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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Defamation Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Objects of Act 2
4. Terms used in this Act 2
5. Act to bind Crown 4
Part 2 -- General principles
Division 1 -- Defamation and the general law
6. Tort of defamation 5
7. Distinction between slander and libel abolished 5
Division 2 -- Causes of action for defamation
8. Single cause of action for multiple defamatory
imputations in same matter 5
9. Certain corporations do not have cause of action
for defamation 5
10. No causes of action for defamation of, or against,
deceased persons 7
Division 3 -- Choice of law
11. Choice of law for defamation proceedings 7
Part 3 -- Resolution of civil disputes
without litigation
Division 1 -- Offers to make amends
12. Application of Division 10
13. Publisher may make offer to make amends 10
14. When offer to make amends may be made 11
15. Content of offer to make amends 11
072--2 page i
Defamation Bill 2005
Contents
16. Withdrawal of offer to make amends 13
17. Effect of acceptance of offer to make amends 14
18. Effect of failure to accept reasonable offer to make
amends 15
19. Inadmissibility of evidence of certain statements
and admissions 16
Division 2 -- Apologies
20. Effect of apology on liability for defamation 16
Part 4 -- Litigation of civil disputes
Division 1 -- General
21. Election for defamation proceedings to be tried by
jury 18
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 20
26. Defence of contextual truth 20
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 28
31. Defences of honest opinion 29
32. Defence of innocent dissemination 31
33. Defence of triviality 32
Division 3 -- Remedies
34. Damages to bear rational relationship to harm 32
35. Damages for non-economic loss limited 32
36. State of mind of defendant generally not relevant
to awarding damages 34
37. Exemplary or punitive damages cannot be awarded 34
38. Factors in mitigation of damages 34
page ii
Defamation Bill 2005
Contents
39. Damages for multiple causes of action may be
assessed as single sum 35
Division 4 -- Costs
40. Costs in defamation proceedings 35
Part 5 -- Miscellaneous
41. Proof of publication 37
42. Proof of convictions for offences 37
43. Incriminating answers, documents or things 38
44. Giving of notices and other documents 38
45. Regulations 39
46. Repeal of existing legislation 39
47. The Criminal Code amended 40
48. Savings, transitional and other provisions 40
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 -- Amendments to The
Criminal Code
1. Section 53 repealed 45
2. Chapter XXXV replaced 45
Chapter XXXV -- Criminal defamation
345. Criminal defamation 45
Defined Terms
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Defamation Bill 2005
A Bill for
An Act to --
· modify the general law relating to the tort of defamation;
· repeal the Libel Act 1843 (Imp), Newspaper Libel and Registration
Act 1884, Newspaper Libel and Registration Act 1884 Amendment
Act 1888 and Slander of Women Act 1900; and
· amend The Criminal Code,
and for other purposes.
The Parliament of Western Australia enacts as follows:
page 1
Defamation Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Defamation Act 2005.
2. Commencement
5 This Act comes into operation on 1 January 2006.
3. Objects of Act
The objects of this Act are --
(a) to enact provisions to promote uniform laws of
defamation in Australia;
10 (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;
(c) to provide effective and fair remedies for persons whose
15 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.
20 4. Terms used in this Act
In this Act --
"Australian court" means any court established by or under a
law of an Australian jurisdiction (including a court
conducting committal proceedings for an indictable
25 offence);
"Australian jurisdiction" means --
(a) a State;
(b) a Territory; or
(c) the Commonwealth;
page 2
Defamation Bill 2005
Preliminary Part 1
s. 4
"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 (including a Royal Commission or
5 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;
10 "document" means any record of information, and includes --
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols
or perforations having a meaning for persons
qualified to interpret them;
15 (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
20 information in the form of data, text, images or sound (or
any combination of these) by means of guided or unguided
electromagnetic energy, or both;
"general law" means the common law and equity;
"matter" includes --
25 (a) an article, report, advertisement or other thing
communicated by means of a newspaper, magazine
or other periodical;
(b) a program, report, advertisement or other thing
communicated by means of television, radio, the
30 Internet or any other form of electronic
communication;
(c) a letter, note or other writing;
(d) a picture, gesture or oral utterance; and
page 3
Defamation Bill 2005
Part 1 Preliminary
s. 5
(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
Part 3 Division 1;
5 "parliamentary body" means --
(a) a parliament or legislature of any country;
(b) a house of a parliament or legislature of any country;
(c) a committee of a parliament or legislature of any
country;
10 (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
15 Northern Territory;
"this jurisdiction" means Western Australia.
