An Act to enact in New South Wales provisions to promote uniform laws of defamation in Australia; to repeal the Defamation Act 1974; to amend the Crimes Act 1900 in relation to criminal defamation; to amend the Limitation Act 1969 in relation to the limitation period for defamation actions; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act is the Defamation Act 2005.
2 Commencement
This Act commences on 1 January 2006.
3 Objects of Act
The objects of this Act are:(a) to enact provisions to promote uniform laws of defamation in Australia, 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.
4 Definitions
In this Act:Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable 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).country includes:(a) a federation and a state, territory, province or other part of a federation, and(b) an Australian jurisdiction.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.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 a 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 New South Wales.
5 Act to bind Crown
This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.
Part 2 General principles
Division 1 Defamation and the general law
6 Tort of defamation
(1) This Act relates to the tort of defamation at general law.(2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted:(a) the Defamation Act 1958,(b) the Defamation Act 1974.
7 Distinction between slander and libel abolished
(1) The distinction at general law between slander and libel is abolished.(2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.
Division 2 Causes of action for defamation
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:(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, orand the corporation is not a public body.(b) it employs fewer than 10 persons and is not related to 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) In determining whether a corporation is related to another corporation for the purposes of subsection (2) (b), section 50 of the Corporations Act 2001 of the Commonwealth applies as if references to bodies corporate in that section were references to corporations within the meaning of this section.(5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.(6) In this section:corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body.public body means a local government body or other governmental or public authority constituted by or under a law of any country.
10 No cause of action for defamation of, or against, deceased persons
A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to:(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death), or(b) the publication of defamatory matter by a person who has died since publishing the matter.
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 Offers to make amends
12 Application of Division
(1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).(2) The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.(3) Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division.
13 Publisher may make offer to make amends
(1) The publisher may make an offer to make amends to the aggrieved person.(2) The offer may be:(a) in relation to the matter in question generally, or(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries.(3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.(4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.
14 When offer to make amends may be made
(1) An offer to make amends cannot be made if:(a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.(2) A notice is a concerns notice for the purposes of this section if the notice:(a) is in writing, and(b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern).(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.
15 Content of offer to make amends
(1) An offer to make amends:(a) must be in writing, and(b) must be readily identifiable as an offer to make amends under this Division, and(c) if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited, and(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to):(i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or(ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or(iii) the particulars of any correction or apology made, or action taken, before the date of the offer.(2) Without limiting subsection (1) (g) (ii), an offer to pay compensation may comprise or include any one or more of the following:(a) an offer to pay a stated amount,(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person,(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person,(d) an offer to pay an amount determined by a court.(3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine:(a) if the offer provides for a court to determine the amount of compensation payable under the offer—the amount of compensation to be paid under the offer, and(b) any other question that arises about what must be done to carry out the terms of the offer.(4) The powers conferred on a court by subsection (3) are exercisable:(a) if the aggrieved person has brought proceedings against the publisher in any 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) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and(c) in all the circumstances the offer was reasonable.(2) In determining whether an offer to make amends is reasonable, a court:(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account:(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and(ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and(b) may have regard to:(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and(ii) any other matter that the court considers relevant.
19 Inadmissibility of evidence of certain statements and admissions
(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine:(a) any issue arising under, or relating to the application of, a provision of this Division, or(b) costs in defamation proceedings.
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
21 Election for defamation proceedings to be tried by jury
(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.(2) An election must be:(a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and(b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court.(3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if:(a) the trial requires a prolonged examination of records, or(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.
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) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.
23 Leave required for further proceedings in relation to publication of same defamatory matter
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.
Division 2 Defences
24 Scope of defences under general law and other law not limited
(1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.s 24: Am 2005 No 98, Sch 2.14 [1].
25 Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
27 Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to):(i) the publication of a document by order, or under the authority, of the body, and(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and(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:(a) the formal requirements for the content or layout of the report or document, orthe report or document is a public document despite that non-compliance.(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 Defences 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.
30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:(a) the recipient has an interest or apparent interest in having information on some subject, and(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:(a) the extent to which the matter published is of public interest, and(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and(c) the seriousness of any defamatory imputation carried by the matter published, and(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and(f) the nature of the business environment in which the defendant operates, and(g) the sources of the information in the matter published and the integrity of those sources, and(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and(i) any other steps taken to verify the information in the matter published, and(j) any other circumstances that the court considers relevant.(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that:(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and(b) the opinion related to a matter of public interest, and(c) the opinion is based on proper material.(2) It is a defence to the publication of defamatory matter if the defendant proves that:(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and(b) the opinion related to a matter of public interest, and(c) the opinion is based on proper material.(3) It is a defence to the publication of defamatory matter if the defendant proves that:(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and(b) the opinion related to a matter of public interest, and(c) the opinion is based on proper material.(4) A defence established under this section is defeated if, and only if, the plaintiff proves that:(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.(5) For the purposes of this section, an opinion is based on proper material if it is based on material that:(a) is substantially true, or(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
32 Defence of innocent dissemination
(1) It is a defence to the publication of defamatory matter if the defendant proves that:(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person:(a) was not the first or primary distributor of the matter, and(b) was not the author or originator of the matter, and(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.(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 of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, 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 no 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.s 32: Am 2005 No 98, Sch 2.14 [2].
