Part 3 Defence in civil proceedings
This Part deals with defences in civil proceedings for defamation, but not with defences in other proceedings.
The provision of a defence by this Part does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act.
It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.
(1) For the purposes of this Division, an imputation is published under qualified privilege if, but only if:(a) the imputation is published on an occasion of qualified privilege and is relevant to the occasion, and(b) the manner of the publication is reasonable having regard to the imputation and to the occasion of qualified privilege.(2) For the purposes of subsection (1), an occasion is one of qualified privilege if, but only if:(a) it is such an occasion under the law apart from this Act, or(b) the circumstances of the publication afford a defence of qualified privilege under Division 4.
(1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.(2) It is a defence as to any imputation complained of that:(a) the imputation is a matter of substantial truth, and(b) the imputation either relates to a matter of public interest or is published under qualified privilege.
16 Truth: contextual imputations
(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.(2) It is a defence to any imputation complained of that:(a) the imputation relates to a matter of public interest or is published under qualified privilege,(b) one or more imputations contextual to the imputation complained of:(i) relate to a matter of public interest or are published under qualified privilege, and(ii) are matters of substantial truth, and(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.
(1) There is a defence of absolute privilege for the publication of a document by order or under the authority of either House or both Houses of Parliament.(2) There is a defence of absolute privilege for the publication by the Government Printer of the debates and proceedings of either House or both Houses of Parliament.(3) There is a defence of absolute privilege for the publication of:(a) a document previously published as mentioned in subsection (1) or a copy of a document so published, and(b) debates and proceedings previously published as mentioned in subsection (2) or a copy of debates and proceedings so published.
17A Matters relating to the Ombudsman etc
(1) There is a defence of absolute privilege for a publication to or by the Ombudsman, as Ombudsman, or to any officer of the Ombudsman, as such an officer.(2) Subsection (1) 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.(3) There is a defence of absolute privilege for a publication to a member of Parliament for the purposes of section 12 (2) of the Ombudsman Act 1974 or section 125 (4) of the Police Service Act 1990.(4) There is a defence of absolute privilege for the publication under section 31AA of the Ombudsman Act 1974 or under section 170A or 197 (5) of the Police Service Act 1990 of a report.(5) There is a defence of absolute privilege for the publication, under the authority of the Minister for the time being administering the Ombudsman Act 1974, of a copy of a report previously made public under section 31AA of that Act.(6) There is a defence of absolute privilege for the publication, under the authority of the Minister for the time being administering the Police Service Act 1990 of a copy of a report previously made public under section 170A or 197 (5) of that Act.
17B Matters relating to the Privacy Commissioner
(1) There is a defence of absolute privilege for a publication to or by the Privacy Commissioner, as Privacy Commissioner, or to any member of the staff of the Privacy Commissioner, as such a member.(2) Subsection (1) applies in relation to an acting Privacy Commissioner in the same way as it applies in relation to the Privacy Commissioner.(3) There is a defence of absolute privilege for the publication of a report under section 65 of the Privacy and Personal Information Protection Act 1998.(4) There is a defence of absolute privilege for the publication, under the authority of the Minister administering the Privacy and Personal Information Protection Act 1998, of a copy of a report previously made public under section 65 of that Act.
17BA Matters relating to the Law Reform Commission
(1) A report published pursuant to section 13 (6) of the Law Reform Commission Act 1967 shall, for the purposes of this Act, be deemed to have been published under the authority of either House of Parliament.(2) There is a defence of absolute privilege:(a) for a publication 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, and(b) for any other publication by the Law Reform Commission in connection with a reference to it under that Act.(3) Subsection (2) does not apply to a report referred to in section 13 of the Law Reform Commission Act 1967.
17BB Conciliation officers and conciliators under Workers Compensation Acts
There is a defence of absolute privilege:(a) for a publication 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, and(b) for the publication by any such conciliation officer or conciliator of a report of a decision or determination in respect of any such proceedings and of the reasons for that decision or determination, and(c) for the publication by any such conciliation officer or conciliator of a conciliation certificate under section 98D of the Workers Compensation Act 1987 or section 84 of the Workplace Injury Management and Workers Compensation Act 1998.