5. Act to bind Crown
This Act binds the Crown in right of this jurisdiction and, in so
far as the legislative power of the Parliament of this jurisdiction
20 permits, the Crown in all its other capacities.
page 4
Defamation Bill 2005
General principles Part 2
Defamation and the general law Division 1
s. 6
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.
5 (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).
7. Distinction between slander and libel abolished
10 (1) The distinction at general law between slander and libel is
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
15 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 than one defamatory imputation about the person is
20 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
25 unless it was an excluded corporation at the time of the
publication.
page 5
Defamation Bill 2005
Part 2 General principles
Division 2 Causes of action for defamation
s. 9
(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
5 (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
10 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
15 corporations within the meaning of this section.
(5) Subsection (1) does not affect any cause of action for
defamation that an individual associated with a corporation has
in relation to the publication of defamatory matter about the
individual even if the publication of the same matter also
20 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
25 body;
"public body" means a local government body or other
governmental or public authority constituted by or under a
law of any country.
page 6
Defamation Bill 2005
General principles Part 2
Choice of law Division 3
s. 10
10. No causes 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
5 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
10 has died since publishing the matter.
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
15 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
20 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
25 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
30 business at that time;
(b) the extent of publication in each relevant Australian
jurisdictional area;
page 7
Defamation Bill 2005
Part 2 General principles
Division 3 Choice of law
s. 11
(c) the extent of harm sustained by the plaintiff in each
relevant Australian jurisdictional area; and
(d) any other matter that the court considers relevant.
(4) For the purposes of this section, the substantive law applicable
5 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 --
10 (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);
(b) the geographical area of Australia that lies within the
15 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
20 legislative competence but over which no State or
Territory has legislative competence;
"external Territory" means a territory, other than the
Australian Capital Territory, the Jervis Bay Territory or the
Northern Territory, for the government of which as a
25 territory provision is made by a Commonwealth Act;
"geographical area of Australia" includes --
(a) the territorial sea of Australia; and
(b) the external Territories of the Commonwealth;
"Jervis Bay Territory" means the territory mentioned in the
30 Jervis Bay Territory Acceptance Act 1915 of the
Commonwealth;
page 8
Defamation Bill 2005
General principles Part 2
Choice of law Division 3
s. 11
"multiple publications" means publication by a particular
person of the same, or substantially the same, matter in
substantially the same form to 2 or more persons.
page 9
Defamation Bill 2005
Part 3 Resolution of civil disputes without litigation
Division 1 Offers to make amends
s. 12
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
5 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.
10 (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
15 (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
20 publisher accepts that the matter in question carries.
(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
25 prejudice, unless the offer provides otherwise.
page 10
Defamation Bill 2005
Resolution of civil disputes without litigation Part 3
Offers to make amends Division 1
s. 14
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
5 (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 --
10 (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").
15 (3) If an aggrieved person gives the publisher a concerns notice, but
fails to particularise the imputations of concern adequately, the
publisher may give the aggrieved person a written notice (a
"further particulars notice") requesting the aggrieved person
to provide reasonable further particulars about the imputations
20 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.
25 (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
30 (1) An offer to make amends --
(a) must be in writing;
page 11
Defamation Bill 2005
Part 3 Resolution of civil disputes without litigation
Division 1 Offers to make amends
s. 15
(b) must be readily identifiable as an offer to make amends
under this Division;
(c) if the offer is limited to any particular defamatory
imputations -- must state that the offer is so limited and
5 particularise the imputations to which the offer is
limited;
(d) must include an offer to publish, or join in publishing, a
reasonable correction of the matter in question or, if the
offer is limited to any particular defamatory imputations,
10 the imputations to which the offer is limited;
(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
15 matter is or may be defamatory of the aggrieved person;
(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
20 (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
25 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;
(ii) an offer to pay compensation for any economic
30 or non-economic loss of the aggrieved person; or
(iii) the particulars of any correction or apology
made, or action taken, before the date of the
offer.
page 12
Defamation Bill 2005
Resolution of civil disputes without litigation Part 3
Offers to make amends Division 1
s. 16
(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;
5 (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;
10 (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
15 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 --
20 (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
25 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
30 make a renewed offer.
page 13
Defamation Bill 2005
Part 3 Resolution of civil disputes without litigation
Division 1 Offers to make amends
s. 17
(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 (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
10 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.
