{"id":"wa:defamation-act-2005","name":"Defamation Act 2005","slug":"wa-defamation-act-2005","collection":"act","jurisdiction":"wa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":349673,"registerId":"wa-defamation-act-2005-current","compilationNumber":null,"startDate":"2026-04-09","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Defamation Act 2005","content":"![Crest]()Western Australia\n\nDefamation Act 2005\n\nWestern Australia\n\nDefamation Act 2005\n\nContents\n\nPart 1 — Preliminary\n\n1. Short title 2\n\n2. Commencement 2\n\n3. Objects of Act 2\n\n4. Terms used in this Act 2\n\n5. Act to bind Crown 4\n\nPart 2 — General principles\n\nDivision 1 — Defamation and the general law\n\n6. Tort of defamation 5\n\n7. Distinction between slander and libel abolished 5\n\nDivision 2 — Causes of action for defamation\n\n8. Single cause of action for multiple defamatory imputations in same matter 5\n\n9. Certain corporations do not have cause of action for defamation 5\n\n10. No causes of action for defamation of, or against, deceased persons 6\n\nDivision 3 — Choice of law\n\n11. Choice of law for defamation proceedings 7\n\nPart 3 — Resolution of civil disputes without litigation\n\nDivision 1 — Offers to make amends\n\n12. Application of Division 9\n\n13. Publisher may make offer to make amends 9\n\n14. When offer to make amends may be made 10\n\n15. Content of offer to make amends 10\n\n16. Withdrawal of offer to make amends 12\n\n17. Effect of acceptance of offer to make amends 13\n\n18. Effect of failure to accept reasonable offer to make amends 14\n\n19. Inadmissibility of evidence of certain statements and admissions 15\n\nDivision 2 — Apologies\n\n20. Effect of apology on liability for defamation 15\n\nPart 4 — Litigation of civil disputes\n\nDivision 1 — General\n\n21. Election for defamation proceedings to be tried by jury 17\n\n22. Roles of judicial officers and juries in defamation proceedings 17\n\n23. Leave required for further proceedings in relation to publication of same defamatory matter 18\n\nDivision 2 — Defences\n\n24. Scope of defences under general law and other law not limited 18\n\n25. Defence of justification 19\n\n26. Defence of contextual truth 19\n\n27. Defence of absolute privilege 19\n\n28. Defence for publication of public documents 20\n\n29. Defences of fair report of proceedings of public concern 22\n\n30. Defence of qualified privilege for provision of certain information 26\n\n31. Defences of honest opinion 28\n\n32. Defence of innocent dissemination 29\n\n33. Defence of triviality 31\n\nDivision 3 — Remedies\n\n34. Damages to bear rational relationship to harm 31\n\n35. Damages for non‑economic loss limited 31\n\n36. State of mind of defendant generally not relevant to awarding damages 32\n\n37. Exemplary or punitive damages cannot be awarded 32\n\n38. Factors in mitigation of damages 33\n\n39. Damages for multiple causes of action may be assessed as single sum 33\n\nDivision 4 — Costs\n\n40. Costs in defamation proceedings 33\n\nPart 5 — Miscellaneous\n\n41. Proof of publication 35\n\n42. Proof of convictions for offences 35\n\n43. Incriminating answers, documents or things 36\n\n44. Giving of notices and other documents 36\n\n45. Regulations 37\n\n46. Repeal of existing legislation 37\n\n47. *The Criminal Code* amended 38\n\n48. Savings, transitional and other provisions 38\n\nSchedule 1 — Additional publications to which absolute privilege applies\n\nSchedule 2 — Additional kinds of public documents\n\nSchedule 3 — Additional proceedings of public concern\n\nSchedule 4 — Amendments to *The Criminal Code*\n\n1. Section 53 repealed 43\n\n2. Chapter XXXV replaced 43\n\nChapter XXXV — Criminal defamation\n\n345. Criminal defamation 43\n\nNotes\n\nCompilation table 45\n\nDefined terms\n\n  \n\nWestern Australia\n\nDefamation Act 2005\n\nAn Act to —\n\n• modify the general law relating to the tort of defamation;\n\n• repeal the *Libel Act 1843 (Imp), Newspaper Libel and Registration Act 1884, Newspaper Libel and Registration Act 1884 Amendment Act 1888* and *Slander of Women Act 1900*; and\n\n• amend *The Criminal Code*,\n\nand for other purposes.\n\nThe Parliament of Western Australia enacts as follows:\n\n## Part 1 — Preliminary\n\n##### 1. Short title\n\nThis is the *Defamation Act 2005*.\n\n##### 2. Commencement\n\nThis Act comes into operation on 1 January 2006.\n\n##### 3. Objects of Act\n\nThe objects of this Act are —\n\n(a) to enact provisions to promote uniform laws of defamation in Australia;\n\n(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance;\n\n(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and\n\n(d) to promote speedy and non‑litigious methods of resolving disputes about the publication of defamatory matter.\n\n##### 4. Terms used in this Act\n\nIn this Act —\n\n  Australian court means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence);\n\n  Australian jurisdiction means —\n\n(a) a State;\n\n(b) a Territory; or\n\n(c) the Commonwealth;\n\n  Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry);\n\n  country includes —\n\n(a) a federation and a state, territory, province or other part of a federation; and\n\n(b) an Australian jurisdiction;\n\n  document means any record of information, and includes —\n\n(a) anything on which there is writing;\n\n(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;\n\n(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and\n\n(d) a map, plan, drawing or photograph;\n\n  electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both;\n\n  general law means the common law and equity;\n\n  matter includes —\n\n(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;\n\n(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication;\n\n(c) a letter, note or other writing;\n\n(d) a picture, gesture or oral utterance; and\n\n(e) any other thing by means of which something may be communicated to a person;\n\n  offer to make amends means an offer to make amends under Part 3 Division 1;\n\n  parliamentary body means —\n\n(a) a parliament or legislature of any country;\n\n(b) a house of a parliament or legislature of any country;\n\n(c) a committee of a parliament or legislature of any country;\n\n(d) a committee of a house or houses of a parliament or legislature of any country;\n\n  substantially true means true in substance or not materially different from the truth;\n\n  Territory means the Australian Capital Territory or the Northern Territory;\n\n  this jurisdiction means Western Australia.\n\n##### 5. Act to bind Crown\n\nThis Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.\n\n## Part 2 — General principles\n\n### Division 1 — Defamation and the general law\n\n##### 6. Tort of defamation\n\n(1) This Act relates to the tort of defamation at general law.\n\n(2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).\n\n##### 7. Distinction between slander and libel abolished\n\n(1) The distinction at general law between slander and libel is abolished.\n\n(2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.