Copyright © Government of South Australia 2002
All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Copyright. The Copyright Act, 1968 (Cth) permits certain reproduction and publication of South Australian legislation. In particular s. 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For the reproduction or publication beyond that permitted by the Act, permission should be sought in writing from the South Australian Attorney-General's Department. Requests in the first instance should be addressed to the Attorney-General.

DEFAMATION BILL

The Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill for an act to modify the general law relating to the tort of defamation; to repeal provisions of the Civil Liability Act 1936 relating to the tort of defamation; to amend the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Limitation of Actions Act 1936; and for other purposes. Read a first time.

The Hon. M.J. ATKINSON: I move:

That this bill be now read a second time.

The bill reforms the law of defamation in accordance with model provisions agreed by all state and territory Attorneys-General in November 2004. They had attempted to reach agreement on uniform defamation law reform since 1979, without success. Indeed, I recall being a cadet, or perhaps a D-grade reporter, under the Metropolitan Daily Newspapers Award, and being detailed by the then editor, Don Riddell, to be paid by Advertiser administration, rather than Adver­tiser editorial, so that I could work on The Advertiser's response to then federal government's proposal for a uniform defamation law. Believe me, I worked for The Advertiser a long time ago. The agreement was a long time coming.

Protecting freedom of expression and protecting personal reputation from unjustified aspersions are not new ideas. They can be traced back through the common law for hundreds of years. However, the balance between these competing interests, and the degree to which people could express themselves freely, have changed over time. The means and speed with which people communicate have changed dramatically in recent years. The government puts this bill forward as representing a reasonable and fair balance between the competing interests and a reasonable and fair way of accommodating the changes brought about by technology.

We have all heard about some defamation litigation that has dragged on interminably at great expense to all parties and the court system and at considerable emotional cost to the parties. Some of us have been shocked by the size of some awards of damages, especially a few made in New South Wales. The bill contains provisions that are intended to provide incentives for early settlement of disputes about defamation, and to encourage early corrections, apologies and replies to correct errors, put both sides of a story, and restore damaged reputations. It would also cap the damages that may be awarded for non-economic loss.

#42 From the point of view of commercial publishers and people who have a national reputation, the difference between the defamation laws of each state and territory has caused difficulties. The differences between jurisdictions have come about because states and territories have modified and supplemented the common law by statute in differing ways. The mass media, book publishers, internet service providers and others, have urged all Australian governments to make the law of defamation the same, or at least consistent, throughout Australia.

The bill will not entirely displace the common law. Rather, it will modify and supplement it in a way that is appropriate to modern means of communication, and in a way that has been agreed by all the state and territory attorneys-general, and drafted in consultation with parliamentary counsel's committee. I implore members to approach the bill with goodwill and not to undermine the uniformity that will be achieved if state and territory parliaments pass bills in accordance with the model. Lastly, the useful information about this bill is mostly contained in the clause notes rather than the second reading speech. I seek leave to have the rest of the explanation incorporated in Hansard without my reading it.

Leave granted.

TAKE IN H:\2READEXP\DB.DOC

This Bill is to reform the law of defamation in accordance with model provisions agreed to by all State and Territory Attorneys-General in November, 2004. Attorneys-General had attempted to reach agreement on uniform defamation law reform since 1979, without success. This agreement, then, was a long time coming.

Protecting freedom of expression and protecting personal reputation from unjustified aspersions are not new ideas. They can be traced back through the common law for hundreds of years. However, the balance between these competing interests, and the degree to which people could express themselves freely, have changed over time. And the means and speed with which people communicate have changed dramatically in recent years. The Government puts this Bill forward as representing a reasonable and fair balance between the competing interests and a reasonable and fair way of accommodating the changes brought about by technology.

We have all heard about some defamation litigation that has dragged on interminably at great expense to all parties and the court system and at considerable emotional cost to some parties. Some of us have been shocked by the size of some awards of damages, especially some made interstate. This Bill contains provisions that are intended to provide incentives for early settlement of disputes about defamation and to encourage early corrections, apologies and replies to correct errors, put both sides of a story and restore damaged reputations. It would also cap the damages that may be awarded for non-economic loss.