15 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
20 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
25 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.
page 14
Defamation Bill 2005
Resolution of civil disputes without litigation Part 3
Offers to make amends Division 1
s. 18
(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
5 the matter in question, by that court in those
proceedings; and
(b) except as provided in paragraph (a), by the Supreme
Court.
18. Effect of failure to accept reasonable offer to make amends
10 (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
15 defamatory;
(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.
20 (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
25 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
30 published; and
page 15
Defamation Bill 2005
Part 3 Resolution of civil disputes without litigation
Division 2 Apologies
s. 19
(ii) the period that elapses between publication of the
matter in question and publication of the
correction or apology;
and
5 (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
10 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
15 (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
20 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.
Division 2 -- Apologies
25 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
30 fault or liability by the person in connection with that
matter; and
page 16
Defamation Bill 2005
Resolution of civil disputes without litigation Part 3
Apologies Division 2
s. 20
(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
5 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.
page 17
Defamation Bill 2005
Part 4 Litigation of civil disputes
Division 1 General
s. 21
Part 4 -- Litigation of civil disputes
Division 1 -- General
21. Election for defamation proceedings to be tried by jury
(1) Unless the court orders otherwise, a plaintiff or defendant in
5 defamation proceedings may elect for the proceedings to be
tried by jury.
(2) An election must be --
(a) made in accordance with rules of court; and
(b) accompanied by any relevant fee prescribed by a written
10 law.
(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
15 that cannot be conveniently considered and resolved by
a jury.
22. Roles of judicial officers and juries in defamation
proceedings
(1) This section applies to defamation proceedings that are tried by
20 jury.
(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
25 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.
page 18
Defamation Bill 2005
Litigation of civil disputes Part 4
Defences Division 2
s. 23
(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 (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.
10 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
15 further defamation proceedings for damages against the same
defendant in relation to the same or any other publication of the
same or like matter, except with the leave of the court in which
the further proceedings are to be brought.
Division 2 -- Defences
20 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
25 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
30 proceedings in which the defence is raised to determine whether
a particular publication of matter was actuated by malice.
page 19
Defamation Bill 2005
Part 4 Litigation of civil disputes
Division 2 Defences
s. 25
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.
5 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
10 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.
15 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
20 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
25 the authority, of the body;
(ii) the publication of the debates and proceedings of
the body by or under the authority of the body or
any law;
(iii) the publication of matter while giving evidence
30 before the body; and
page 20
Defamation Bill 2005
Litigation of civil disputes Part 4
Defences Division 2
s. 28
(iv) the publication of matter while presenting or
submitting a document to the body;
(b) the matter is published in the course of the proceedings
of an Australian court or Australian tribunal, including
5 (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);
10 (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;
(c) the matter is published on an occasion that, if published
15 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
20 circumstances specified in Schedule 1.
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;
25 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
30 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
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Part 4 Litigation of civil disputes
Division 2 Defences
s. 28
(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
5 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.
10 (4) In this section --
"public document" means --
(a) any report or paper published by a parliamentary
body, or a record of votes, debates or other
proceedings relating to a parliamentary body
15 published by or under the authority of the body or
any law;
(b) any judgment, order or other determination of a court
or arbitral tribunal of any country in civil proceedings
and including --
20 (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
25 reasons for its judgment, order or
determination;
(c) any report or other document that under the law of
any country --
(i) is authorised to be published; or
30 (ii) is required to be presented or submitted to,
tabled in, or laid before, a parliamentary body;
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Litigation of civil disputes Part 4
Defences Division 2
s. 29
(d) any document issued by the government (including a
local government) of a country, or by an officer,
employee or agency of the government, for the
information of the public;
5 (e) any record or other document open to inspection by
the public that is kept --
(i) by an Australian jurisdiction;
(ii) by a statutory authority of an Australian
jurisdiction;
10 (iii) by an Australian court; or
(iv) under legislation of an Australian jurisdiction;
(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
15 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. Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the
20 defendant proves that the matter was, or was contained in, a fair
report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the
defendant proves that --
(a) the matter was, or was contained in, an earlier published
25 report of proceedings of public concern;
(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
30 make the defendant aware that the earlier published
report was not fair.
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Part 4 Litigation of civil disputes
Division 2 Defences
s. 29
(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.
