Review of Model Defamation Provisions

Stage 2 Review of the MDPs

On 31 March 2021, Attorneys General agreed to release a discussion paper for the Stage 2 Review of the Model Defamation Provisions (MDPs).

The Review of Model Defamation Provisions – Stage 2 Discussion Paper was the first step in the second stage of the review of the MDPs. 

Part A of the Stage 2 Discussion Paper addresses the question of internet intermediary liability in defamation for the publication of third-party content. 

Part B considers whether defamation law impacts reports of alleged criminal conduct to police and statutory investigative bodies and reports of misconduct to employers and professional disciplinary bodies.

View an accessible text-version of the Discussion Paper images

Attorneys-General sought written submissions in response to the Stage 2 Discussion Paper.

Submissions closed on Wednesday, 19 May 2021.

Submissions to the Stage 2 Discussion Paper

Stage 1 Review of the MDPs

On 27 July 2020, the former Council of Attorneys-General (CAG) approved amendments to Australia's Model Defamation Provisions. This marked the culmination of the Stage 1 Review of the MDPs.

On 31 March 2021, Attorneys-General agreed that New South Wales, South Australia, Victoria and all other jurisdictions that are able to do so will commence the Model Defamation Amendment Provisions 2020 on 1 July 2021, and remaining jurisdictions will commence those provisions as soon as possible thereafter.

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 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.

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.

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 

Read the submissions to the Model Defamation Amendment Provisions

Submissions to the Stage 1 Discussion Paper

Read the submissions to the Stage 1 Discussion Paper

Supplementary submissions

Read the supplementary submissions