17BC Matters arising under Motor Accidents Acts
There is a defence of absolute privilege:(a) for a publication to or by:(i) a licensed insurer (within the meaning of the Motor Accidents Act 1988 or the Motor Accidents Compensation Act 1999), or(ii) the Nominal Defendant,for 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, and(b) for a publication by any such licensed insurer or the Nominal Defendant of a report of a decision or determination in respect of any such claim and of the reason for that decision or determination, and(c) for a publication by the Motor Accidents Authority of New South Wales of the whole or any part of the register maintained by the Authority under section 67 of the Motor Accidents Act 1988 or section 120 of the Motor Accidents Compensation Act 1999.
17BD Matters arising under Workers Compensation Acts
(1) There is a defence of absolute privilege:(a) for a publication 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, and(b) for a publication by an insurer of a report of a decision or determination in respect of any such claim and of the reason for that decision or determination, and(c) for a publication of information under section 93D of the Workers Compensation Act 1987 or section 72 of the Workplace Injury Management and Workers Compensation Act 1998 by the Authority referred to in that section, and(d) for a publication to or by an insurer pursuant to an exchange of information authorised by section 93D (2) of the Workers Compensation Act 1987 or section 72 of the Workplace Injury Management and Workers Compensation Act 1998.(2) In subsection (1), 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.
17C Certain decisions of public health organisations under the Health Services Act 1997
There is a defence of absolute privilege for the publication under section 105 of the Health Services Act 1997 of a decision, and the reasons for that decision, of a public health organisation referred to in that section.
17CA Matters arising out of proceedings of Parole Board, Serious Offenders Review Council and Serious Offenders Management Committee
There is a defence of absolute privilege:(a) for a publication of a report or other document under the Crimes (Administration of Sentences) Act 1999 by the Parole Board or the Serious Offenders Review Council, and(b) for a publication in the course of any proceedings of the following bodies:• the Parole Board or a Division or a committee of that Board• the Serious Offenders Review Council or a Division or a committee of that Council• the Serious Offenders Management Committee or a subcommittee of that Committee, and(c) for a publication by a body referred to in paragraph (b) of a report of any proceedings referred to in that paragraph.
17CB Matters relating to the operation of the Inspector-General of Corrective Services
There is a defence of absolute privilege for a publication:(a) to or by the Inspector-General of Corrective Services, or(b) to or by an officer of the Inspector-General as such an officer.
17D Matters arising under Anti-Discrimination Act 1977
(1) There is a defence of absolute privilege for a publication to or by a member of the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997 to or by a member of the Anti-Discrimination Board constituted under the Anti-Discrimination Act 1977, to or by the President, or any officer of the President, of that Board, to the Registrar of that Tribunal, to any officer of the Public Service appointed or employed to assist in the execution or administration of the Anti-Discrimination Act 1977 or to or by the Director of Equal Opportunity in Public Employment appointed under the Anti-Discrimination Act 1977, if the publication is made for the purpose of the execution or administration of the Anti-Discrimination Act 1977.(2) There is a defence of absolute privilege for the publication of a report:(a) referred to in section 91 (2) or 94 (1) of the Anti-Discrimination Act 1977 of the President of the Anti-Discrimination Board constituted under that Act made to the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997, or(b) referred to in section 120 (2), 121, 122 or 122R (b) of that Act to the Minister administering that Act.
17DA Appeals under the Racing Appeals Tribunal Act 1983
There is a defence of absolute privilege:(a) for a publication in the course of an appeal under the Racing Appeals Tribunal Act 1983, and(b) for a publication by the Racing Appeals Tribunal in an official report of its decision in respect of any such appeal and of the reasons for that decision.
