DEFAMATION BILL 67 OF 2005

Tasmanian Bills

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

DEFAMATION BILL 67 OF 2005

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

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. 22

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. 28

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. 51

s. 38 No. Defamation 2005 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 57

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. 58

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 59

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. 60

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. 61

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. 62

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. 63

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. 64

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 65

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. 66

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". 67

sch. 5 No. Defamation 2005 SCHEDULE 5 LEGISLATION REPEALED Section 50 Defamation Act 1957 (No. 42 of 1957) 68 Government Printer, Tasmania

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