From the point of view of commercial publishers and people who have a national reputation, the differences between the defamation laws of each State and Territory have caused difficulties. The differences between jurisdictions have come about because States and Territories have modified and supplemented the common law by statute in their own differing ways. The mass media, book publishers, internet service providers and others have urged all Australian governments to make the law of defamation the same, or at least consistent, throughout Australia.

The Bill will not entirely displace the common law. Rather, it will modify and supplement it in a way that is appropriate to modern means of communication, and in a way that has been agreed by all the State and Territory Attorneys-General and drafted in consultation with Parliamentary Counsels' Committee.

I implore Members to approach this Bill with goodwill and not to undermine the uniformity that will be achieved if State and Territory Parliaments pass Bills in accordance with the model.

The Bill would repeal the old defamation provisions that, for a long time, have been in our Wrongs Act 1936 (recently renamed the Civil Liability Act 1936). Instead, we would have a stand-alone Act called the Defamation Act 2005.

The explanation of the clauses of the Bill adopt most of the explanatory notes drafted by an interstate Parliamentary Counsel in consultation with Parliamentary Counsel's Committee. They are very detailed and cover much of what I would normally say in my second reading speech, such as background information relevant to particular clauses. I will not repeat them. However, I mention some of the major points.

For the first time, there will be a statement of objects in our statutory defamation provisions. They are set out in clause three. They are:

× to enact provisions to promote uniform laws of defamation in Australia;

× 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;

× to provide effective and fair remedies for persons whose reputations are harmed by the publication of defama­tory matter; and

× to promote speedy and non-litigious methods of resolving disputes and the publication of defamatory matter.

Decisions about whether matter that has been published is, or is not, defamatory will continue to be decided according to the common law. This will allow for the law to change gradually and incrementally as the meaning of words and actions and the standards of society change. The majority of submissions, including all those made by mass media organisations, supported this.

At common law, a libel was actionable without proof of actual damage—slander was actionable only if the defamed person proved that actual damage resulted from the slander. The distinction originated in the days when words spoken were transient. They were published by the speaker only to the people who were close enough to hear. Now spoken words are often broadcast to thousands, if not millions, of people and are recorded by electronic means for future reproduction and republishing. Commonwealth legislation treats matter published by radio or television as potentially libellous, rather than slanderous. The submissions received indicated that the distinction is now considered anachronistic. The majority of States and Territories have already abolished it by statute. The Bill would abolish the distinction between libel and slander in South Australia.

The New South Wales experiment of making each imputation conveyed by a defamatory statement a separate cause of action will not be followed. The common law position that a publication gives rise to one cause of action no matter how many imputations it conveys would be maintained by the Model Bill and this Bill.

The defences to actions in defamation are as important as the elements of the cause of action. One of the most contentious issues has been whether a person should ever be liable for publishing matter that is true. At common law, and in South Australia, the position has always been that a defendant who proves that the published matter was true has a complete defence. Traditionally, this has been known as the defence of justification. This is also the law in Victoria, Western Australia and the Northern Territory, New Zealand and England. In New South Wales the defendant has a defence only if it is also proved that the matter was published in the public interest. In Queensland, Tasmania and the Australian Capital Territory the defendant must prove that the matter was published for the public benefit. In November, all State and Territory Attorneys-General agreed that their Bills should contain a statutory defence that reflects the common law defence of justification, and thus, this aspect of the South Australian law will not change.

The Bill would allow the common law defence of qualified privilege to continue to operate.

In addition, the Bill contains statutory defences of:

× contextual truth;

× absolute privilege;

× publication of public documents;

× fair report of proceedings of public concern;

× qualified privilege that is wider than the common law defence of qualified privilege;

× honest expressions of opinion;

× innocent dissemination, which will protect people such as newsagents, booksellers, librarians and internet service providers who unwittingly publish defamatory matter without negligence on their part; and

× triviality.

These are explained in the explanation of the clauses.

Unlike the Model Bill, this Bill does not include schedules of publications that are to be protected. This is because we have not, as yet, identified any specific publications, or any specific bodies whose publications, should be protected additionally to those who would be protected by the more general provisions of clauses 25, 26 and 27 of this Bill.

