Defamation (Amendment) Act 1909 (ACT)

Defamation (Amendment) Act 1909   (repealed)   No 22

Republication No 3

Republication date: 2 July 2002

Amendments incorporated to 2 July 2002

As repealed by Act 2001 No 88

Unauthorised version prepared by ACT Parliamentary Counsel's Office

About this republication

The republished law

This is a republication of the Defamation (Amendment) Act 1909 (repealed).  It includes any commencement, amendment, repeal or expiry affecting the republished law to 2 July 2002 and any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes).

The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.

Kinds of republications

The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">

authorised republications to which the Legislation Act 2001 applies

unauthorised republications.

The status of this republication appears on the bottom of each page.

Editorial changes

The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication.  Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.

When preparing the authorised version of this republication amendments were not made under part 11.3 (see endnote 1).

Uncommenced provisions and amendments

If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol  U  appears immediately before the provision heading.  The text of the uncommenced provision or amendment appears only in the last endnote.

Modifications

If a provision of the republished law is affected by a current modification, the symbol  M  appears immediately before the provision heading.  The text of the modifying provision appears in the endnotes.  For the legal status of modifications, see Legislation Act 2001, section 95.

Penalties

The value of a penalty unit for an offence against this republished law at the republication date is—

(a)if the person charged is an individual—$100; or

(b)if the person charged is a corporation—$500.

Amendments incorporated to

2 July 2002

Defamation (Amendment) Act 1909 (repealed)

Contents

Page

Preliminary

1. Name of Act  2

2. Definitions for Act  2

Declarations, indictments, and criminal prosecutions

1. Obscene or blasphemous matter need not be set out in information etc 2

2. No prosecution without order of judge  3

Civil and criminal defences

1. Publication in newspaper of matters of public interest  3

5APublication of parliamentary reports etc  5

1. Privilege not affected by publication under contract  6

Mitigation of damages

1. Compensation in other actions provable in mitigation  6

Summary proceedings

1. Evidence before court of summary jurisdiction  7

2. Summary conviction for libel  7

Trial, costs, and execution

1. Consolidation of actions  7

Supplemental

1. Name of writer of article etc to be disclosed  8

Endnotes

1. About the endnotes  9

2. Abbreviation key  9

3. Amendment history  10

4. Amendment history  11

5. Earlier republications  12

Amendments incorporated to

2 July 2002

Defamation (Amendment) Act 1909 (repealed)

An Act to amend the law of defamation

Preliminary

1. Name of Act

   This Act is the Defamation (Amendment) Act 1909, and shall be construed with the Defamation Act 1901.

2. Definitions for Act

   In this Act:

   NoteA definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155).

   newspaper means any paper containing public news, intelligence, or occurrences, or any remarks or observations thereon, printed for sale, and published, periodically, or in parts or numbers, at intervals not exceeding 1 month between the publication of any 2 such papers, parts, or numbers.

   Also any paper printed to be dispersed and made public, weekly or oftener, or at intervals not exceeding 1 month, containing only or principally advertisements.

   proprietor means and includes as well the sole proprietor of any newspaper, as also, for a divided proprietorship, the persons who, as partners or otherwise, represent and are responsible for any share or interest in the newspaper as between themselves and the persons in like way representing or responsible for the other shares or interests in the newspaper, and no other person.

Declarations, indictments, and criminal prosecutions

1. Obscene or blasphemous matter need not be set out in information etc

   It shall not be necessary to set out in any information, indictment, or criminal proceeding instituted against the publisher of any obscene or blasphemous libel the obscene or blasphemous passages, but it shall be sufficient to deposit the book, newspaper, or other document containing the alleged libel with the information, indictment, or criminal proceeding, together with particulars showing precisely by reference to pages, columns, and lines in what part of the book, newspaper, or other document, the alleged libel is to be found, and the particulars shall be deemed to form part of the record, and all proceedings may be taken thereon as though the passages complained of had been set out in the information, indictment, or proceeding.

2. No prosecution without order of judge

   No criminal prosecution shall be commenced against any person for the publication of any libel without the order of a judge of the Supreme Court first had and obtained.