5 (4) In this section --
"proceedings of public concern" means --
(a) any proceedings in public of a parliamentary body;
(b) any proceedings in public of an international
organisation of any countries or of the governments
10 of any countries;
(c) any proceedings in public of an international
conference at which the governments of any
countries are represented;
(d) any proceedings in public of --
15 (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;
20 (e) any proceedings in public of a court or arbitral
tribunal of any country;
(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;
25 (g) any proceedings in public of a local government body
of any Australian jurisdiction;
(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
30 relate to a decision or adjudication made in Australia
about --
(i) a member or members of the society; or
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Litigation of civil disputes Part 4
Defences Division 2
s. 29
(ii) a person subject by contract or otherwise by
law to control by the society;
(i) proceedings of a sport or recreation association, or of
a committee or governing body of the association,
5 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
10 law to control by the association;
(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
15 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;
(k) any proceedings of a public meeting (with or without
20 restriction on the people attending) of shareholders of
a public company under the Corporations Act 2001
of the Commonwealth held anywhere in Australia;
(l) any proceedings of a public meeting (with or without
restriction on the people attending) held anywhere in
25 Australia if the proceedings relate to a matter of
public interest, including the advocacy or candidature
of a person for public office;
(m) any proceedings of an ombudsman of any country if
the proceedings relate to a report of the ombudsman;
30 (n) any proceedings in public of a law reform body of
any country;
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Part 4 Litigation of civil disputes
Division 2 Defences
s. 29
(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
5 provision of a law of the jurisdiction corresponding to
this section; or
(p) any proceedings of a kind specified in Schedule 3.
(5) In this section --
"law reform body" of a country means a body (however
10 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
15 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
20 (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
25 actions or other conduct of any public officials or public
bodies of that country;
"relevant objects" of a learned society, sport or recreation
association or trade association means --
(a) in relation to a learned society -- objects of the kind
30 referred to in paragraph (a) of the definition of
"learned society" in this subsection;
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Litigation of civil disputes Part 4
Defences Division 2
s. 29
(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
5 (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 --
10 (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
15 pastime; and
(b) authorised by its constitution --
(i) to exercise control over, or adjudicate on,
matters connected with the game, sport, or
pastime; and
20 (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
25 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
30 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.
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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
5 proves that --
(a) the recipient has an interest or apparent interest in
having information on some subject;
(b) the matter is published to the recipient in the course of
giving to the recipient information on that subject; and
10 (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
15 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 --
20 (a) the extent to which the matter published is of public
interest;
(b) the extent to which the matter published relates to the
performance of the public functions or activities of the
person;
25 (c) the seriousness of any defamatory imputation carried by
the matter published;
(d) the extent to which the matter published distinguishes
between suspicions, allegations and proven facts;
(e) whether it was in the public interest in the circumstances
30 for the matter published to be published expeditiously;
(f) the nature of the business environment in which the
defendant operates;
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Litigation of civil disputes Part 4
Defences Division 2
s. 31
(g) the sources of the information in the matter published
and the integrity of those sources;
(h) whether the matter published contained the substance of
the person's side of the story and, if not, whether a
5 reasonable attempt was made by the defendant to obtain
and publish a response from the person;
(i) any other steps taken to verify the information in the
matter published; and
(j) any other circumstances that the court considers
10 relevant.
(4) For the avoidance of doubt, a defence of qualified privilege
under subsection (1) is defeated if the plaintiff proves that the
publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1)
15 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 --
20 (a) the matter was an expression of opinion of the defendant
rather than a statement of fact;
(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
25 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;
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
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Part 4 Litigation of civil disputes
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(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
5 employee or agent of the defendant, rather than a
statement of fact;
(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
10 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;
(b) in the case of a defence under subsection (2) -- the
15 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
20 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;
25 (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.
30 (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.
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Litigation of civil disputes Part 4
Defences Division 2
s. 32
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
5 capacity, or as an employee or agent, of a subordinate
distributor;
(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
10 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;
(b) was not the author or originator of the matter; and
15 (c) did not have any capacity to exercise editorial control
over the content of the matter (or over the publication of
the matter) before it was first published.
