[STATE ARMS]

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to implement the recommendations of the New South Wales Law Reform Commission contained in its Report on the Law of Defamation (LRC 75, 1995) (NSWLRC Report). In particular, the Bill:

(a) amends the Defamation Act 1974:

• to require the falsity of a defamatory imputation to be proved in most cases to establish a cause of action for defamation, and
• to ensure that the defence of comment is only available if the defendant proves that the comment represents the opinion of its maker, and
• to provide a defence if a defendant publishes an adequate requested correction of a defamatory imputation, and
• to enable a plaintiff to seek a declaration from the Supreme Court that a defamatory imputation is false and to have that declaration published by the defendant, and
• to reorganise existing provisions relating to absolute privilege, protected reports and official and public documents and records, and
• to extend the defence relating to protected reports to proceedings of local councils and other public authorities, and

(c) amends consequentially the Anti-Discrimination Act 1977, the Government and Related Employees Appeal Tribunal Act 1980, the Guardianship Act 1987, the Health Care Complaints Act 1993, the Independent Commission Against Corruption Act 1988, the Mental Health Act 1990, the Ombudsman Act 1974, the Public Finance and Audit Act 1983, the Regulation Review Act 1987, the Transport Appeal Boards Act 1980 and the Victims Compensation Act 1987.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be proclaimed.

Clause 3 is a formal provision giving effect to the amendments to the Defamation Act 1974 set out in Schedules 1 and 2.

Clause 4 is a formal provision giving effect to the amendments to the Limitation Act 1969 set out in Schedule 3.

Clause 5 is a formal provision giving effect to the consequential amendments to various Acts set out in Schedule 4.

Clause 6 provides that explanatory notes contained in the amending Schedules do not form part of the proposed Act.

Schedules 1 and 2 make the amendments to the Defamation Act 1974 described above.

Schedule 3 makes the amendments to the Limitation Act 1969 described above.

Schedule 4 makes consequential amendments to the various Acts mentioned above.

Further explanation of the amendments is made in the explanatory notes relating to the amendments concerned.

[STATE ARMS]

Contents

1 Name of Act

2 Commencement

3 Amendment of Defamation Act 1974 No 18

4 Amendment of Limitation Act 1969 No 31

5 Consequential amendment of other Acts

6 Explanatory notes

1 Amendments to Defamation Act 1974—causes of action and remedies

2 Amendments to Defamation Act 1974—defences and savings and transitional matters

3 Amendment of Limitation Act 1969

4 Consequential amendment of other Acts

Summary of provisions affected

Schedule 1 Amendments to Defamation Act 1974—causes of action and remedies

.

Provision	Amending item
.
Amendments—elements of cause of action
s 7	item [1]
s 7A	items [2]–[4]
Part 2A (ss 9–9E)	items [5]
s 11	item [6]
s 15	item [7]
s 16	item [8]
s 47	item [9]
.
Amendment—requested corrections
.
Part 3A (ss 45A–45E)	item [10]
.
Amendment—declarations of falsity
.
Part 4A (ss 48A–48E)	item [11]

Schedule 2 Amendments to Defamation Act 1974—defences and savings and transitional matters

.

Provision	Amending item
.
Amendments—defence of comment
.
s 32	item [1]
s 33	item [2]
.
Amendments—absolute privilege
.
ss 17–19	item [3]
Sch 2	item [4]
.
Amendments—protected reports and official and public documents and records
.
s 24	item [5]
s 25	item [6]
Sch 2A	item [7]
Sch 2B	item [8]
.
Amendments—offers of amends
.
s 43	item [9]
.
Amendments—savings and transitional provisions
.
Sch 3, cl 1	item [10]
Sch 3, Part 3	item [11]

.

Schedule 3 Amendment of Limitation Act 1969

.

Provision	Amending item
.
s 14B	item [1]
Part 3, Div 4 (ss 62A–62D)	item [2]

.

Schedule 4 Consequential amendment of other Acts

Anti-Discrimination Act 1977

.

Provision	Amending Schedule
s 20C	Sch 4.1 [1]
s 49ZT	Sch 4.1 [2]
s 49ZXB

Government and Related Employees Appeal Tribunal Act 1980

.

Provision	Amending Schedule
s 50Sch 4.2

.

Guardianship Act 1987

Provision	Amending Schedule
s 74	Sch 4.3

.

Health Care Complaints Act 1993

.

Provision	Amending Schedule
s 72	Sch 4.4

.

Independent Commission Against Corruption Act 1988

.

Provision	Amending Schedule
s 70Sch 4.5

.

Mental Health Act 1990

Provision	Amending Schedule
s 260	Sch 4.6

.

Ombudsman Act 1974

Provision	Amending Schedule
s 31H	Sch 4.7

.

Public Finance and Audit Act 1983

.

Provision	Amending Schedule
s 58	Sch 4.8

Regulation Review Act 1987

.

Provision	Amending Schedule
s 12	Sch 4.9

.

Transport Appeal Boards Act 1980

.

Provision	Amending Schedule
s 26	Sch 4.10

.

Victims Compensation Act 1987

.

Provision	Amending Schedule
s 69	Sch 4.11

.

[STATE ARMS]
New South Wales
Defamation Amendment Bill 1995

A Bill for

An Act to amend the Defamation Act 1974 in relation to causes of action for defamation, defences, requested corrections and declarations of falsity; to amend the Limitation Act 1969 to provide for a one year limitation period for defamation actions; to amend consequentially the Anti-Discrimination Act 1977, the Government and Related Employees Appeal Tribunal Act 1980, the Guardianship Act 1987, the Health Care Complaints Act 1993, the Independent Commission Against Corruption Act 1988, the Mental Health Act 1990, the Ombudsman Act 1974, the Public Finance and Audit Act 1983, the Regulation Review Act 1987, the Transport Appeal Boards Act 1980 and the Victims Compensation Act 1987; and for other purposes.