\n\n### Division 2 — Causes of action for defamation\n\n##### 8. Single cause of action for multiple defamatory imputations in same matter\n\nA person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.\n\n##### 9. Certain corporations do not have cause of action for defamation\n\n(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.\n\n(2) A corporation is an excluded corporation if —\n\n(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or\n\n(b) it employs fewer than 10 persons and is not related to another corporation,\n\nand the corporation is not a public body.\n\n(3) In counting employees for the purposes of subsection (2)(b), part‑time employees are to be taken into account as an appropriate fraction of a full‑time equivalent.\n\n(4) In determining whether a corporation is related to another corporation for the purposes of subsection (2)(b), section 50 of the *Corporations Act 2001* of the Commonwealth applies as if references to bodies corporate in that section were references to corporations within the meaning of this section.\n\n(5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.\n\n(6) In this section —\n\n  corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body;\n\n  public body means a local government body or other governmental or public authority constituted by or under a law of any country.\n\n##### 10. No causes of action for defamation of, or against, deceased persons\n\nA person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to —\n\n(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or\n\n(b) the publication of defamatory matter by a person who has died since publishing the matter.\n\n### Division 3 — Choice of law\n\n##### 11. Choice of law for defamation proceedings\n\n(1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.\n\n(2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.\n\n(3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account —\n\n(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time;\n\n(b) the extent of publication in each relevant Australian jurisdictional area;\n\n(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and\n\n(d) any other matter that the court considers relevant.\n\n(4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section.\n\n(5) In this section —\n\n  Australian jurisdictional area means —\n\n(a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c);\n\n(b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or\n\n(c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence;\n\n  external Territory means a territory, other than the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory, for the government of which as a territory provision is made by a Commonwealth Act;\n\n  geographical area of Australia includes —\n\n(a) the territorial sea of Australia; and\n\n(b) the external Territories of the Commonwealth;\n\n  Jervis Bay Territory means the territory mentioned in the *Jervis Bay Territory Acceptance Act 1915* of the Commonwealth;\n\n  multiple publications means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.\n\n## Part 3 — Resolution of civil disputes without litigation\n\n### Division 1 — Offers to make amends\n\n##### 12. Application of Division\n\n(1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).\n\n(2) The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.\n\n(3) Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division.\n\n##### 13. Publisher may make offer to make amends\n\n(1) The publisher may make an offer to make amends to the aggrieved person.\n\n(2) The offer may be —\n\n(a) in relation to the matter in question generally; or\n\n(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries.\n\n(3) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.\n\n(4) An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.\n\n##### 14. When offer to make amends may be made\n\n(1) An offer to make amends cannot be made if —\n\n(a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person; or\n\n(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.\n\n(2) A notice is a concerns notice for the purposes of this section if the notice —\n\n(a) is in writing; and\n\n(b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern).\n\n(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice.\n\n(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.\n\n(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.\n\n##### 15. Content of offer to make amends\n\n(1) An offer to make amends —\n\n(a) must be in writing;\n\n(b) must be readily identifiable as an offer to make amends under this Division;\n\n(c) if the offer is limited to any particular defamatory imputations — must state that the offer is so limited and particularise the imputations to which the offer is limited;\n\n(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited;\n\n(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge — must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person;\n\n(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer; and\n\n(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to) —\n\n(i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited;\n\n(ii) an offer to pay compensation for any economic or non‑economic loss of the aggrieved person; or\n\n(iii) the particulars of any correction or apology made, or action taken, before the date of the offer.\n\n(2) Without limiting subsection (1)(g)(ii), an offer to pay compensation may comprise or include any one or more of the following —\n\n(a) an offer to pay a stated amount;\n\n(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person;\n\n(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person;\n\n(d) an offer to pay an amount determined by a court.\n\n(3) If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine —\n\n(a) if the offer provides for a court to determine the amount of compensation payable under the offer — the amount of compensation to be paid under the offer; and\n\n(b) any other question that arises about what must be done to carry out the terms of the offer.\n\n(4) The powers conferred on a court by subsection (3) are exercisable —\n\n(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and\n\n(b) except as provided in paragraph (a), by the Supreme Court.\n\n##### 16. Withdrawal of offer to make amends\n\n(1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person.\n\n(2) A publisher who has withdrawn an offer to make amends may make a renewed offer.\n\n(3) A renewed offer may (but need not) be in the same terms as the withdrawn offer.\n\n(4) A renewed offer is to be treated as a new offer (including for the purposes of section 14).\n\n(5) However, the time limit specified in section 14 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if —\n\n(a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer; and\n\n(b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person.\n\n##### 17. Effect of acceptance of offer to make amends\n\n(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.\n\n(2) A court may (but need not) —\n\n(a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer; and\n\n(b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.