Defamation Act 2005

The Act primarily affects natural persons who claim their reputation has been harmed by published matter and those who publish such matter. "Matter" is broadly defined in s 4 to include articles, broadcasts, internet communications, letters, pictures, gestures and any other means of communicating something to a person. "Publish" takes its general-law meaning as modified by the Act.

Plaintiffs are limited to living natural persons and "excluded corporations" under s 9(2): not-for-profit entities or those employing fewer than 10 persons (counted on a full-time equivalent basis) that are not related bodies corporate under the Corporations Act 2001 (Cth) s 50 (adapted by s 9(4)). Public bodies are excluded from the "excluded corporation" category. Individuals associated with a corporation retain personal causes of action even if the corporation itself cannot sue (s 9(5)).

Defendants are any persons or entities that publish or are responsible for publication, including primary publishers, subordinate distributors (booksellers, librarians, internet service providers, broadcasters without editorial control – see s 32(3)), printers, and those who authorise or direct publication. The Act binds the Crown in all capacities (s 5).

Media organisations, internet intermediaries, government bodies, learned societies, sporting associations, trade associations and participants in parliamentary, court or public-meeting proceedings are expressly affected by the privilege and fair-report defences in ss 27-29. Ombudsmen, law-reform bodies and shareholders in public companies are brought within "proceedings of public concern" (s 29(4)).

Legal practitioners, judges and juries are affected by procedural rules on jury election (s 21), division of functions (s 22), costs (s 40) and admissibility (ss 19, 20, 42). The Director of Public Prosecutions must consent to any criminal defamation prosecution under the amended Criminal Code s 345 (Schedule 4).

The Act has extraterritorial reach through its choice-of-law rules (s 11) and definitions of "country", "Australian jurisdiction" and "parliamentary body", affecting publications that cross State, Territory or international borders. Transitional provisions in s 48 affect litigants with causes of action straddling 1 January 2006.

Plaintiffs have the right to bring a single cause of action per publication (s 8), to receive a concerns notice triggering the offer-to-make-amends process (s 14), and to elect jury trial (s 21). They hold the onus of proving publication, defamatory meaning and (where relevant) malice defeating certain defences (ss 24(2), 28(3), 29(3), 30(4), 31(4)). Where an offer to make amends is accepted, they gain enforceable rights to correction, apology and compensation, with Supreme Court enforcement powers (s 15(3)-(4), s 17).

Defendants enjoy a suite of statutory defences additional to the general law (s 24(1)). They have the right to make an offer to make amends at any time before 28 days after a concerns notice or service of a defence (s 14(1)), to withdraw and renew such offers (s 16), and to have evidence of connected statements excluded from other proceedings (s 19). The defence of qualified privilege under s 30 turns on the defendant's reasonable belief in the recipient's interest and the objective reasonableness of conduct, assessed against ten statutory factors in s 30(3). Honest opinion defences (s 31) protect expressions of opinion on public-interest matters based on proper material (substantially true, privileged or otherwise defended material).

All parties benefit from the apology protection in s 20, which prevents an apology being treated as an admission. The triviality defence (s 33) and cap on non-economic loss (s 35) protect defendants from disproportionate liability. Costs incentives under s 40 impose a duty on both sides to engage reasonably with settlement offers, with indemnity-cost consequences for unreasonable refusal.

The Crown is bound (s 5). Publishers must prove defences on the balance of probabilities (e.g. substantial truth under s 25). Plaintiffs must prove defeating matters such as lack of honest belief in opinion defences (s 31(4)). The Act imposes no new positive duties to publish corrections but makes reasonable corrective action relevant to the reasonableness of offers (s 18(2)) and to mitigation (s 38).

The Act is civil. No direct pecuniary penalties are created, but costs consequences under s 40 are severe: indemnity costs are mandatory (unless interests of justice require otherwise) where a successful plaintiff shows the defendant unreasonably failed to accept a reasonable settlement offer, or an unsuccessful plaintiff unreasonably failed to accept a defendant's reasonable offer. "Settlement offer" expressly includes offers to make amends (s 40(3)).

Damages are the primary remedy. They must be rationally related to harm (s 34). Non-economic loss is capped at an indexed figure declared annually by Ministerial Gazette order (s 35(3)-(8)), calculated by reference to changes in average weekly total earnings of full-time adults. The cap may be exceeded only where aggravated damages are warranted (s 35(2)). Exemplary or punitive damages are prohibited outright (s 37). Mitigation evidence expressly includes apologies, corrections and prior recoveries (s 38).

