned by the publication as a whole has its closest 26 connection must be applied in this jurisdiction to determine 27 each cause of action for defamation based on the publication. 28 (3) In determining the Australian jurisdictional area with which 29 the harm occasioned by a publication of matter has its closest 30 connection, a court may take into account-- 31 (a) the place at the time of publication where the plaintiff 32 was ordinarily resident or, in the case of a corporation 33

s 11 10 s 11 Defamation Bill 2005 that may assert a cause of action for defamation, the 1 place where the corporation had its principal place of 2 business at that time; and 3 (b) the extent of publication in each relevant Australian 4 jurisdictional area; and 5 (c) the extent of harm sustained by the plaintiff in each 6 relevant Australian jurisdictional area; and 7 (d) any other matter that the court considers relevant. 8 (4) For the purposes of this section, the substantive law 9 applicable in an Australian jurisdictional area does not include 10 any law prescribing rules for choice of law that differ from the 11 rules prescribed by this section. 12 (5) In this section-- 13 Australian jurisdictional area means-- 14 (a) the geographical area of Australia that lies within the 15 territorial limits of a particular State (including its 16 coastal waters), but not including any territory, place or 17 other area referred to in paragraph (c); or 18 (b) the geographical area of Australia that lies within the 19 territorial limits of a particular Territory (including its 20 coastal waters), but not including any territory, place or 21 other area referred to in paragraph (c); or 22 (c) any territory, place or other geographical area of 23 Australia over which the Commonwealth has legislative 24 competence but over which no State or Territory has 25 legislative competence. 26 geographical area of Australia includes-- 27 (a) the territorial sea of Australia; and 28 (b) the external Territories of the Commonwealth. 29 multiple publication means publication by a particular person 30 of the same, or substantially the same, matter in substantially 31 the same form to 2 or more persons. 32

s 12 11 s 14 Defamation Bill 2005 Part 3 Resolution of civil disputes 1 without litigation 2 Division 1 Offers to make amends 3 12 Application of division 4 (1) This division applies if a person (the publisher) publishes 5 matter (the matter in question) that is, or may be, defamatory 6 of another person (the aggrieved person). 7 (2) The provisions of this division may be used instead of the 8 provisions of any rules of court or any other law in relation to 9 payment into court or offers of compromise. 10 (3) Nothing in this division prevents a publisher or aggrieved 11 person from making or accepting a settlement offer in relation 12 to the publication of the matter in question otherwise than in 13 accordance with the provisions of this division. 14 13 Publisher may make offer to make amends 15 (1) The publisher may make an offer to make amends to the 16 aggrieved person. 17 (2) The offer may be-- 18 (a) in relation to the matter in question generally; or 19 (b) limited to any particular defamatory imputations that the 20 publisher accepts that the matter in question carries. 21 (3) If 2 or more persons published the matter in question, an offer 22 to make amends by 1 or more of them does not affect the 23 liability of the other or others. 24 (4) An offer to make amends is taken to have been made without 25 prejudice, unless the offer provides otherwise. 26 14 When offer to make amends may be made 27 (1) An offer to make amends can not be made if-- 28

s 15 12 s 15 Defamation Bill 2005 (a) 28 days have elapsed since the publisher was given a 1 concerns notice by the aggrieved person; or 2 (b) a defence has been served in an action brought by the 3 aggrieved person against the publisher in relation to the 4 matter in question. 5 (2) A notice is a concerns notice for the purposes of this section 6 if the notice-- 7 (a) is in writing; and 8 (b) informs the publisher of the defamatory imputations that 9 the aggrieved person considers are or may be carried 10 about the aggrieved person by the matter in question 11 (the imputations of concern). 12 (3) If an aggrieved person gives the publisher a concerns notice, 13 but fails to particularise the imputations of concern 14 adequately, the publisher may give the aggrieved person a 15 written notice (a further particulars notice) requesting the 16 aggrieved person to provide reasonable further particulars 17 about the imputations of concern as specified in the further 18 particulars notice. 19 (4) An aggrieved person to whom a further particulars notice is 20 given must provide the reasonable further particulars specified 21 in the notice within 14 days (or any further period agreed by 22 the publisher and aggrieved person) after being given the 23 notice. 24 (5) An aggrieved person who fails to provide the reasonable 25 further particulars specified in a further particulars notice 26 within the applicable period is taken not to have given the 27 publisher a concerns notice for the purposes of this section. 28 15 Content of offer to make amends 29 (1) An offer to make amends-- 30 (a) must be in writing; and 31 (b) must be readily identifiable as an offer to make amends 32 under this division; and 33 (c) if the offer is limited to any particular defamatory 34 imputations--must state that the offer is so limited and 35

s 15 13 s 15 Defamation Bill 2005 particularise the imputations to which the offer is 1 limited; and 2 (d) must include an offer to publish, or join in publishing, a 3 reasonable correction of the matter in question or, if the 4 offer is limited to any particular defamatory 5 imputations, the imputations to which the offer is 6 limited; and 7 (e) if material containing the matter has been given to 8 someone else by the publisher or with the publisher's 9 knowledge--must include an offer to take, or join in 10 taking, reasonable steps to tell the other person that the 11 matter is or may be defamatory of the aggrieved person; 12 and 13 (f) must include an offer to pay the expenses reasonably 14 incurred by the aggrieved person before the offer was 15 made and the expenses reasonably incurred by the 16 aggrieved person in considering the offer; and 17 (g) may include any other kind of offer, or particulars of any 18 other action taken by the publisher, to redress the harm 19 sustained by the aggrieved person because of the matter 20 in question, including (but not limited to)-- 21 (i) an offer to publish, or join in publishing, an 22 apology in relation to the matter in question or, if 23 the offer is limited to any particular defamatory 24 imputations, the imputations to which the offer is 25 limited; or 26 (ii) an offer to pay compensation for any economic or 27 non-economic loss of the aggrieved person; or 28 (iii) the particulars of any correction or apology made, 29 or action taken, before the date of the offer. 30 (2) Without limiting subsection (1)(g)(ii), an offer to pay 31 compensation may comprise or include any 1 or more of the 32 following-- 33 (a) an offer to pay a stated amount; 34 (b) an offer to pay an amount to be agreed between the 35 publisher and the aggrieved person; 36