Our Limitation of Actions Act 1936 sets limitation periods of two years for slander and six years for libel. The general view of people who made submissions was that the limitation period is too long in some jurisdictions, including in South Australia. The Bill would set a limitation period of one year for commencement of civil defama­tion actions. Early correction, restoration of reputation and resolution of defamation disputes is in the interests of the parties and the public. The shortening of the limitation period will help to achieve the object of providing effective remedies. Also, as the distinction between libel and slander would be abolished by this Bill, there would be no need for two different limitation periods. However, the court would have power to extend the time to up to three years in certain circumstances set out in Part 5 of Schedule 1 of the Bill.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

Sets out the name (also called the short title) of the proposed Act.

2—Commencement

This clause provides that the proposed Act will come into operation on 1 January 2006.

3—Objects of Act

Clause 3 sets out the objects of the proposed Act.

4—Interpretation

Proposed section 4 defines certain terms used in the proposed Act. In particular, the following terms are defined:

The general law is defined to mean the common law and equity.

The term matter is defined to include the following:

× an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;

× a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication;

× a letter, note or other writing;

× a picture, gesture or oral utterance;

× any other thing by means of which something may be communicated to a person.

The term publication of matter is defined to mean communi­cation of the matter by one person to any other person. However, it should be noted that at general law certain kinds of communication are not treated as being publications of matter for the purposes of the tort of defamation. An example of this is where defamatory matter is communicated only to the person being defamed. The operation of the general law in relation to what constitutes publication for the purposes of the tort of defamation is preserved by proposed section 6.

5—Act binds Crown

The proposed Act binds the Crown in all its capacities.

Part 2—General principles

Division 1—Defamation and the general law

6—Tort of defamation

The proposed Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that the proposed Act provides otherwise (whether expressly or by necessary implication). The proposed section also makes it clear that the general law as it is from time to time is to apply for the purposes of the new legislation as if existing defamation legislation had never been enacted or made. This provision removes any doubt about the applica­tion of the general law particularly in those Australian jurisdictions in which the general law has previously been displaced by a codified law of defamation

The proposed Act does not seek to define the circumstances in which a person has a cause of action for defamation. Rather, the proposed Act operates by reference to the elements of the tort of defamation at general law. According­ly, if a plaintiff does not have a cause of action for defama­tion at general law in relation to the publication of matter by the defendant, the plaintiff will not (subject to the modifica­tion of the general law effected by proposed section 7) have a cause of action for the purposes of the proposed Act.

At general law, a plaintiff has a cause of action for defama­tion against a defendant if the defendant publishes defama­tory accusations or charges (referred to conventionally as imputations) about the plaintiff to at least one other person (other than the defendant or his or her spouse). The courts have expressed the test for determining what is defamatory in various ways. Perhaps the most familiar description is that of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at p1240—matter that tends to lower the plaintiff in the estimation of right-thinking members of society generally. Nowadays, the word “ordinary” is usually used, rather than “right-thinking”.

“Defamatory” can be described as tending to damage the plaintiff's reputation, or tending to lead to his or her exclu­sion from society. Words, gestures etc, however insulting or objectionable, that tend to produce neither of these effects, are not actionable.

Usually a defamatory statement imputes that the person about whom it is said is morally blameworthy. However, a state­ment, although not imputing moral blameworthiness, may be defamatory if it dishonours the person.

7—Distinction between slander and libel abolished

The general law distinction between libel and slander is abolished.

At general law, libel is the publication of defamatory matter in a written or other permanent form while slander is the publication of defamatory matter in a form that is temporary and merely audible. If a matter is libellous, the plaintiff does not need to prove that he or she sustained material loss (or special damage) in order for the matter to be actionable. However, if a matter is slanderous, the plaintiff must usually prove special damage in order for the matter to be actionable.

The abolition of this general law distinction means that all publications of defamatory matter are actionable without proof of special damage.

The distinction has already been abolished in most Australian jurisdictions under existing law. The only exceptions are South Australia, Victoria and Western Australia.

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 even if more than one defamatory imputation about the person is carried by the matter.

The proposed section reflects the position at general law that the publication of defamatory matter is the foundation of a civil action for defamation and reflects the existing law in all of the States and Territories, other than New South Wales.

