Defamation Act 2005
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
[Royal Assent 9 December 2005]
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
This Act may be cited as the Defamation Act 2005 .
This Act commences on a day to be proclaimed.
The objects of this Act are –(a) to enact provisions to promote uniform laws of defamation in Australia; and(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.
In this Act, unless the contrary intention appears –[Section 4 Amended by No. 16 of 2021, s. 4, Applied:12 Nov 2021] applicable period for an offer to make amends is defined by section 14 ;[Section 4 Amended by No. 16 of 2021, s. 4, Applied:12 Nov 2021] associated entity has the same meaning as in section 50AAA of the Corporations Act 2001 of the Commonwealth;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 (including a Royal Commission or other special commission of inquiry);[Section 4 Amended by No. 16 of 2021, s. 4, Applied:12 Nov 2021] concerns notice is defined by section 12A ;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 guided or unguided electromagnetic energy, or both;[Section 4 Amended by No. 16 of 2021, s. 4, Applied:12 Nov 2021] excluded corporation means an excluded corporation referred to in section 9 ;[Section 4 Amended by No. 16 of 2021, s. 4, Applied:12 Nov 2021] further particulars notice means a further particulars notice referred to in section 12A(3) ;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(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.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - General principles
Division 1 - Defamation and the general law
(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 the Defamation Act 1957 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 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 –and the corporation is not a public body.(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or(b) [Section 9 Subsection (2) amended by No. 16 of 2021, s. 5, Applied:12 Nov 2021] it has fewer than 10 employees and is not an associated entity of another corporation –(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) [Section 9 Subsection (4) omitted by No. 16 of 2021, s. 5, Applied:12 Nov 2021] . . . . . . . .(5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.(6) In this section –corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body;[Section 9 Subsection (6) amended by No. 16 of 2021, s. 5, Applied:12 Nov 2021] employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is –(a) engaged in the day to day operations of the corporation other than as a volunteer; and(b) subject to the control and direction of the corporation;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
[Section 10 Substituted by No. 16 of 2021, s. 6, Applied:12 Nov 2021](1) 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 that person’s death); or(b) the publication of defamatory matter by a person who has died since publishing the matter.(2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection.
10A. Serious harm element of cause of action for defamation
[Section 10A Inserted by No. 16 of 2021, s. 6, Applied:12 Nov 2021](1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.(2) For the purposes of subsection (1) , harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.(3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.(4) Without limiting subsection (3) , the judicial officer may (whether on the application of a party or on the judicial officer’s own motion) –(a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following:(a) the cost implications for the parties;(b) the resources available to the court at the time;(c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.(7) Without limiting subsection (5) , the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.(8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).
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(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(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.
PART 3 - Resolution of civil disputes without litigation
Division 1 - Concerns notices and offers to make amends[Division 1 of Part 3 Heading amended by No. 16 of 2021, s. 7, Applied:12 Nov 2021]
(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.
[Section 12A Inserted by No. 16 of 2021, s. 8, Applied:12 Nov 2021](1) For the purposes of this Act, a notice is a concerns notice if –(a) the notice –(i) is in writing; and(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and(iii) 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); and(iv) informs the publisher of the harm that the aggrieved person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question; and(v) for an aggrieved person that is an excluded corporation – also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.(2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice.(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v) , the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.(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 under this section.
12B. Defamation proceedings cannot be commenced without concerns notice
[Section 12B Inserted by No. 16 of 2021, s. 8, Applied:12 Nov 2021](1) An aggrieved person cannot commence defamation proceedings unless –(a) the person has given the proposed defendant a concerns notice in respect of the matter concerned; and(b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and(c) the applicable period for an offer to make amends has elapsed.(2) Subsection (1)(b) does not prevent reliance on –(a) some, but not all, of the imputations particularised in a concerns notice; or(b) imputations that are substantially the same as those particularised in a concerns notice.(3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c) , but only if the proposed plaintiff satisfies the court that –(a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or(b) it is just and reasonable to grant leave.(4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.(5) In this section –limitation law, in relation to proceedings, means the provisions of Tasmanian law that apply in respect of the limitation periods in relation to the proceedings.