s 16 14 s 16 Defamation Bill 2005 (c) an offer to pay an amount determined by an arbitrator 1 appointed, or agreed on, by the publisher and the 2 aggrieved person; 3 (d) an offer to pay an amount determined by a court. 4 (3) If an offer to make amends is accepted, a court may, on the 5 application of the aggrieved person or publisher, determine-- 6 (a) if the offer provides for a court to determine the amount 7 of compensation payable under the offer--the amount 8 of compensation to be paid under the offer; and 9 (b) any other question that arises about what must be done 10 to carry out the terms of the offer. 11 (4) The powers conferred on a court by subsection (3) are 12 exercisable-- 13 (a) if the aggrieved person has brought proceedings against 14 the publisher in any court for defamation in relation to 15 the matter in question, by that court in those 16 proceedings; and 17 (b) except as provided in paragraph (a), by the Supreme 18 Court. 19 16 Withdrawal of offer to make amends 20 (1) An offer to make amends may be withdrawn before it is 21 accepted by notice in writing given to the aggrieved person. 22 (2) A publisher who has withdrawn an offer to make amends may 23 make a renewed offer. 24 (3) A renewed offer may (but need not) be in the same terms as 25 the withdrawn offer. 26 (4) A renewed offer is to be treated as a new offer (including for 27 the purposes of section 14). 28 (5) However, the time limit specified in section 14 for the making 29 of offers to make amends does not prevent the making of a 30 renewed offer that is not in the same terms as the withdrawn 31 offer if-- 32

s 17 15 s 18 Defamation Bill 2005 (a) the renewed offer represents a genuine attempt by the 1 publisher to address matters of concern raised by the 2 aggrieved person about the withdrawn offer; and 3 (b) the renewed offer is made within 14 days after the 4 withdrawal of the withdrawn offer or any other period 5 agreed by the publisher and the aggrieved person. 6 17 Effect of acceptance of offer to make amends 7 (1) If the publisher carries out the terms of an offer to make 8 amends (including payment of any compensation under the 9 offer) that is accepted, the aggrieved person can not assert, 10 continue or enforce an action for defamation against the 11 publisher in relation to the matter in question even if the offer 12 was limited to any particular defamatory imputations. 13 (2) A court may (but need not)-- 14 (a) order the publisher to pay the aggrieved person the 15 expenses reasonably incurred by the aggrieved person as 16 a result of accepting the offer; and 17 (b) order any costs incurred by the aggrieved person that 18 form part of those expenses to be assessed on an 19 indemnity basis. 20 (3) The powers conferred on a court by subsection (2) are 21 exercisable-- 22 (a) if the aggrieved person has brought proceedings against 23 the publisher in any court for defamation in relation to 24 the matter in question, by that court in those 25 proceedings; and 26 (b) except as provided in paragraph (a), by the Supreme 27 Court. 28 18 Effect of failure to accept reasonable offer to make 29 amends 30 (1) If an offer to make amends is made in relation to the matter in 31 question but is not accepted, it is a defence to an action for 32 defamation against the publisher in relation to the matter if-- 33

s 19 16 s 19 Defamation Bill 2005 (a) the publisher made the offer as soon as practicable after 1 becoming aware that the matter is or may be 2 defamatory; and 3 (b) at any time before the trial the publisher was ready and 4 willing, on acceptance of the offer by the aggrieved 5 person, to carry out the terms of the offer; and 6 (c) in all the circumstances the offer was reasonable. 7 (2) In determining whether an offer to make amends is 8 reasonable, a court-- 9 (a) must have regard to any correction or apology published 10 before any trial arising out of the matter in question, 11 including the extent to which the correction or apology 12 is brought to the attention of the audience of the matter 13 in question taking into account-- 14 (i) the prominence given to the correction or apology 15 as published in comparison to the prominence 16 given to the matter in question as published; and 17 (ii) the period that elapses between publication of the 18 matter in question and publication of the correction 19 or apology; and 20 (b) may have regard to-- 21 (i) whether the aggrieved person refused to accept an 22 offer that was limited to any particular defamatory 23 imputations because the aggrieved person did not 24 agree with the publisher about the imputations that 25 the matter in question carried; and 26 (ii) any other matter that the court considers relevant. 27 19 Inadmissibility of evidence of certain statements and 28 admissions 29 (1) Evidence of any statement or admission made in connection 30 with the making or acceptance of an offer to make amends is 31 not admissible as evidence in any legal proceedings (whether 32 criminal or civil). 33 (2) Subsection (1) does not prevent the admission of evidence in 34 any legal proceedings in order to determine-- 35

s 20 17 s 21 Defamation Bill 2005 (a) any issue arising under, or relating to the application of, 1 a provision of this division; or 2 (b) costs in defamation proceedings. 3 Division 2 Apologies 4 20 Effect of apology on liability for defamation 5 (1) An apology made by or on behalf of a person in connection 6 with any defamatory matter alleged to have been published by 7 the person-- 8 (a) does not constitute an express or implied admission of 9 fault or liability by the person in connection with that 10 matter; and 11 (b) is not relevant to the determination of fault or liability in 12 connection with that matter. 13 (2) Evidence of an apology made by or on behalf of a person in 14 connection with any defamatory matter alleged to have been 15 published by the person is not admissible in any civil 16 proceedings as evidence of the fault or liability of the person 17 in connection with that matter. 18 (3) Nothing in this section limits the operation of section 38. 19 Part 4 Litigation of civil disputes 20 Division 1 General 21 21 Election for defamation proceedings to be tried by jury 22 (1) Unless the court orders otherwise, a plaintiff or defendant in 23 defamation proceedings may elect for the proceedings to be 24 tried by jury. 25

s 22 18 s 22 Defamation Bill 2005 (2) An election must be made at the time and in the manner 1 prescribed by the rules of court for the court in which the 2 proceedings are to be tried. 3 (3) Without limiting subsection (1), a court may order that 4 defamation proceedings are not to be tried by jury if-- 5 (a) the trial requires a prolonged examination of records; or 6 (b) the trial involves any technical, scientific or other issue 7 that can not be conveniently considered and resolved by 8 a jury. 9 (4) In this section-- 10 court means the Supreme Court or the District Court. 11 22 Roles of judicial officers and juries in defamation 12 proceedings 13 (1) This section applies to defamation proceedings that are tried 14 by jury. 15 (2) The jury is to determine whether the defendant has published 16 defamatory matter about the plaintiff and, if so, whether any 17 defence raised by the defendant has been established. 18 (3) If the jury finds that the defendant has published defamatory 19 matter about the plaintiff and that no defence has been 20 established, the judicial officer and not the jury is to determine 21 the amount of damages (if any) that should be awarded to the 22 plaintiff and all unresolved issues of fact and law relating to 23 the determination of that amount. 24 (4) If the proceedings relate to more than 1 cause of action for 25 defamation, the jury must give a single verdict in relation to 26 all causes of action on which the plaintiff relies unless the 27 judicial officer orders otherwise. 28 (5) Nothing in this section-- 29 (a) affects any law or practice relating to special verdicts; or 30 (b) requires or permits a jury to determine any issue that, at 31 general law, is an issue to be determined by the judicial 32 officer. 33

