Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic)

Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020

No. 35 of 2020

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Judicial Proceedings Reports Act 1958

3Prohibition of reporting of names

4New section 4A and section 4B inserted

Part 3—Amendment of Victims of Crime Assistance Act 1996

5Definitions

6Tribunal staff

7Delegation

8Power of registrar or Tribunal officer to obtain information

9Rules

10Review of Tribunal decisions

11Review of delegated Tribunal decisions

12Protection of members, advocates and witnesses

Part 4—Amendment of Victims of Crime Commissioner Act 2015

13Terms of appointment of Chairperson

14Members who are victims of crime

15Terms and conditions of appointment of member

16New section 49 inserted

17Statute law revision

Part 5—Amendment of Defamation Act 2005 and Limitation of Actions Act 1958

Division 1—Amendment of Defamation Act 2005

18Definitions

19Certain corporations do not have cause of action for defamation

20No cause of action for defamation of, or against, deceased persons

21New section 10A inserted

22Heading to Division 1 of  Part 3 amended

23New sections 12A and 12B inserted

24When offer to make amends may be made

25Content of offer to make amends

26Effect of failure to accept reasonable offer to make amends

27Election for defamation proceedings to be tried by jury

28Roles of judicial officers and juries in defamation proceedings

29Section 23 substituted

30Section 26 substituted

31New section 29A inserted

32Defence of qualified privilege for provision of certain information

33New section 30A inserted

34Defences of honest opinion

35Defence of triviality

36Damages for non-economic loss limited

37Giving of notices and other documents

38Heading to section 46 amended

39New section 47 inserted

Division 2—Amendment of Limitation of Actions Act 1958

40Contracts and torts

41New sections 5A and 5B inserted

42Section 23B amended

43New section 23D inserted

Part 6—Amendment of Corrections Act 1986

Division 1—Amendments relating to certain orders

44Definitions

45Order of imprisonment

46When does legal custody of the Secretary cease?

47New Division 2A of Part 1A inserted

48Regulations

Division 2—Amendments relating to certain prisoners' letters and other items

49New section 47CA inserted

50Letter and parcel register

Part 7—Amendment of Forests Act 1958

51Secretary may enter into agreements and arrangements relating to the prevention and suppression of fires and recovery from fires

52Immunity provision

Part 8—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013

53Definition applying to pre-injury average weekly earnings—relevant period

Part 9—Amendment of Accident Compensation Act 1985

54Definitions applying to pre-injury average weekly earnings—relevant period

Part 10—Repeal of this Act

55Repeal of this Act

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Endnotes

1      General information

Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020

No. 35 of 2020

[Assented to 17 November 2020]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Judicial Proceedings Reports Act 1958 in relation to publishing identification of victims of sexual offences; and

(b)to amend the Victims of Crime Assistance Act 1996 to provide for the delegation of certain powers and duties to specified Tribunal staff and to make related amendments; and

(c)to amend the Victims of Crime Commissioner Act 2015—

(i)to extend the maximum period of appointment for committee members; and

(ii)to enable committee members who are victims of crime to be reappointed for a period of up to 6 months and to clarify that those members may receive remuneration and allowances; and

(d)to amend the Defamation Act 2005 and the Limitation of Actions Act 1958 to implement model provisions in relation to defamation law; and

(e)to amend the Corrections Act 1986 in relation to—

(i)Commonwealth/State arrangements in respect of certain detention orders; and

(ii)dealing with certain letters and other items sent to or received by prisoners; and

(f)to amend the Forests Act 1958 to enable specified persons to carry out specified activities in the Fire Rescue Victoria fire district; and

(g)to amend the Workplace Injury Rehabilitation and Compensation Act 2013 and the Accident Compensation Act 1985 in relation to what constitutes the relevant period for the purposes of calculating the pre-injury average weekly earnings of a worker.

2Commencement

(1)This Act, except Part 5, comes into operation on the day after the day on which it receives the Royal Assent.

(2)Subject to subsection (3), Part 5 comes into operation on a day or days to be proclaimed.

(3)If a provision of Part 5 does not come into operation before 13 October 2021, it comes into operation on that day.

