Review of Model Defamation Provisions

On 27 July 2020, the Council of Attorneys-General (CAG) approved amendments to Australia's Model Defamation Provisions. The following day, NSW Attorney General Mark Speakman gave the Legislative Assembly notice of a Bill to enact the reforms. This marked the culmination of Stage 1 of a NSW-led review of defamation law in Australia.

The Model Defamation Amendment Provisions can be viewed on the Parliamentary Counsel Committee's website. Consolidated Model Defamation Provisions (as at 27 July 2020) including amendments in Model Defamation Amendment Provisions 2020 can be viewed here. The status of the NSW Bill can be viewed here.

The amendments follow wide-ranging consultations with media companies, peak legal bodies, academics, digital platforms and lawyers who represent both plaintiffs and defendants. The CAG's Defamation Working Party considered more than 70 submissions (see below).

When enacted in state and territory legislation, the amendments will reset defamation law. They will improve the balance between protecting individual reputations and freedom of expression, particularly in matters of public interest.

Key changes include:

  • Clarification of the operation of the cap on non-economic damages;
  • Introduction of a new public interest defence modelled on section 4 of the UK Defamation Act 2013;
  • Introduction of a serious harm threshold for defamation claims, to be determined by the judicial officer as soon as practicable before the trial;
  • Introduction of a single publication rule which will enable the limitation period to run from the first publication of alleged defamatory material;
  • A requirement that concerns notices must be served with sufficient time for a offer to make amends to be made before proceedings can be commenced;
  • Introduction of a new defence for peer reviewed matters published in academic or scientific journals.

Jurisdictions have agreed to enact the provisions into their own legislation as soon as possible.

CAG also agreed to progress a second stage reform process focusing on the responsibilities and liability of digital platforms for defamatory content published online, as well as other issues Attorneys-General ask the DWP to consider. The Stage 2 process will also be led by NSW.

At the next Council of Attorneys-General meeting in late 2020, agreement will be sought to release a Stage 2 discussion paper for public consultation.  The possible use of juries in defamation proceedings before the Federal Court of Australia remains a question for the Commonwealth Government.

Background to the Model Defamation Provisions reforms

The Model Defamation Provisions were endorsed in 2005 and each state and territory enacted legislation to implement the provisions. While responsibility for defamation law falls to individual states and territories, a national approach to reform is essential.

Led by the NSW Department of Communities and Justice, the Defamation Working Party invited feedback on draft amendments to the Model Defamation Provisions [PDF, 234kb]. An unofficial consolidation [PDF, 441kb] was also prepared to assist review, which tracks the draft amendments to the existing Model Defamation Provisions.

The accompanying Background Paper [PDF, 455kb] explained the policy rationale for the proposed amendments and confirmed the position of the Council of Attorneys-General on each question raised in the Discussion Paper which was released in February 2019 [PDF, 700kb]

Submissions to the Model Defamation Amendment Provisions

The draft amendments to the Model Defamation Provisions [PDF, 234kb] were publicly released for comment from November 2019 to24 January 2020.

Copies of the public submissions which were made in response to the draft amendments are linked below.

Submissions to previous Discussion Paper

The Review of Model Defamation Provisions Discussion Paper [PDF, 700kb] was publicly released for comment in February 2019 and closed on 30 April 2019. 

Copies of the public submissions which were made in response to the Discussion Paper are linked below. 

Supplementary submissions