s 23 19 s 26 Defamation Bill 2005 23 Leave required for further proceedings in relation to 1 publication of same defamatory matter 2 If a person has brought defamation proceedings for damages 3 (whether in this jurisdiction or elsewhere) against any person 4 in relation to the publication of any matter, the person can not 5 bring further defamation proceedings for damages against the 6 same defendant in relation to the same or any other 7 publication of the same or like matter, except with the leave of 8 the court in which the further proceedings are to be brought. 9 Division 2 Defences 10 24 Scope of defences under general law and other law not 11 limited 12 (1) A defence under this division is additional to any other 13 defence or exclusion of liability available to the defendant 14 apart from this Act (including under the general law) and does 15 not of itself vitiate, limit or abrogate any other defence or 16 exclusion of liability. 17 (2) If a defence under this division to the publication of 18 defamatory matter may be defeated by proof that the 19 publication was actuated by malice, the general law applies in 20 defamation proceedings in which the defence is raised to 21 determine whether a particular publication of matter was 22 actuated by malice. 23 25 Defence of justification 24 It is a defence to the publication of defamatory matter if the 25 defendant proves that the defamatory imputations carried by 26 the matter of which the plaintiff complains are substantially 27 true. 28 26 Defence of contextual truth 29 It is a defence to the publication of defamatory matter if the 30 defendant proves that-- 31

s 27 20 s 27 Defamation Bill 2005 (a) the matter carried, in addition to the defamatory 1 imputations of which the plaintiff complains, 1 or more 2 other imputations (contextual imputations) that are 3 substantially true; and 4 (b) the defamatory imputations do not further harm the 5 reputation of the plaintiff because of the substantial truth 6 of the contextual imputations. 7 27 Defence of absolute privilege 8 (1) It is a defence to the publication of defamatory matter if the 9 defendant proves that it was published on an occasion of 10 absolute privilege. 11 (2) Without limiting subsection (1), matter is published on an 12 occasion of absolute privilege if-- 13 (a) the matter is published in the course of the proceedings 14 of a parliamentary body, including (but not limited to)-- 15 (i) the publication of a document by order, or under 16 the authority, of the body; and 17 (ii) the publication of the debates and proceedings of 18 the body by or under the authority of the body or 19 any law; and 20 (iii) the publication of matter while giving evidence 21 before the body; and 22 (iv) the publication of matter while presenting or 23 submitting a document to the body; or 24 (b) the matter is published in the course of the proceedings 25 of an Australian court or Australian tribunal, including 26 (but not limited to)-- 27 (i) the publication of matter in any document filed or 28 lodged with, or otherwise submitted to, the court or 29 tribunal (including any originating process); and 30 (ii) the publication of matter while giving evidence 31 before the court or tribunal; and 32 (iii) the publication of matter in any judgment, order or 33 other determination of the court or tribunal; or 34

s 28 21 s 28 Defamation Bill 2005 (c) the matter is published on an occasion that, if published 1 in another Australian jurisdiction, would be an occasion 2 of absolute privilege in that jurisdiction under a 3 provision of a law of the jurisdiction corresponding to 4 this section; or 5 (d) the matter is published by a person or body in any 6 circumstances specified in schedule 1. 7 8 Note-- 9 This Act does not contain a schedule 1. See note to section 3(a). 28 Defence for publication of public documents 10 (1) It is a defence to the publication of defamatory matter if the 11 defendant proves that the matter was contained in-- 12 (a) a public document or a fair copy of a public document; 13 or 14 (b) a fair summary of, or a fair extract from, a public 15 document. 16 (2) For the purposes of subsection (1), if a report or other 17 document under the law of a country would be a public 18 document except for non-compliance with a provision of that 19 law about-- 20 (a) the formal requirements for the content or layout of the 21 report or document; or 22 (b) the time within which the report or document is 23 prepared, or presented, submitted, tabled or laid to or 24 before a person or body; 25 the report or document is a public document despite that 26 non-compliance. 27 (3) A defence established under subsection (1) is defeated if, and 28 only if, the plaintiff proves that the defamatory matter was not 29 published honestly for the information of the public or the 30 advancement of education. 31 (4) In this section-- 32 public document means-- 33

s 28 22 s 28 Defamation Bill 2005 (a) any report or paper published by a parliamentary body, 1 or a record of votes, debates or other proceedings 2 relating to a parliamentary body published by or under 3 the authority of the body or any law; or 4 (b) any judgment, order or other determination of a court or 5 arbitral tribunal of any country in civil proceedings, 6 including-- 7 (i) any record of the court or tribunal relating to the 8 judgment, order or determination or to its 9 enforcement or satisfaction; and 10 (ii) any report of the court or tribunal about its 11 judgment, order or determination and the reasons 12 for its judgment, order or determination; or 13 (c) any report or other document that under the law of any 14 country-- 15 (i) is authorised to be published; or 16 (ii) is required to be presented or submitted to, tabled 17 in, or laid before, a parliamentary body; or 18 (d) any document issued by the government (including a 19 local government) of a country, or by an officer, 20 employee or agency of the government, for the 21 information of the public; or 22 (e) any record or other document open to inspection by the 23 public that is kept-- 24 (i) by an Australian jurisdiction; or 25 (ii) by a statutory authority of an Australian 26 jurisdiction; or 27 (iii) by an Australian court; or 28 (iv) under legislation of an Australian jurisdiction; or 29 (f) any other document issued, kept or published by a 30 person, body or organisation of another Australian 31 jurisdiction that is treated in that jurisdiction as a public 32 document under a provision of a law of the jurisdiction 33 corresponding to this section; or 34 (g) any document of a kind specified in schedule 2. 35