The Legislature of New South Wales enacts:

1 Name of Act
This Act is the Defamation Amendment Act 1995.

2 Commencement
This Act commences on a day or days to be appointed by proclamation.

3 Amendment of Defamation Act 1974 No 18
The Defamation Act 1974 is amended as set out in Schedules 1 and 2.

4 Amendment of Limitation Act 1969 No 31
The Limitation Act 1969 is amended as set out in Schedule 3.

5 Consequential amendment of other Acts
The Acts specified in Schedule 4 are amended as set out in that Schedule.

6 Explanatory notes
Matter appearing under the heading ``Explanatory note'' in this Act does not form part of this Act.

Schedule 1 Amendments to Defamation Act 1974—causes of action and remedies

Amendments—elements of cause of action

[1] Section 7 Definitions

Omit section 7 (1). Insert instead:

(1) In this Act:
actionable defamatory imputation has the meaning it has in section 9 (2).

country includes:


(a) a federation and a state, province or other part of a federation, and

(b) a territory governed under a trusteeship agreement.


declaration of falsity means a declaration by the Supreme Court under section 48A that an actionable defamatory imputation is false.

parliamentary body means:


(a) a parliament or legislature of any country, and

(b) a house of a parliament of any country, and

(c) a committee of a parliament or legislature of any country, and

(d) a committee of a house or houses of a parliament or legislature of any country.


Territory of the Commonwealth includes a territory governed by the Commonwealth under a trusteeship agreement.
[2] Section 7A Functions of judge and jury

Section 7A (3)

Omit ``the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.''.

Insert instead ``the jury is to determine whether the matter complained of was published by the defendant and, if so, whether the matter carries the imputation. If the jury determines that the defendant published matter carrying the imputation, the jury is then to determine whether the imputation is defamatory.''

[3] Section 7A (4)

Omit the subsection. Insert instead:


(4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury:

(a) is to determine whether or not the imputation:

(i) is false, or

(ii) is inherently not capable of being proved true or false, or

(iii) does not relate to a matter of public interest, and


(b) is to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and

(c) 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] Section 7A (6)

Insert after section 7A (5):


(6) Subsections (1)–(5) do not apply to proceedings for defamation in which a declaration of falsity is sought. The court and not the jury is to determine all issues of fact or law relevant to the resolution of such proceedings.

[5] Part 2A

Omit section 9. Insert instead.

Part 2A Causes of action for defamation

9 When cause of action exists


(1) A person has a cause of action for defamation against another person (the publisher) if and only if the person proves that an actionable defamatory imputation concerning the person has been made by the publisher.

(2) An actionable defamatory imputation is an imputation made by a person (whether by innuendo or otherwise) concerning another person by publishing the whole or any part of any matter (being a report, article, letter, note, picture, oral utterance or other thing):


(a) that is defamatory of the person concerning whom it is made, and

(b) that:


(i) is false, or

(ii) is inherently not capable of being proved true or false, or

(iii) does not relate to a matter of public interest.

(3) A person has such a cause of action for defamation for any of the following:

(a) each publication of matter by which an actionable defamatory imputation is made,

(b) each actionable defamatory imputation that is made by means of the publication of the same matter.

9A Election between remedies

(1) A person who has a cause of action for defamation may elect:

(a) to commence proceedings to recover damages for non-economic loss or economic loss, or for both, or

(b) to commence proceedings for a declaration of falsity, but only if the imputation complained of is inherently capable of being proved true or false.


(2) If a person elects to bring proceedings for the award of one of the remedies referred to in subsection (1), the determination of the proceedings for that remedy precludes the bringing of proceedings for, or the award of, the other remedy.

(3) However, nothing in this Part:


(a) prevents a person who has obtained a declaration of falsity against a defendant from subsequently commencing proceedings to recover (or from being awarded) damages for non-economic loss in respect of the imputation for which the declaration was made if the defendant fails to comply with an order to publish the declaration, or

(b) prevents a person who has obtained a declaration of falsity from recovering in those same proceedings damages for economic loss in respect of the same imputation for which the declaration was made, or

(c) enables a person to commence proceedings seeking both:


(i) damages for non-economic loss for any imputation, and

(ii) a declaration of falsity in respect of that, or any other, imputation (however made).

9B Leave required to institute certain proceedings
If a person has brought defamation proceedings (whether in New South Wales or elsewhere) against any person in respect of the publication of any matter, the person may not bring further defamation proceedings against the same defendant in respect of 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.

9C Rules of court concerning imputations
Rules of court may prohibit or regulate the reliance by a plaintiff in defamation proceedings on several imputations alleged to have been made by means of the same matter published by the defendant, where the several imputations do not differ in substance.

9D Awards of damages by court
If the court or the jury (if any) finds for the plaintiff as to more than one cause of action in the same proceedings for defamation, the court must assess damages in a single sum in respect of all causes of action in respect of which the plaintiff succeeds unless the court considers the interests of justice require otherwise.

9E Application of this Part
This Part does not affect the powers of any court in respect of vexatious proceedings or abuse of process.

[6] Section 11 Common law and other defences

Insert at the end of section 11:

(2) Any defence of justification or truth at common law is abrogated.

[7] Section 15 Truth generally

Omit the section.

[8] Section 16 Truth: contextual imputations

Omit section 16 (2) (a).

[9] Section 47 Truth or falsity of imputation

Omit the section.

Explanatory note—items [1]–[9]

The proposed replacement of section 9 by item [5] with a new Part 2A will ensure that the circumstances that can give rise to a civil cause of action for defamation are limited. The publication of a defamatory imputation about a person will not, of itself, found an action for a remedy. Damages for non-economic loss will only be available if the plaintiff can prove that the defamatory imputation is false, inherently incapable of being proved true or false or does not relate to a matter of public interest (proposed section 9). A plaintiff seeking a declaration that an imputation is false will have to prove that the imputation is inherently capable of being proved true or false (proposed section 9).