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.(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) [Section 14 Subsection (1) amended by No. 16 of 2021, s. 9, Applied:12 Nov 2021] the applicable period for an offer to make amends has expired; 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) [Section 14 Subsection (2) substituted by No. 16 of 2021, s. 9, Applied:12 Nov 2021] For the purposes of this Act, the applicable period for an offer to make amends is –(a) if the aggrieved person has provided further particulars in response to a further particulars notice about a concerns notice after 14 days have elapsed since the concerns notice was given – 14 days since the publisher was given the further particulars; or(b) in any other case – 28 days since the publisher was given a concerns notice by the aggrieved person.(3) [Section 14 Subsection (3) substituted by No. 16 of 2021, s. 9, Applied:12 Nov 2021] If a publisher gives more than one further particulars notice, subsection (2)(a) applies only in respect of the first notice.(4) [Section 14 Subsection (4) omitted by No. 16 of 2021, s. 9, Applied:12 Nov 2021] . . . . . . . .(5) [Section 14 Subsection (5) omitted by No. 16 of 2021, s. 9, Applied:12 Nov 2021] . . . . . . . .
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(ba) [Section 15 Subsection (1) amended by No. 16 of 2021, s. 10, Applied:12 Nov 2021] must provide for the offer to be open for acceptance for at least 28 days commencing on the day the offer is made; 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) [Section 15 Subsection (1) amended by No. 16 of 2021, s. 10, Applied:12 Nov 2021] must include an offer to publish, or join in publishing, a reasonable correction of, or a clarification of or additional information about, the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and(e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge, must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and(f) [Section 15 Subsection (1) amended by No. 16 of 2021, s. 10, Applied:12 Nov 2021] 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.(g) [Section 15 Subsection (1) amended by No. 16 of 2021, s. 10, Applied:12 Nov 2021] . . . . . . . .(1A) [Section 15 Subsection (1A) inserted by No. 16 of 2021, s. 10, Applied:12 Nov 2021] In addition to the matters referred to in subsection (1) , an offer to make amends 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) –(a) 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(b) if the matter has been published on a website or any other electronically accessible location – an offer to remove the matter from the website or location; or(c) an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or(d) the particulars of any correction or apology made, or action taken, before the date of the offer.(2) [Section 15 Subsection (2) amended by No. 16 of 2021, s. 10, Applied:12 Nov 2021] Without limiting subsection (1A)(c) , 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 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.
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.
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) [Section 18 Subsection (1) amended by No. 16 of 2021, s. 11, Applied:12 Nov 2021] the publisher made the offer as soon as reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends); and(b) [Section 18 Subsection (1) amended by No. 16 of 2021, s. 11, Applied:12 Nov 2021] the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and(c) in all the circumstances the offer was reasonable.(2) In determining whether an offer to make amends is reasonable, a court –(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account –(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and(ii) the period that elapses between publication of the matter in question and publication of the correction or apology; and(b) may have regard to –(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and(ii) any other matter that the court considers relevant.(3) [Section 18 Subsection (3) inserted by No. 16 of 2021, s. 11, Applied:12 Nov 2021] Despite section 22(2) , the judicial officer (and not the jury) in defamation proceedings tried by jury is to determine whether a defence under this section is established.
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.
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 .
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) [Section 20A Subsection (2) substituted by No. 16 of 2021, s. 12, Applied:12 Nov 2021] The limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.(3) [Section 20A Subsection (3) inserted by No. 16 of 2021, s. 12, Applied:12 Nov 2021] The limitation period referred to in subsection (1) is extended for an additional period of 56 days, minus any days remaining after the notice day until the limitation period was to expire under subsection (1) .(4) [Section 20A Subsection (4) inserted by No. 16 of 2021, s. 12, Applied:12 Nov 2021] In this section –date of the publication, in relation to the publication of a matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.
[Section 20AB Inserted by No. 16 of 2021, s. 13, Applied:12 Nov 2021](1) This section applies if –(a) a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and(b) the first publisher, or an associate of the first publisher, subsequently publishes (whether or not to the public) matter that is substantially the same.(2) Any cause of action for defamation against the first publisher, or an associate of the first publisher, in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when –(a) the limitation period applicable under section 20A begins; or(b) the extended limitation period referred to in section 20AC(2) begins.(3) Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.(4) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to) –(a) the level of prominence that a matter is given; and(b) the extent of the subsequent publication.(5) For the avoidance of doubt, this section does not limit the power of a court under section 20AC to extend the limitation period applicable under section 20A .(6) In this section –associate of a first publisher means –(a) an employee of the publisher; or(b) a person publishing matter as a contractor of the publisher; or(c) an associated entity (within the meaning of section 50AAA of the Corporations Act 2001 of the Commonwealth) of the publisher (or an employee or contractor of the associated entity);date of the first publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient;public includes a section of the public.