17DB Matters arising under the Thoroughbred Racing Board Act 1996
There is a defence of absolute privilege:(a) for a publication in the course of proceedings in respect of an inquiry conducted by the NSW Thoroughbred Racing Board, and(b) for the publication by the Board of a report it makes in respect of such an inquiry.
17DC Matters arising under the Greyhound Racing Act 2002
There is a defence of absolute privilege:(a) for a publication in the course of an appeal under the Greyhound Racing Act 2002, and(b) for a publication by the Greyhound Racing Appeals Tribunal or the Greyhound Racing Authority in an official report of its decision in respect of any such appeal and of the reasons for that decision, and(c) for a publication in the course of proceedings in respect of an inquiry conducted by that Authority in the exercise of its regulatory functions (including the exercise of any such function by a steward of that Authority), and(d) for the publication by that Authority of a report it makes in respect of such an inquiry.
17E Matters arising under the Harness Racing Act 2002
There is a defence of absolute privilege:(a) for a publication in the course of an appeal under the Harness Racing Act 2002, and(b) for a publication by the Harness Racing Authority or the Harness Racing Appeals Tribunal in an official report of its decision in respect of any such appeal and of the reasons for that decision, and(c) for a publication in the course of proceedings in respect of an inquiry conducted by the Harness Racing Authority in the exercise of its regulatory functions (including the exercise of any such function by a steward of the Harness Racing Authority), and(d) for the publication by the Harness Racing Authority of a report it makes in respect of such an inquiry.
17EA Matters relating to farm produce sellers
There is a defence of absolute privilege for the publication of a notice under section 47 or 48 of the Farm Produce Act 1983.
17F Matters arising under Legal Services Commission Act 1979
There is a defence of absolute privilege for a publication to or by the Legal Services Commission of New South Wales constituted under the Legal Services Commission Act 1979, an officer of that Commission or a committee established under that Act if the publication is made for the purpose of the execution or administration of that Act.
17FA Matters arising under Medical Practice Act 1992
(1) There is a defence of absolute privilege:(a) for a publication to or by:(i) the New South Wales Medical Board, or(ii) an Impaired Registrants Panel, or(iii) a Performance Review Panel, or(iv) a Professional Standards Committee, or(v) the Medical Tribunal, or(vi) a member of any of the bodies referred to in subparagraphs (i)–(v), or(vii) an assessor,for the purpose of the assessment or referral of a complaint or other matter or the holding of any inquiry, performance review, investigation or appeal under the Medical Practice Act 1992, and(b) for a publication by a body or person referred to in paragraph (a) of a report of a decision or determination in respect of a complaint or other matter or any inquiry, performance review, investigation or appeal, and of the reasons for that decision or determination.(2) In this section:(a) a reference to the New South Wales Medical Board 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.
17G Reports under the Coal Mines Regulation Act 1982
There is a defence of absolute privilege:(a) for the publication of a report by an inspector, a mine safety officer, an investigator or a Board of Inquiry, under the Coal Mines Regulation Act 1982, to or by the Minister administering that Act or the Director-General of the Department of Mineral Resources, or(b) for a publication by a Board of Inquiry in the course of a special inquiry under the Coal Mines Regulation Act 1982.
17I Matters arising under Commissioner of Public Complaints Act 1984
(1) There is a defence of absolute privilege for a publication to or by the Commissioner of Public Complaints as that Commissioner, or to any officer of that Commissioner as such an officer.(2) Subsection (1) applies in relation to an acting Commissioner of Public Complaints in the same way as it applies in relation to the Commissioner.
17J Matters arising under the Legal Profession Act 1987
(1) There is a defence of absolute privilege:(a) for a publication to or by any of the following:(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 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) (Repealed)(xi) any member of the staff of any of the above as such a member,for the purpose of the making or referral of a complaint, or the investigation, hearing or review of a complaint, under Part 10 of the Legal Profession Act 1987, and(b) for the publication 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, and of the reasons for that decision or determination, under Part 10 of the Legal Profession Act 1987, and(c) for the publication by a person or body referred to in paragraph (a) to such a person or body of information in accordance with the exercise of functions under Part 3 or Part 5A of the Legal Profession Act 1987, and(d) for the publication by a person or body referred to in paragraph (a) of 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.(2) This section extends to all publications made on or after 1 January 1988 (the date of commencement of this section) regardless of whether the body or person who made the publication, or to whom the publication was made, was at the relevant time a body or person referred to in subsection (1) (a).