Criminal enforcement occurs under the substituted Criminal Code s 345 (Schedule 4), which creates an offence of criminal defamation punishable by 3 years' imprisonment (summary conviction 12 months and $12,000 fine). The offence requires publication of defamatory matter about a living person, knowledge of falsity or reckless indifference, and intent to cause serious harm or reckless indifference as to harm. Lawful excuse exists if the accused would have had a civil defence under the Act (s 345(3)). The prosecutor bears the onus of negating excuse only after the accused adduces evidence. Prosecution requires DPP consent. Juries may return a general verdict.

Enforcement of offers to make amends is by court order, including by the Supreme Court where no proceedings are on foot (ss 15(4), 17(3)). Service of concerns notices and offers is governed by s 44, which permits personal service, post or facsimile.

The Act expressly preserves the general law except to the extent it provides otherwise (s 6(2)). Defences under the Act are additional to common-law defences (s 24(1)). Malice defeating statutory defences is determined by general-law principles (s 24(2)).

It repealed the Libel Act 1843 (Imp), Newspaper Libel and Registration Acts 1884 and 1888, and Slander of Women Act 1900 (s 46). It amends The Criminal Code by repealing old s 53 and inserting the new criminal defamation offence (s 47, Schedule 4), which cross-refers to the civil meanings of "publish" and "defamatory" as modified by the Act.

Choice-of-law rules in s 11 displace common-law rules for defamation proceedings in Western Australia and exclude renvoi (s 11(4)). The definitions of "Australian court", "Australian tribunal" and "parliamentary body" align the absolute-privilege defence (s 27) with corresponding laws in other Australian jurisdictions.

The fair-report defence (s 29) and public-document defence (s 28) pick up proceedings and documents under Commonwealth, State, Territory and foreign laws, including those of international organisations, learned societies, sporting bodies and trade associations meeting the statutory criteria. They interact with the Corporations Act 2001 (Cth) by including shareholder meetings (s 29(4)(k)).

The innocent-dissemination defence (s 32) overlaps with but expands upon common-law innocent dissemination and interacts with electronic-commerce and broadcasting legislation by expressly protecting internet service providers, live broadcasters without control, and processors of electronic media.

Costs rules in s 40 operate alongside court rules but add mandatory indemnity-cost outcomes. Transitional provisions (s 48) preserve the "existing law of defamation" (pre-2006 statute and general law) for causes of action accruing before commencement or in mixed pre- and post-commencement proceedings meeting the 12-month proximity test.

The Act does not affect privacy, confidentiality or injurious falsehood actions, nor does it limit statutory privileges under other WA legislation (e.g. parliamentary privilege statutes).

The compilation table shows the Act was assented to on 19 December 2005 and commenced on 1 January 2006. No subsequent amendments appear in the provided text, but the national uniform scheme has seen coordinated amendments across jurisdictions since 2005. In Western Australia the Act has been kept in lockstep with model amendments, notably the introduction of the serious harm threshold in other jurisdictions (not yet reflected in this text) and adjustments to the damages cap.

The annual Gazette declarations under s 35 have incrementally increased the non-economic loss cap in line with average weekly earnings. These changes implement the original object in s 3(b) of preventing unreasonable limits on expression by ensuring the cap keeps pace with economic conditions.

The replacement of Chapter XXXV of the Criminal Code via Schedule 4 aligned criminal defamation with civil defences, reducing the chilling effect of the old offence. This change responded to concerns that the pre-2006 criminal law was broader than necessary and lacked adequate defences.

The empty Schedules 1-3 reflect the policy of allowing future expansion by regulation rather than primary amendment, preserving flexibility while maintaining national consistency.

Because the text is the statute itself, it does not record specific cases. However, the structure reveals points of likely contention. The reasonableness requirement in the s 30 qualified-privilege defence (with its ten statutory factors) has generated appellate litigation on the weight to be given to public interest (s 30(3)(a)), the defendant's failure to seek comment (s 30(3)(h)), and whether publication for reward precludes the defence (expressly negated by s 30(5)).

The honest-opinion defence in s 31 has raised questions about the boundary between opinion and fact, the meaning of "proper material" (including whether reliance on material protected only by s 29 fair report is sufficient), and the subjective honesty tests in s 31(4). The contextual-truth defence (s 26) has been controversial because it permits defendants to rely on unpleaded imputations that are substantially true to neutralise additional harm from the plaintiff's chosen imputations.

The damages cap and its exception for aggravated damages under s 35(2) have been tested on what circumstances "warrant" an award exceeding the cap. Courts have emphasised that the cap is not a ceiling on total damages but only on the non-economic component.

Jury-election provisions (s 21) and the division of functions in s 22 have produced disputes over whether prolonged technical evidence justifies denying a jury, and whether juries may be directed on capacity to defame.