Damages for both non-economic loss and a declaration of falsity will not generally be available as remedies in respect of the same defamatory imputation or in the same proceedings; they will usually be alternative remedies. An exception is provided for the institution of proceedings for damages for non-economic loss in cases where a defendant has previously failed to obey a publication order concerning a declaration of falsity (proposed section 9A (1) and (3)).

In addition, it will be possible to combine a claim for damages for economic loss with an application for a declaration of falsity. The claim for economic loss will be determined in the same proceedings following the determination of the application for the declaration (proposed section 9A (3)).

Proposed sections 9B–9E re-enact (with minor modifications) provisions that are already contained in existing section 9.

Items [6] and [7] amend sections 11 and 15 to abolish the defence of truth, whether under the Act or at common law. At present, section 15 provides that the defence of truth is available only if it is proved that an imputation is true or a matter of substantial truth and either relates to a matter of public interest or is published under qualified privilege. The defence has been rendered otiose in view of the elements that will now be needed to establish a cause of action. Item [9] consequentially repeals section 47.

Item [8] makes a consequential amendment to section 16 (truth: contextual imputations) to ensure that proof of the public interest of a contextual imputation is not required to establish a defence of contextual imputation.

Items [1] and [3] make consequential amendments to section 7 (definitions) and 7A (functions of judge and jury). Item [2] also amends section 7A to make it clear that in jury trials it is the jury's function to decide whether in fact the matter complained of was published by the defendant.

See recommendations 2–8, 10–12, 17 and 21 of the NSWLRC Report.

[10] Part 3A

Insert after Part 3:


Part 3A Requested corrections


45A Definitions

In this Part:

complainant means the person who alleges that the publication of matter carries an actionable defamatory imputation about the person.

medium means a newspaper, magazine, television program, radio program or other method of communication.

offending matter means the matter that is alleged to carry the actionable defamatory imputation complained of.

formal correction request means a correction request by a complainant that complies with section 45D.

publisher means the person who publishes the offending matter.

45B Effect on damages assessment of publication of requested correction under this Part

(1) A publisher of offending matter who:


(a) has published an adequate requested correction in accordance with this Part in relation to that matter, and

(b) has paid the reasonable costs of the complainant up to the date on which the correction is published, is not liable to pay damages to the complainant for non-economic loss resulting from the publication of the offending matter.


(2) However, nothing in this section prevents a complainant from recovering from the publisher damages for economic loss resulting from the publication of the offending matter.

45C Adequate requested corrections

(1) An adequate requested correction is published in accordance with this Part if the publisher causes a correction to be published that


(a) is published in the terms proposed by a formal correction request, and

(b) is published in the same medium and in a similar place within that medium as the offending matter was originally published or is published in a medium that is calculated to reach substantially the same audience as that original publication, and

(c) unequivocally asserts that the imputation complained of in the correction request is false and, where reasonably possible, states the true state of affairs, and

(d) in the case of any imputation alleged to carry a defamatory meaning by reason of the existence of any extrinsic fact or circumstance—asserts that the publication of the offending matter was not intended to convey that imputation, and

(e) in the case of offending matter published in an edition of a medium produced on 5 or more days in any one week—is published by a date that:


(i) is within 7 days of receipt of a prescribed correction request, or

(ii) is agreed between the publisher and the complainant, and


(f) in a case to which paragraph (e) does not apply—is published by a date that:

(i) is requested by the complainant in a formal correction request, or

(ii) is agreed between the publisher and the complainant, or

(iii) is reasonable in all the circumstances.

(2) Alternatively, an adequate requested correction is published in accordance with this Part if the publisher causes a correction to be published that complies with a reasonable request by the complainant for a correction.

45D Formal correction requests by complainants

A complainant makes a formal correction request if the request:

(a) is made in writing and served on the publisher before the commencement of any proceedings for defamation in respect of the offending matter, and

(b) identifies the medium in which the offending matter was published, and

(c) specifies any defamatory imputation alleged to have been carried by the publication of the offending matter, and

(d) specifies any facts that demonstrate the falsity of that imputation, and

(e) in the case of any imputation alleged to carry a defamatory meaning by reason of the existence of any extrinsic fact or circumstance—specifies any such fact or circumstance, and

(f) proposes the terms of, and time for, the publication of a correction that are reasonable in all the circumstances.


45E Determination of steps to be taken under this Part

(1) If a publisher agrees to publish an adequate requested correction under this Part, the publisher or the complainant may apply to a relevant court for the determination of any question concerning the steps to be taken to comply with the provisions of this Part.

(2) On any such application, the court may:


(a) make or refuse to make a determination on any question concerning any step to be taken to comply with the provisions of this Part, and

(b) make such orders as to costs as appears to it just in the circumstances.


(3) Any such determination or order as to costs may be made by the court regardless of whether or not other proceedings in respect of the publication of the offending matter have been commenced.

(4) An appeal does not lie in respect of a determination made under subsection (2).

(5) For the purposes of this section, relevant court means:


(a) if the complainant has brought proceedings against the publisher for damages for non-economic loss in respect of the offending matter—the court in those proceedings, and

(b) in any other case—a court that would have jurisdiction to determine proceedings for damages for non-economic loss brought in respect of the publication of the offending matter.

Explanatory note—item [10]

The proposed amendment inserts a new Part 3A in the Act to provide for requested corrections. The proposed Part contains the following provisions:

Proposed section 45A contains definitions of terms used in the Part.

Proposed section 45B ensures that a publisher of an actionable defamatory imputation is not liable to pay damages for non-economic loss resulting from its publication if an adequate requested correction is published and if the publisher has paid the complainant's reasonable costs to date. However, the publication of such a correction will not affect the liability of the publisher to pay damages for economic loss.

Proposed section 45C provides for two alternative forms of adequate requested corrections for the purposes of the new Part. The first involves a correction published in response to a formal correction request made under proposed section 45D and that complies with certain detailed requirements laid down in proposed subsection (1). The second involves a correction that complies with a reasonable written request (other than a request under proposed section 45D) from a complainant.