20AC. Extension of limitation period
[Section 20AC Inserted by No. 16 of 2021, s. 13, Applied:12 Nov 2021](1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period applicable under section 20A for the cause of action.(2) The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.(3) In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to –(a) the length of, and the reasons for, the plaintiff’s delay; and(b) if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired –(i) the day on which the facts became known to the plaintiff; and(ii) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and(c) the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.
20AD. Effect of limitation law concerning electronic publications on other laws
[Section 20AD Inserted by No. 16 of 2021, s. 13, Applied:12 Nov 2021](1) This section applies in respect of any requirement under section 20A or 20AB for the date of the publication of a matter in electronic form to be determined by reference to the day on which the matter was first uploaded for access or sent electronically to a recipient.(2) A requirement to which this section applies is relevant only for the purpose of determining when a limitation period begins and for no other purpose.(3) Without limiting subsection (2) , a requirement to which this section applies is not relevant for –(a) establishing whether there is a cause of action for defamation; or(b) subject to section 20BA , the choice of law to be applied for cause of action for defamation.
20B. Application of section 20A
(1) [Section 20B Subsection (1) amended by No. 16 of 2021, s. 14, Applied:12 Nov 2021] Subject to section 20BA , 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 –(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 .
20BA. Application of amendments to this Division by the Defamation Amendment Act 2021
[Section 20BA Inserted by No. 16 of 2021, s. 15, Applied:12 Nov 2021](1) In this section –commencement day means the day on which the Defamation Amendment Act 2021 commences.(2) The amendment made to section 20A by the Defamation Amendment Act 2021 applies in relation to the publication of defamatory matter on or after the commencement day.(3) Section 20AB , as inserted by the Defamation Amendment Act 2021 , applies in relation to the publication of defamatory matter if –(a) where the publication is a subsequent publication of defamatory matter – the subsequent publication is on or after the commencement day; or(b) in any other case – the publication of defamatory matter is on or after the commencement day.(4) Section 20AC , as inserted by the Defamation Amendment Act 2021 , applies in relation to the publication of defamatory matter on or after the commencement day.
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.(1A) [Section 21 Subsection (1A) inserted by No. 16 of 2021, s. 16, Applied:12 Nov 2021] 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.(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) [Section 21 Subsection (3) substituted by No. 16 of 2021, s. 16, Applied:12 Nov 2021] An election may be revoked only –(a) with the consent of all the parties to the proceedings; or(b) if all the parties do not consent, with the leave of the court.(4) [Section 21 Subsection (4) substituted by No. 16 of 2021, s. 16, Applied:12 Nov 2021] The court may, on the application of a party to the proceedings, grant leave for the purposes of subsection (3)(b) only if satisfied it is in the interests of justice for the election to be revoked.(5) [Section 21 Subsection (5) inserted by No. 16 of 2021, s. 16, Applied:12 Nov 2021] 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.(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) [Section 22 Subsection (5) amended by No. 16 of 2021, s. 17, Applied:12 Nov 2021] requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer; or(c) [Section 22 Subsection (5) amended by No. 16 of 2021, s. 17, Applied:12 Nov 2021] requires or permits a jury to determine any issue that another provision of this Act requires a judicial officer to determine.
23. Leave required for multiple proceedings in relation to publication of same defamatory matter
[Section 23 Substituted by No. 16 of 2021, s. 18, Applied:12 Nov 2021](1) This section applies to a person who has brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter.(2) The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous 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.(3) A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceedings related, the person was –(a) an employee of the defendant; or(b) a person publishing matter as a contractor of the defendant; or(c) an associated entity of the defendant (or an employee or contractor of the associated entity).
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.
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.
26. Defence of contextual truth
[Section 26 Substituted by No. 16 of 2021, s. 19, Applied:12 Nov 2021](1) It is a defence to the publication of defamatory matter if the defendant proves that –(a) the matter carried one or more imputations that are substantially true (contextual imputations); and(b) any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.(2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.