33 Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
Division 3 Remedies
34 Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
35 Damages for non-economic loss limited
(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).Editorial note—For orders under this subsection, see Gazettes No 84 of 30.6.2006, p 5043 (amount declared: $259,500); No 80 of 15.6.2007, p 3793 (amount declared: $267,500); No 72 of 20.6.2008, p 5482 (amount declared $280,500); No 90 of 19.6.2009, p 3137 (amount declared: $294,500); No 79 of 18.6.2010, p 2452 (amount declared: $311,000); No 62 of 24.6.2011, p 4588 (amount declared: $324,000); No 60 of 8.6.2012, p 2369 (amount declared: $339,000) and No 65 of 31.5.2013, p 2307 ($355,500).(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
41 Proof of publication
(1) If a document appears to be printed or otherwise produced by means adapted for the production of numerous copies and there is in the document a statement to the effect that the document is printed, produced, published or distributed by or for a particular person, the statement is evidence in defamation proceedings that the document was so printed, produced, published or distributed.(2) Evidence that a number or part of a document appearing to be a periodical is printed, produced, published or distributed by or for a particular person is evidence in defamation proceedings that a document appearing to be another number or part of the periodical was so printed, produced, published or distributed.(3) In this section:periodical includes any newspaper, review, magazine or other printed document of which numbers or parts are published periodically.
42 Proof of convictions for offences
(1) If the question whether or not a person committed an offence is in question in defamation proceedings:(a) proof that the person was convicted of the offence by an Australian court is 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:(i) by delivering it to the person personally, or(ii) by 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) by sending it by facsimile transmission to the facsimile number of the person, or(b) in the case of a body corporate:(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or(ii) by sending it by facsimile transmission to the facsimile number of the body corporate.(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
45 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
46 Repeal of Defamation Act 1974 No 18
The Defamation Act 1974 is repealed.
47 Savings, transitional and other provisions
Schedule 4 has effect.
48 (Repealed)
s 48: Rep 2006 No 58, Sch 4.
49 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1 Additional publications to which absolute privilege applies
(Section 27 (2) (d))
1 Matters relating to Ombudsman
(cf Act No 18 1974, s 17A)
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Ombudsman in his or her capacity as the Ombudsman, or(b) to any member of staff of the Ombudsman in his or her capacity as such a member, or(c) to a member of Parliament for the purposes of section 12 (2) of the Ombudsman Act 1974 or section 127 (7) of the Police Act 1990, or(d) in a report under section 31AA of the Ombudsman Act 1974 or under section 169 of the Police Act 1990, or(e) in a copy of a report previously made public under section 31AA of the Ombudsman Act 1974 where the copy of the report is published under the authority of the Minister for the time being administering that Act, or(f) in a copy of a report previously made public under section 169 of the Police Act 1990 where the copy of the report is published under the authority of the Minister for the time being administering that Act.(2) Subclause (1) (a) applies in relation to an acting Ombudsman, a Deputy Ombudsman and a special officer of the Ombudsman in the same way as it applies in relation to the Ombudsman.
2 Matters relating to Privacy Commissioner
(cf Act No 18 1974, s 17B)
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Privacy Commissioner or an acting Privacy Commissioner in his or her capacity as the Privacy Commissioner or an acting Privacy Commissioner, or(b) to any member of staff of the Privacy Commissioner in his or her capacity as such a member, or(c) in a report under section 65 of the Privacy and Personal Information Protection Act 1998, or(d) in a copy of a report previously made public under section 65 of the Privacy and Personal Information Protection Act 1998 where the copy of the report is published under the authority of the Minister for the time being administering that Act.
2A Matters relating to Information Commissioner
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Information Commissioner or an acting Information Commissioner in his or her capacity as the Information Commissioner or an acting Information Commissioner, or(b) to any member of staff of the Information Commissioner in his or her capacity as such a member, or(c) in a report under section 38 (Special report to Parliament) of the Government Information (Information Commissioner) Act 2009, or(d) in a copy of a report previously made public under section 38 of the Government Information (Information Commissioner) Act 2009 where the copy of the report is published under the authority of the Minister for the time being administering that Act.