\n\n(3) The powers conferred on a court by subsection (2) are exercisable —\n\n(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings; and\n\n(b) except as provided in paragraph (a), by the Supreme Court.\n\n##### 18. Effect of failure to accept reasonable offer to make amends\n\n(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if —\n\n(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory;\n\n(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and\n\n(c) in all the circumstances the offer was reasonable.\n\n(2) In determining whether an offer to make amends is reasonable, a court —\n\n(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account —\n\n(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and\n\n(ii) the period that elapses between publication of the matter in question and publication of the correction or apology;\n\nand\n\n(b) may have regard to —\n\n(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and\n\n(ii) any other matter that the court considers relevant.\n\n##### 19. Inadmissibility of evidence of certain statements and admissions\n\n(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).\n\n(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine —\n\n(a) any issue arising under, or relating to the application of, a provision of this Division; or\n\n(b) costs in defamation proceedings.\n\n### Division 2 — Apologies\n\n##### 20. Effect of apology on liability for defamation\n\n(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person —\n\n(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and\n\n(b) is not relevant to the determination of fault or liability in connection with that matter.\n\n(2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.\n\n(3) Nothing in this section limits the operation of section 38.\n\n## Part 4 — Litigation of civil disputes\n\n### Division 1 — General\n\n##### 21. Election for defamation proceedings to be tried by jury\n\n(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.\n\n(2) An election must be —\n\n(a) made in accordance with rules of court; and\n\n(b) accompanied by any relevant fee prescribed by a written law.\n\n(3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if —\n\n(a) the trial requires a prolonged examination of records; or\n\n(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.\n\n##### 22. Roles of judicial officers and juries in defamation proceedings\n\n(1) This section applies to defamation proceedings that are tried by jury.\n\n(2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.\n\n(3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.\n\n(4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.\n\n(5) Nothing in this section —\n\n(a) affects any law or practice relating to special verdicts; or\n\n(b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.\n\n##### 23. Leave required for further proceedings in relation to publication of same defamatory matter\n\nIf a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.\n\n### Division 2 — Defences\n\n##### 24. Scope of defences under general law and other law not limited\n\n(1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.\n\n(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.\n\n##### 25. Defence of justification\n\nIt is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.\n\n##### 26. Defence of contextual truth\n\nIt is a defence to the publication of defamatory matter if the defendant proves that —\n\n(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and\n\n(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.\n\n##### 27. Defence of absolute privilege\n\n(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.\n\n(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if —\n\n(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to) —\n\n(i) the publication of a document by order, or under the authority, of the body;\n\n(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law;\n\n(iii) the publication of matter while giving evidence before the body; and\n\n(iv) the publication of matter while presenting or submitting a document to the body;\n\n(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to) —\n\n(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process);\n\n(ii) the publication of matter while giving evidence before the court or tribunal; and\n\n(iii) the publication of matter in any judgment, order or other determination of the court or tribunal;\n\n(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section; or\n\n(d) the matter is published by a person or body in any circumstances specified in Schedule 1.\n\n##### 28. Defence for publication of public documents\n\n(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in —\n\n(a) a public document or a fair copy of a public document; or\n\n(b) a fair summary of, or a fair extract from, a public document.\n\n(2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non‑compliance with a provision of that law about —\n\n(a) the formal requirements for the content or layout of the report or document; or\n\n(b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body,\n\nthe report or document is a public document despite that non‑compliance.\n\n(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.\n\n(4) In this section —\n\npublic document means —\n\n(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law;\n\n(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including —\n\n(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and\n\n(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination;\n\n(c) any report or other document that under the law of any country —\n\n(i) is authorised to be published; or\n\n(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body;\n\n(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public;\n\n(e) any record or other document open to inspection by the public that is kept —\n\n(i) by an Australian jurisdiction;\n\n(ii) by a statutory authority of an Australian jurisdiction;\n\n(iii) by an Australian court; or\n\n(iv) under legislation of an Australian jurisdiction;\n\n(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section; or\n\n(g) any document of a kind specified in Schedule 2.\n\n##### 29. Defences of fair report of proceedings of public concern\n\n(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.\n\n(2) It is a defence to the publication of defamatory matter if the defendant proves that —\n\n(a) the matter was, or was contained in, an earlier published report of proceedings of public concern;\n\n(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and\n\n(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.\n\n(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.