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(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 .
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 –the report or document is a public document despite that non-compliance.(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 –(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.(4) In this section –public document means –(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law; or(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including –(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination; or(c) any report or other document that under the law of any country –(i) is authorised to be published; or(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body; or(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public; or(e) any record or other document open to inspection by the public that is kept –(i) by an Australian jurisdiction; or(ii) by a statutory authority of an Australian jurisdiction; or(iii) by an Australian court; or(iv) under legislation of an Australian jurisdiction; or(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section; 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 was, or was contained in, a fair report of any proceedings of public concern.(2) It is a defence to the publication of defamatory matter if the defendant proves that –(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.(4) In this section –proceedings of public concern means –(a) any proceedings in public of a parliamentary body; or(b) any proceedings in public of an international organisation of any countries or of the governments of any countries; or(c) any proceedings in public of an international conference at which the governments of any countries are represented; or(d) any proceedings in public of –(i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations; or(ii) any other international judicial or arbitral tribunal; or(e) any proceedings in public of a court or arbitral tribunal of any country; or(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country; or(g) any proceedings in public of a local government body of any Australian jurisdiction; or(h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about –(i) a member or members of the society; or(ii) a person subject by contract or otherwise by law to control by the society; or(i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about –(i) a member or members of the association; or(ii) a person subject by contract or otherwise by law to control by the association; or(j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about –(i) a member or members of the association; or(ii) a person subject by contract or otherwise by law to control by the association; or(k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 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(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;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 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.
29A. Defence of publication of matter of public interest
[Section 29A Inserted by No. 16 of 2021, s. 20, Applied:12 Nov 2021](1) It is a defence to the publication of defamatory matter if the defendant proves that –(a) the matter concerns an issue of public interest; and(b) the defendant reasonably believed that the publication of the matter was in the public interest.(2) In determining whether the defence is established, a court must take into account all of the circumstances of the case.(3) Without limiting subsection (2) , the court may take into account the following factors to the extent the court considers them applicable in the circumstances:(a) the seriousness of any defamatory imputation carried by the matter published;(b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts;(c) the extent to which the matter published relates to the performance of the public functions or activities of the person;(d) whether it was in the public interest in the circumstances for the matter to be published expeditiously;(e) the sources of the information in the matter published, including the integrity of the sources;(f) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);(g) 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;(h) any other steps taken to verify the information in the matter published;(i) the importance of freedom of expression in the discussion of issues of public interest.(4) Subsection (3) does not –(a) require each factor referred to in the subsection to be taken into account; or(b) limit the matters that the court may take into account.(5) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established.
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) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] 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 the following factors to the extent the court considers them applicable in the circumstances:(a) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] the seriousness of any defamatory imputation carried by the matter published;(b) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] the extent to which the matter published distinguishes between suspicions, allegations and proven facts;(c) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] the nature of the business environment in which the defendant operates;(d) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] whether it was appropriate in the circumstances for the matter to be published expeditiously;(e) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] any other steps taken to verify the information in the matter published.(f) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] . . . . . . . .(g) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] . . . . . . . .(h) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] . . . . . . . .(i) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] . . . . . . . .(j) [Section 30 Subsection (3) amended by No. 16 of 2021, s. 21, Applied:12 Nov 2021] . . . . . . . .(3A) [Section 30 Subsection (3A) inserted by No. 16 of 2021, s. 21, Applied:12 Nov 2021] Subsection (3) does not –(a) require each factor referred to in the subsection to be taken into account; or(b) limit the matters that the court may take into account.(3B) [Section 30 Subsection (3B) inserted by No. 16 of 2021, s. 21, Applied:12 Nov 2021] It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1) .(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.(6) [Section 30 Subsection (6) inserted by No. 16 of 2021, s. 21, Applied:12 Nov 2021] Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established.