Proposed section 45D sets out the requirements for prescribed correction requests by complainants for the purposes of the new Part.

Proposed section 45E enables a relevant court, on the application of a publisher or a complainant, to make determinations as to the steps required for the publication of an adequate requested correction under the proposed Part.

See recommendations 22–28 of the NSWLRC Report.

Amendments—declarations of falsity

[11] Part 4A

Insert after Part 4:

Part 4A Declarations of falsity

48A Supreme Court may make a declaration of falsity


(1) A person who claims that an actionable defamatory imputation has been published in respect of the person may apply to the Supreme Court for a declaration as to the falsity of that imputation.

(2) If, on any such application, it is proved to the satisfaction of the Court that an actionable defamatory imputation concerning the applicant has been published, the Court may:


(a) declare that the imputation is false, and

(b) order that the declaration be published, on such conditions as the Court may impose, by the person who published the imputation.


(3) A declaration of falsity may be made only if:

(a) the imputation is false, and

(b) the other elements for an actionable defamatory imputation referred to in section 9 (2) have been established.


(4) Proceedings for a declaration of falsity must be commenced within 4 weeks of the publication of the matter carrying the imputation unless the Court grants leave to commence proceedings after that period. However, the Court cannot grant leave if the matter carrying the imputation was published more than one year before leave is sought.

(5) Without limiting the matters the Court may take into account in determining whether to make a declaration, the Court may decline to make a declaration in any of the following circumstances:


(a) if the defendant has been granted a release,

(b) if an accord and satisfaction has been made,

(c) if an appropriate correction has been published,

(d) if an offer of amends has been made,

(e) if the making of a declaration would no longer serve a useful purpose.

48B Defences to action for declaration of falsity

(1) Subject to subsection (2), the Supreme Court cannot decline to make a declaration of falsity only because of the existence of any defence to an action for damages based on the publication of a defamatory imputation.

(2) The Court cannot make a declaration of falsity if it is satisfied of the availability on the facts of a triable defence of absolute privilege or a triable defence under section 24, 25, 27 or 28.


48C Indemnity costs for successful plaintiffs

The Supreme Court is to order costs of or incidental to a successful application for a declaration of falsity to be assessed on an indemnity basis unless the interests of justice require otherwise.


48D Effect of determination of proceedings for declaration of falsity

(1) Nothing in this Part prevents a person who has obtained a declaration of falsity in respect of an actionable defamatory imputation from recovering in the same proceedings damages for economic loss for the publication of that imputation. However, any defence (whether under this Act or otherwise) will, if established, defeat any claim for such damages.

(2) The determination of proceedings for a declaration of falsity precludes a person from seeking or being awarded damages for non-economic loss for the imputation concerned except where proceedings to recover such damages are commenced following the defendant's failure to comply with an order to publish the declaration.


48E Rules may prescribe form and content of declarations of falsity

(1) Rules of court for or with respect to the form and content of a declaration of falsity may be made under the Supreme Court Act 1970.

(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.


Explanatory note—item [11]

The proposed amendment inserts a new Part 4A dealing with the making of declarations of falsity by the Supreme Court. The new Part contains the following provisions:

Proposed section 48A provides that the Supreme Court may make a declaration that an actionable defamatory imputation is false in certain circumstances. An action for such a declaration must be brought within 4 weeks of the publication of the imputation.

Proposed section 48B ensures that the defences that can prevent the making of a declaration of falsity are limited to the defences concerning protected reports and official and public documents and records under sections 24 and 25 and the defences under section 27 and 28 relating to the publication of court notices and official notices.

Proposed section 48C requires the Court to assess a plaintiff's costs on an indemnity basis in successful proceedings for a declaration unless the interests of justice require otherwise.

Proposed section 48D makes it clear that a plaintiff may seek a declaration of falsity and damages for economic loss only. Damages of non-economic loss are generally not available to a plaintiff who seeks or who has obtained a declaration of falsity. An exception is provided in cases where a defendant fails to comply with an order to publish a declaration of falsity.

Proposed section 48E enables rules of court to be made concerning the form and content of declarations of falsity.

See recommendations 10–20 of the NSWLRC Report.

Schedule 2 Amendments to Defamation Act 1974—defences and savings and transitional matters

Amendments—defence of comment

[1] Section 32

Omit the section. Insert instead:


32 Comment of defendant



Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant, but only if the defendant establishes that the comment represents the defendant's opinion.



[2] Section 33

Omit the section. Insert instead:


33 Comment of servant or agent of defendant



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, but only if the defendant establishes that the comment represents the opinion of the agent or servant.



Explanatory note—items [1] and [2]

The proposed amendments ensure that if a defendant relies on the defence of comment under the Defamation Act 1974, the defendant bears the onus of showing that the comment is the defendant's real opinion in the case of a defence of comment under section 32 or the real opinion of the defendant's agent or servant in the case of a defence of comment under section 33.

See recommendation 9 of the NSWLRC Report.

Amendments—absolute privilege

[3] Sections 17–19

Omit the sections. Insert instead:


17 Absolute privilege

There is a defence of absolute privilege as provided by Schedule 2.


[4] Schedule 2

Omit the Schedule. Insert instead:

Schedule 2 Absolute privilege

Part 1 General defences

1 Parliamentary papers

(1) There is a defence of absolute privilege for the publication of a document by order or under the authority of a parliamentary body.

(2) There is a defence of absolute privilege for the publication of a document previously published as mentioned in subclause (1) or a copy of a document so published.