3 Matters relating to Law Reform Commission
(cf Act No 18 1974, s 17BA)
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) in a report under section 13 (6) of the Law Reform Commission Act 1967, or(b) in the course of the proceedings of, or in the course of an inquiry held by, the Law Reform Commission under the Law Reform Commission Act 1967, or(c) by the Law Reform Commission in connection with a reference to it under the Law Reform Commission Act 1967.(2) Subclause (1) (b) and (c) does not apply to a report referred to in section 13 of the Law Reform Commission Act 1967.
4 Matters arising under Workers Compensation Acts
(cf Act No 18 1974, ss 17BB and 17BD)
(1) Conciliation officers and conciliators Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by a conciliation officer or conciliator for the purpose of any proceedings under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998, or(b) by any such conciliation officer or conciliator where the matter published is a report of a decision or determination in respect of any such proceedings or of the reasons for such a decision or determination, or(c) by any such conciliation officer or conciliator where the matter published is a conciliation certificate under section 84 of the Workplace Injury Management and Workers Compensation Act 1998.(2) Insurers Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by an insurer for the purpose of any claim or any proceedings arising from any claim under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998, or(b) by an insurer where the matter published is a report of a decision or determination in respect of any such claim and of the reason for that decision or determination, or(c) by the WorkCover Authority of New South Wales while providing access to information under section 72 of the Workplace Injury Management and Workers Compensation Act 1998, or(d) to or by an insurer pursuant to an exchange of information authorised by section 72 of the Workplace Injury Management and Workers Compensation Act 1998.(3) References to “insurer” and “claim” In subclause (2), a reference to insurer or claim has the same meaning as it has in the provision of the Workers Compensation Act 1987 or of the Workplace Injury Management and Workers Compensation Act 1998 to which the reference relates.
5 Matters arising under Motor Accidents Acts
(cf Act No 18 1974, s 17BC)
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by:(i) a licensed insurer (within the meaning of the Motor Accidents Act 1988 or the Motor Accidents Compensation Act 1999), orfor the purpose of any claim or any proceedings arising from any claim under the Motor Accidents Act 1988 or the Motor Accidents Compensation Act 1999, or(ii) the Nominal Defendant,(b) by any such licensed insurer or the Nominal Defendant where the matter published is a report of a decision or determination in respect of any such claim and of the reason for that decision or determination, or(c) by the Motor Accidents Authority of New South Wales where the matter published is the whole or any part of the register maintained by the Authority under section 120 of the Motor Accidents Compensation Act 1999.
6 Certain decisions of public health organisations under Health Services Act 1997
(cf Act No 18 1974, s 17C)
Without limiting section 27 (2) (a)–(c), matter that is published under section 105 of the Health Services Act 1997 that relates to a decision, or the reasons for a decision, of a public health organisation referred to in that section.
7 Matters arising out of proceedings of State Parole Authority, Serious Offenders Review Council and Serious Offenders Management Committee
(cf Act No 18 1974, s 17CA)
Without limiting section 27 (2) (a)–(c), matter that is published:(a) by the State Parole Authority or the Serious Offenders Review Council in a report or other document under the Crimes (Administration of Sentences) Act 1999, or(b) in the course of any proceedings of the following bodies:(i) the State Parole Authority or a Division or a committee of that Authority,(ii) the Serious Offenders Review Council or a Division or a committee of that Council,(iii) the Serious Offenders Management Committee or a subcommittee of that Committee, or(c) by a body referred to in paragraph (b) in a report of any proceedings referred to in that paragraph.
8 Matters relating to Inspector of Custodial Services
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Inspector of Custodial Services in his or her capacity as the Inspector of Custodial Services, or(b) to or by a member of staff of the Inspector in his or her capacity as such a member.
(1) Without limiting section 27 (2) (a)–(c), matter that is published for the purpose of the execution or administration of the Anti-Discrimination Act 1977:(a) to or by a member of the Civil and Administrative Tribunal, or(b) to or by a member of the Anti-Discrimination Board constituted under the Anti-Discrimination Act 1977, or(c) to or by the President of the Anti-Discrimination Board, or any officer of the President, to the Registrar of the Civil and Administrative Tribunal, or(d) to a member of staff of a Department within the meaning of the Public Sector Employment and Management Act 2002 appointed or employed to assist in the execution or administration of the Anti-Discrimination Act 1977, or(e) to or by the Public Service Commissioner or a member of staff of the Public Service Commission.(2) Without limiting section 27 (2) (a)–(c), matter that is published in:(a) a report referred to in section 94A (2) of the Anti-Discrimination Act 1977 of the President of the Anti-Discrimination Board constituted under that Act made to the Civil and Administrative Tribunal, or(b) a report referred to in section 120 (2), 121, 122 or 122R (b) of that Act to the Minister administering that Act.