s 29 23 s 29 Defamation Bill 2005 1 Note-- 2 This Act does not contain a schedule 2. See note to section 3(a). 29 Defences of fair report of proceedings of public concern 3 (1) It is a defence to the publication of defamatory matter if the 4 defendant proves that the matter was, or was contained in, a 5 fair report of any proceedings of public concern. 6 (2) It is a defence to the publication of defamatory matter if the 7 defendant proves that-- 8 (a) the matter was, or was contained in, an earlier published 9 report of proceedings of public concern; and 10 (b) the matter was, or was contained in, a fair copy of, a fair 11 summary of, or a fair extract from, the earlier published 12 report; and 13 (c) the defendant had no knowledge that would reasonably 14 make the defendant aware that the earlier published 15 report was not fair. 16 (3) A defence established under subsection (1) or (2) is defeated 17 if, and only if, the plaintiff proves that the defamatory matter 18 was not published honestly for the information of the public 19 or the advancement of education. 20 (4) In this section-- 21 proceedings of public concern means-- 22 (a) any proceedings in public of a parliamentary body; or 23 (b) any proceedings in public of an international 24 organisation of any countries or of the governments of 25 any countries; or 26 (c) any proceedings in public of an international conference 27 at which the governments of any countries are 28 represented; or 29 (d) any proceedings in public of-- 30 (i) the International Court of Justice, or any other 31 judicial or arbitral tribunal, for the decision of any 32 matter in dispute between nations; or 33

s 29 24 s 29 Defamation Bill 2005 (ii) any other international judicial or arbitral tribunal; 1 or 2 (e) any proceedings in public of a court or arbitral tribunal 3 of any country; or 4 (f) any proceedings in public of an inquiry held under the 5 law of any country or under the authority of the 6 government of any country; or 7 (g) any proceedings in public of a local government body of 8 any Australian jurisdiction; or 9 (h) proceedings of a learned society, or of a committee or 10 governing body of the society, under its relevant objects, 11 but only to the extent that the proceedings relate to a 12 decision or adjudication made in Australia about-- 13 (i) a member or members of the society; or 14 (ii) a person subject by contract or otherwise by law to 15 control by the society; or 16 (i) proceedings of a sport or recreation association, or of a 17 committee or governing body of the association, under 18 its relevant objects, but only to the extent that the 19 proceedings relate to a decision or adjudication made in 20 Australia about-- 21 (i) a member or members of the association; or 22 (ii) a person subject by contract or otherwise by law to 23 control by the association; or 24 (j) proceedings of a trade association, or of a committee or 25 governing body of the association, under its relevant 26 objects, but only to the extent that the proceedings relate 27 to a decision or adjudication made in Australia about-- 28 (i) a member or members of the association; or 29 (ii) a person subject by contract or otherwise by law to 30 control by the association; or 31 (k) any proceedings of a public meeting (with or without 32 restriction on the people attending) of shareholders of a 33 public company under the Corporations Act held 34 anywhere in Australia; or 35

s 29 25 s 29 Defamation Bill 2005 (l) any proceedings of a public meeting (with or without 1 restriction on the people attending) held anywhere in 2 Australia if the proceedings relate to a matter of public 3 interest, including the advocacy or candidature of a 4 person for public office; or 5 (m) any proceedings of an ombudsman of any country if the 6 proceedings relate to a report of the ombudsman; or 7 (n) any proceedings in public of a law reform body of any 8 country; or 9 (o) any other proceedings conducted by, or proceedings of, 10 a person, body or organisation of another Australian 11 jurisdiction that are treated in that jurisdiction as 12 proceedings of public concern under a provision of a 13 law of the jurisdiction corresponding to this section; or 14 (p) any proceedings of a kind specified in schedule 3. 15 16 Note-- 17 This Act does not contain a schedule 3. See note to section 3(a). (5) In this section-- 18 law reform body of a country means a body (however 19 described and whether or not permanent or full-time) 20 established by law to conduct inquiries into, and to make 21 recommendations on, reforming the laws of that country. 22 learned society means a body, wherever formed-- 23 (a) the objects of which include the advancement of any art, 24 science or religion or the advancement of learning in 25 any field; and 26 (b) authorised by its constitution-- 27 (i) to exercise control over, or adjudicate on, matters 28 connected with those objects; and 29 (ii) to make findings or decisions having effect, by law 30 or custom, in any part of Australia. 31 ombudsman of a country means a person (however described 32 and whether or not permanent or full-time) authorised by law 33 to investigate complaints about the actions or other conduct of 34 any public officials or public bodies of that country. 35

s 29 26 s 29 Defamation Bill 2005 relevant objects of a learned society, sport or recreation 1 association or trade association means-- 2 (a) in relation to a learned society--objects of the kind 3 referred to in paragraph (a) of the definition learned 4 society in this subsection; or 5 (b) in relation to a sport or recreation association--objects 6 of the kind referred to in paragraph (a) of the definition 7 sport or recreation association in this subsection; or 8 (c) in relation to a trade association--objects of the kind 9 referred to in paragraph (a) of the definition trade 10 association in this subsection. 11 sport or recreation association means a body, wherever 12 formed-- 13 (a) the objects of which include the promotion of any game, 14 sport, or pastime to the playing of which or exercise of 15 which the public is admitted as spectators or otherwise 16 and the promotion or protection of the interests of 17 people connected with the game, sport, or pastime; and 18 (b) authorised by its constitution-- 19 (i) to exercise control over, or adjudicate on, matters 20 connected with the game, sport, or pastime; and 21 (ii) to make findings or decisions having effect, by law 22 or custom, in any part of Australia. 23 trade association means a body, wherever formed-- 24 (a) the objects of which include the promotion of any 25 calling, that is to say, a trade, business, industry or 26 profession, and the promotion or protection of the 27 interests of people engaged in any calling; and 28 (b) authorised by its constitution-- 29 (i) to exercise control over, or adjudicate on, matters 30 connected with a calling or the conduct of people 31 engaged in the calling; and 32 (ii) to make findings or decisions having effect, by law 33 or custom, in any part of Australia. 34