2 Other parliamentary papers of this State

(1) There is a defence of absolute privilege for the publication by the Government Printer or under the authority of the Presiding Officer of either House of Parliament of:


(a) reports of the debates and proceedings of the House or any committee of that House, and

(b) a report of an individual complete speech of a Member of the House, provided the report is printed with a certificate by a person authorised by the Presiding Officer, stating the date and context of the speech and stating that the speech is published under authority, and

(c) proofs of such reports and copies of proofs of such reports, provided they are not known by the publisher to contain substantial printing or typographical errors or omissions and only while the official version of the reports has not become available, and

(d) recordings, or transcripts of recordings, of the debates and proceedings of the House or any committee of that House (being recordings or transcripts made in connection with the preparation of such reports), but only while the official version of those reports has not become available.


(2) There is a defence of absolute privilege for the publication by the Government Printer or under the authority of the Presiding Officers jointly of:

(a) reports of debates and proceedings of a joint sitting or of a joint committee, and

(b) a report of an individual complete speech of a Member at a joint sitting, provided the report is printed with a certificate by a person authorised by the Presiding Officers, stating the date and context of the speech and stating that the speech is published under authority, and

(c) proofs of such reports and copies of proofs of such reports, provided they are not known by the publisher to contain substantial printing or typographical errors or omissions, and

(d) recordings, or transcripts of recordings, of the debates and proceedings of a joint sitting or of a joint committee (being recordings or transcripts made in connection with the preparation of such reports), but only while the official version of those reports has not become available.


(3) There is a defence of absolute privilege for the publication of reports and proofs, previously published as mentioned in subclause (1) or (2), or a copy of reports and proofs so published.

(4) In this clause:

joint committee means a joint committee of both Houses of Parliament.

joint sitting means a joint sitting of the Members of the Legislative Council and the Members of the Legislative Assembly.

Presiding Officer means the President of the Legislative Council or the Speaker of the Legislative Assembly.

recordings includes audio recordings and audio-visual recordings.

3 Proceedings of inquiry
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.
4 Report of inquiry

If a person is appointed under the authority of an Act or an 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.

Part 2 Specific defences
5 Anti-Discrimination Act 1977

(1) There is a defence of absolute privilege for:

(a) a publication to or by:

(i) a member or the Registrar of the Equal Opportunity Tribunal constituted under the Anti-Discrimination Act 1977, or

(ii) a member of the Anti-Discrimination Board constituted under that Act, or

(iii) the President, or

(iv) any officer of the President of that Board, or


(b) a publication to any officer of the Public Service appointed or employed to assist in the execution or administration of that Act, or

(c) a publication to or by the Director of Equal Opportunity in Public Employment appointed under that Act, if the publication is made for the purpose of the execution or administration of the Act.


(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 made to the Equal Opportunity Tribunal, or

(b) referred to in section 120 (2), 121, 122 or 122R (b) of that Act to the Minister administering that Act.

6 Casino Control Act 1992

There is a defence of absolute privilege for a publication to or by:

(a) the Casino Control Authority, or

(b) a member of that Authority as such a member,

for the purpose of the holding of an inquiry under section 143 of the Casino Control Act 1992.


7 Children (Care and Protection) Act 1987

There is a defence of absolute privilege for the publication of a report made under section 100 (6) of the Children (Care and Protection) Act 1987 by a Board of Review established under that Act.

Note

This provision is based on section 17H of the Defamation Act 1974, which had not been commenced at the time this draft was prepared.

8 Coal Mines Regulation Act 1982

There is a defence of absolute privilege for the publication of a report referred to in section 94 of the Coal Mines Regulation Act 1982 of an inspector appointed under that Act to or by the Minister administering that Act.

9 Community Services (Complaints, Appeals and Monitoring) Act 1993

There is a defence of absolute privilege:


(a) for a publication to or by a solution facilitator for the purpose of the resolution of a complaint under the Community Services (Complaints, Appeals and Monitoring) Act 1993, and

(b) for the publication by any such facilitator of a report or information under section 34 of that Act, and

(c) for a publication in the course of proceedings before the Community Services Appeals Tribunal under that Act, and

(d) for the publication by that Tribunal of an official report of a decision of that Tribunal or of the reasons for that decision.




10 Farm Produce Act 1983

There is a defence of absolute privilege for the publication of a notice under section 47 or 48 of the Farm Produce Act 1983.

11 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 clause 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.


12 Harness Racing Authority Act 1977

There is a defence of absolute privilege:


(a) for a publication in the course of an appeal under Part 5 of the Harness Racing Authority Act 1977, and

(b) for a publication by the Harness Racing Authority of New South Wales 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.


13 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.

14 HomeFund Commissioner Act 1993

(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) Subclause (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.


15 HomeFund Restructuring Act 1993

There is a defence of absolute privilege for a publication to or by the HomeFund Advisory Panel, or to or by any member of the HomeFund Advisory Panel, for the purposes of section 10, 11 or 12 of the HomeFund Restructuring Act 1993.

16 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 clause 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 clause extends to publications made before the commencement of this clause.


17 Law Reform Commission Act 1967

(1) A report published pursuant to section 13 (6) of the Law Reform Commission Act 1967 is, for the purposes of this Act, taken 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) Subclause (2) does not apply to a report referred to in section 13 of the Law Reform Commission Act 1967.


18 Legal Aid Commission Act 1979

There is a defence of absolute privilege for a publication to or by the Legal Aid Commission of New South Wales constituted under the Legal Aid 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.

19 Legal Profession Act 1987


(1) There is a defence of absolute privilege:

(a) for a publication to or by:

(i) the Bar Council, or

(ii) the Law Society Council, or

(iii) the Legal Services Commissioner, or

(iv) the Legal Services Tribunal, or

(v) a member of any of those bodies 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.

(2) In this clause:

(a) a reference to the Bar Council or the Law Society Council includes a reference to a committee of either of those Councils, and

(b) a reference to a member of the Bar Council or the Law Society Council includes a reference to a member of any such committee.

20 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 Professional Standards Committee, or

(iv) the Medical Tribunal, or

(v) a member of any of those bodies as such a member,

of the assessment or referral of a complaint or other matter or the holding of any inquiry or investigation or any 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, investigation or appeal, and of the reasons for that decision or determination.