9—Certain corporations do not have cause of action for defamation

A corporation cannot assert or enforce a cause of action for defamation of the corporation. The only exception to this general rule will be a corporation that is operated on a not-for-profit basis, but that is not a governmental or public authority under a law of an Australian jurisdiction or another country. The proposed section will not preclude any individ­ual associated with a corporation from suing for defamation in relation to the publication of matter about the individual that also defames the corporation.

10—No cause of action for defamation of, or against, deceased persons

Proposed section 10 provides that no civil action for defama­tion may be asserted, continued or enforced by a person in relation to the publication of defamatory matter about a deceased person (whether or not published before or after the person's death). The proposed section also prevents the assertion, continuation or enforcement of a civil cause of action for defamation against a publisher of defamatory matter who is deceased.

South Australian law, and the existing laws of the States and Territories (except Tasmania), preclude a civil action for defamation in relation to a deceased person, or against a deceased person. This reflects the position at general law.

Division 3—Choice of law

11—Choice of law for defamation proceedings

This proposed section provides for choice of law rules where a civil cause of action is brought in a court of this State in relation to the publication of defamatory matter that occurred wholly or partly in an Australian jurisdictional area. An Australian jurisdictional area is defined to mean—

(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.

Examples of areas over which the Commonwealth, but not a State or Territory, has legislative competence include places in relation to which the Commonwealth has exclusive power to make laws under section 52(i) of the Commonwealth Constitution and the external Territories of the Common­wealth.

The proposed section creates two choice of law rules.

The first choice of law rule applies where a matter is published only within one Australian jurisdictional area. The choice of law rule in that case will require a court of this State to apply the substantive law applicable in the Australian jurisdictional area in which the matter was published.

The second choice of law rule applies if the same, or substantially the same, matter is published in more than one Australian jurisdictional area by a particular person to two or more persons. The choice of law rule in that case will require a court of this State to apply the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection. In determining which area has the closest connection with the harm, the court may take into account any matter it considers relevant, including—

× 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

× the extent of publication in each relevant Australian jurisdictional area; and

× the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area.

The second choice of law rule is based on the recommenda­tion made by the Australian Law Reform Commission in its report entitled Unfair Publication: Defamation and Privacy (1979, Report No 11) at pages 190–191. As indicated in that report, the Australian jurisdictional area with which the tort will have its closest connection will generally be where the plaintiff is resident if the plaintiff is a natural person resident in Australia. In the case of a corporation, it will generally be where the corporation has its principal place of business.

These choice of law rules will be needed when an Act limits or excludes civil liability for defamation in a particular jurisdiction. For instance, a common statutory provision in State and Territory law is one that protects a public official or public authority of the State or Territory from civil liability for actions taken in good faith in the exercise of statutory functions. These provisions are of general application and therefore include, but are not limited to, civil liability for defamation.

Under existing law, choice of law for defamation matters is largely determined by the general law. Under the general law, the law of the place in which a defamatory matter is pub­lished must be applied to determine liability for that publica­tion. If the matter is published in more than one place, then there is a separate cause of action for each publication. In that circumstance, different laws may need to be applied for each different publication depending on the place of publication.

Part 3—Resolution of civil disputes without litigation

Division 1—Offers to make amends

The Division sets out provisions dealing with offers to make amends for the publication of matter that is, or may be, defamatory. The provisions may be used before, or as an alternative to, litigation.

New South Wales and the Australian Capital Territory make similar provision for offers to make amends under their existing laws. The other Australian jurisdictions have provisions in their rules of court and other civil procedure legislation that provide for the making of offers of compro­mise or payments into court. However, these provisions tend to be available only once litigation has commenced.

12—Application of Division

Division 1 applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person). The proposed section also makes it clear that the Division operates discrete­ly from any rules of court or any other law in relation to payment into court or offers of compromise. However, the Division will not prevent the making or acceptance of other settlement offers.

13—Publisher may make offer to make amends

Proposed section 13 enables a publisher to make an offer to make amends to an aggrieved person.