   The application shall be made on notice to the person accused, who shall have an opportunity of being heard against the application.

Civil and criminal defences

1. Publication in newspaper of matters of public interest

   No criminal proceeding or civil action shall be maintainable against any person or corporation in respect of the printing or publishing in good faith for the information of the public in any newspaper any of the following matters, provided they are not blasphemous, seditious, or obscene—

   (a)a fair and accurate report of the proceedings of the Legislative Assembly or either House of the Parliament or of the Parliament of a State;

   (b)a fair and accurate report of the proceedings of any committee of the Legislative Assembly or any such House;

   (d)a fair and accurate report of the public proceedings of any court of justice, whether the proceedings are preliminary or interlocutory or final, unless, for proceedings that are not final, the publication has been prohibited by the court:

   Provided that matter of a defamatory nature ruled to be inadmissible by the court shall not be deemed to be part of the public proceedings of the court as aforesaid;

   (e)a copy or an abstract of any judgment, or of the entries relative to any judgment, that are recorded in any books kept in the office of any court of justice;

   (f)a fair and accurate report of the proceedings of any inquiry under the authority of an Act or a Commonwealth Act or under the authority of the Crown in right of the Territory or of the Governor-General in Council, or an extract from or abstract of any such proceedings, or a copy, or an extract from, or abstract of, any official report made by the person by whom the inquiry was held;

   (g)a notice or report issued by an administrative unit, a Department of State of the Commonwealth, a Department of the Australian Public Service, a public servant, an officer holding office under a law in force in the ACT, an authority or instrumentality established by or under such a law or a member of the Australian Federal Police, being a notice or report issued for the information of the public and published with the consent of the administrative unit, department, public servant, officer, authority, instrumentality or member, as the case may be;

   (h)a fair and accurate report of the proceedings of any local authority, board, or body of trustees, or other persons, duly constituted under the provisions of any law in force in the ACT for the discharge of public functions so far as the matter published relates to matters of public concern, except if neither the public nor any newspaper reporter is admitted.

   A publication is said to be made in good faith for the information of the public if the person by whom it is made is not actuated in making it by ill will to the person defamed, or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used for the publication of news.

   For the publication of a report of proceedings referred to in paragraphs (b), (f), (g) and (h), it is evidence of a want of good faith if the proprietor, publisher, or editor has been requested by the person defamed to publish in the newspaper a reasonable letter or statement, by way of contradiction or explanation of the defamatory matter, and has refused or neglected to publish the same.

5APublication of parliamentary reports etc

1. Subject to subsection (2), in any criminal proceedings or civil action in respect of the publication of matter carrying a defamatory imputation it is a defence that the publication was of—

   (a)a report, paper, votes or proceedings published by order, or under the authority, of a parliamentary body or a committee of a parliamentary body; or

   (b)a copy of any such report, paper, votes or proceedings; or

   (c)a fair extract from, or fair abstract or fair summary of, any such report, paper, votes or proceedings.

2. The defence referred to in subsection (1) is not available if it is proved that the defendant did not publish the matter in good faith for public information or the advancement of education.

3. In subsection (1):

   parliamentary body means—

   (a)the Legislative Assembly; and

   (b)either House of the Parliament; and

   (c)the Parliament, or a House of the Parliament, of a State; and

   (d)the Legislative Assembly of the Northern Territory.

4. Privilege not affected by publication under contract

   In any criminal proceedings or civil action against any person or corporation in respect of the publication of any matter, the publication may be deemed to be privileged, notwithstanding that the publication is made in pursuance of a contract whereby the person or corporation undertakes for valuable consideration to supply information to the person to whom the publication is made, if—

   (a)the publication is in answer to an inquiry made in pursuance of the contract; and

   (b)the matter published is relevant to the subject of the inquiry; and

   (c)the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and

   (d)the person making the publication is not actuated by ill will to the person defamed, or by any other improper motive; and

   (e)the person making the publication has reasonable ground to believe the matter published to be true.