(3) Without limiting subsection (2)(a), a person is not the first or
primary distributor of matter merely because the person was
20 involved in the publication of the matter in the capacity of --
(a) a bookseller, newsagent or news-vendor;
(b) a librarian;
(c) a wholesaler or retailer of the matter;
(d) a provider of postal or similar services by means of
25 which the matter is published;
(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
30 comprise the matter;
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Part 4 Litigation of civil disputes
Division 3 Remedies
s. 33
(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
5 (ii) the operation of, or the provision of any
equipment, system or service, by means of which
the matter is retrieved, copied, distributed or
made available in electronic form;
(g) an operator of, or a provider of access to, a
10 communications system by means of which the matter is
transmitted, or made available, by another person over
whom the operator or provider has no effective control;
or
(h) a person who, on the instructions or at the direction of
15 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
20 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
25 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
30 maximum amount of damages for non-economic loss that may
be awarded in defamation proceedings is $250 000 or any other
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Defamation Bill 2005
Litigation of civil disputes Part 4
Remedies Division 3
s. 35
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
5 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.
10 (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
15 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
20 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
25 amount referred to in subsection (4), 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.
30 (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.
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Part 4 Litigation of civil disputes
Division 3 Remedies
s. 36
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
5 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
10 A plaintiff cannot be awarded exemplary or punitive damages
for defamation.
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 --
15 (a) the defendant has made an apology to the plaintiff about
the publication of the defamatory matter;
(b) the defendant has published a correction of the
defamatory matter;
(c) the plaintiff has already recovered damages for
20 defamation in relation to any other publication of matter
having the same meaning or effect as the defamatory
matter;
(d) the plaintiff has brought proceedings for damages for
defamation in relation to any other publication of matter
25 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
30 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.
page 34
Defamation Bill 2005
Litigation of civil disputes Part 4
Costs Division 4
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
5 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 --
10 (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.
15 (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
20 proceedings to be assessed on an indemnity basis if the
court is satisfied that the defendant unreasonably failed
to make a settlement offer or agree to a settlement offer
proposed by the plaintiff; or
(b) if defamation proceedings are unsuccessfully brought by
25 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.
30 (3) In this section --
"settlement offer" means any offer to settle the proceedings
made before the proceedings are determined, and includes
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Defamation Bill 2005
Part 4 Litigation of civil disputes
Division 4 Costs
s. 40
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.
page 36
Defamation Bill 2005
Miscellaneous Part 5
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
5 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.
10 (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.
15 (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
20 (1) If the question whether or not a person committed an offence is
in question in defamation proceedings --
(a) proof that the person was convicted of the offence by an
Australian court is conclusive evidence that the person
committed the offence; and
25 (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
30 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
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Defamation Bill 2005
Part 5 Miscellaneous
s. 43
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.
5 (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
10 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 answering the question or discovering or
15 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
20 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
25 given to a person (or a notice or other document may be served
on a person) --
(a) in the case of a natural person --
(i) by delivering it to the person personally;
(ii) by sending it by post to the address specified by
30 the person for the giving or service of documents
or, if no such address is specified, the residential
page 38
Defamation Bill 2005
Miscellaneous Part 5
s. 45
or business address of the person last known to
the person giving or serving the document; or
(iii) by sending it by facsimile transmission to the
facsimile number of the person;
5 or
(b) in the case of a body corporate --
(i) by 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
10 principal office of the body corporate or to an
address specified by the body corporate for the
giving or service of documents; or
(ii) by sending it by facsimile transmission to the
facsimile number of the body corporate.
15 (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
The Governor may make regulations for or with respect to any
20 matter that by this Act is required or permitted to be prescribed
or that is necessary or convenient to be prescribed for carrying
out or giving effect to this Act.
46. Repeal of existing legislation
(1) The following Imperial enactment is repealed in so far as it is
25 part of the law of Western Australia --
6 & 7 Victoria, chapter 96 (1843)
An Act to amend the Law respecting defamatory Words
and Libel.
[Known as the Libel Act 1843.]
30 [Adopted by Imperial Acts Adopting Ordinance 1847.]
page 39
Defamation Bill 2005
Part 5 Miscellaneous
s. 47
(2) The following Acts are repealed --
(a) Newspaper Libel and Registration Act 1884;
(b) Newspaper Libel and Registration Act 1884 Amendment
Act 1888;
5 (c) Slander of Women Act 1900.
47. The Criminal Code amended
The Criminal Code* is amended as set out in Schedule 4.
[* Reprint 12 as at 1 June 2005 (see the Schedule to the
Criminal Code Act 1913 appearing as Appendix B to the
10 Criminal Code Compilation Act 1913).]
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.
15 (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
20 causes of action in proceedings commenced by a
plaintiff;
(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
25 defendant or another defendant);
(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
30 12 months after the date on which the earliest
pre-commencement action in the proceedings accrued.
page 40
Defamation Bill 2005
Miscellaneous Part 5
s. 48
(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 --
5 (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).