\n\n(4) In this section —\n\n  proceedings of public concern means —\n\n(a) any proceedings in public of a parliamentary body;\n\n(b) any proceedings in public of an international organisation of any countries or of the governments of any countries;\n\n(c) any proceedings in public of an international conference at which the governments of any countries are represented;\n\n(d) any proceedings in public of —\n\n(i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations; or\n\n(ii) any other international judicial or arbitral tribunal;\n\n(e) any proceedings in public of a court or arbitral tribunal of any country;\n\n(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country;\n\n(g) any proceedings in public of a local government body of any Australian jurisdiction;\n\n(h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about —\n\n(i) a member or members of the society; or\n\n(ii) a person subject by contract or otherwise by law to control by the society;\n\n(i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about —\n\n(i) a member or members of the association; or\n\n(ii) a person subject by contract or otherwise by law to control by the association;\n\n(j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about —\n\n(i) a member or members of the association; or\n\n(ii) a person subject by contract or otherwise by law to control by the association;\n\n(k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the *Corporations Act 2001* of the Commonwealth held anywhere in Australia;\n\n(l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office;\n\n(m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman;\n\n(n) any proceedings in public of a law reform body of any country;\n\n(o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section; or\n\n(p) any proceedings of a kind specified in Schedule 3.\n\n(5) In this section —\n\n  law reform body of a country means a body (however described and whether or not permanent or full‑time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country;\n\n  learned society means a body, wherever formed —\n\n(a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field; and\n\n(b) authorised by its constitution —\n\n(i) to exercise control over, or adjudicate on, matters connected with those objects; and\n\n(ii) to make findings or decisions having effect, by law or custom, in any part of Australia;\n\n  ombudsman of a country means a person (however described and whether or not permanent or full‑time) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country;\n\n  relevant objects of a learned society, sport or recreation association or trade association means —\n\n(a) in relation to a learned society — objects of the kind referred to in paragraph (a) of the definition of “learned society” in this subsection;\n\n(b) in relation to a sport or recreation association — objects of the kind referred to in paragraph (a) of the definition of “sport or recreation association” in this subsection; or\n\n(c) in relation to a trade association — objects of the kind referred to in paragraph (a) of the definition of “trade association” in this subsection;\n\n  sport or recreation association means a body, wherever formed —\n\n(a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime; and\n\n(b) authorised by its constitution —\n\n(i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime; and\n\n(ii) to make findings or decisions having effect, by law or custom, in any part of Australia;\n\n  trade association means a body, wherever formed —\n\n(a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling; and\n\n(b) authorised by its constitution —\n\n(i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling; and\n\n(ii) to make findings or decisions having effect, by law or custom, in any part of Australia.\n\n##### 30. Defence of qualified privilege for provision of certain information\n\n(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that —\n\n(a) the recipient has an interest or apparent interest in having information on some subject;\n\n(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and\n\n(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.\n\n(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.\n\n(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account —\n\n(a) the extent to which the matter published is of public interest;\n\n(b) the extent to which the matter published relates to the performance of the public functions or activities of the person;\n\n(c) the seriousness of any defamatory imputation carried by the matter published;\n\n(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts;\n\n(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously;\n\n(f) the nature of the business environment in which the defendant operates;\n\n(g) the sources of the information in the matter published and the integrity of those sources;\n\n(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;\n\n(i) any other steps taken to verify the information in the matter published; and\n\n(j) any other circumstances that the court considers relevant.\n\n(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.\n\n(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.\n\n##### 31. Defences of honest opinion\n\n(1) It is a defence to the publication of defamatory matter if the defendant proves that —\n\n(a) the matter was an expression of opinion of the defendant rather than a statement of fact;\n\n(b) the opinion related to a matter of public interest; and\n\n(c) the opinion is based on proper material.\n\n(2) It is a defence to the publication of defamatory matter if the defendant proves that —\n\n(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact;\n\n(b) the opinion related to a matter of public interest; and\n\n(c) the opinion is based on proper material.\n\n(3) It is a defence to the publication of defamatory matter if the defendant proves that —\n\n(a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact;\n\n(b) the opinion related to a matter of public interest; and\n\n(c) the opinion is based on proper material.\n\n(4) A defence established under this section is defeated if, and only if, the plaintiff proves that —\n\n(a) in the case of a defence under subsection (1) — the opinion was not honestly held by the defendant at the time the defamatory matter was published;\n\n(b) in the case of a defence under subsection (2) — the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; or\n\n(c) in the case of a defence under subsection (3) — the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.\n\n(5) For the purposes of this section, an opinion is based on proper material if it is based on material that —\n\n(a) is substantially true;\n\n(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or\n\n(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.\n\n(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.\n\n##### 32. Defence of innocent dissemination\n\n(1) It is a defence to the publication of defamatory matter if the defendant proves that —\n\n(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor;\n\n(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and\n\n(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.\n\n(2) For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person —\n\n(a) was not the first or primary distributor of the matter;\n\n(b) was not the author or originator of the matter; and\n\n(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.