17K Matters arising under the Independent Commission Against Corruption Act 1988
(1) There is a defence of absolute privilege for a publication to or by the Independent Commission Against Corruption or the Commissioner for the Commission as Commissioner, or to any officer of the Commission (within the meaning of the Independent Commission Against Corruption Act 1988) as such an officer.(2) This section applies in relation to any hearing before the Independent Commission Against Corruption or any other matter relating to the powers, authorities, duties or functions of the Commission.(3) This section extends to publications made before the commencement of this section.
17L Matters arising under the New South Wales Crime Commission Act 1985
(1) There is a defence of absolute privilege for a publication to or by the New South Wales Crime Commission or 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 section 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.(3) This section extends to publications made before the commencement of this section.
17M Matters arising under the Government Pricing Tribunal Act 1992
(1) There is a defence of absolute privilege for a publication to or by the Government Pricing Tribunal or to any member of the Tribunal or member of staff of the Tribunal in his or her capacity as such a member.(2) This section applies in relation to any hearing before the Government Pricing Tribunal or any other matter relating to the powers, authorities, duties or functions of the Tribunal.
17N Hearings under Casino Control Act 1992
There is a defence of absolute privilege for a publication to or by the 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.
17O Matters relating to the HomeFund Commissioner
(1) There is a defence of absolute privilege for a publication to or by the HomeFund Commissioner, as HomeFund Commissioner, or to any member of the staff of the HomeFund Commissioner, as such a member.(2) Subsection (1) applies in relation to an acting HomeFund Commissioner in the same way as it applies in relation to the HomeFund Commissioner.(3) There is a defence of absolute privilege for the publication under section 34 (3) of the HomeFund Commissioner Act 1993 of a report.(4) There is a defence of absolute privilege for the publication, under the authority of the Minister for the time being administering the HomeFund Commissioner Act 1993, of a copy of a report previously made public under section 34 (3) of that Act.
17Q Matters arising under the Public Finance and Audit Act 1983
There is a defence of absolute privilege for a publication to or by the Auditor-General or a member of the Auditor-General’s Office 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.
17QA Matters relating to the Protected Disclosures Act 1994
(1) There is a defence of absolute privilege for a publication to or by a public official or public authority referred to in section 8 (1) (b) or (c) of the Protected Disclosures Act 1994 of a disclosure made to the public official 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 section, local government money includes all revenue, loans and other money collected, received or held by, for or on account of:(a) a council, or(b) a county council,within the meaning of the Local Government Act 1993.
17R Matters arising under the Health Care Complaints Act 1993
(1) There is a defence of absolute privilege:(a) for a publication to or by the Commission of or concerning a complaint by a complainant under the Health Care Complaints Act 1993, and(b) for a publication to or by a conciliator for the purpose of the conciliation of a complaint under the Health Care Complaints Act 1993, and(c) for the publication by any such conciliator of a report or information under section 53 or 54 of the Health Care Complaints Act 1993.(2) There is a defence of absolute privilege:(a) for a publication of a report under section 30 of the Health Care Complaints Act 1993 (or that section as applied by section 61 of that Act), and(b) for the publication of a report made under section 62 (1) of the Health Care Complaints Act 1993 by the Health Care Complaints Commission constituted under that Act.
17S Matters arising under the Police Integrity Commission Act 1996
(1) There is a defence of absolute privilege for a publication:(a) to or by the Police Integrity Commission, or(b) to or by the Commissioner for the Police Integrity Commission as Commissioner, or(c) to or by the Inspector of the Police Integrity Commission 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) as such an officer.(2) This section 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.