Part 2—Amendment of Judicial Proceedings Reports Act 1958

3Prohibition of reporting of names

(1)In section 4(1) of the Judicial Proceedings Reports Act 1958—

(a)insert the following definitions—

'adult means a person aged 18 years or older;

child means a person under the age of 18 years;

court means the Supreme Court, the County Court or the Magistrates' Court;

decision-making capacity has the same meaning as it has in the Guardianship and Administration Act 2019 as if a reference in that section of that Act to "this Act" were a reference to this section of this Act;

permission means written permission or, if a person is incapable of giving written permission, permission recorded by any other means;

relevant person, in relation to a supporting statement, means—

(a)a registered medical practitioner; or

(b)a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student); or

(c)a person who is a member of a prescribed class of persons;';

(b)in the definition of publish, in paragraph (d), after "communication" insert "(including but not limited to social media)";

(c)for the definition of sexual offence substitute—

"sexual offence has the same meaning as it has in section 4 of the Criminal Procedure Act 2009.".

(2)In section 4(1A) of the JudicialProceedings Reports Act 1958—

(a)omit ", or an offence where the conduct constituting it consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration as defined in section 35 of the Crimes Act 1958,";

(b)for "whether or not a proceeding in respect of the alleged offence is pending in a court" substitute "whether or not a proceeding in respect of the alleged offence or offence has commenced, is being conducted or has been finally determined".

(3)For section 4(1B) of the Judicial Proceedings Reports Act 1958 substitute—

"(1B)Subsection (1A) does not apply if no complaint about the alleged offence had been made to a police officer.

(1BA)Subsection (1A) does not apply to a victim of an alleged offence or an offence who publishes any matter that contains any particulars likely to identify that victim.

Note

If the publication is likely to lead to the identification of another victim who does not give permission to publish, the offence under subsection (1A) still applies.

(1BB)It is a defence to a charge under subsection (1A) for the accused to prove, on the balance of probabilities, that—

(a)the publication was about a victim who had given the accused permission to publish the particulars and was an adult at the time the permission was given; and

(b)the publication was in accordance with the limits, if any, set by the victim; and

Example

Limits might include the type of identifying particulars to which the permission to publish is given, the re-publication of the identifying particulars or where and by whom the identifying particulars are to be published, such as permission for the victim's name to be published but not their image or permission to a particular television program or newspaper or journalist, but not others or for a first name to be published but not a last name.

(c)the victim had decision-making capacity to give permission to publish the particulars.

Note

If the publication is likely to lead to the identification of another victim who does not give permission to publish, the offence under subsection (1A) still applies.

(1BC)It is a defence to a charge under subsection (1A) for the accused to prove, on the balance of probabilities, that—

(a)the publication was about a victim who had given the accused permission to publish the particulars and was a child at the time the permission was given; and

(b)the publication was in accordance with the limits, if any, set by the victim; and

Example

Limits might include the type of identifying particulars to which the permission to publish is given, the re-publication of the identifying particulars or where and by whom the identifying particulars are to be published, such as permission for the victim's name to be published but not their image or permission to a particular television program or newspaper or journalist, but not others or for a first name to be published but not a last name.

(c)the permission was accompanied by a supporting statement that complies with subsection (1BD) made by a relevant person regarding the victim's permission to publish the particulars.

Note

If the publication is likely to lead to the identification of another victim who does not give permission to publish, the offence under subsection (1A) still applies.

(1BD)For the purposes of subsection (1BC), a supporting statement must—

(a)state that the relevant person is of the opinion that the child understands—

(i)what it means to be identified as a victim of a sexual offence; and

(ii)the consequences of losing anonymity; and

(b)include the name, qualification and business address of the relevant person.

(1BE)It is a defence to a charge under subsection (1A) for the accused to prove, on the balance of probabilities, that the publication was permitted by a court order under subsection (1BF).

(1BF)Subject to subsection (1BG), a court may make an order permitting the publication of any matter that contains any particulars likely to lead to the identification of a victim if satisfied—

(a)in the case of a living victim—

(i)that it has taken into account the views of any victims likely to be identified, if those views are known following reasonable enquiries; and

(ii)that it is in the public interest to make the order; and

(b)in the case of a deceased victim—

(i)that it has taken into account the views of the deceased victim, if those views are known following reasonable enquiries; and

(ii)that the views of any family members of the deceased victim are taken into account, if those views are known following reasonable enquiries, unless the family member is also the alleged offender or convicted offender; and

(iii)that it is in the public interest to make the order.