\n\n(3) Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of —\n\n(a) a bookseller, newsagent or news‑vendor;\n\n(b) a librarian;\n\n(c) a wholesaler or retailer of the matter;\n\n(d) a provider of postal or similar services by means of which the matter is published;\n\n(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter;\n\n(f) a provider of services consisting of —\n\n(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or\n\n(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form;\n\n(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or\n\n(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.\n\n##### 33. Defence of triviality\n\nIt is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.\n\n### Division 3 — Remedies\n\n##### 34. Damages to bear rational relationship to harm\n\nIn determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.\n\n##### 35. Damages for non‑economic loss limited\n\n(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non‑economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.\n\n(2) A court may order a defendant in defamation proceedings to pay damages for non‑economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.\n\n(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the *Gazette*, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).\n\n(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full‑time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.\n\n(5) An amount declared for the time being under this section applies to the exclusion of the amount of $250 000 or an amount previously adjusted under this section.\n\n(6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations.\n\n(7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.\n\n(8) A declaration made or published in the *Gazette* after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.\n\n##### 36. State of mind of defendant generally not relevant to awarding damages\n\nIn awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.\n\n##### 37. Exemplary or punitive damages cannot be awarded\n\nA plaintiff cannot be awarded exemplary or punitive damages for defamation.\n\n##### 38. Factors in mitigation of damages\n\n(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that —\n\n(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter;\n\n(b) the defendant has published a correction of the defamatory matter;\n\n(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter;\n\n(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or\n\n(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.\n\n(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.\n\n##### 39. Damages for multiple causes of action may be assessed as single sum\n\nIf the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the judicial officer may assess damages in a single sum.\n\n### Division 4 — Costs\n\n##### 40. Costs in defamation proceedings\n\n(1) In awarding costs in defamation proceedings, the court may have regard to —\n\n(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and\n\n(b) any other matters that the court considers relevant.\n\n(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise) —\n\n(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff — order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or\n\n(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant — order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.\n\n(3) In this section —\n\n  settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.\n\n## Part 5 — Miscellaneous\n\n##### 41. Proof of publication\n\n(1) If a document appears to be printed or otherwise produced by means adapted for the production of numerous copies and there is in the document a statement to the effect that the document is printed, produced, published or distributed by or for a particular person, the statement is evidence in defamation proceedings that the document was so printed, produced, published or distributed.\n\n(2) Evidence that a number or part of a document appearing to be a periodical is printed, produced, published or distributed by or for a particular person is evidence in defamation proceedings that a document appearing to be another number or part of the periodical was so printed, produced, published or distributed.\n\n(3) In this section —\n\n  periodical includes any newspaper, review, magazine or other printed document of which numbers or parts are published periodically.\n\n##### 42. Proof of convictions for offences\n\n(1) If the question whether or not a person committed an offence is in question in defamation proceedings —\n\n(a) proof that the person was convicted of the offence by an Australian court is conclusive evidence that the person committed the offence; and\n\n(b) proof that the person was convicted of the offence by a court of any country (other than an Australian court) or a court martial of any country is evidence that the person committed the offence.\n\n(2) For the purposes of this section, the contents of a document that is evidence of conviction of an offence, and the contents of an information, complaint, indictment, charge sheet or similar document on which a person is convicted of an offence, are admissible in evidence to identify the facts on which the conviction is based.\n\n(3) Subsection (2) does not affect the admissibility of other evidence to identify the facts on which the conviction is based.\n\n(4) In this section —\n\n  conviction for an offence includes a finding of guilt but does not include —\n\n(a) a conviction that has been set aside or quashed; or\n\n(b) a conviction for an offence for which a person has received a pardon.\n\n##### 43. Incriminating answers, documents or things\n\n(1) A person who is required to answer a question, or to discover or produce a document or thing, in defamation proceedings is not excused from answering the question or discovering or producing the document or thing on the ground that the answer to the question or the discovery or production of the document or thing might tend to incriminate the person of an offence of criminal defamation.\n\n(2) However, any answer given to a question, or document or thing discovered or produced, by a natural person in compliance with the requirement is not admissible in evidence against the person in proceedings for criminal defamation.\n\n##### 44. Giving of notices and other documents\n\n(1) For the purposes of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person) —\n\n(a) in the case of a natural person —\n\n(i) by delivering it to the person personally;\n\n(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document; or\n\n(iii) by sending it by facsimile transmission to the facsimile number of the person;\n\nor\n\n(b) in the case of a body corporate —\n\n(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents; or\n\n(ii) by sending it by facsimile transmission to the facsimile number of the body corporate.\n\n(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.\n\n##### 45. Regulations\n\nThe Governor may make regulations for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n\n##### 46. Repeal of existing legislation\n\n(1) The following Imperial enactment is repealed in so far as it is part of the law of Western Australia —\n\n6 & 7 Victoria, chapter 96 (1843)\n\n\t\t*An Act to amend the Law respecting defamatory Words and Libel.