14—When offer to make amends may be made

The offer cannot be made if 28 days or more have elapsed since the publisher has been given a concerns notice by the aggrieved person that the matter in question is, or may be, defamatory or if a defence in an action for defamation brought by the aggrieved person has been served. The proposed section also enables a publisher to seek further particulars from the aggrieved person if the concerns notice does not particularise the defamatory imputations carried by the matter in question of which the aggrieved person complains.

15—Content of offer to make amends

This proposed section specifies what an offer to make amends must or may contain. It also confers certain powers on a court in relation to the enforcement of an offer to make amends that is accepted by an aggrieved person.

16—Withdrawal of offer to make amends

Proposed section 16 enables a publisher to withdraw an offer to make amends. It also enables a publisher to make a renewed offer to make amends after the expiry of the periods referred to in proposed section 14 if the renewed offer is a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about an earlier offer and is made within 14 days after the earlier offer is with­drawn (or within an agreed period).

17—Effect of acceptance of offer to make amends

If the publisher carries out the terms of an accepted offer to make amends (including paying any compensation under the offer), 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.

18—Effect of failure to accept reasonable offer to make amends

Under proposed section 18, it is a defence to an action for defamation against the publisher if the publisher made an offer of amends that was not accepted and the offer was made as soon as practicable after the publisher became aware that the matter in question is or may be defamatory, the publisher was ready and willing to carry out the terms of the offer, and the offer was reasonable in the circumstances.

19—Inadmissibility of evidence of certain statements and admissions

Proposed section 19 provides that (subject to some excep­tions) 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 criminal or civil proceedings.

Division 2—Apologies

20—Effect of apology on liability for defamation

An apology by or on behalf of a person will not constitute an admission of liability, and will not be relevant to the determi­nation of fault or liability, in connection with any defamatory matter published by the person.

Part 4—Litigation of civil disputes

Division 1—General

21—Permission required for further proceedings in relation to publication of same defamatory matter

If a person has brought defamation proceedings in South Australia or elsewhere, the permission of the court is required for further proceedings for defamation to be brought against the same person for the same or like matter.

Division 2—Defences

22—Scope of defences under general law and other law not limited

Proposed section 22 provides that a defence under Division 2 is additional to any other defence or exclusion of liability available to the defendant apart from the proposed Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion or liability. The proposed section also provides that the general law applies to determine whether a publication of defamatory matter was actuated by malice. At general law, a publication of matter is actuated by malice if it is published for a purpose or with a motive that is foreign to the occasion that gives rise to the defence at issue. See Roberts v Bass (2002) 212 CLR 1 at 30–33.

23—Defence of justification

Under proposed section 23, 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. The term substan­tially true is defined in proposed section 4 to mean true in substance or not materially different from the truth.

The defence reflects the defence of justification at general law where truth alone is a defence to the publication of defamatory matter.

24—Defence of contextual truth

This proposed section provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory imputations carried by a matter, but the plaintiff has chosen to proceed with one or more, but not all of them. In that circumstance, the defendant may have a defence of contextual truth if the defendant proves—

× the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and

× the defamatory imputations about which the plaintiff complains do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

There is a defence of contextual truth under the existing law of New South Wales.

At general law, the truth of each defamatory imputation carried by the matter published that is pleaded by the plaintiff must be proved to make out the defence of justification unless it can be established that the imputations were not separate and distinct but, as a whole, carried a “common sting”. In that case, the defence of justification is made out if the defendant can show that the “common sting” is true. See Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 at 1032. The defence of contextual truth created by the proposed Act, unlike the general law, will apply even if the contextual imputations are separate and distinct from the defamatory imputations of which the plaintiff complains.

25—Defence of absolute privilege

Proposed section 25 provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was published on an occasion of absolute privilege. The proposed section lists, on a non-exhaustive basis, certain publications that are protected by this defence. These include—

× the publication of matter in the course of the proceedings of a parliamentary body of any country; and

× the publication of matter in the course of the proceedings of an Australian court or Australian tribunal; and

× the publication of matter 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 the proposed section.

The defence of absolute privilege at general law extends to certain parliamentary and judicial proceedings and certain ministerial communications. The privilege is described as being absolute because it cannot be defeated even if the matter was untrue or was published maliciously.