s 30 27 s 30 Defamation Bill 2005 30 Defence of qualified privilege for provision of certain 1 information 2 (1) There is a defence of qualified privilege for the publication of 3 defamatory matter to a person (the recipient) if the defendant 4 proves that-- 5 (a) the recipient has an interest or apparent interest in 6 having information on some subject; and 7 (b) the matter is published to the recipient in the course of 8 giving to the recipient information on that subject; and 9 (c) the conduct of the defendant in publishing that matter is 10 reasonable in the circumstances. 11 (2) For the purposes of subsection (1), a recipient has an apparent 12 interest in having information on some subject if, and only if, 13 at the time of the publication in question, the defendant 14 believes on reasonable grounds that the recipient has that 15 interest. 16 (3) In determining for the purposes of subsection (1) whether the 17 conduct of the defendant in publishing matter about a person 18 is reasonable in the circumstances, a court may take into 19 account-- 20 (a) the extent to which the matter published is of public 21 interest; and 22 (b) the extent to which the matter published relates to the 23 performance of the public functions or activities of the 24 person; and 25 (c) the seriousness of any defamatory imputation carried by 26 the matter published; and 27 (d) the extent to which the matter published distinguishes 28 between suspicions, allegations and proven facts; and 29 (e) whether it was in the public interest in the circumstances 30 for the matter published to be published expeditiously; 31 and 32 (f) the nature of the business environment in which the 33 defendant operates; and 34 (g) the sources of the information in the matter published 35 and the integrity of those sources; and 36

s 31 28 s 31 Defamation Bill 2005 (h) whether the matter published contained the substance of 1 the person's side of the story and, if not, whether a 2 reasonable attempt was made by the defendant to obtain 3 and publish a response from the person; and 4 (i) any other steps taken to verify the information in the 5 matter published; and 6 (j) any other circumstances that the court considers 7 relevant. 8 (4) For the avoidance of doubt, a defence of qualified privilege 9 under subsection (1) is defeated if the plaintiff proves that the 10 publication of the defamatory matter was actuated by malice. 11 (5) However, a defence of qualified privilege under subsection (1) 12 is not defeated merely because the defamatory matter was 13 published for reward. 14 31 Defences of honest opinion 15 (1) It is a defence to the publication of defamatory matter if the 16 defendant proves that-- 17 (a) the matter was an expression of opinion of the defendant 18 rather than a statement of fact; and 19 (b) the opinion related to a matter of public interest; and 20 (c) the opinion is based on proper material. 21 (2) It is a defence to the publication of defamatory matter if the 22 defendant proves that-- 23 (a) the matter was an expression of opinion of an employee 24 or agent of the defendant rather than a statement of fact; 25 and 26 (b) the opinion related to a matter of public interest; and 27 (c) the opinion is based on proper material. 28 (3) It is a defence to the publication of defamatory matter if the 29 defendant proves that-- 30 (a) the matter was an expression of opinion of a person (the 31 commentator), other than the defendant or an employee 32 or agent of the defendant, rather than a statement of fact; 33 and 34

s 32 29 s 32 Defamation Bill 2005 (b) the opinion related to a matter of public interest; and 1 (c) the opinion is based on proper material. 2 (4) A defence established under this section is defeated if, and 3 only if, the plaintiff proves that-- 4 (a) in the case of a defence under subsection (1)--the 5 opinion was not honestly held by the defendant at the 6 time the defamatory matter was published; or 7 (b) in the case of a defence under subsection (2)--the 8 defendant did not believe that the opinion was honestly 9 held by the employee or agent at the time the 10 defamatory matter was published; or 11 (c) in the case of a defence under subsection (3)--the 12 defendant had reasonable grounds to believe that the 13 opinion was not honestly held by the commentator at the 14 time the defamatory matter was published. 15 (5) For the purposes of this section, an opinion is based on proper 16 material if it is based on material that-- 17 (a) is substantially true; or 18 (b) was published on an occasion of absolute or qualified 19 privilege (whether under this Act or at general law); or 20 (c) was published on an occasion that attracted the 21 protection of a defence under this section or section 28 22 or 29. 23 (6) An opinion does not cease to be based on proper material only 24 because some of the material on which it is based is not proper 25 material if the opinion might reasonably be based on such of 26 the material as is proper material. 27 32 Defence of innocent dissemination 28 (1) It is a defence to the publication of defamatory matter if the 29 defendant proves that-- 30 (a) the defendant published the matter merely in the 31 capacity, or as an employee or agent, of a subordinate 32 distributor; and 33

s 32 30 s 32 Defamation Bill 2005 (b) the defendant neither knew, nor ought reasonably to 1 have known, that the matter was defamatory; and 2 (c) the defendant's lack of knowledge was not due to any 3 negligence on the part of the defendant. 4 (2) For the purposes of subsection (1), a person is a subordinate 5 distributor of defamatory matter if the person-- 6 (a) was not the first or primary distributor of the matter; and 7 (b) was not the author or originator of the matter; and 8 (c) did not have any capacity to exercise editorial control 9 over the content of the matter (or over the publication of 10 the matter) before it was first published. 11 (3) Without limiting subsection (2)(a), a person is not the first or 12 primary distributor of matter merely because the person was 13 involved in the publication of the matter in the capacity of-- 14 (a) a bookseller, newsagent or news-vendor; or 15 (b) a librarian; or 16 (c) a wholesaler or retailer of the matter; or 17 (d) a provider of postal or similar services by means of 18 which the matter is published; or 19 (e) a broadcaster of a live program (whether on television, 20 radio or otherwise) containing the matter in 21 circumstances in which the broadcaster has no effective 22 control over the person who makes the statements that 23 comprise the matter; or 24 (f) a provider of services consisting of-- 25 (i) the processing, copying, distributing or selling of 26 any electronic medium in or on which the matter is 27 recorded; or 28 (ii) the operation of, or the provision of, any 29 equipment, system or service, by means of which 30 the matter is retrieved, copied, distributed or made 31 available in electronic form; or 32 (g) an operator of, or a provider of access to, a 33 communications system by means of which the matter is 34 transmitted, or made available, by another person over 35