(2) In this clause:

(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.

21 Motor Accidents Act 1988

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

(ii) the Nominal Defendant,

for the purpose of any claim or any proceedings arising from any claim under the Motor Accidents Act 1988, 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.

22 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 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.

(3) This clause extends to publications made before the commencement of this clause.


23 Ombudsman Act 1974 and Police Service Act 1990

(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) Subclause (1) applies in relation to an acting Ombudsman, the 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.


24 Prisons Act 1952 and Sentencing Act 1989

(1) There is a defence of absolute privilege:

(a) for a publication of a report or other document under Part 10 of the Prisons Act 1952 or Part 3 of, or Part 2 of Schedule 2 to, the Sentencing Act 1989, and

(b) for a publication in the course of any proceedings of the following bodies:


(i) the Offenders Review Board or a Division or a committee of that Board,

(ii) the Serious Offenders Review Council or a Division or a committee of that Council,


(c) for a publication by a body referred to in paragraph (b) of a report of any proceedings referred to in that paragraph.

25 Privacy Committee Act 1975

(1) There is a defence of absolute privilege for a publication to a member of the Privacy Committee constituted under the Privacy Committee Act 1975, a member of a subcommittee of that Committee or an officer of that Committee for the purpose of the execution or administration of that Act or, for the purpose, by that Committee, by a subcommittee of that Committee to that Committee or by such a member or officer.

(2) There is a defence of absolute privilege for the publication under section 18 (3) of the Privacy Committee Act 1975 of a report under that Act.

(3) There is a defence of absolute privilege for the publication under the authority of the Minister for the time being administering the Privacy Committee Act 1975 of a copy of a report previously made public under section 18 (3) of that Act.


26 Protected Disclosures Act 1994

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 if the publication is for the purpose of investigating that allegation.

27 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 Audit Office of New South Wales as such a member of a disclosure made in relation to a complaint under section 38B (1A) of the Public Finance and Audit Act 1983.

28 Public Hospitals Act 1929

There is a defence of absolute privilege for the publication under section 33H of the Public Hospitals Act 1929 of a decision and the reasons for that decision of a board referred to in that section.

29 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.


30 Workers Compensation Act 1987

(1) There is a defence of absolute privilege:

(a) for a publication to or by a conciliation officer for the purpose of any proceedings under the Workers Compensation Act 1987, and

(b) for the publication by any such conciliation officer of a report of a decision or determination in respect of any such proceedings and of the reasons for that decision or determination.


(2) 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, 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 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.


(3) In subclause (2), insurer and claim have the same meanings as in Division 1A of Part 4 of the Workers Compensation Act 1987 and in subclause (2) (d), insurer has the extended meaning it has in section 93D of that Act.

Explanatory note—items [3] and [4]

The proposed amendment made by item [4] replaces Schedule 2 of the Principal Act. The Schedule follows the drafting format for absolute privilege contained in the Defamation Bill 1992 in that the circumstances of absolute privilege are listed (with appropriate updates) in alphabetical order of Acts within a Schedule rather than in the main body of the Act. Item [3] consequentially repeals sections 17–19.

Section 30 of the Interpretation Act 1987 will preserve existing privileges from an action for defamation arising out of any defences contained in repealed sections 17–19 or repealed Schedule 2.

See recommendations 31–33 of the NSWLRC Report.

[5] Section 24 Protected reports

Omit ``clause 2 of Schedule 2 as proceedings for the purposes of this definition'' from section 24 (1).

Insert instead ``Schedule 2A''.

[6] Section 25 Official and public documents and records

Omit ``clause 3 of Schedule 2 as a document or record to which this section applies'' from section 25 (a).

Insert instead ``Schedule 2B''.

[7] Schedule 2A

Insert after Schedule 2:


Schedule 2A Protected reports

Part 1 General reports

1 Public proceedings of parliamentary bodies

Proceedings in public of a parliamentary body.

2 Public proceedings in international organisations

Proceedings in public of an international organisation of any country or of governments of any countries.

3 Public proceedings of international governmental conferences

Proceedings in public of an international conference at which governments of any countries are represented.

4 Proceedings of international judicial or arbitral tribunals

Proceedings in public of the International Court of Justice or of any other judicial or arbitral tribunal for the decision of any matter in dispute between nations or of any other international judicial or arbitral tribunal.

5 Public proceedings of a court

Proceedings in public of a court of any country.

6 Public proceedings of inquiries

Proceedings in public of an inquiry held under:

(a) the legislation of the Commonwealth, another State, a Territory of the Commonwealth or a foreign country, or

(b) the authority of the government of the Commonwealth, another State, a Territory of the Commonwealth or a foreign country.

7 Public proceedings of local and other public authorities

Proceedings in public of a local council, board or other authority constituted for public purposes under the legislation of the Commonwealth, a State or a Territory of the Commonwealth, so far as the proceedings relate to a matter of public interest.

8 Proceedings of certain associations

(1) So much of the proceedings in public of an association to which this clause applies or of a committee or governing body of an association to which this clause applies (being proceedings in furtherance of the objects referred to in subclause (2)) as comprises a finding or decision that:

(a) relates to a member of the association or a person subject by contract or otherwise by law to control by the association, and

(b) was made in Australia or has effect, by law or custom or otherwise, in any part of Australia.


(2) This clause applies to an association, whether incorporated or not and wherever formed, that is:

(a) an association:

(i) having among its objects the advancement of any art, science or religion or the advancement of learning in any field, and

(ii) empowered by its constitution to control or adjudicate on matters connected with those objects, or


(b) an association:

(i) having among its objects the promotion of any calling (ie any trade, business, industry or profession) or the promotion or protection of the interests of persons engaged in any calling, and

(ii) empowered by its constitution to control or adjudicate on matters connected with the calling or on matters connected with the conduct of persons engaged in the calling, or


(c) an association:

(i) having among its objects the promotion of any game, sport or pastime to the playing or exercise of which the public is admitted as spectators or otherwise or the promotion or protection of the interests of persons connected with the game, sport or pastime, and

(ii) empowered by its constitution to control or adjudicate on matters connected with the game, sport or pastime.