17T Matters relating to the Local Government Pecuniary Interest Tribunal
(1) There is a defence of absolute privilege for a publication to or by the Local Government Pecuniary Interest Tribunal constituted under the Local Government Act 1993 if the publication is made for the purpose of the execution or administration of that Act or if the publication is a publication by that Tribunal of an official report of a decision of that Tribunal or of the reasons of that Tribunal for a decision.(2) There is a defence of absolute privilege for a publication to or by the Department of Local Government or the Director-General of that Department if the publication is:(a) an official report of a decision of the Local Government Pecuniary Interest Tribunal, or(b) a statement of a decision of that Tribunal or of the reasons of that Tribunal for a decision,provided or made public by the Tribunal under section 484 (3) of the Local Government Act 1993.
17TA Matters arising under the Administrative Decisions Tribunal Act 1997
There is a defence of absolute privilege for a publication to or by the Administrative Decisions Tribunal under the Administrative Decisions Tribunal Act 1997 (including a publication by that Tribunal of an official report of a decision of that Tribunal or of the reasons for that decision).
17TB Matters relating to the Aboriginal Land Councils Pecuniary Interest Tribunal
(1) There is a defence of absolute privilege for a publication to or by the Aboriginal Land Councils Pecuniary Interest Tribunal constituted under the Aboriginal Land Rights Act 1983 if the publication is made for the purpose of the execution or administration of that Act or if the publication is a publication by that Tribunal of an official report of a decision of that Tribunal or of the reasons of that Tribunal for a decision.(2) There is a defence of absolute privilege for a publication to or by the Department of Aboriginal Affairs or the Director-General of that Department if the publication is:(a) an official report of a decision of the Aboriginal Land Councils Pecuniary Interest Tribunal, or(b) a statement of a decision of that Tribunal or of the reasons of that Tribunal for a decision,provided or made public by the Tribunal under section 213 (3) of the Aboriginal Land Rights Act 1983.
17U Reports under the Mines Inspection Act 1901
There is a defence of absolute privilege:(a) for the publication of a report by an inspector, a mine safety officer, an investigator or a Board of Inquiry, under the Mines Inspection Act 1901, to or by the Minister administering that Act or the Director-General of the Department of Mineral Resources, or(b) for a publication by a Board of Inquiry in the course of a special inquiry under the Mines Inspection Act 1901.
There is a defence of absolute privilege for a publication in the course of an inquiry made under the authority of an Act or Imperial Act or under the authority of Her Majesty, of the Governor, or of either House or both Houses of Parliament.
Where a person is appointed under the authority of an Act or Imperial Act or under the authority of Her Majesty, of the Governor or of either House or both Houses of Parliament to hold an inquiry, there is a defence of absolute privilege for a publication by the person in an official report of the result of the inquiry.
Division 4 Qualified privilege
(1) For the purposes of this section:(a) multiple publication means publication of the same or like matter or of copies of any matter to two or more recipients:(i) at the same time,(ii) by means of the publication in the ordinary course of affairs of numerous copies of a newspaper or other writing, or(iii) otherwise in the course of the one transaction,(b) matter is published under qualified privilege if, but only if, the matter:(i) is published on an occasion of qualified privilege, and(ii) is relevant to the occasion, and(c) an occasion is one of qualified privilege if, but only if:(i) it is an occasion of qualified privilege under the law apart from this Act, or(ii) the circumstances of the publication afford a defence of qualified privilege under section 21 or section 22.(2) Where:(a) a person makes a multiple publication, and(b) the matter published would if published to one or more, but not all, of the recipients be published under qualified privilege as regards that recipient or those recipients,there is a defence of qualified privilege for the publication to that recipient or those recipients, notwithstanding that the publication is not made under qualified privilege as regards any other recipient.(3) Where:(a) a person makes a multiple publication,(b) the matter published would if published to one or more, but not all, of the recipients be published under qualified privilege as regards that recipient or those recipients, and(c) the extent of publication is reasonable having regard to the matter published and to the occasion of qualified privilege,there is a defence of qualified privilege as regards all of the recipients.