*\n\n[Known as the *Libel Act 1843*.]\n\n[Adopted by *Imperial Acts Adopting Ordinance 1847*.]\n\n(2) The following Acts are repealed —\n\n(a) *Newspaper Libel and Registration Act 1884*;\n\n(b) *Newspaper Libel and Registration Act 1884 Amendment Act 1888*;\n\n(c) *Slander of Women Act 1900*.\n\n##### 47. *The Criminal Code* amended\n\n\t\t*The Criminal Code* is amended as set out in Schedule 4.\n\n##### 48. Savings, transitional and other provisions\n\n(1) This Act applies to the publication of defamatory matter after the commencement of this Act, unless subsection (2) provides otherwise.\n\n(2) The provisions of this Act (other than this section) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the post‑commencement action) if —\n\n(a) the post‑commencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff;\n\n(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);\n\n(c) one or more of the other causes of action in the proceedings accrued before the commencement of this Act (a pre‑commencement action); and\n\n(d) the post‑commencement action accrued no later than 12 months after the date on which the earliest pre‑commencement action in the proceedings accrued.\n\n(3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted —\n\n(a) any cause of action that accrued before the commencement of this Act;\n\n(b) any post‑commencement action to which the other provisions of this Act do not apply because of subsection (2).\n\n(4) In this section —\n\n  existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this Act.\n\nSchedule 1 — Additional publications to which absolute privilege applies\n\n[s. 27(2)(d)]\n\nNote for this Schedule:\n\nCurrently there are no provisions in this Schedule but it has been included for consistency with national model legislation.\n\nSchedule 2 — Additional kinds of public documents\n\n[s. 28(4)(g)]\n\nNote for this Schedule:\n\nCurrently there are no provisions in this Schedule but it has been included for consistency with national model legislation.\n\nSchedule 3 — Additional proceedings of public concern\n\n[s. 29(4)(p)]\n\nNote for this Schedule:\n\nCurrently there are no provisions in this Schedule but it has been included for consistency with national model legislation.\n\nSchedule 4 — Amendments to *The Criminal Code*\n\n[s. 47]\n\n1. Section 53 repealed\n\nSection 53 is repealed.\n\n2. Chapter XXXV replaced\n\nChapter XXXV is repealed and the following Chapter is inserted instead —\n\n“\n\nChapter XXXV — Criminal defamation\n\n345. Criminal defamation\n\n(1) A person who, without lawful excuse, publishes matter defamatory of another living person (the victim) —\n\n(a) knowing the matter to be false or without having regard to whether the matter is true or false; and\n\n(b) intending to cause serious harm to the victim or any other person or without having regard to whether such harm is caused,\n\nis guilty of a crime and is liable to imprisonment for 3 years.\n\nSummary conviction penalty: imprisonment for 12 months and a fine of $12 000.\n\n(2) In proceedings for an offence under this section the accused person has a lawful excuse for the publication of defamatory matter about the victim if, and only if, subsection (3) applies.\n\n(3) This subsection applies if the accused person would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the accused person.\n\n(4) The prosecutor bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused person.\n\n(5) On a trial before a jury for an offence under this section —\n\n(a) the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judge;\n\n(b) the question of whether the matter complained of does bear a defamatory meaning is a question for the jury; and\n\n(c) the jury may give a general verdict of guilty or not guilty on the issues as a whole.\n\n(6) A prosecution under this section must not be commenced without the consent of the Director of Public Prosecutions.\n\n(7) In this section —\n\n  publish and defamatory  have the meanings that those terms have in the law of tort (as modified by the *Defamation Act 2005*) relating to defamation.\n\n”.\n\nNotes\n\n1 This is a compilation of the *Defamation Act 2005*. The following table contains information about that Act.\n\nCompilation table\n\n| **Short title** | **Number and Year** | **Assent** | **Commencement** |\n| --- | --- | --- | --- |\n| *Defamation Act 2005* | 44 of 2005 | 19 Dec 2005 | 1 Jan 2006 (see s. 2) |\n\n\nDefined terms\n\n*[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]*\n\n**Defined term Provision(s)**\n\naggrieved person 12(1)\n\nAustralian court 4\n\nAustralian jurisdiction 4\n\nAustralian jurisdictional area 11(5)\n\nAustralian tribunal 4\n\ncommentator 31(3)\n\nconcerns notice 14(2)\n\ncontextual imputations 26\n\nconviction 42(4)\n\ncorporation 9(6)\n\ncountry 4\n\ndocument 4\n\nelectronic communication 4\n\nexisting law of defamation 48(4)\n\nexternal Territory 11(5)\n\nfurther particulars notice 14(3)\n\ngeneral law 4\n\ngeographical area of Australia 11(5)\n\nimputations of concern 14(2)\n\nJervis Bay Territory 11(5)\n\nlaw reform body 29(5)\n\nlearned society 29(5)\n\nmatter 4\n\nmatter in question 12(1)\n\nmaximum damages amount 35(1)\n\nmultiple publications 11(5)\n\noffer to make amends 4\n\nombudsman 29(5)\n\nparliamentary body 4\n\nperiodical 41(3)\n\npost‑commencement action 48(2)\n\npre‑commencement action 48(2)\n\nproceedings of public concern 29(4)\n\npublic body 9(6)\n\npublic document 28(4)\n\npublisher 12(1)\n\nrecipient 30(1)\n\nrelevant objects 29(5)\n\nsettlement offer 40(3)\n\nsport or recreation association 29(5)\n\nsubstantially true 4\n\nTerritory 4\n\nthis jurisdiction 4\n\ntrade association 29(5)\n","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act changes the scope of defamation law as it previously operated in this jurisdiction by: abolishing the slander/libel distinction and making all published defamatory matter actionable without proof of special damage (s.7); consolidating multiple imputations into a single cause of action (s.8); excluding many corporations from suing for defamation (s.9); barring causes of action concerning deceased persons (s.10); prescribing choice‑of‑law rules for multi‑jurisdictional publication (s.11); creating a statutory pre‑litigation offer‑to‑make‑amends process and evidentiary rules for it (ss.12–19); codifying defences and their limits while preserving general‑law applications where appropriate (ss.24–33); imposing a capped, indexable limit on non‑economic damages with narrow exception for aggravated cases (s.35); and adding a criminal defamation offence with defined elements and DPP consent (Sch.4 s.345). Transitional provisions preserve prior law for certain causes of action that accrued before commencement (s.48). These provisions collectively alter who may sue, what defences apply, how disputes can be resolved pre‑litigation, and the available civil and criminal remedies."