Without limiting section 27 (2) (a)–(c), matter that is published:(a) in the course of an appeal under the Racing Appeals Tribunal Act 1983, or(b) by the Racing Appeals Tribunal in an official report of its decision in respect of any such appeal or of the reasons of that Tribunal for a decision.
Without limiting section 27 (2) (a)–(c), matter that is published:(a) in the course of proceedings in respect of an inquiry conducted by Racing New South Wales, or(b) by Racing New South Wales in a report it makes in respect of such an inquiry, or(c) in the course of proceedings in respect of an investigation conducted by the Integrity Assurance Committee under the Thoroughbred Racing Act 1996 or by that Committee in a report that it makes in respect of such an investigation.
12 Matters relating to GRNSW and HRNSW
Without limiting section 27 (2) (a)–(c), matter that is published:(a) by Greyhound Racing New South Wales in an official report of its decision in respect of any appeal relating to greyhound racing under the Racing Appeals Tribunal Act 1983 or of the reasons for its decision, or(b) by Harness Racing New South Wales in an official report of its decision in respect of any appeal relating to harness racing under the Racing Appeals Tribunal Act 1983 or of the reasons for its decision, or(c) in the course of proceedings in respect of an investigation conducted by the Greyhound Racing Integrity Auditor under the Greyhound Racing Act 2009 or the Harness Racing Integrity Auditor under the Harness Racing Act 2009 or by the Integrity Auditor in a report that he or she makes in respect of such an investigation.
13 (Repealed)
Without limiting section 27 (2) (a)–(c), matter that is published for the purpose of the execution or administration of the Legal Aid Commission Act 1979:(a) to or by the Legal Aid Commission of New South Wales constituted under that Act, or(b) to or by a member of staff of the Commission or a committee established under that Act.
15 Matters arising under Health Practitioner Regulation National Law in relation to medical practitioners
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by any of the following for the purpose of the assessment or referral of a complaint against a medical practitioner or other matter or the holding of any inquiry, performance review, investigation or appeal in respect of a medical practitioner under the Health Practitioner Regulation National Law:(i) the Medical Council of New South Wales,(ii) the Medical Board of Australia,(iii) an Impaired Registrants Panel,(iv) a Performance Review Panel,(v) a Professional Standards Committee,(vi) the Civil and Administrative Tribunal,(vii) a member of any of the bodies referred to above,(viii) an assessor, or(b) by a body or person referred to in paragraph (a) where the matter published is a report of a decision or determination in respect of a complaint against a medical practitioner or other matter or any inquiry, performance review, investigation or appeal in respect of a medical practitioner, or the reasons for such a decision or determination.(2) In this clause:(a) a reference to the Medical Board of Australia includes a reference to a committee of the Board, and(b) a reference to a member of the Board includes a reference to a member of any such committee, and(c) a reference to the Medical Council of New South Wales includes a reference to a committee of the Council, and(d) a reference to a member of the Council includes a reference to a member of any such committee.
Without limiting section 27 (2) (a)–(c), matter that is published:(a) in a report by an inspector, a mine safety officer, an investigator or a Board of Inquiry, under the Coal Mine Health and Safety Act 2002, to or by the Minister administering that Act or the Director-General of the Department of Primary Industries, or(b) by a Board of Inquiry in the course of a special inquiry under the Coal Mine Health and Safety Act 2002.
Without limiting section 27 (2) (a)–(c), matter that is published:(a) in a report by an inspector, a mine safety officer, an investigator or a Board of Inquiry, under the Mine Health and Safety Act 2004, to or by the Minister administering that Act or the Director-General of the Department of Primary Industries, or(b) by a Board of Inquiry in the course of a special inquiry under the Mine Health and Safety Act 2004.
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by any of the following for the purpose of the making or referral of a complaint, or the investigation, hearing or review of a complaint, under Chapter 4 of the Legal Profession Act 2004:(i) the Bar Council,(ii) a member of the Bar Council as such a member,(iii) a committee or subcommittee of the Bar Council, or any member of a committee or subcommittee of the Bar Council,(iv) the Law Society Council,(v) a member of the Law Society Council in his or her capacity as such a member,(vi) a committee or subcommittee of the Law Society Council, or any member of a committee or subcommittee of the Law Society Council,(vii) the Bar Association,(viii) the Law Society,(ix) the Legal Services Commissioner,(x) any member of the staff of any of the above as such a member, or(b) by a body or person referred to in paragraph (a) where the matter published is a report of the decision or determination of the body or person in respect of a complaint, or of the reasons for such a decision or determination, under Chapter 4 of the Legal Profession Act 2004, or(c) by a person or body referred to in paragraph (a) to such a person or body, where the matter published is information that is published in accordance with the exercise of functions under Chapter 2 or Part 7.3 of the Legal Profession Act 2004, or(d) by a person or body referred to in paragraph (a) in a report of the decision or determination of the Bar Council or the Law Society Council in respect of the refusal to issue, cancellation or suspension of a practising certificate.