(1BG)The court—

(a)in making an order under subsection (1BF), must not take into account the views of the alleged offender or convicted offender; and

(b)must not make an order under subsection (1BF) if it would be likely to lead to the identification of a victim who does not give permission for that publication and who is—

(i)a living adult victim with decision-making capacity at the time the proceeding under subsection (1BF) is being determined; or

(ii)a victim who was a child at the time the proceeding under subsection (1BF) is being determined and who has a supporting statement made in accordance with subsection (1BD).

(1BH)A court may make an order under subsection (1BF)—

(a)on application by a person with sufficient interest, unless the person is the alleged offender or convicted offender; or

(b)on its own motion.

(1BI)Nothing in this section affects any other law prohibiting or restricting publication of identifying material.".

(4)Section 4(1C), (1CA) and (1CB) of the Judicial Proceedings Reports Act 1958 are repealed.

4New section 4A and section 4B inserted

After section 4 of the Judicial Proceedings Reports Act 1958 insert—

"4A   Publication between 16 April 1991 and commencement of this section not an offence in certain circumstances

(1)This section applies to a publication which occurred during the period between 16 April 1991 and the commencement of this section.

(2)A person who published or caused to be published any matter that contains any particulars likely to lead to the identification of a victim of a sexual offence is not liable for an offence against section 4(1A) if either or both of the following apply—

(a)the publication was made by the victim likely to be identified;

(b)at the time of the publication, the person had authorisation from the victim to publish the particulars unless the victim was a child at the time of publication.

4BRepeal of certain provisions on 1 September 2021

On 1 September 2021—

(a)for section 4(1BF)(a) and (b) of the Judicial Proceedings Reports Act 1958 substitute—

"(a)that it has taken into account the views of any victims likely to be identified, if those views are known following reasonable enquiries; and

(b)that it is in the public interest to make the order."; and

(b)in section 4(1BG)(b)(i) of the Judicial Proceedings Reports Act 1958 for "a living" substitute "an".".

Part 3—Amendment of Victims of Crime Assistance Act 1996

5Definitions

In section 3(1) of the Victims of Crime Assistance Act 1996 insert the following definition—

"Tribunal officer means a person referred to in section 23(ca);".

6Tribunal staff

After section 23(c) of the Victims of Crime Assistance Act 1996 insert—

"(ca)Tribunal officers, being officers of the Tribunal who—

(i)are legally qualified; or

(ii)have the requisite skills or experience to carry out the functions of a Tribunal officer; and".

7Delegation

After section 24(3) of the Victims of Crime Assistance Act 1996 insert—

"(4)The Chief Magistrate, for and on behalf of the Tribunal, by instrument, may delegate to a Tribunal officer any power conferred on the Tribunal by or under this or any other Act, other than—

(a)the power to review a final decision of the Tribunal; and

(b)this power of delegation.".

8Power of registrar or Tribunal officer to obtain information

(1)In the heading to section 40 of the Victims of Crime Assistance Act 1996, after "registrar" insert "or Tribunal officer".

(2)In section 40(1) of the Victims of Crime Assistance Act 1996, after "A registrar" insert "or a Tribunal officer".

(3)In section 40(1)(b) and (3) of the Victims of Crime Assistance Act 1996, after "registrar" (wherever occurring) insert "or the Tribunal officer".

9Rules

In section 57(1)(ca) of the Victims of Crime Assistance Act 1996, for "registrar," substitute "registrar or a Tribunal officer,".

10Review of Tribunal decisions

In section 59(1A) of the Victims of Crime Assistance Act 1996, after "registrar" insert "or a Tribunal officer".

11Review of delegated Tribunal decisions

In section 59A(1) of the Victims of Crime Assistance Act 1996, after "registrar" insert "or a Tribunal officer".