The proposed section extends the defence of absolute privilege to the publication of matter that would be subject to absolute privilege under the corresponding law of another Australian jurisdiction.

26—Defence for publication of public documents

It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—

× a public document or a fair copy of a public document; or

× a fair summary of, or a fair extract from, a public document.

The proposed section provides that the defence 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.

The proposed section defines public document to mean—

× 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

× any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceed­ings and includes—

× any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and

× any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination; or

× any report or other document that under the law of any country—

× is authorised to be published; or

× is required to be presented or submitted to, tabled in, or laid before, a parliamentary body; or

× 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

× any record or document open to inspection by the public that is kept—

× by an Australian jurisdiction; or

× by a statutory authority of an Australian jurisdic­tion; or

× by an Australian court; or

× under legislation of an Australian jurisdiction; or

× 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 the proposed section.

The existing laws of a number of States and Territories make provision for a statutory defence along these lines. However, the scope of the statutory defences differs in each jurisdiction.

27—Defences of fair report of proceedings of public concern

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. The proposed section also provides that it is a defence to the publication of defamatory matter if the defendant proves that—

× the matter was, or was contained in, an earlier published report of proceedings of public concern; and

× 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

× the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

The proposed section provides that the defence 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.

The proposed section defines proceedings of public concern to mean—

× any proceedings in public of a parliamentary body; or

× any proceedings in public of an international organisation of any countries or of the governments of any countries; or

× any proceedings in public of an international conference at which the governments of any countries are represented; or

× any proceedings in public of—

× the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations; or

× any other international judicial or arbitral tribunal; or

× any proceedings in public of a court or arbitral tribunal of any country; or

× 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

× any proceedings in public of a local government body of any Australian jurisdiction; or

× certain proceedings of a learned society or of a committee or governing body of such a society; or

× certain proceedings of a sport or recreation association or of a committee or governing body of such an association; or

× certain proceedings of a trade association or of a committee or governing body of such an association; or

× 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

× 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

× any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman; or

× any proceedings in public of a law reform body of any country; or

× 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 the proposed section.

At general law, fair and accurate reports of proceedings of certain persons and bodies are subject to qualified privilege. For example, the general law defence extends to proceedings in parliament and judicial proceedings conducted in open court. As the defence at common law is a defence of qualified privilege, it can be defeated by proof that the publication of the defamatory matter was actuated by malice.

The existing laws of most States and Territories make provision for a statutory defence along the lines of the general law defence. However, the scope of the statutory defences differs in each jurisdiction.

The proposed section extends to a larger class of proceedings than the general law defence. Also, the new defence limits the circumstances in which the defence can be defeated to situations where the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

28—Defence of qualified privilege for provision of certain information

Proposed section 28 provides for a defence of qualified privilege that is based on the provisions of section 22 of the Defamation Act 1974 of New South Wales. The proposed section provides that it is a defence to the publication of defamatory matter to a person (the recipient) if the defendant proves that—

× the recipient has an interest or apparent interest in having information on some subject; and

× the matter is published to the recipient in the course of giving to the recipient information on that subject; and

× the conduct of the defendant in publishing that matter is reasonable in the circumstances.

The proposed section lists a number of factors that the court may take into account in determining whether the conduct of the defendant was reasonable. These factors largely mirror the factors relevant at general law as stated by the House of Lords in Reynolds v Times Newspapers Ltd (2001) 2 AC 127.

As the defence created by the proposed section is a defence of qualified privilege, it can be defeated on the same grounds as the defence of qualified privilege at general law. For example, the proposed section makes it clear that the defence may be defeated if the plaintiff proves that the publication was actuated by malice.

The defence is broader than the defence at general law because the interest that the recipient must have or apparently have is not as limited as at general law. It has been said of the New South Wales provision that “[w]hat the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established”. See Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797.

The proposed section, however, adds to the factors referred to in the New South Wales provision in two important respects. Firstly, it requires the court to take into account whether it was in the public interest in the circumstances for the matter published to be published expeditiously. The New South Wales provision limits the court to a consideration of whether it was necessary in the circumstances for the matter published to be published expeditiously. Secondly, it requires a court to take into account the nature of the business environment in which the defendant operates. The New South Wales provision does not include this factor in its list of factors.