19 Matters arising under Independent Commission Against Corruption Act 1988
(cf Act No 18 1974, s 17K)
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Independent Commission Against Corruption, or(b) to or by the Commissioner for the Commission as Commissioner, or(c) to or by the Inspector of the Independent Commission Against Corruption as Inspector, or(d) to any officer of the Commission or officer of the Inspector (within the meaning of the Independent Commission Against Corruption Act 1988) as such an officer.(2) This clause applies in relation to any compulsory examination or public inquiry before the Independent Commission Against Corruption or inquiry before the Inspector of the Independent Commission Against Corruption or any other matter relating to the powers, authorities, duties or functions of the Commission or Inspector.
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the New South Wales Crime Commission, or(b) to any member of the Commission or member of the staff of the Commission in his or her capacity as such a member.(2) This clause applies in relation to any hearing before the New South Wales Crime Commission or any other matter relating to the powers, authorities, duties or functions of the Commission.
21 Matters arising under Independent Pricing and Regulatory Tribunal Act 1992
(cf Act No 18 1974, s 17M)
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Independent Pricing and Regulatory Tribunal of New South Wales, or(b) to any member of the Tribunal or member of the staff of the Tribunal in his or her capacity as such a member.(2) This clause applies in relation to any hearing before the Independent Pricing and Regulatory Tribunal of New South Wales or any other matter relating to the powers, authorities, duties or functions of the Tribunal.
Without limiting section 27 (2) (a)–(c), matter that is published to or by the New South Wales Casino Control Authority, or the person presiding at an inquiry under section 143 of the Casino Control Act 1992, for the purpose of such an inquiry.
23 Matters relating to HomeFund Commissioner
(cf Act No 18 1974, s 17O)
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the HomeFund Commissioner or an acting HomeFund Commissioner in his or her capacity as the HomeFund Commissioner or an acting HomeFund Commissioner, or(b) to any member of the staff of the HomeFund Commissioner in his or her capacity as such a member, or(c) in a report under section 34 (3) of the HomeFund Commissioner Act 1993, or(d) in a copy of a report previously made public under section 34 (3) of the HomeFund Commissioner Act 1993 where the copy of the report is published under the authority of the Minister for the time being administering that Act.
Without limiting section 27 (2) (a)–(c), matter that is published in a report to the NSW Trustee and Guardian under section 123 of the NSW Trustee and Guardian Act 2009.
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Auditor-General in his or her capacity as Auditor-General of a disclosure made in relation to a complaint under Division 7 of Part 3 of the Public Finance and Audit Act 1983, or(b) to or by a member of staff of the Audit Office in his or her capacity as such a member of a disclosure made in relation to a complaint under Division 7 of Part 3 of the Public Finance and Audit Act 1983.
(1) Without limiting section 27 (2) (a)–(c), matter that is published to or by a person or public authority referred to in section 8 (1) (b), (c) or (c1) of the Public Interest Disclosures Act 1994 of a disclosure made to the person or public authority in relation to an allegation of corrupt conduct, maladministration or serious and substantial waste of public money or local government money if the publication is for the purpose of investigating that allegation.(2) In this clause:local government money includes all revenue, loans and other money collected, received or held by, for or on account of:(a) a council, orwithin the meaning of the Local Government Act 1993.(b) a county council,
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Health Care Complaints Commission of or concerning a complaint by a complainant under the Health Care Complaints Act 1993, or(b) to or by a conciliator for the purpose of the conciliation of a complaint under the Health Care Complaints Act 1993, or(c) by any such conciliator in a report, or while furnishing information, under section 53 or 54 of the Health Care Complaints Act 1993, or(d) in a report made under section 30 of the Health Care Complaints Act 1993 (or that section as applied by section 61 of that Act), or(e) in a report made under section 62 (1) of the Health Care Complaints Act 1993 by the Health Care Complaints Commission constituted under that Act.