21 Mistaken character of recipient
Where:(a) a publication complained of is made in the course of a communication by the publisher to any person,(b) the publication is made in circumstances in which there would be a defence of qualified privilege for that publication if that person bore some character, and(c) the publisher believes, at the time of the communication, on reasonable grounds, that that person bears that character,there is a defence of qualified privilege for that publication.
(1) Where, in respect of matter published to any person:(a) the recipient has an interest or apparent interest in having information on some subject,(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,there is a defence of qualified privilege for that publication.(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.
Division 5 Protected reports etc
24 Protected reports—Schedule 2
(1) In this section, protected report means a report of proceedings specified in clause 2 of Schedule 2 as proceedings for the purposes of this definition.(2) There is a defence for the publication of a fair protected report.(3) Where a protected report is published by any person, there is a defence for a later publication by another person of the protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, the protected report, if the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the protected report is not fair.(4) Where material purporting to be a protected report is published by any person, there is a defence for a later publication by another person of the material or a copy of the material or of a fair extract or fair abstract from, or fair summary of, the material, if the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the material is not a protected report or is not fair.
25 Copies etc of official and public documents and records
There is a defence for the publication of:(a) a document or record specified in clause 3 of Schedule 2 as a document or record to which this section applies or a copy of such a document or record, and(b) a fair extract or fair abstract from, or fair summary of, any such document or record.
26 Defeat of defence under secs 24, 25
Where a defence is established under section 24 or section 25, the defence is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education.
Division 6 Court notices, official notices etc
(1) There is a defence for the publication of a notice in accordance with the direction of a court of any country.(2) Where a defence is established under subsection (1), the defence is defeated if, but only if, it is shown that the publication complained of was not in good faith for the purpose of giving effect to the direction.
(1) There is a defence for the publication of any notice or report in accordance with an official request.(2) Where a defence is established under subsection (1), the defence is defeated if, but only if, it is shown that the publication complained of was not in good faith for the purpose of giving effect to the request.(3) Where there is an official request that any notice or report be published to the public generally or to any section of the public, and the notice or report is or relates to a matter of public interest, there is a defence for a publication of the notice or report, or a fair extract or fair abstract from, or a fair report or summary of, the notice or report.(4) Where a defence is established under subsection (3), the defence is defeated if, but only if, it is shown that the publication complained of was not in good faith for the information of the public.(5) This section does not affect the liability (if any) in defamation of a person making an official request.(6) In this section, official request means a request by:(a) an officer of the government (including a member of a police force) of any Australian State, or of the Commonwealth, or of any Territory of the Commonwealth, or(b) a council, board or other authority or person constituted or appointed for public purposes under the legislation of any Australian State, or of the Commonwealth, or of any Territory of the Commonwealth.
(1) The defence or exclusion of liability in cases of fair comment on a matter of public interest:(a) is modified as appears in this Division, and(b) is not available except in accordance with this Division.(2) This Division has effect notwithstanding section 11.
(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.(3) The defences under this Division are available as to any comment if, but only if:(a) the comment is based on proper material for comment, or(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.(4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based.
The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.
(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.
33 Comment of servant or agent of defendant
(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment.
(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.(2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education.
Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based.
36 Innocent publication: meaning
For the purposes of this Division, where any matter is published by any person, and the matter is or may be defamatory of another person, the publication is innocent in relation to that other person if, but only if, at and before the time of publication, each of them, the publisher and his or her servants and agents concerned with the matter in question or its publication:(a) exercises reasonable care in relation to the matter in question and its publication,(b) does not intend the matter in question to be defamatory of that person, and(c) does not know of circumstances by reason of which the matter in question is or may be defamatory of that person.