The interaction between offers to make amends and subsequent litigation (ss 18 and 40) has been litigated on the objective reasonableness of offers, the adequacy of corrections having regard to prominence and timing (s 18(2)(a)), and whether a plaintiff's refusal to particularise imputations in a concerns notice disentitles them from complaining about the offer's scope.

Criminal Code s 345 has raised issues around the onus of proving lawful excuse and the extent to which civil defences are imported wholesale.

Controversies have centred on whether the uniform scheme adequately protects digital intermediaries, the breadth of "proceedings of public concern" in s 29(4)(l) (public meetings on matters of public interest), and whether the triviality defence (s 33) has been rendered largely redundant by the serious-harm threshold adopted in other jurisdictions' parallel legislation.

Most practitioners underestimate the strictness of the 28-day window in s 14(1)(a). Once a concerns notice is given, the publisher's ability to make an offer to make amends expires after 28 days; a late offer cannot found the s 18 defence. The further-particulars mechanism (s 14(3)-(5)) is frequently mishandled: an inadequate response from the aggrieved person means they are taken never to have given a concerns notice, potentially restarting the clock but also exposing them to costs arguments.

The single-cause-of-action rule in s 8 is more powerful than it appears. A plaintiff cannot split imputations arising from the same matter into separate proceedings; attempting to do so risks the leave requirement under s 23 and adverse costs findings. Conversely, publishers sometimes overlook that an offer limited to specific imputations (s 13(2)(b)) can still bar the entire action if accepted (s 17(1)).

Section 30(3) reasonableness factors are not a checklist but a mandatory relevance assessment; omitting consideration of whether the defendant sought the plaintiff's side of the story (s 30(3)(h)) has led to defences failing even where other factors favoured the publisher. The "apparent interest" limb in s 30(2) turns on the defendant's reasonable belief at the time of publication; post-publication rationalisations are irrelevant.

The damages cap in s 35 is indexed from the original $250,000 but only the Gazette figure current at the date of award applies. Many litigants fail to notice that rounding occurs to the nearest $500 and that the Minister's declaration can have retrospective effect within the same financial year (s 35(8)).

The innocent-dissemination defence in s 32 is narrower than many assume: the defendant must prove both lack of knowledge and that the lack was not due to negligence. In digital contexts, once a platform receives a valid concerns notice it may lose the defence for subsequent identical publications unless it acts promptly.

Transitional s 48(2) can trap unwary practitioners in "straddle" proceedings: if one pre-2006 cause of action is pleaded with a post-2006 publication of substantially the same matter within 12 months, the entire post-commencement claim may be determined under the old law.

Finally, the criminal defamation offence in Code s 345 imports the civil defences but places the evidential onus on the accused to adduce evidence of lawful excuse before the prosecutor must negative it. The DPP consent requirement is absolute; proceedings commenced without it are a nullity.

Publishers should implement a concerns-notice triage protocol. Upon receipt, immediately assess whether the notice adequately particularises imputations. If not, issue a further particulars notice within days to engage s 14(5). Prepare offers to make amends that are comprehensive, clearly identified under the Division, and contain all mandatory elements of s 15(1)(a)-(f). Where compensation is offered, consider structured offers (fixed sum, to be agreed, arbitral or court-determined) to maximise settlement prospects and engage the costs protection in s 40.

Maintain detailed records of the timing of awareness of potential defamatory meaning to satisfy the "as soon as practicable" requirement in s 18(1)(a). For qualified-privilege claims, document the recipient's interest, the steps taken to verify information, and any attempt to obtain the subject's response. Retain file notes showing consideration of each s 30(3) factor.

Media organisations should maintain editorial policies that distinguish suspicion from fact, give prominent corrections equivalent prominence to the original matter, and record the public-interest justification for urgent publication.

Plaintiffs must ensure concerns notices are precise; vague notices risk being disregarded. When evaluating offers, weigh the statutory reasonableness criteria in s 18(2) carefully; unreasonable refusal can extinguish the claim entirely.

All parties should consider early without-prejudice settlement offers outside the statutory scheme (expressly preserved by s 12(3)) to preserve costs flexibility. Where proceedings are issued, promptly elect jury trial if the case turns on community standards rather than technical issues.

Organisations subject to frequent public-interest reporting should map their activities against the "proceedings of public concern" categories in s 29(4) and the public-document categories in s 28(4) to pre-identify available defences. For digital platforms, compliance systems must include rapid response teams capable of removing or correcting content within the 28-day window once a concerns notice is received.

Compliance is best achieved by integrating the Act's timelines and evidentiary requirements into existing risk-management frameworks rather than treating them as litigation afterthoughts. Annual training on the indexed damages cap, the precise wording of offers, and the interplay between civil and criminal defamation is advisable.