},"complexity_factors":["Extensive interaction with general common law: Act modifies but does not wholly replace general law (s.6(2)), requiring judicial interpretation of statutory vs common‑law overlap.","Multiple procedural regimes: pre‑litigation offers to make amends with strict form/timing/content rules and evidentiary protections (ss.12–19).","Numerous and detailed defences with defeat by malice in places (ss.24–33), including layered definitions of public documents and proceedings of public concern (ss.28–29).","Damages regime: cap on non‑economic loss with annual Ministerial indexation and limited judicial power to exceed cap for aggravated cases (s.35).","Choice‑of‑law rules for multi‑jurisdictional publications with multi‑factor balancing (s.11).","Corporate and personal scope limits: exclusions for certain corporations (s.9) and bar on claims about deceased persons (s.10) alter claimant classes.","Criminal law amendment creating an offence of criminal defamation with specific mens rea and DPP consent requirement (Sch.4, s.345).","Discretion points spread across branches: Minister sets indexation (s.35), Governor may make regulations (s.45), courts have cost and conduct discretions (ss.21–22,40).","Transitional and savings rules preserving existing law for certain pending or related causes of action (s.48) increase interpretive complexity."],"plain_english_summary":"What this law does (mechanics)\n\n- Replaces and modifies parts of the existing common‑law tort of defamation and sets procedural and substantive rules for defamation disputes in Western Australia (s.6). It does not leave the common law untouched; it modifies it where the Act says so (s.6(2)).\n\n- Abolishes the old legal distinction between \"slander\" and \"libel\" so any published defamatory matter is actionable without proof of special damage (s.7).\n\n- Treats multiple defamatory imputations in the same published matter as a single cause of action (s.8).\n\n- Excludes many corporations from being able to sue for defamation unless they meet the definition of an \"excluded corporation\" (s.9). Small non‑profit or small private corporations may be unable to bring claims (s.9(1)–(4)).\n\n- Bars causes of action about deceased people and actions by or against deceased publishers (s.10).\n\n- Sets choice‑of‑law rules for multi‑jurisdictional publications, so the court applies the substantive law of the Australian jurisdiction with the closest connection to the harm (s.11).\n\n- Creates a formal pre‑litigation mechanism allowing publishers to make an \"offer to make amends\" (correction, taking steps to notify third parties, payment of expenses, apology, compensation, etc.) and sets time limits and content requirements for those offers (Part 3 Div 1: ss.12–19). Evidence of statements made in connection with offers is generally inadmissible (s.19).\n\n- States that apologies made in connection with defamatory matter are not admissions of fault and cannot be used as evidence of fault or liability (s.20).\n\n- Preserves and restates a set of defences (justification/substantial truth, contextual truth, absolute privilege, publication of public documents, fair reports of proceedings of public concern, qualified privilege for provision of information, honest opinion, innocent dissemination, triviality) while clarifying their application and qualifying rules (Part 4 Div 2: ss.24–33). Several defences are subject to defeat by proof of malice (s.24(2), s.30(4)).\n\n- Limits remedies: courts must ensure damages relate rationally to harm (s.34), caps non‑economic damages (default cap $250,000 indexed annually by Ministerial order; s.35), bars exemplary/punitive damages (s.37), and directs how mitigation and aggregation of multiple causes of action operate (ss.38–39).\n\n- Sets rules about jury trials and the respective roles of judge and jury (ss.21–22), and gives courts guidance on costs including the availability of indemnity costs where parties unreasonably refuse or fail to accept reasonable settlement offers (s.40).\n\n- Amends the Criminal Code to create an offence of criminal defamation with specified elements (knowledge or recklessness about falsity and intention to cause or recklessness about causing serious harm), a maximum penalty and procedural safeguards (Sch.4, new ch. XXXV, s.345). Prosecutor requires Director of Public Prosecutions' consent to commence (Sch.4 s.345(6)).\n\nOfficial stated purposes and how they map to mechanics\n\n- The Act states its objects are to promote uniform defamation law in Australia, avoid unreasonable limits on freedom of expression, provide effective and fair remedies for reputational harm, and promote speedy non‑litigious resolution of disputes (s.3). These policy aims are implemented mechanically by:\n  - providing a standard set of statutory defences and procedures (ss.24–33);\n  - creating the offers‑to‑make‑amends process and making apologies non‑admissible as fault (Part 3 Divs 1–2: ss.12–20);\n  - setting a capped, indexable ceiling on non‑economic damages to give predictability (s.35);\n  - harmonising choice‑of‑law for multi‑jurisdictional publications (s.11).\n\nTesting the stated purposes against costs, incentives and trade‑offs (source‑grounded)\n\n- Who pays and who decides\n  - Publishers who lose civil actions may pay damages, and may be required to publish corrections, apologies and pay expenses (ss.15,17,34–39). Plaintiffs seeking damages are the payees. Courts determine liability and damages; juries decide publication and whether a defence is established (s.22). For criminal prosecutions, the DPP must consent (Sch.4 s.345(6)).\n\n- Incentives and behaviour changes\n  - The offers‑to‑make‑amends process gives publishers a structured route to settle without litigation, and provides a defence where a reasonable offer is refused (s.18). That creates an incentive for early correction and settlement (ss.13–18).\n  - Apologies are insulated from being treated as admissions (s.20), which lowers the legal cost of apologising as a reputational remedial step.\n  - The cap on non‑economic damages and indexation by Ministerial order (s.35(1),(3)–(4)) reduces uncertainty about high awards but changes plaintiffs' potential recoveries; courts may exceed the cap only for aggravated circumstances (s.35(2)).\n\n- Compliance burden and administrative discretion\n  - Publishers face procedural requirements when making offers to make amends (must be written, identify imputations, offer correction, reimburse expenses, etc.) (s.15). Aggrieved persons must particularise imputations when served with a concerns notice and may lose procedural protections if they fail to respond to a further particulars notice (s.14).\n  - The Minister sets the annual indexed cap amount (s.35(3)–(4)), and the Governor may make regulations (s.45). Courts have discretion on costs, mitigation, and whether to allow jury trials in particular cases (ss.21,22,38,40). These provisions create points where executive and judicial discretion affect outcomes.\n\n- Trade‑offs and implementation risks\n  - The Act narrows some claimants' scope (certain corporations cannot sue — s.9) and removes claims about the deceased (s.10), which reduces some litigation demand but also narrows redress for reputational harms of corporate entities and estates.