s 33 31 s 35 Defamation Bill 2005 whom the operator or provider has no effective control; 1 or 2 (h) a person who, on the instructions or at the direction of 3 another person, prints or produces, reprints or 4 reproduces or distributes the matter for or on behalf of 5 that other person. 6 33 Defence of triviality 7 It is a defence to the publication of defamatory matter if the 8 defendant proves that the circumstances of publication were 9 such that the plaintiff was unlikely to sustain any harm. 10 Division 3 Remedies 11 34 Damages to bear rational relationship to harm 12 In determining the amount of damages to be awarded in any 13 defamation proceedings, the court is to ensure that there is an 14 appropriate and rational relationship between the harm 15 sustained by the plaintiff and the amount of damages awarded. 16 35 Damages for non-economic loss limited 17 (1) Unless the court orders otherwise under subsection (2), the 18 maximum amount of damages for non-economic loss that 19 may be awarded in defamation proceedings is $250000 or any 20 other amount adjusted in accordance with this section from 21 time to time (the maximum damages amount) that is 22 applicable at the time damages are awarded. 23 (2) A court may order a defendant in defamation proceedings to 24 pay damages for non-economic loss that exceed the maximum 25 damages amount applicable at the time the order is made if, 26 and only if, the court is satisfied that the circumstances of the 27 publication of the defamatory matter to which the proceedings 28 relate are such as to warrant an award of aggravated damages. 29 (3) The Minister is, on or before 1 July 2006 and on or before 1 30 July in each succeeding year, to declare, by order published in 31

s 36 32 s 37 Defamation Bill 2005 the gazette, the amount that is to apply, as from the date 1 specified in the order, for the purposes of subsection (1). 2 (4) The amount declared is to be the amount applicable under 3 subsection (1) (or that amount as last adjusted under this 4 section) adjusted by the percentage change in the amount 5 estimated by the Australian Statistician of the average weekly 6 total earnings of full-time adults in Australia over the 4 7 quarters preceding the date of the declaration for which those 8 estimates are, at that date, available. 9 (5) An amount declared for the time being under this section 10 applies to the exclusion of the amount of $250000 or an 11 amount previously adjusted under this section. 12 (6) If the Australian Statistician fails or ceases to estimate the 13 amount referred to in subsection (4), the amount declared is to 14 be determined under a regulation. 15 (7) In adjusting an amount to be declared for the purposes of 16 subsection (1), the amount determined in accordance with 17 subsection (4) is to be rounded to the nearest $500. 18 (8) A declaration made or published in the gazette after 1 July in a 19 year and specifying a date that is before the date it is made or 20 published as the date from which the amount declared by the 21 order is to apply has effect as from that specified date. 22 36 State of mind of defendant generally not relevant to 23 awarding damages 24 In awarding damages for defamation, the court is to disregard 25 the malice or other state of mind of the defendant at the time 26 of the publication of the defamatory matter to which the 27 proceedings relate or at any other time except to the extent 28 that the malice or other state of mind affects the harm 29 sustained by the plaintiff. 30 37 Exemplary or punitive damages can not be awarded 31 A plaintiff can not be awarded exemplary or punitive damages 32 for defamation. 33

s 38 33 s 40 Defamation Bill 2005 38 Factors in mitigation of damages 1 (1) Evidence is admissible on behalf of the defendant, in 2 mitigation of damages for the publication of defamatory 3 matter, that-- 4 (a) the defendant has made an apology to the plaintiff about 5 the publication of the defamatory matter; or 6 (b) the defendant has published a correction of the 7 defamatory matter; or 8 (c) the plaintiff has already recovered damages for 9 defamation in relation to any other publication of matter 10 having the same meaning or effect as the defamatory 11 matter; or 12 (d) the plaintiff has brought proceedings for damages for 13 defamation in relation to any other publication of matter 14 having the same meaning or effect as the defamatory 15 matter; or 16 (e) the plaintiff has received or agreed to receive 17 compensation for defamation in relation to any other 18 publication of matter having the same meaning or effect 19 as the defamatory matter. 20 (2) Nothing in subsection (1) operates to limit the matters that can 21 be taken into account by a court in mitigation of damages. 22 39 Damages for multiple causes of action may be assessed 23 as single sum 24 If the court in defamation proceedings finds for the plaintiff as 25 to more than 1 cause of action, the judicial officer may assess 26 damages in a single sum. 27 Division 4 Costs 28 40 Costs in defamation proceedings 29 (1) In awarding costs in defamation proceedings, the court may 30 have regard to-- 31

s 41 34 s 41 Defamation Bill 2005 (a) the way in which the parties to the proceedings 1 conducted their cases (including any misuse of a party's 2 superior financial position to hinder the early resolution 3 of the proceedings); and 4 (b) any other matters that the court considers relevant. 5 (2) Without limiting subsection (1), a court must (unless the 6 interests of justice require otherwise)-- 7 (a) if defamation proceedings are successfully brought by a 8 plaintiff and costs in the proceedings are to be awarded 9 to the plaintiff--order costs of and incidental to the 10 proceedings to be assessed on an indemnity basis if the 11 court is satisfied that the defendant unreasonably failed 12 to make a settlement offer or agree to a settlement offer 13 proposed by the plaintiff; or 14 (b) if defamation proceedings are unsuccessfully brought by 15 a plaintiff and costs in the proceedings are to be awarded 16 to the defendant--order costs of and incidental to the 17 proceedings to be assessed on an indemnity basis if the 18 court is satisfied that the plaintiff unreasonably failed to 19 accept a settlement offer made by the defendant. 20 (3) In this section-- 21 settlement offer means any offer to settle the proceedings 22 made before the proceedings are determined, and includes an 23 offer to make amends (whether made before or after the 24 proceedings are commenced), that was a reasonable offer at 25 the time it was made. 26 Part 5 Miscellaneous 27 41 Proof of publication 28 (1) If a document appears to be printed or otherwise produced by 29 means adapted for the production of numerous copies and 30 there is in the document a statement to the effect that the 31 document is printed, produced, published or distributed by or 32 for a particular person, the statement is evidence in 33

s 42 35 s 42 Defamation Bill 2005 defamation proceedings that the document was so printed, 1 produced, published or distributed. 2 (2) Evidence that a number or part of a document appearing to be 3 a periodical is printed, produced, published or distributed by 4 or for a particular person is evidence in defamation 5 proceedings that a document appearing to be another number 6 or part of the periodical was so printed, produced, published 7 or distributed. 8 (3) In this section-- 9 periodical includes any newspaper, review, magazine or other 10 printed document of which numbers or parts are published 11 periodically. 12 42 Proof of convictions for offences 13 (1) If the question whether or not a person committed an offence 14 is in question in defamation proceedings-- 15 (a) proof that the person was convicted of the offence by an 16 Australian court is conclusive evidence that the person 17 committed the offence; and 18 (b) proof that the person was convicted of the offence by a 19 court of any country (other than an Australian court) or a 20 court martial of any country is evidence that the person 21 committed the offence. 22 (2) For the purposes of this section, the contents of a document 23 that is evidence of conviction of an offence, and the contents 24 of an information, complaint, indictment, charge sheet or 25 similar document on which a person is convicted of an 26 offence, are admissible in evidence to identify the facts on 27 which the conviction is based. 28 (3) Subsection (2) does not affect the admissibility of other 29 evidence to identify the facts on which the conviction is based. 30 (4) In this section-- 31 conviction for an offence includes a finding of guilt but does 32 not include-- 33 (a) a conviction that has been set aside or quashed; or 34