12Protection of members, advocates and witnesses

After section 63(1A) of the Victims of Crime Assistance Act 1996 insert—

"(1B)A Tribunal officer has, in the exercise of powers or performance of duties in good faith, the same protection and immunity as a member of the Tribunal has under subsection (1).".

Part 4—Amendment of Victims of Crime Commissioner Act 2015

13Terms of appointment of Chairperson

In section 34(a) of the Victims of Crime Commissioner Act 2015, for "2" substitute "3".

14Members who are victims of crime

In section 39(4) of the Victims of Crime Commissioner Act 2015, for "is not eligible for reappointment" substitute "is eligible for reappointment for one further term not exceeding 6 months".

15Terms and conditions of appointment of member

(1)In section 42(1)(a) of the Victims of Crime Commissioner Act 2015, for "2" substitute "3".

(2)After section 42(2) of the Victims of Crime Commissioner Act 2015 insert—

"(3)A member of the Committee appointed under section 39 is entitled to the remuneration and allowances determined from time to time by the Attorney-General.".

16New section 49 inserted

After section 48 of the Victims of Crime Commissioner Act 2015 insert—

49Transitional provision—Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020"

(1)The period of appointment of a person who, immediately before the amendment of section 34(a) by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020, is appointed as Chairperson, is taken, on and from that amendment to be for a period of 3 years commencing from the date of appointment specified in the person's instrument of appointment.

(2)A person who, immediately before the amendment of section 42 by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020, is appointed as a member under section 39, is taken, on and from that amendment—

(a)to be appointed for the period—

(i)commencing from the date of appointment specified in the person's instrument of appointment; and

(ii)ending on 16 April 2023; and

(b)is entitled to the remuneration and allowances determined from time to time by the Attorney-General from the date of appointment specified in the person's instrument of appointment.".

17Statute law revision

In section 3 of the Victims of Crime Commissioner Act 2015, in the definition of Secretary, for "Regulation" substitute "Community Safety".

Part 5—Amendment of Defamation Act 2005 and Limitation of Actions Act 1958

Division 1—Amendment of Defamation Act 2005

18Definitions

In section 4 of the Defamation Act 2005 insert the following definitions—

"applicable period for an offer to make amends is defined by section 14;

associated entity has the same meaning as in section 50AAA of the Corporations Act;

concerns notice is defined by section 12A;

excluded corporation means an excluded corporation referred to in section 9;

further particulars notice means a further particulars notice referred to in section 12A(3);".

19Certain corporations do not have cause of action for defamation

(1)For section 9(2)(b) of the Defamation Act 2005 substitute—

"(b)it has fewer than 10 employees and is not an associated entity of another corporation—".

(2)Section 9(4) of the Defamation Act 2005 is repealed.

(3)In section 9(6) of the Defamation Act 2005 insert the following definition—

"employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is—

(a)engaged in the day to day operations of the corporation other than as a volunteer; and

(b)subject to the control and direction of the corporation;".

20No cause of action for defamation of, or against, deceased persons

At the end of section 10 of the Defamation Act 2005 insert—

"(2)Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for a proceeding discontinued because of the subsection.".

21New section 10A inserted

After section 10 of the Defamation Act 2005 insert—

"10A   Serious harm element of cause of action for defamation

(1)It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

(2)For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

(3)The judicial officer (and not the jury) in a defamation proceeding is to determine whether the serious harm element is established.

(4)Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer's own motion)—

(a)determine whether the serious harm element is established at any time before the trial for the proceeding commences or during the trial; and

(b)make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceeding if satisfied the element is not established).

(5)If a party applies for the serious harm element to be determined before the trial for the proceeding commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial).

(6)The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following—

(a)the cost implications for the parties;

(b)the resources available to the court at the time;

(c)the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceeding.

(7)Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

(8)Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss a defamation proceeding (whether before or after the trial commences).".

22Heading to Division 1 of Part 3 amended

In the heading to Division 1 of Part 3 of the Defamation Act 2005, for "Offers" substitute "Concerns notices and offers".

23New sections 12A and 12B inserted

After section 12 of the Defamation Act 2005 insert—

"12A   Concerns notices

(1)For the purpose of this Act, a notice is a concerns notice if—

(a)the notice—

(i)is in writing; and

(ii)specifies the location where the matter in question can be accessed (for example, a webpage address); and

(iii)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); and

(iv)informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question; and

(v)for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and

(b)a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note

Section 12B requires a concerns notice to be given before a proceeding for defamation can be commenced.