(1) Where any matter is published by any person and the matter is or may be defamatory of any other person but the publisher claims that his or her publication of that matter is innocent in relation to that other person, the publisher may make to that other person an offer of amends in accordance with this Division.(2) An offer of amends made pursuant to this Division:(a) must be expressed to be so made,(b) must include an offer to publish, or join in publishing:(i) such correction, if any, of the matter in question as is reasonable, and(ii) such apology, if any, to the offeree as is reasonable, and(c) where material containing the matter in question has been delivered to any person by the publisher or with his or her knowledge, must include an offer to take, or join in taking, such steps, if any, as are reasonable for the purpose of notifying the recipient that the matter in question is or may be defamatory of the offeree.(3) In determining whether any, and if so, what correction, apology or steps are reasonable for the purposes of subsection (2), regard shall be had to any correction or apology published, or steps taken, by the publisher or any other person at any time before the occasion for determination arises.
38 Particulars in support of offer
(1) An offer made pursuant to this Division must be accompanied by:(a) particulars of the facts on which the publisher relies to show that his or her publication of the matter in question is innocent in relation to the offeree,(b) particulars of any correction or apology made or steps taken, before the date of the offer, upon which the publisher relies for the purposes of section 37 (3), and(c) a statutory declaration verifying the particulars mentioned in paragraphs (a) and (b).(2) The statutory declaration mentioned in subsection (1) (c) must be made:(a) by the publisher,(b) where the publisher is a corporation aggregate, by an officer of the corporation having knowledge of the facts, or(c) where, upon facts appearing in the statutory declaration, it is impracticable to comply with paragraph (a) or (b), by a person authorised by the publisher and having knowledge of the facts.
(1) Where an offer of amends made pursuant to this Division is accepted, the court may, on application by a party to the offer, determine any question as to the steps to be taken in performance of the agreement arising by acceptance of the offer.(2) An appeal does not lie from a determination under this section.
40 Effect of acceptance and performance
Where an offer made pursuant to this Division is accepted and the agreement arising by acceptance of the offer is performed, the offeree shall not commence or continue any proceedings against the offeror for damages for defamation in respect of the matter in question.
Where an offer made pursuant to this Division is accepted, the court may make an order for payment by the offeror to the offeree of:(a) the costs of the offeree of and incidental to the acceptance and of the offer and the performance of the agreement arising by acceptance of the offer, including costs on an indemnity basis, and(b) the expenses of the offeree incurred in consequence of the publication of the matter in question.
42 Courts with powers under secs 39, 41
The powers given by section 39 or section 41 to a court are exercisable:(a) if the offeree has brought proceedings against the offeror in any court for damages for defamation in respect of the matter in question, by that court in those proceedings, and(b) except as provided in paragraph (a), by the Supreme Court.
(1) Where an offer is made pursuant to this Division and the offeree does not accept the offer, it is a defence to proceedings by the offeree against the offeror for damages for defamation in respect of the matter in question that:(a) the publication by the offeror of the matter in question was innocent in relation to the offeree,(b) the offeror made the offer as soon as practicable after becoming aware that the matter in question is or may be defamatory of the offeree,(c) the offeror is ready and willing to perform an agreement arising by the acceptance of the offer upon acceptance by the offeree at any time before the commencement of the trial upon issues arising on a defence under this section, and(d) if the offeror is not the author of the matter in question, that the author was not actuated by ill will to the offeree.(2) For the purposes of a defence under this section, evidence of facts other than facts of which particulars are given under section 38 is not admissible on behalf of the offeror, except with the leave of the court, to prove that the publication by the offeror of the matter in question is innocent in relation to the offeree.
(1) Where there are two or more publishers, whether joint or otherwise, of any matter, and one or more but not all of them make an offer pursuant to this Division, this Division does not, by virtue of that offer, affect the liability of the other or others of them.(2) Subsection (1) does not affect the admissibility in mitigation of damages of any correction, apology or other thing.
45 Limited effect of agreement
An agreement arising by the acceptance of an offer made pursuant to this Division does not have any effect in law except as specified in this Division and except so far as a contrary intention appears by the agreement.