Mitigation of damages

1. Compensation in other actions provable in mitigation

   At the trial of an action for a libel, the defendant may give in evidence, in mitigation of damages, that the plaintiff has already recovered, or has brought actions for damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which the action has been brought.

Summary proceedings

1. Evidence before court of summary jurisdiction

   If the criminal proceedings are commenced against any person in respect of the printing or publishing of a libel, the court may receive evidence as to any matter that under this or any other law in force in the ACT, or otherwise might be given in evidence by way of defence by the person charged on his or her trial on information or indictment, and the court if of opinion after hearing the evidence, that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case.

2. Summary conviction for libel

3. If the court is, on the hearing of a criminal proceeding against any person for the publication of a libel, of opinion that though the person charged is shown to have been guilty, the libel was of a trivial character, and that the offence may be adequately punished under the powers of this section, the court shall cause the charge to be reduced into writing and read to the person charged, and shall then address a question to him or her to the following effect, ‘Do you desire to be tried by a jury, or do you consent to the case being dealt with summarily?’ and if the person assents to the case being dealt with summarily, the court may summarily convict him or her and adjudge him or her to pay a fine of not more than 5 penalty units.

4. In this section and section 8:

   court means the Magistrates Court.

Trial, costs, and execution

1. Consolidation of actions

   It shall be competent for the court or a judge, on an application by or on behalf of 2 or more defendants in actions in respect of the same, or substantially the same, libel brought by one and the same person, to make an order for the consolidation of the actions, so that they shall be tried together, and after the order has been made, and before the trial of the actions, the defendants in any new actions instituted in respect to the same, or substantially the same, libel may be joined in a common action on a joint application being made by the new defendants and the defendants in the actions already consolidated.

   In a consolidated action under this section, the court or jury shall assess the whole amount of the damages (if any) in one sum, but a separate verdict shall be taken for or against each defendant in the same way as if the actions consolidated had been tried separately; and if the court or jury find a verdict against the defendant or defendants in more than one of the actions so consolidated, the court or jury shall proceed to apportion the amount of damages so found between and against the said lastmentioned defendants; and the judge at the trial, if the plaintiff is entitled to the costs of the action, shall make such order as the judge may deem just for the apportionment of the costs between and against the defendants.

Supplemental

1. Name of writer of article etc to be disclosed

   The proprietor of any newspaper may on the written request of any person who has commenced an action in respect of any defamatory article, letter, report, or writing in any newspaper supply to the person affected thereby the name and address of the person who supplied the article, letter, report, or writing to the newspaper, and in default of compliance with the request any person affected thereby may apply to a judge of the Supreme Court who may if he or she sees fit, after hearing the proprietor, direct that the name and address be so supplied.

Endnotes

1. About the endnotes

   Amending and modifying laws are annotated in the legislation history and the amendment history.  Current modifications are not included in the republished law but are set out in the endnotes.

   Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.

   Uncommenced amending laws and expiries are listed in the legislation history and the amendment history.  These details are underlined.  Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.

   If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. 

   The endnotes also include a table of earlier republications.

   If the republished law includes penalties, current information about penalty unit values appears on the republication inside front cover.

2. Abbreviation key

am = amended	ord = ordinance
amdt = amendment	orig = original
ch = chapter	p = page
cl = clause	par = paragraph
def = definition	pres = present
dict = dictionary	prev = previous
disallowed = disallowed by the Legislative	(prev...) = previously
Assembly	prov = provision
div = division	pt = part
exp = expires/expired	r = rule/subrule
Gaz = Gazette	reg = regulation/subregulation
hdg = heading	renum = renumbered
IA = Interpretation Act 1967	reloc = relocated
ins = inserted/added	R[X] = Republication No
LA = Legislation Act 2001	s = section/subsection
LR = legislation register	sch = schedule
LRA = Legislation (Republication) Act 1996	sdiv = subdivision
mod = modified / modification	sub = substituted
No = number	SL  = Subordinate Law
num = numbered	underlining = whole or part not commenced
o = order	or to be expired
om = omitted/repealed

1. Amendment history

   This Act was originally a NSW Act—the Defamation (Amendment) Act 1909 No 22 (NSW).