(1) Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by the Police Integrity Commission, or(b) to or by the Commissioner for the Police Integrity Commission in his or her capacity as Commissioner, or(c) to or by the Inspector of the Police Integrity Commission in his or her capacity as Inspector, or(d) to any officer of the Commission or officer of the Inspector (within the meaning of the Police Integrity Commission Act 1996) in his or her capacity as such an officer.(2) This clause applies in relation to any hearing before the Police Integrity Commission or Inspector of the Police Integrity Commission or any other matter relating to the powers, authorities, duties or functions of the Commission or Inspector.
29–31 (Repealed)
sch 1: Am 2005 No 77, Sch 4, cll 3 (2), 4 (2), 5 (2); 2006 No 111, Sch 2.2 [1]; 2009 No 21, Sch 3.2 [1] [2]; 2009 No 94, Sch 2.19; 2009 No 53, Sch 1.1; 2009 No 56, Sch 2.12; 2009 No 119, Sch 2.7; 2010 No 34, Sch 2.12 [1]; 2010 No 84, Sch 2.1 [1] [2]; 2011 No 48, Sch 2.2; 2012 No 55, Sch 3.5; 2012 No 66, Sch 5.4; 2013 No 95, Schs 1.3 [1], 2.46 [1] [2], 6.1 [1], 7.1 [1], 10.5 [1].
Without limiting section 27 (2) (a)–(c), matter that is published:(a) to or by any of the following:(i) the Board of Surveying and Spatial Information,(ii) a member of that Board as such a member,for the purpose of the making or referral of a complaint of professional incompetence or professional misconduct, or the investigation of such a complaint, made in relation to a registered surveyor under the Surveying and Spatial Information Act 2002, or(iii) a committee or subcommittee of that Board, or any member of a committee or subcommittee of that Board,(b) by a body or person referred to in paragraph (a) of a report of the decision or determination of the body or person in respect of a complaint, or of the reasons for such a decision or determination, made in relation to a registered surveyor under the Surveying and Spatial Information Act 2002.
33 Matters arising under Civil and Administrative Tribunal Act 2013
Without limiting section 27 (2) (a)–(c), matter that is published to or by the Civil and Administrative Tribunal under the Civil and Administrative Tribunal Act 2013 (including matter that is published by that Tribunal in an official report of a decision of that Tribunal or of the reasons of that Tribunal for a decision).
Schedule 2 Additional kinds of public documents
(Section 28 (4) (g))
1 Documents arising under Health Practitioner Regulation National Law in relation to medical practitioners
Without limiting section 28 (4) (a)–(f), a document that consists of a report made by:(a) the Medical Board of Australia, or(b) the Medical Council of New South Wales, or(c) a Professional Standards Committee, orof its decision or determination in respect of a complaint against a medical practitioner or an inquiry or appeal in respect of a medical practitioner, and of the reasons for that decision or determination, under the Health Practitioner Regulation National Law.(d) the Civil and Administrative Tribunal,
Without limiting section 28 (4) (a)–(f), a document that consists of a report made by:(a) the Bar Council, or(b) the Law Society Council, orof the decision or determination of that body or person in respect of a complaint, and of the reasons for that decision or determination, under Chapter 4 of the Legal Profession Act 2004.(c) the Legal Services Commissioner,
3 Documents arising under Workers Compensation Acts
(cf Act No 18 1974, cl 3 (6) of Sch 2)
Without limiting section 28 (4) (a)–(f), a document that consists of:(a) a report made by a conciliation officer, conciliator or member of the Workers Compensation Commission of New South Wales of his or her decision or determination in respect of any proceedings under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998, or(b) a conciliation certificate under the section 98D of the Workers Compensation Act 1987 or section 84 of the Workplace Injury Management and Workers Compensation Act 1998.
4–6 (Repealed)
sch 2: Am 2006 No 111, Sch 2.2 [2]; 2010 No 34, Sch 2.12 [2]; 2013 No 95, Schs 1.3 [2], 2.46 [3], 6.1 [2], 7.1 [2], 10.5 [2]; 2014 No 33, Sch 2.13 [1].
7 Documents relating to Special Commissions of Inquiry
Without limiting section 28 (4) (a)–(f), a document that consists of a report made to the Governor by a Commissioner under section 10 of the Special Commissions of Inquiry Act 1983.