30A. Defence of scientific or academic peer review
[Section 30A Inserted by No. 16 of 2021, s. 22, Applied:12 Nov 2021](1) It is a defence to the publication of defamatory matter if the defendant proves that –(a) the matter was published in a scientific or academic journal (whether published in electronic form or otherwise); and(b) the matter relates to a scientific or academic issue; and(c) an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by –(i) the editor of the journal if the editor has expertise in the scientific or academic issue concerned; or(ii) one or more persons with expertise in the scientific or academic issue concerned.(2) If there is a defence to the publication of defamatory matter in a scientific or academic journal because of subsection (1) , there is also a defence to the publication of any assessment of the matter in the same journal if the defendant proves that –(a) the assessment was written by one or more of the persons who carried out the independent review of the matter; and(b) the assessment was written in the course of that review.(3) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a fair summary of, or fair extract from, a matter or assessment for which there is a defence because of subsection (1) or (2) .(4) If a journal has more than one editor, a reference in this section to the editor of the journal is to be read as a reference to the editor or editors who were responsible for deciding to publish the matter concerned.(5) A defence established under this section is defeated if, and only if, the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.
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(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) [Section 31 Subsection (5) substituted by No. 16 of 2021, s. 23, Applied:12 Nov 2021] For the purposes of this section, an opinion is based on proper material if –(a) the material on which it is based is –(i) set out in specific or general terms in the published matter; or(ii) notorious; or(iii) accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage); or(iv) otherwise apparent from the context in which the matter is published; and(b) the material –(i) is substantially true; or(ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or(iii) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29 .(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
[Section 33 Repealed by No. 16 of 2021, s. 24, Applied:12 Nov 2021] . . . . . . . .(1) It is a defence to the publication of defamatory matter if the defendant proves that –(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and(c) the defendant's lack of knowledge was not due to any negligence on the part of the defendant.(2) For the purposes of subsection (1) , a person is a subordinate distributor of defamatory matter if the person –(a) was not the first or primary distributor of the matter; and(b) was not the author or originator of the matter; and(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.(3) Without limiting subsection (2)(a) , a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of –(a) a bookseller, newsagent or 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 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.
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) [Section 35 Subsection (1) amended by No. 16 of 2021, s. 25, Applied:12 Nov 2021] The maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the "maximum damages amount") that is applicable at the time damages are awarded.(2) [Section 35 Subsection (2) substituted by No. 16 of 2021, s. 25, Applied:12 Nov 2021] The maximum damages amount is to be awarded only in a most serious case.(2A) [Section 35 Subsection (2A) inserted by No. 16 of 2021, s. 25, Applied:12 Nov 2021] Subsection (1) does not limit the court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances.(2B) [Section 35 Subsection (2B) inserted by No. 16 of 2021, s. 25, Applied:12 Nov 2021] An award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies.(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) , 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.
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.
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(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.
PART 5 - Miscellaneous
(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 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 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(iv) [Section 44 Subsection (1) amended by No. 16 of 2021, s. 26, Applied:12 Nov 2021] sending it by email to an email address specified by the person for the giving or service of documents; or(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) [Section 44 Subsection (1) amended by No. 16 of 2021, s. 26, Applied:12 Nov 2021] sending it by facsimile transmission to the facsimile number of the body corporate; or(iii) [Section 44 Subsection (1) amended by No. 16 of 2021, s. 26, Applied:12 Nov 2021] sending it by email to an email address specified by the body corporate for the giving or service of documents.(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.
(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.
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 .
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(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.
48A. Savings and transitional provisions on commencement of Defamation Amendment Act 2021
[Section 48A Inserted by No. 16 of 2021, s. 27, Applied:12 Nov 2021] An amendment made to this Act by the Defamation Amendment Act 2021 applies only in relation to the publication of defamatory matter on or after the commencement of the amendment.
See Schedule 4 .
The legislation specified in Schedule 5 is repealed.
SCHEDULE 1 - Additional publications to which absolute privilege appliesCurrently there are no provisions in this Schedule but it has been included for consistency with national model legislation.
SCHEDULE 2 - Additional kinds of public documentsCurrently there are no provisions in this Schedule but it has been included for consistency with national model legislation.
SCHEDULE 3 - Additional proceedings of public concernCurrently there are no provisions in this Schedule but it has been included for consistency with national model legislation.
SCHEDULE 4 - Consequential AmendmentsThe amendments effected by Section 49 and this Schedule have been incorporated into authorised versions of the following Acts:
(a) Criminal Code Act 1924 ;(b) Defamation Act 1957 ;(c) Defamation Act 2005 ;(d) Justices Act 1959 .
SCHEDULE 5 - Legislation repealed
Defamation Act 1957 (No. 42 of 1957) |