9 Proceedings of public meetings

Proceedings of a meeting open to the public, whether with or without restriction, held in Australia, so far as the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for a public office.
Part 2 Specific reports
10 Proceedings of Anti-Discrimination Board

Proceedings at an investigation, inquiry or examination conducted by or on behalf of the Anti-Discrimination Board constituted under the Anti-Discrimination Act 1977.

11 Proceedings of Bar Council, Law Society Council, Legal Services Commissioner and Legal Services Tribunal

Proceedings of the Bar Council, Law Society Council, Legal Services Commissioner or Legal Services Tribunal under Part 10 of the Legal Profession Act 1987.

12 Proceedings of Committee of Australian Jockey Club

Proceedings on an appeal to the Committee of the Australian Jockey Club under section 32 of the Australian Jockey Club Act 1873.

13 Proceedings of Crime Commission

Proceedings held in public by the New South Wales Crime Commission.

14 Proceedings of Equal Opportunity Tribunal

Proceedings at an inquiry conducted by the Equal Opportunity Tribunal constituted under the Anti-Discrimination Act 1977.

15 Proceedings of Harness Racing Authority and Appeal Tribunal

Proceedings on an appeal to the Harness Racing Authority or to the Harness Racing Appeals Tribunal under Part 5 of the Harness Racing Authority Act 1977.

16 Proceedings of HomeFund Commissioner

Proceedings of the HomeFund Commissioner, so far as those proceedings are included in a report previously made public under section 34 (3) of the HomeFund Commissioner Act 1993.

17 Proceedings of Independent Commission Against Corruption

Proceedings at a hearing held in public by the Independent Commission Against Corruption.

18 Proceedings of Law Reform Commission

Proceedings in public of, or proceedings in public at an inquiry held by, the Law Reform Commission under the Law Reform Commission Act 1967.

19 Proceeding of Medical Board and other medical bodies

Proceedings of the New South Wales Medical Board, a Professional Standards Committee or the Medical Tribunal under the Medical Practice Act 1992.

20 Proceedings of Ombudsman

Proceedings of the Ombudsman, so far as those proceedings are included in a report previously made public under section 31AA of the Ombudsman Act 1974 or under section 170A (2) or 197 (5) of the Police Service Act 1990.

21 Proceedings of Privacy Committee

Proceedings of the Privacy Committee, so far as those proceedings are included in a report previously made public under section 18 (3) of the Privacy Committee Act 1975.

22 Proceedings of Racing Appeals Tribunal

Proceedings on an appeal to the Racing Appeals Tribunal under the Racing Appeals Tribunal Act 1983.

23 Proceedings of Workers Compensation conciliation officer

Proceedings of a conciliation officer under the Workers Compensation Act 1987.
[8] Schedule 2B

Insert after Schedule 2A:


Schedule 2B Official and public documents and records

(Section 25)


1 Parliamentary documents

Any report, papers, votes or proceedings published in any country by order or under the authority of a parliamentary body of that country.

2 Parliamentary debates and proceedings

The debates and proceedings of either House of Parliament published by the Government Printer or under the authority of the President or Speaker of the House.

3 Court judgments and records

A document that is:

(a) a judgment, being a judgment, decree or order in civil proceedings, of a court of any country, or

(b) a record of the court relating to:


(i) such a judgment, or

(ii) the enforcement or satisfaction of such a judgment.

4 Documents open to public inspection

A record or document kept by a government or statutory authority or court of the Commonwealth, a State or a Territory of the Commonwealth or kept in pursuance of the legislation of the Commonwealth, a State or a Territory, being a record or document that is open to inspection by the public.

5 Document of Bar Council, Law Society Council or other legal disciplinary bodies

A document that consists of a report made by:

(a) the Bar Council, or

(b) the Law Society Council, or

(c) the Legal Services Commissioner, or

(d) the Legal Services Tribunal,

of its decision or determination in respect of a complaint, and of the reasons for the decision or determination, under Part 10 of the Legal Profession Act 1987.


6 Document of Medical Board, Professional Standards Committee or Medical Tribunal

A document that consists of a report made by:

(a) the New South Wales Medical Board, or

(b) a Professional Standards Committee, or

(c) the Medical Tribunal,

of its decision or determination in respect of a complaint or an inquiry or appeal, and of its reasons for that decision or determination, under the Medical Practice Act 1992.


7 Report of Workers Compensation conciliation officer

A document that consists of a report made by a conciliation officer of his or her decision or determination, and of the reasons for the decision or determination, in respect of any proceedings under the Workers Compensation Act 1987.

Explanatory note—items [5]–[8]
The proposed amendments made by items [7] and [8] insert Schedules into the Principal Act that follow the drafting format (with appropriate updates) for protected reports and for official and public documents and records contained in the Defamation Bill 1992. Items [5] and [6] make consequential amendments to sections 24 and 25.

Also, the categories of protected reports are extended to proceedings of local councils and other public authorities (clause 7 of proposed Schedule 2A).

See recommendations 35 and 36 of the NSWLRC Report.

Amendment—offers of amends

[9] Section 43 Offer not accepted

Omit section 43 (1) (c)–(d). Insert instead:

, and
(c) the offeror is ready and willing to perform an agreement arising from the offeree's acceptance, at any time before the commencement of the trial on issues in relation to a defence under this section, of an offer made under this Division.

Explanatory note—item [9]
The proposed amendment removes section 43 (1) (d). That paragraph provides that a defence is available to a person whose offer of amends concerning matter of which he or she was not the author only if it is proved that the actual author was not actuated by ill will to the offeree. The proposed amendment also re-enacts section 43 (1) (c) in clearer language.