8 Documents produced to certain parliamentary committees conducted in private
Without limiting section 28 (4) (a)–(f), any of the following documents (or parts of documents):(a) a document (or part of a document) produced to the Committee on Children and Young People constituted under the Commission for Children and Young People Act 1998 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with clause 6 of Schedule 1 to that Act,(b) a document (or part of a document) produced to the Committee on the Health Care Complaints Commission appointed as referred to in section 64 of the Health Care Complaints Act 1993 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with section 72 of that Act,(c) a document (or part of a document) produced to the Committee on the Independent Commission Against Corruption constituted under the Independent Commission Against Corruption Act 1988 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with section 70 of that Act,(d) a document (or part of a document) produced to the Legislation Review Committee constituted under the Legislation Review Act 1987 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with section 12 of that Act,(e) a document (or part of a document) produced to the Committee on the Office of the Ombudsman and the Police Integrity Commission constituted under the Ombudsman Act 1974 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with section 31H of that Act,(f) a document (or part of a document) produced to the Public Accounts Committee constituted under Part 4 of the Public Finance and Audit Act 1983 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with section 58 of that Act,(g) a document (or part of a document) produced to the Committee on the Office of the Valuer-General constituted under Part 8 of the Valuation of Land Act 1916 in proceedings conducted in private, but only if the document (or part of the document) has been disclosed or published in accordance with section 92 of that Act.
9 Documents relating to Civil and Administrative Tribunal
Without limiting section 28 (4) (a)–(f), any document that consists of a decision (including reasons for a decision) made by the Civil and Administrative Tribunal.
10 Documents relating to certain abolished tribunals
Without limiting section 28 (4) (a)–(f), any document that consists of a decision (including reasons for a decision) made by an abolished tribunal (but only if such a document was included in this Schedule before the tribunal’s abolition).
Schedule 3 Additional proceedings of public concern
(Section 29 (4) (p))
1 Proceedings relating to Appeal Panel under Thoroughbred Racing Act 1996
(cf Act No 18 1974, cl 2 (8) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings on an appeal to the Appeal Panel under the Thoroughbred Racing Act 1996.
2 Proceedings relating to Privacy Commissioner
(cf Act No 18 1974, cl 2 (11) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings of the Privacy Commissioner, but only to the extent that those proceedings are included in a report previously made public under section 65 of the Privacy and Personal Information Protection Act 1998.
3 Proceedings relating to Anti-Discrimination Board
(cf Act No 18 1974, cl 2 (12) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings at an investigation, inquiry or examination conducted by or on behalf of the Anti-Discrimination Board constituted under the Anti-Discrimination Act 1977.
4 (Repealed)
5 Proceedings relating to Racing New South Wales
(cf Act No 18 1974, cl 2 (13A) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings at an inquiry conducted by Racing New South Wales under the Thoroughbred Racing Act 1996.
6 Proceedings relating to Racing Appeals Tribunal
(cf Act No 18 1974, cl 2 (14) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings on an appeal to the Racing Appeals Tribunal under the Racing Appeals Tribunal Act 1983.
7 Proceedings under Health Practitioner Regulation National Law in relation to medical practitioners
Without limiting section 29 (4) (a)–(o), proceedings under the Health Practitioner Regulation National Law in respect of a medical practitioner of any of the following:(a) the Medical Board of Australia,(b) the Medical Council of New South Wales,(c) a Professional Standards Committee,(d) the Civil and Administrative Tribunal.
Without limiting section 29 (4) (a)–(o), proceedings under Chapter 4 of the Legal Profession Act 2004 of any of the following:(a) the Bar Council,(b) the Law Society Council,(c) the Legal Services Commissioner.
9 Proceedings under Workers Compensation Acts
(cf Act No 18 1974, cl 2 (17) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings of a conciliation officer, conciliator or member of the Commission under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998.
10 Proceedings relating to New South Wales Crime Commission
(cf Act No 18 1974, cl 2 (19) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings at a hearing held in public by the New South Wales Crime Commission.
11 Proceedings relating to Board of Inquiry under Coal Mine Health and Safety Act 2002
(cf Act No 18 1974, cl 2 (19A) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings at a special inquiry conducted by a Board of Inquiry under the Coal Mine Health and Safety Act 2002.
12 Proceedings relating to Board of Inquiry under Mine Health and Safety Act 2004
(cf Act No 18 1974, cl 2 (19B) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings at a special inquiry conducted by a Board of Inquiry under the Mine Health and Safety Act 2004.
13 Proceedings relating to HomeFund Commissioner
(cf Act No 18 1974, cl 2 (20) of Sch 2)
Without limiting section 29 (4) (a)–(o), proceedings of the HomeFund Commissioner, but only to the extent those proceedings are included in a report previously made public under section 34 (3) of the HomeFund Commissioner Act 1993.
14–16 (Repealed)
sch 3: Am 2005 No 77, Sch 4, cll 3 (2), 4 (2); 2006 No 111, Sch 2.2 [3]; 2009 No 21, Sch 3.2 [3]; 2010 No 34, Sch 2.12 [3]; 2013 No 95, Schs 1.3 [3], 2.46 [4], 6.1 [3], 7.1 [3], 10.5 [3]; 2014 No 33, Sch 2.13 [2].