(2)For the avoidance of doubt, a document that is required to be filed or lodged to commence a defamation proceeding cannot be used as a concerns notice.

(3)If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

(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.

(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.

12BDefamation proceeding cannot be commenced without concerns notice

(1)An aggrieved person cannot commence a defamation proceeding unless—

(a)the person has given the proposed defendant a concerns notice in respect of the matter concerned; and

(b)the imputations to be relied on by the person in the proposed proceeding were particularised in the concerns notice; and

(c)the applicable period for an offer to make amends has elapsed.

(2)Subsection (1)(b) does not prevent reliance on—

(a)some, but not all, of the imputations particularised in a concerns notice; or

(b)imputations that are substantially the same as those particularised in a concerns notice.

(3)The court may grant leave for a proceeding to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

(a)the commencement of a proceeding after the end of the applicable period for an offer to make amends contravenes the limitation law; or

(b)it is just and reasonable to grant leave.

(4)The commencement of a proceeding contravenes the limitation law for the purposes of subsection (3)(a) if the proceeding could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.

(5)In this section—

limitation law means the Limitation of Actions Act 1958.".

24When offer to make amends may be made

(1)For section 14(1)(a) of the Defamation Act 2005 substitute—

"(a)   the applicable period for an offer to make amends has expired; or".

(2)For section 14(2), (3), (4) and (5) of the Defamation Act 2005 substitute—

"(2)   For the purposes of this Act, the applicable period for an offer to make amends is—

(a)if the aggrieved person has provided further particulars in response to a further particulars notice about a concerns notice after 14 days have elapsed since the concerns notice was given—14 days since the publisher was given the further particulars; or

(b)in any other case—28 days since the publisher was given a concerns notice by the aggrieved person.

(3)If a publisher gives more than one further particulars notice, subsection (2)(a) applies only in respect of the first notice.".

25Content of offer to make amends

(1)After section 15(1)(b) of the Defamation Act 2005 insert—

"(ba)must provide for the offer to be open for acceptance for at least 28 days commencing on the day the offer is made; and".

(2)In section 15(1)(d) of the Defamation Act 2005, after "reasonable correction of" insert ", or a clarification of or additional information about,".

(3)In section 15(1)(f) of the Defamation Act 2005, for "offer; and" substitute "offer.".

(4)Section 15(1)(g) of the Defamation Act 2005 is repealed.

(5)After section 15(1) of the Defamation Act 2005 insert—

"(1A)In addition to the matters referred to in subsection (1), an offer to make amends 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)—

(a)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; or

(b)if the matter has been published on a website or any other electronically accessible location—an offer to remove the matter from the website or location; or

(c)an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or

(d)the particulars of any correction or apology made, or action taken, before the date of the offer.".

(6)In section 15(2) of the Defamation Act 2005, for "subsection (1)(g)(ii)" substitute "subsection (1A)(c)".

26Effect of failure to accept reasonable offer to make amends

(1)For section 18(1)(a) of the Defamation Act 2005 substitute—

"(a)the publisher made the offer as soon as reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends); and".

(2)In section 18(1)(b) of the Defamation Act 2005 omit "at any time before the trial".

(3)After section 18(2) of the Defamation Act 2005 insert—

"(3)Despite section 22(2), the judicial officer (and not the jury) in a defamation proceeding tried by jury is to determine whether a defence under this section is established.".

27Election for defamation proceedings to be tried by jury

(1)After section 21(1) of the Defamation Act 2005 insert—

"(1A)Without limiting subsection (1), a court may order that a defamation proceeding is not to be tried by jury if—

(a)the trial requires a prolonged examination of records; or

(b)the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.".

(2)For section 21(3) of the Defamation Act 2005 substitute—

"(3)   An election may be revoked only—

(a)with the consent of all the parties to the proceeding; or

(b)if all the parties do not consent, with the leave of the court.