10 (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
15 defamatory matter immediately before the commencement
of this Act.
page 41
Defamation Bill 2005
Schedule 1 Additional publications to which absolute privilege applies
Schedule 1 -- Additional publications to which absolute
privilege applies
[s. 27(2)(d)]
5 Currently there are no provisions in this Schedule but it has been included for
consistency with national model legislation.
page 42
Defamation Bill 2005
Additional kinds of public documents Schedule 2
Schedule 2 -- Additional kinds of public documents
[s. 28(4)(g)]
Currently there are no provisions in this Schedule but it has been included for
5 consistency with national model legislation.
page 43
Defamation Bill 2005
Schedule 3 Additional proceedings of public concern
Schedule 3 -- Additional proceedings of public concern
[s. 29(4)(p)]
Currently there are no provisions in this Schedule but it has been included for
5 consistency with national model legislation.
page 44
Defamation Bill 2005
Amendments to The Criminal Code Schedule 4
cl. 1
Schedule 4 -- Amendments to The Criminal Code
[s. 47]
1. Section 53 repealed
Section 53 is repealed.
5 2. Chapter XXXV replaced
Chapter XXXV is repealed and the following Chapter is inserted
instead --
"
Chapter XXXV -- Criminal defamation
10 345. 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
15 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 and is liable to imprisonment for
20 3 years.
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
(2) In proceedings for an offence under this section the
accused person has a lawful excuse for the publication
25 of defamatory matter about the victim if, and only if,
subsection (3) applies.
(3) This subsection applies if the accused person would,
having regard only to the circumstances happening
before or at the time of the publication, have had a
30 defence for the publication if the victim had brought
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Defamation Bill 2005
Schedule 4 Amendments to The Criminal Code
cl. 2
civil proceedings for defamation against the accused
person.
(4) The prosecutor bears the onus of negativing the
existence of a lawful excuse if, and only if, evidence
5 directed to establishing the excuse is first adduced by
or on behalf of the accused person.
(5) On a trial before a jury for an offence under this
section --
(a) the question of whether the matter complained
10 of is capable of bearing a defamatory meaning
is a question for determination by the judge;
(b) the question of whether the matter complained
of does bear a defamatory meaning is a
question for the jury; and
15 (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.
20 (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.
".
25
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Defamation Bill 2005
Amendments to The Criminal Code Schedule 4
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
aggrieved person ........................................................................................12(1)
Australian court................................................................................................ 4
Australian jurisdiction ...................................................................................... 4
Australian jurisdictional area ......................................................................11(5)
Australian tribunal............................................................................................ 4
commentator ..............................................................................................31(3)
concerns notice...........................................................................................14(2)
contextual imputations.................................................................................... 26
conviction ..................................................................................................42(4)
corporation.................................................................................................. 9(6)
country............................................................................................................. 4
document ......................................................................................................... 4
electronic communication................................................................................. 4
existing law of defamation..........................................................................48(4)
external Territory .......................................................................................11(5)
further particulars notice.............................................................................14(3)
general law....................................................................................................... 4
geographical area of Australia.....................................................................11(5)
imputations of concern ...............................................................................14(2)
Jervis Bay Territory....................................................................................11(5)
law reform body .........................................................................................29(5)
learned society ...........................................................................................29(5)
matter............................................................................................................... 4
matter in question.......................................................................................12(1)
maximum damages amount ........................................................................35(1)
multiple publications ..................................................................................11(5)
offer to make amends ....................................................................................... 4
ombudsman................................................................................................29(5)
parliamentary body........................................................................................... 4
periodical ...................................................................................................41(3)
post-commencement action.........................................................................48(2)
pre-commencement action ..........................................................................48(2)
proceedings of public concern.....................................................................29(4)
public body ................................................................................................. 9(6)
public document.........................................................................................28(4)
publisher ....................................................................................................12(1)
recipient .....................................................................................................30(1)
relevant objects ..........................................................................................29(5)
settlement offer ..........................................................................................40(3)
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Defamation Bill 2005
Schedule 4 Amendments to The Criminal Code
Defined Terms
sport or recreation association.....................................................................29(5)
substantially true .............................................................................................. 4
Territory........................................................................................................... 4
this jurisdiction................................................................................................. 4
trade association.........................................................................................29(5)
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