s 44 36 s 45 Defamation Bill 2005 (b) a conviction for an offence for which a person has 1 received a pardon. 2 43 Section number not used 3 See note to section 3(a). 4 44 Giving of notices and other documents 5 (1) For the purposes of this Act, a notice or other document may 6 be given to a person (or a notice or other document may be 7 served on a person)-- 8 (a) in the case of a natural person-- 9 (i) by delivering it to the person personally; or 10 (ii) by sending it by post to the address specified by the 11 person for the giving or service of documents or, if 12 no such address is specified, the residential or 13 business address of the person last known to the 14 person giving or serving the document; or 15 (iii) by sending it by facsimile transmission to the 16 facsimile number of the person; or 17 (b) in the case of a body corporate-- 18 (i) by leaving it with a person apparently of or above 19 the age of 16 years at, or by sending it by post to, 20 the head office, a registered office or a principal 21 office of the body corporate or to an address 22 specified by the body corporate for the giving or 23 service of documents; or 24 (ii) by sending it by facsimile transmission to the 25 facsimile number of the body corporate. 26 (2) Nothing in this section affects the operation of any provision 27 of a law or of the rules of a court authorising a document to be 28 served on a person in any other manner. 29 45 Regulation-making power 30 The Governor in Council may make regulations under this 31 Act. 32

s 47 37 s 49 Defamation Bill 2005 46 Section number not used 1 See note to section 3(a). 2 47 Repeal of Defamation Act 1889 3 The Defamation Act 1889 53 Vic No. 12 is repealed. 4 48 Acts amended in sch 4 5 Schedule 4 amends the Acts it mentions. 6 49 Savings, transitional and other provisions 7 (1) This Act applies to the publication of defamatory matter after 8 the commencement of this Act, unless subsection (2) provides 9 otherwise. 10 (2) The provisions of this Act (other than this section) do not 11 apply to a cause of action for the publication of defamatory 12 matter that accrues after the commencement of this Act (the 13 post-commencement action) if-- 14 (a) the post-commencement action is 1 of 2 or more causes 15 of action in proceedings commenced by a plaintiff; and 16 (b) each cause of action in the proceedings accrues because 17 of the publication of the same, or substantially the same, 18 matter on separate occasions (whether by the same 19 defendant or another defendant); and 20 (c) 1 or more of the other causes of action in the 21 proceedings accrued before the commencement of this 22 Act (a pre-commencement action); and 23 (d) the post-commencement action accrued no later than 1 24 year after the date on which the earliest 25 pre-commencement action in the proceedings accrued. 26 (3) The existing law of defamation continues to apply to the 27 following causes of action in the same way as it would have 28 applied to those causes of action had this Act not been 29 enacted-- 30 (a) any cause of action that accrued before the 31 commencement of this Act; 32

s 49 38 s 49 Defamation Bill 2005 (b) any post-commencement action to which the other 1 provisions of this Act do not apply because of 2 subsection (2). 3 (4) In this section-- 4 existing law of defamation means the law (including all 5 relevant statutory provisions and principles and rules of the 6 general law) that applied in this jurisdiction to the 7 determination of civil liability for the publication of 8 defamatory matter immediately before the commencement of 9 this Act. 10

39 Defamation Bill 2005 Schedule numbers 1-3 not used 1 See note to section 3(a). 2

40 Defamation Bill 2005 Schedule 4 Acts amended 1 section 48 2 Criminal Code 3 1 Part 5, after section 364-- 4 insert-- 5 `Chapter 35 Criminal Defamation 6 `365 Criminal defamation 7 `(1) Any person who, without lawful excuse, publishes matter 8 defamatory of another living person (the relevant person)-- 9 (a) knowing the matter to be false or without having regard 10 to whether the matter is true or false; and 11 (b) intending to cause serious harm to the relevant person or 12 any other person or without having regard to whether 13 serious harm to the relevant person or any other person 14 is caused; 15 commits a misdemeanour. 16 Maximum penalty--3 years imprisonment. 17 `(2) In a proceeding for an offence defined in this section, the 18 accused person has a lawful excuse for the publication of 19 defamatory matter about the relevant person if, and only if, 20 subsection (3) applies. 21 `(3) This subsection applies if the accused person would, having 22 regard only to the circumstances happening before or at the 23 time of the publication, have had a relevant defence for the 24 publication if the relevant person had brought civil 25 proceedings for defamation against the accused person. 26 `(4) The prosecution has the burden of negativing the existence of 27 a lawful excuse if, and only if, evidence directed to 28 establishing the excuse is first adduced by or on behalf of the 29 accused person. 30

41 Defamation Bill 2005 Schedule 4 (continued) `(5) Whether the matter complained of is capable of bearing a 1 defamatory meaning is a question of law. 2 `(6) Whether the matter complained of does bear a defamatory 3 meaning is a question of fact. 4 `(7) A person can not be prosecuted for an offence defined in this 5 section without the consent of the Director of Public 6 Prosecutions. 7 `(8) In this section-- 8 defamatory has the meaning that it has in the law of tort (as 9 modified by the Defamation Act 2005) relating to defamation. 10 modified statutory defence of justification means the defence 11 stated in the Defamation Act 2005, section 25 as if that section 12 provided that it is a defence to the publication of defamatory 13 matter if the defendant proves that-- 14 (a) the defamatory imputations carried by the matter of 15 which the relevant person complains are substantially 16 true; and 17 (b) it was for the public benefit that the publication should 18 be made. 19 publish has the meaning that it has in the law of tort (as 20 modified by the Defamation Act 2005) relating to defamation. 21 relevant defence means-- 22 (a) a defence available under the Defamation Act 2005 23 other than-- 24 (i) the statutory defence of justification; or 25 (ii) the statutory defence of failure to accept 26 reasonable offer; or 27 (b) the modified statutory defence of justification; or 28 (c) a defence available other than under the Defamation Act 29 2005, including under the general law. 30