\n  - Codifying defences and procedures promotes predictability (s.24), but interaction with the general law is preserved where the Act does not displace it (s.6(2)), creating interpretive work for courts.\n  - Criminalising serious defamatory publications (Sch.4 s.345) introduces prosecutorial discretion and a higher threshold (serious harm plus knowledge/recklessness) and requires DPP consent (Sch.4 s.345(6)); this creates a separation between civil redress and criminal enforcement and concentrates the decision to prosecute with the DPP.\n\nPotential concentrated benefits and diffuse costs (mechanism only)\n\n- The exclusion of small or non‑profit corporations from civil causes of action (s.9) benefits those entities by preventing them from suing, but shifts the set of potential claimants; the text sets the mechanism by which corporations are excluded (s.9(2)–(4)).\n\nKey implementation features to watch (concrete mechanics)\n\n- Offers to make amends have strict content and timing rules, and evidence of related statements is usually inadmissible (ss.13–19).\n- Apologies cannot be used as admissions in civil proceedings (s.20).\n- Damage awards are capped for non‑economic loss, and the cap is adjusted annually by Ministerial order referencing average earnings (s.35).\n- Criminal prosecutions require DPP consent and have defined elements and penalties (Sch.4 s.345).\n\nOverall, the Act remakes substantive and procedural aspects of defamation law: it consolidates defences, limits certain claimants, introduces mandatory pre‑litigation settlement mechanics, caps non‑economic awards with indexation, and creates a criminal offence with prosecutorial controls. The net effects on litigation volume, publisher conduct and claimant outcomes depend on how courts apply the statutory defences and the discretionary elements (judicial costs orders, Ministerial indexation, and DPP consent)."},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":false,"description":"The Act has not grown beyond its original intent stated in s 3: to enact uniform Australian defamation laws, avoid unreasonable limits on freedom of expression (especially public interest discussion), provide effective remedies for reputational harm, and promote speedy non-litigious resolution. The detailed provisions in Parts 3 and 4 directly implement these objects without expanding into unrelated areas such as privacy or new criminal offences beyond the scheduled Criminal Code amendments."},"complexity_factors":["Extensive list of 20+ defined terms in s 4 that interact across all parts","Multi-layered offer-to-make-amends process in Part 3 Division 1 with strict timelines (28 days, 14 days), further particulars notices and effects on liability (ss 13-19)","10 separate defences in Division 2 of Part 4, each with specific proof requirements, exceptions, and defeating conditions such as malice or honesty (ss 25-33)","Choice-of-law rules in s 11 requiring closest-connection analysis for multi-jurisdictional publications, including 4 statutory factors and definitions of 'Australian jurisdictional area'","Nested conditional provisions, e.g. damages cap in s 35 with Ministerial Gazette adjustments based on ABS earnings data and court power to exceed for aggravated damages","Cross-references to three empty Schedules and amendments to the Criminal Code, plus transitional rules in s 48 that preserve pre-2006 law for certain accrued actions"],"plain_english_summary":"**The Defamation Act 2005** sets out Western Australia's rules for dealing with defamation (when someone publishes material that harms another person's reputation). It applies to publications after 1 January 2006 and aims to create consistent laws across Australia while balancing protection of reputation with freedom of speech on public interest topics.\n\nIt abolishes the old split between libel and slander, so any defamatory material can be sued on without proving special financial loss. Most companies cannot sue for defamation unless they are small (under 10 employees) or not-for-profit. No one can sue for defamation of a dead person. The Act strongly encourages resolving disputes out of court: publishers can make a formal 'offer to make amends' (including corrections, apologies and compensation) within tight time limits after receiving a 'concerns notice'. Accepting an offer usually ends the claim.\n\nIf a case goes to court, the Act lists specific defences including truth (the imputations are substantially true), contextual truth, absolute privilege (e.g. parliamentary or court proceedings), fair reports of public proceedings, qualified privilege (reasonable publication to interested recipients), honest opinion, innocent dissemination and triviality. Remedies are limited: damages must match the harm, non-economic loss is capped (currently around $400,000+ with annual indexing), aggravated damages are possible but punitive damages are banned. Juries can decide liability but judges decide damages. The Act also updates criminal defamation in the Criminal Code and repealed several old Imperial and State libel laws."},"summary":{"complexity_score":1,"scope_assessment":{"changed":false,"description":"Unable to assess scope — the provided source contains no legislative text, only a website error message indicating the page is unavailable due to system upgrades. A proper analysis requires the actual text of the Defamation Act 2005 (WA)."},"complexity_factors":["No legislative content was provided — the source is an error/redirect page only","Cannot assess complexity of the actual Act without its text","The complexity score of 1 reflects the simplicity of the content actually provided (an error message), not the underlying Act itself"],"plain_english_summary":"## ⚠️ Content Unavailable\n\nThe source provided does not contain the actual text of the **Defamation Act 2005 (WA)**. The page returned is an error message indicating the legislation page has moved or is temporarily unavailable on the Western Australian legislation website.\n\n**What we do know generally about this Act:**\nThe Defamation Act 2005 is a uniform law adopted across Australian states and territories that governs the law of defamation — that is, when someone can sue for damage to their reputation caused by false or harmful statements (written, spoken, or published). It affects:\n- **Individuals** who believe they have been defamed\n- **Media organisations, publishers, and journalists**\n- **Everyday people** who post on social media or make public statements\n\nHowever, **no reliable legal analysis can be produced** from the page content supplied, as it contains no legislative text."}},"importantCases":[],"_links":{"self":"/api/acts/wa-defamation-act-2005","history":"/api/acts/wa-defamation-act-2005/history","analysis":"/api/acts/wa-defamation-act-2005/analysis","conflicts":"/api/acts/wa-defamation-act-2005/conflicts","importantCases":"/api/acts/wa-defamation-act-2005/important-cases","documents":"/api/acts/wa-defamation-act-2005/documents"}}