   The Act was in force in NSW immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by the Seat of Government Acceptance Act 1909 (Cwlth), s 6.

   Under the Seat of Government (Administration) Act 1910 (Cwlth), s 4 the Act had effect in the ACT as if it were an ACT law (subject to ordinances made under the Seat of Government (Administration) Act 1910).

   The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former NSW laws in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day).

   Under the Interpretation Act 1967, s 65 (now expired) all former NSW Acts in force in the ACT immediately before 10 November 1999 (including this Act) became, for all purposes, laws made by the ACT Legislative Assembly. This completed the process of making former NSW Acts fully into ACT laws.

   NSW legislation

   Defamation (Amendment) Act 1909 No 22

   assented to 20 December 1909
   commenced 20 December 1909

   as amended by

   Commonwealth legislation

   New South Wales Acts Application Act 1984 No 41 sch 2 pt 12

   notified 10 August 1984
   commenced 10 August 1984

   New South Wales Acts Application (Amendment) Act 1984 No 58

   notified 30 October 1984
   commenced 30 October 1984

   Magistrates Court Ordinance 1985 No 67 sch pt 1

   notified 19 December 1985

   commenced 1 February 1986 (s 2 and Cwlth Gaz 1986 No G3)

   Self-Government (Consequential Amendments) Ordinance 1989 No 38 sch 1

   notified 10 May 1989 (Cwlth Gaz 1989 No S160)
   s 1, s 2 commenced 10 May 1989 (s 2 (1))
   sch 1 commenced 11 May 1989 (s 2 (2) and see Cwlth Gaz 1989 No S164)

   Legislation after becoming Territory enactment

   Public Sector Management (Consequential and Transitional Provisions) Act 1994 No 38 sch 1 pt 25

   notified 30 June 1994 (Gaz 1994 No S121)
   s 1, s 2 commenced 30 June 1994 (s 2 (1))
   sch 1 pt 25 commenced 1 July 1994 (s 2 (2) and Gaz 1994 No S142)

   Statute Law Revision (Penalties) Act 1998 No 54 sch

   notified 27 November 1998 (Gaz 1998 No S207)
   s 1, s 2 commenced 27 November 1998 (s 2 (1))
   sch commenced 9 December 1998 (s 2 (2) and Gaz 1998 No 49)

   Statute Law Amendment Act 2001 (No 2) 2001 No 56 pt 3.15

   notified 5 September 2001 (Gaz 2001 No S65)
   commenced 5 September 2001 (s 2 (1))

   as repealed by

   Defamation Act 2001 No 88 s 43 (1)

   notified LR 24 September 2001
   s 1, s 2 commenced 24 September 2001 (LA s 75)
   s 43 (1) commenced 1 July 2002 (s 2)

2. Amendment history

   The New South Wales Acts Application Act 1984 (previously the New South Wales Acts Application Ordinance 1984), sch 2, pt 12 sets out the text of this Act in an amended form and provided for the amended form to apply as the text of the Act in force in the ACT.  This endnote, therefore, only details amendments made after that date.

   Publication in newspaper of matters of public interest

   s 5am 1984 No 58 s 2; 1989 No 38 sch 1; 1994 No 38 sch 1 pt 25

   Publication of parliamentary reports etc

   s 5Ains 1984 No 58 s 2

   am 1989 No 38 sch 1

   Summary conviction for libel

   s 9am 1985 No 67 sch pt 1; 1998 No 54 sch; 2001 No 56 amdt 3.248

1. Earlier republications

   Some earlier republications were not numbered. The number in column 1 refers to the publication order. 

   Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register.  A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1.  Except for the footer, electronic and printed versions of an authorised republication are identical.

Republication No	Amendments to	Republication date
1	Ord 1989 No 38	31 July 1992
2	Act 2001 No 56	2 May 2002

Unauthorised version prepared by ACT Parliamentary Counsel's Office

©  Australian Capital Territory 2002