29—Defences of honest opinion

This proposed section provides for a number of defences relating to the publication of matter that expresses an opinion that is honestly held by its maker.

The proposed section distinguishes between three situations.

The first situation is where the opinion was that of the defendant. In that situation, the defence is made out if it is proved that the defendant honestly held the opinion, the opinion related to a matter of public interest and the opinion was based on proper material. Proper material, for the purposes of the proposed section, is material that—

× is substantially true; or

× was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

× was published on an occasion that attracted the protection of a defence under the proposed section or proposed section 26 or 27 or the defence of fair comment at general law.

The second situation is where the opinion was that of the defendant's employee or agent. In that situation, the defence is made out if it is proved that the defendant believed that the opinion was honestly held by the employee or agent, the opinion related to a matter of public interest and the opinion was based on proper material.

The third situation is where the opinion was that of a third party. In that situation, the defence is made out if it is proved that the defendant had no reasonable ground to believe that the opinion was not honestly held by the third party at the time of publication, the opinion related to a matter of public interest and the opinion was based on proper material.

The defences, at least in relation to opinions personally held by the defendant, largely reflect the defence of fair comment at general law. However, the proposed section clarifies the position at general law in relation to the publication of the opinions of employees, agents and third parties. The existing laws of New South Wales, Queensland, Tasmania, Western Australia and the Northern Territory make statutory provision (whether partly or wholly) in relation to the defence of fair comment. The proposed section also make it clear that the defence may be defeated if the plaintiff proves that the publication was actuated by malice.

30—Defence of innocent dissemination

Proposed section 30 provides that it is a defence to the publication of defamatory matter if the defendant proves that—

× the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and

× the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

× the defendant's lack of knowledge was not due to any negligence on the part of the defendant.

A person will be a subordinate distributor of matter for the purposes of the proposed section if the person—

× was not the first or primary distributor of the matter; and

× was not the author or originator of the matter; and

× 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.

The proposed section also lists a number of circumstances in which a person will generally not be treated as being the first or primary publisher of matter.

The defence largely follows the defence of innocent dissemi­nation at general law. See, for example, Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. However, the provision seeks to make the position of providers of Internet and other electronic and communication services clearer than it is at general law. For example, the provider of an Internet email service will generally not be treated as being the first or primary distributor of defamatory matter contained in an email sent using the service. Accord­ingly, a service provider of that kind will be treated as being a subordinate distributor for the purposes of the defence unless it can be shown that the service provider was the author or originator of the matter or had the capacity to exercise editorial control over the matter.

31—Defence of triviality

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

The existing laws of the Australian Capital Territory, New South Wales, Queensland, Tasmania and Western Australia already provide for the defence.

Division 3—Remedies

32—Damages to bear rational relationship to harm

A court, in determining the amount of damages to be awarded in any defamation proceedings, is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

33—Damages for non-economic loss limited

Proposed section 33 provides for the determination of damages for non-economic loss for defamation. A limit on the amount of damages for non-economic loss is imposed ($250 000). The proposed section also provides for the indexation, by order of the Minister published in the Gazette, of the maximum amount that may be awarded as damages for non-economic loss. A court will not be permitted to order a defendant to pay damages that exceed the maximum damages amount under the proposed section unless it is satisfied that the circumstances of the publication of the matter to which the proceedings relate are such as to warrant an award of aggravated damages.

The existing laws of the States and Territories do not currently impose a cap on damages for non-economic loss that may be awarded in defamation proceedings.

34—State of mind of defendant generally not relevant to awarding damages

A court, in awarding damages, is generally to disregard the malice or other state of mind of the defendant at the time the matter to which the proceedings relate was published.

35—Exemplary or punitive damages cannot be awarded

A court cannot award exemplary or punitive damages for defamation.

The award of these damages is permitted under the existing laws of all of the States and Territories other than New South Wales.

36—Factors in mitigation of damages

Proposed section 36 lists some factors that a court may take into account in mitigation of damages. The list is not intended to be exhaustive.

The existing laws of a number of States and Territories make provision for similar mitigating factors, although there are differences between the jurisdictions as to the factors expressly recognised by legislation.