See recommendation 29 of the NSWLRC Report.

Amendments—savings and transitional provisions

[10] Schedule 3 Savings and transitional provisions

Insert at the end of clause 1 (1) of Part 1 in Schedule 3:


Defamation Amendment Act 1995


[11] Schedule 3, Part 3

Insert after Part 2:


Part 3 Provisions consequent on enactment of Defamation Amendment Act 1995

4 Definition

In this Part:
amending Act means the Defamation Amendment Act 1995.

5 Application of amendments

(1) An amendment made by the amending Act applies only to causes of action that accrue after the commencement of the amendment.

(2) However, an amendment made by the amending Act does not apply to a cause of action that accrues after the commencement of the amendment if:


(a) the cause of action is one of two or more causes of action in proceedings commenced by the 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 the amendment.


(3) If an amendment made by the amending Act does not apply to a cause of action, this Act is taken to apply to the cause of action as if the amendment had not been made.
Explanatory note—items [10] and [11]

The proposed amendments make provision for matters of a savings or transitional nature.

Schedule 3 Amendment of Limitation Act 1969

(Section 4)


[1] Section 14B

Insert after section 14A:

14B Defamation

(1) This section applies to a cause of action based on the publication of defamatory matter that accrued after the commencement of this section. However, if:

(a) such a cause of action is one of two or more causes of action in proceedings commenced by the 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 section,

then this Act applies to each cause of action regardless of when it accrues as if this section had not been enacted.


(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of one year running from the date on which the defamatory matter was published.

(3) Nothing in this section affects the operation of section 48A (4) of the Defamation Act 1974.

[2] Part 3, Division 4

Insert after Division 3:


Division 4 Defamation

62A Extension of limitation period by court

(1) This section applies to a cause of action based on the publication of defamatory matter that accrued after the commencement of this section. However, if:

(a) such a cause of action is one of two or more causes of action in proceedings commenced by the 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 section,


then this Act applies to each cause of action regardless of when it accrues as if this section had not been enacted.

(2) A person claiming to have a cause of action to which this section applies may apply to a court for an order extending the limitation period for the cause of action.

(3) After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond 3 years running from the date on which the defamatory matter concerned was published.

62B Effect of order
If a court orders the extension of a limitation period for a cause of action under section 62A, the limitation period is accordingly extended for the purposes of:

(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have, and

(b) section 26 (1) (b) in relation to any associated contribution action brought by the person against whom that cause of action lies.

62C Costs
Without affecting any discretion that a court has in relation to costs, a court hearing an action brought as a result of an order under section 62A may reduce the costs otherwise payable to a successful plaintiff, on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period.
62D Prior expiry of limitation period
An order for the extension of a limitation period, and an application for such an order, may be made under this Division even though the limitation period has already expired.
Explanatory note

The proposed amendments ensure that the limitation period for defamation actions generally is shortened to one year from the date of publication of defamatory matter, with the court having a discretion to extend the period in exceptional circumstances. However, a court will not be able to grant an extension beyond 3 years dating from the time of the publication of the defamatory matter.

See recommendation 37 of the NSWLRC Report.

Schedule 4 Consequential amendment of other Acts

(Section 5)

Explanatory note

The proposed amendments to be made to the various Acts set out in this Schedule will update references to the Defamation Act 1974 that will become outdated on the commencement of proposed Schedules 2–2B.

4.1 Anti-Discrimination Act 1977 No 48

[1] Section 20C Racial vilification unlawful

Omit ``Division 3 of Part 3 of'' from section 20C (2) (b).

Insert instead ``Schedule 2 to''.

[2] Section 49ZT Homosexual vilification unlawful
Omit ``Division 3 of Part 3 of'' from section 49ZT (2) (b).

Insert instead ``Schedule 2 to''.

[3] Section 49ZXB HIV/AIDS vilification unlawful
Omit ``Division 3 of Part 3 of'' from section 49ZXB (2) (b).

Insert instead ``Schedule 2 to''.

4.2 Government and Related Employees Appeal Tribunal Act 1980 No 39

Section 50 Application of the Defamation Act 1974

Omit ``section 18 of''.

Insert instead ``clause 3 of Schedule 2 to''.

4.3 Guardianship Act 1987 No 257

Section 74 Application of the Defamation Act 1974

Omit ``section 18 of''.

Insert instead ``clause 3 of Schedule 2 to''.

4.4 Health Care Complaints Act 1993 No 105

Section 72 Confidentiality

Omit ``Schedule 2'' from section 72 (11) (b).

Insert instead ``Schedules 2A and 2B''.

4.5 Independent Commission Against Corruption Act 1988 No 35

Section 70 Confidentiality

Omit ``Schedule 2'' from section 70 (8) (b).

Insert instead ``Schedules 2A and 2B''.

4.6 Mental Health Act 1990 No 9

Section 260 Application of the Defamation Act 1974

Omit ``section 18 of''.

Insert instead ``clause 3 of Schedule 2 to''.

4.7 Ombudsman Act 1974 No 68

Section 31H Confidentiality

Omit ``Schedule 2'' from section 31H (8) (b).

Insert instead ``Schedules 2A and 2B''.

4.8 Public Finance and Audit Act 1983 No 152

Section 58 Evidence

Omit ``Schedule 2'' from section 58 (9) (b).

Insert instead ``Schedules 2A and 2B''.

4.9 Regulation Review Act 1987 No 165

Section 12 Confidentiality

Omit ``Schedule 2'' from section 12 (8) (b).

Insert instead ``Schedules 2A and 2B''.

4.10 Transport Appeal Boards Act 1980 No 104

Section 26 Application of the Defamation Act 1974

Omit ``section 18 of''.

Insert instead ``clause 3 of Schedule 2 to''.

4.11 Victims Compensation Act 1987 No 237

Section 69 Application of Defamation Act 1974

Omit ``section 18 of''.

Insert instead ``clause 3 of Schedule 2 to''.