42 Defamation Bill 2005 Schedule 4 (continued) statutory defence of failure to accept reasonable offer means 1 the defence stated in the Defamation Act 2005, section 18(1)1. 2 statutory defence of justification means the defence stated in 3 the Defamation Act 2005, section 25.2'. 4 2 Section 599-- 5 omit, insert-- 6 `599 Defence of justification for defamation to be specially 7 pleaded 8 `A person charged with the offence defined in section 365,3 9 who sets up as a defence the modified statutory defence of 10 justification within the meaning of that section, must plead 11 that defence specially, and may plead it with any other plea, 12 except the plea of guilty.'. 13 3 Section 625, `unlawful publication of defamatory 14 matter'-- 15 omit, insert-- 16 `offence defined in section 3654'. 17 4 Section 638, after `Attorney-General,'-- 18 insert-- 19 `or with the consent of the Director of Public Prosecutions,'. 20 5 Part 9, after section 715-- 21 insert-- 22 1 Defamation Act 2005, section 18 (Effect of failure to accept reasonable offer to make amends) 2 Defamation Act 2005, section 25 (Defence of justification) 3 Section 365 (Criminal defamation) 4 Section 365 (Criminal defamation)

43 Defamation Bill 2005 Schedule 4 (continued) `Chapter 79 Transitional provision for 1 Defamation Act 2005 2 `716 Defence of truth of defamatory matter still to be specially 3 pleaded 4 `Section 599,5 as in force at any time before the 5 commencement of this section, continues to apply in relation 6 to a person charged with the unlawful publication of 7 defamatory matter under the Defamation Act 1889 as if the 8 Defamation Act 2005, schedule 4, amendments of the 9 Criminal Code, item 2 had not been enacted.'. 10 Limitation of Actions Act 1974 11 1 Section 10(1)(a), before `an action'-- 12 insert-- 13 `subject to section 10AA,'. 14 2 After section 10-- 15 insert-- 16 `10AA Defamation actions 17 `An action on a cause of action for defamation must not be 18 brought after the end of 1 year from the date of the publication 19 of the matter complained of.'. 20 3 After section 32-- 21 insert-- 22 5 Section 599 (Defence of truth of defamatory matter to be specially pleaded)

44 Defamation Bill 2005 Schedule 4 (continued) `32A Defamation actions 1 `(1) A person claiming to have a cause of action for defamation 2 may apply to the court for an order extending the limitation 3 period for the cause of action. 4 `(2) A court must, if satisfied that it was not reasonable in the 5 circumstances for the plaintiff to have commenced an action 6 in relation to the matter complained of within 1 year from the 7 date of the publication, extend the limitation period mentioned 8 in section 10AA to a period of up to 3 years from the date of 9 the publication. 10 `(3) A court may not order the extension of the limitation period 11 for a cause of action for defamation other than in the 12 circumstances specified in subsection (2). 13 `(4) An order for the extension of a limitation period, and an 14 application for an order for the extension of a limitation 15 period, may be made under this section even though the 16 limitation period has already ended.'. 17 4 After section 43A-- 18 insert-- 19 `Part 5 Transitional provision 20 `44 Transitional provision for Defamation Act 2005 21 `(1) The new limitation law applies to the publication of any 22 defamatory matter to which the Defamation Act 2005 applies. 23 `(2) The existing limitation law continues to apply to any cause of 24 action to which the existing law of defamation continues to 25 apply under the Defamation Act 2005, section 49. 26 `(3) In this section-- 27 existing law of defamation has the same meaning as in the 28 Defamation Act 2005, section 49. 29 existing limitation law means the provisions of this Act that 30 applied in relation to the limitation period for defamation 31

45 Defamation Bill 2005 Schedule 4 (continued) actions immediately before the commencement of this 1 section. 2 new limitation law means sections 10AA and 32A as inserted 3 by the Defamation Act 2005.'. 4 Reprints Act 1992 5 1 Section 17(1), example-- 6 omit. 7

46 Defamation Bill 2005 Schedule 5 Dictionary 1 section 4(1) 2 Australian court means any court established by or under a 3 law of an Australian jurisdiction (including a court conducting 4 committal proceedings for an indictable offence). 5 Australian jurisdiction means-- 6 (a) a State; or 7 (b) a Territory; or 8 (c) the Commonwealth. 9 Australian tribunal means any tribunal (other than a court) 10 established by or under a law of an Australian jurisdiction that 11 has the power to take evidence from witnesses before it on 12 oath or affirmation (including a Royal Commission or other 13 special commission of inquiry). 14 country includes-- 15 (a) a federation and a state, territory, province or other part 16 of a federation; and 17 (b) an Australian jurisdiction. 18 document means any record of information, and includes-- 19 (a) anything on which there is writing; and 20 (b) anything on which there are marks, figures, symbols or 21 perforations having a meaning for persons qualified to 22 interpret them; and 23 (c) anything from which sounds, images or writings can be 24 reproduced with or without the aid of anything else; and 25 (d) a map, plan, drawing or photograph. 26 electronic communication includes a communication of 27 information in the form of data, text, images or sound (or any 28 combination of these) by means of guided or unguided 29 electromagnetic energy, or both. 30 general law means the common law and equity. 31

47 Defamation Bill 2005 Schedule 5 (continued) matter includes-- 1 (a) an article, report, advertisement or other thing 2 communicated by means of a newspaper, magazine or 3 other periodical; and 4 (b) a program, report, advertisement or other thing 5 communicated by means of television, radio, the 6 Internet or any other form of electronic communication; 7 and 8 (c) a letter, note or other writing; and 9 (d) a picture, gesture or oral utterance; and 10 (e) any other thing by means of which something may be 11 communicated to a person. 12 offer to make amends means an offer to make amends under 13 part 3, division 1. 14 parliamentary body means-- 15 (a) a parliament or legislature of any country; or 16 (b) a house of a parliament or legislature of any country; or 17 (c) a committee of a parliament or legislature of any 18 country; or 19 (d) a committee of a house or houses of a parliament or 20 legislature of any country. 21 substantially true means true in substance or not materially 22 different from the truth. 23 Territory means the Australian Capital Territory or the 24 Northern Territory. 25 this jurisdiction means Queensland. 26 © State of Queensland 2005

[Index] [Search] [Download] [Related Items] [Help]