37—Damages for multiple causes of action may be assessed as single sum

This proposed section enables a court in defamation proceed­ings that finds for a plaintiff on more than one cause of action to assess damages as a single sum.

The existing law of New South Wales already confers this power on its courts.

Division 4—Costs

38—Costs in defamation proceedings

Proposed section 38 requires a court (unless the interests of justice require otherwise) to order costs against an unsuccess­ful party to proceedings for defamation to be assessed on an indemnity basis if the court is satisfied that the party unrea­sonably failed to make or accept a settlement offer made by the other party to the proceedings. The proposed section also provides that in awarding costs in relation to proceedings for defamation, the court may have regard to—

× the way in which the parties to the proceedings conducted their cases; and

× any other matters that the court considers relevant.

The proposed section is based on the provisions of section 48A of the Defamation Act 1974 of New South Wales.

Part 5—Miscellaneous

39—Proceedings for an offence do not bar civil proceed­ings

The commencement of criminal proceedings for an offence under section 257 of the Criminal Law Consolidation Act 1935 does not preclude the commencement of civil proceed­ings or the determination of those proceedings.

40—Proof of publication

Clause 40 facilitates the proof in civil proceedings for defamation of publication in the context of mass produced copies of matter and periodicals.

41—Giving of notices and other documents

Clause 41 provides for how notices may be given under the proposed Act.

42—Regulations

Clause 42 confers a power to make regulations for the purposes of the proposed Act.

Schedule 1—Related amendments and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Civil Liability Act 1936

2—Amendment of section 3—Interpretation

This clause removes the definition of newspaper from section 3 of the Civil Liability Act 1936. That definition is redundant because of the proposed repeal of Part 2 of the Act.

3—Repeal of Part 2

Part 2 of the Civil Liability Act 1936 is repealed.

Part 3—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 257—Criminal defamation

Section 257(2) of the Criminal Law Consolidation Act 1935 provides that a person charged with the offence of criminal defamation has a lawful excuse for the publication of the relevant defamatory matter if he or she would have a defence to an action for damages for defamation in respect of the publication. As a consequence of the amendment proposed by this clause, in determining whether the person charged with the offence has a lawful excuse, regard may be had only to the circumstances happening before or at the time of the publication.

Part 4—Amendment of Evidence Act 1929

5—Substitution of section 33

This clause recasts section 33 of the Evidence Act 1929. Under proposed new section 33, a person who is required to answer a question, or to discover or produce a document or thing, in civil proceedings for defamation 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. However, under subsection (2), an 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 any other action or proceedings

Part 5—Amendment of Limitation of Actions Act 1936

6—Substitution of section 37

This clause amends the Limitation of Actions Act 1936 to provide that, generally, a civil action for defamation must be commenced within one year following the date of publication of the matter of which the plaintiff complains. However, a court is to extend this limitation period to a period of up to three years if it is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the one year period.

Under their existing laws, both New South Wales and the Australian Capital Territory provide for a one year limitation period that can be extended for a limited further period. In South Australia and Western Australia actions for slander are subject to a limitation period of two years. In other cases and in other jurisdictions, the limitation period is generally six years.

Part 6—Transitional provisions

7—Savings, transitional and other provisions

Clause 7 provides that, generally, the proposed Act will apply to defamatory matter that is published on or after the commencement of the proposed Act. However, the existing law will continue to apply to the following:

× a cause of action for defamation that accrued before the commencement of the proposed Act; and

× a cause of action for defamation that accrued after the commencement of the proposed Act, but only if—

× the action is raised in proceedings that include other causes of action that accrued before that commence­ment; and

× the action accrued no later than 12 months after the earliest pre-commencement action accrued; and

× each action in the proceedings arose out of the publication of the same, or substantially the same, matter on different occasions.

8—Application of amendments to Limitation of Actions Act 1936

This clause provides for transitional arrangements in relation to the amendments made by Part 5 of Schedule 1 to the Limitation of Actions Act 1936. These transitional arrange­ments are in similar terms to those prescribed by clause 7 with respect to the application of the Act to defamatory matter.

The Hon. R.G. KERIN secured the adjournment of the debate.