17 Proceedings relating to certain parliamentary committees conducted in private
Without limiting section 29 (4) (a)–(o), any of the following proceedings:(a) proceedings of the Committee on Children and Young People constituted under the Commission for Children and Young People Act 1998 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with clause 6 of Schedule 1 to that Act,(b) proceedings of the Committee on the Health Care Complaints Commission appointed as referred to in section 64 of the Health Care Complaints Act 1993 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with section 72 of that Act,(c) proceedings of the Committee on the Independent Commission Against Corruption constituted under the Independent Commission Against Corruption Act 1988 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with section 70 of that Act,(d) proceedings of the Legislation Review Committee constituted under the Legislation Review Act 1987 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with section 12 of that Act,(e) proceedings of the Committee on the Office of the Ombudsman and the Police Integrity Commission constituted under the Ombudsman Act 1974 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with section 31H of that Act,(f) proceedings of the Public Accounts Committee constituted under Part 4 of the Public Finance and Audit Act 1983 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with section 58 of that Act,(g) proceedings of the Committee on the Office of the Valuer-General constituted under Part 8 of the Valuation of Land Act 1916 conducted in private, but only to the extent that those proceedings relate to the taking of evidence that is disclosed or published in accordance with section 92 of that Act.
18 Proceedings relating to Civil and Administrative Tribunal
Without limiting section 29 (4) (a)–(o), proceedings held in public of the Civil and Administrative Tribunal.
19 Proceedings relating to certain abolished tribunals
Without limiting section 29 (4) (a)–(o), proceedings of an abolished tribunal (but only if such proceedings were included in this Schedule before the tribunal’s abolition).
Schedule 4 Savings, transitional and other provisions
(Section 47)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Act(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
2 Application of this Act
(1) This Act applies to the publication of defamatory matter after the commencement of this Act, unless subclause (2) provides otherwise.(2) The provisions of this Act (other than this clause) 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 subclause (2).(4) In this clause, the 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.
3 Amendments to this Act consequent on repeal of Coal Mines Regulation Act 1982
(1) In this clause:relevant day means:(a) if the Coal Mines Regulation Act 1982 is repealed by the Coal Mine Health and Safety Act 2002 on or before 1 January 2006—1 January 2006, or(b) if the Coal Mines Regulation Act 1982 is repealed by the Coal Mine Health and Safety Act 2002 after 1 January 2006—the day on which that Act is repealed.(2) Clause 16 of Schedule 1 and clause 11 of Schedule 3 are amended on the relevant day by omitting “Coal Mines Regulation Act 1982” wherever occurring and by inserting instead “Coal Mine Health and Safety Act 2002”.
4 Amendments to this Act consequent on repeal of Mines Inspection Act 1901
(1) In this clause:relevant day means:(a) if the Mines Inspection Act 1901 is repealed by the Mine Health and Safety Act 2004 on or before 1 January 2006—1 January 2006, or(b) if the Mines Inspection Act 1901 is repealed by the Mine Health and Safety Act 2004 after 1 January 2006—the day on which that Act is repealed.(2) Clause 17 of Schedule 1 and clause 12 of Schedule 3 are amended on the relevant day by omitting “Mines Inspection Act 1901” wherever occurring and by inserting instead “Mine Health and Safety Act 2004”.
5 Amendments to this Act consequent on amendments made by Crimes (Administration of Sentences) Amendment (Parole) Act 2004
(1) In this clause:relevant day means:(a) if Schedule 1 [1] to the Crimes (Administration of Sentences) Amendment (Parole) Act 2004 commences on or before 1 January 2006—1 January 2006, or(b) if Schedule 1 [1] to the Crimes (Administration of Sentences) Amendment (Parole) Act 2004 commences after 1 January 2006—the day on which Schedule 1 [1] to that Act commences.(2) Clause 7 of Schedule 1 is amended on the relevant day:(a) by omitting “Parole Board” wherever occurring and by inserting instead “State Parole Authority”, and(b) by omitting “that Board” and by inserting instead “that Authority”.
6 Construction of references
(1) In any other Act or instrument:(a) subject to paragraph (b), a reference to the Defamation Act 1974 is taken to be a reference to this Act, and(b) a reference to a provision of the Defamation Act 1974 is taken to be a reference to the corresponding provision or provisions (if any) of this Act or section 529 of the Crimes Act 1900.(2) Subclause (1) does not apply to any provision of another Act, or an instrument made under another Act, prescribed by the regulations.
Schedules 5, 6 (Repealed)
sch 5: Rep 2006 No 58, Sch 4.
sch 6: Rep 2006 No 58, Sch 4.