(4)The court may, on the application of a party to the proceeding, grant leave for the purposes of subsection (3)(b) only if satisfied it is in the interests of justice for the election to be revoked.".

28Roles of judicial officers and juries in defamation proceedings

(1)In section 22(5)(b) of the Defamation Act 2005, for "officer." substitute "officer; or".

(2)After section 22(5)(b) of the Defamation Act 2005 insert—

"(c)requires or permits a jury to determine any issue that another provision of this Act requires a judicial officer to determine.".

29Section 23 substituted

For section 23 of the Defamation Act 2005 substitute—

"23   Leave required for multiple proceedings in relation to publication of same defamatory matter

(1)This section applies to a person who has brought a defamation proceeding for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter.

(2)The person may not bring a further defamation proceeding for damages against a previous defendant or an associate of a previous 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 proceeding is to be brought.

(3)A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceeding related, the person was—

(a)an employee of the defendant; or

(b)a person publishing matter as a contractor of the defendant; or

(c)an associated entity of the defendant (or an employee or contractor of the associated entity).".

30Section 26 substituted

For section 26 of the Defamation Act 2005 substitute—

"26   Defence of contextual truth

(1)It is a defence to the publication of defamatory matter if the defendant proves that—

(a)the matter carried one or more imputations that are substantially true (contextual imputations); and

(b)any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

(2)The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.".

31New section 29A inserted

After section 29 of the Defamation Act 2005 insert—

"29A   Defence of publication of matter concerning issue of public interest

(1)It is a defence to the publication of defamatory matter if the defendant proves that—

(a)the matter concerns an issue of public interest; and

(b)the defendant reasonably believed that the publication of the matter was in the public interest.

(2)In determining whether the defence is established, a court must take into account all of the circumstances of the case.

(3)Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances—

(a)the seriousness of any defamatory imputation carried by the matter published;

(b)the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

(c)the extent to which the matter published relates to the performance of the public functions or activities of the person;

(d)whether it was in the public interest in the circumstances for the matter to be published expeditiously;

(e)the sources of the information in the matter published, including the integrity of the sources;

(f)if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person's identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);

(g)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;

(h)any other steps taken to verify the information in the matter published;

(i)the importance of freedom of expression in the discussion of issues of public interest.

(4)Subsection (3) does not—

(a)require each factor referred to in the subsection to be taken into account; or

(b)limit the matters that the court may take into account.

(5)Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in a defamation proceeding tried by jury is to determine whether a defence under this section is established.".

32Defence of qualified privilege for provision of certain information

(1)For section 30(3) of the Defamation Act 2005 substitute—

"(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 the following factors to the extent the court considers them applicable in the circumstances—

(a)the seriousness of any defamatory imputation carried by the matter published;

(b)the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

(c)the nature of the business environment in which the defendant operates;

(d)whether it was appropriate in the circumstances for the matter to be published expeditiously;

(e)any other steps taken to verify the information in the matter published.

(3A)Subsection (3) does not—

(a)require each factor referred to in the subsection to be taken into account; or

(b)limit the matters that the court may take into account.

(3B)It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1).".

(2)After section 30(5) of the Defamation Act 2005 insert—

"(6)Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in a defamation proceeding tried by jury is to determine whether a defence under this section is established.".

33New section 30A inserted

After section 30 of the Defamation Act 2005 insert—

"30A   Defence of scientific or academic peer review

(1)It is a defence to the publication of defamatory matter if the defendant proves that—

(a)the matter was published in a scientific or academic journal (whether published in electronic form or otherwise); and

(b)the matter relates to a scientific or academic issue; and

(c)an independent review of the matter's scientific or academic merit was carried out before the matter was published in the journal by—

(i)the editor of the journal if the editor has expertise in the scientific or academic issue concerned; or

(ii)one or more persons with expertise in the scientific or academic issue concerned.

(2)If there is a defence to the publication of defamatory matter in a scientific or academic journal because of subsection (1), there is also a defence to the publication of any assessment of the matter in the same journal if the defendant proves that—

(a)the assessment was written by one or more of the persons who carried out the independent review of the matter; and

(b)the assessment was written in the course of that review.

(3)It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a fair summary of, or fair extract from, a matter or assessment for which there is a defence because of subsection (1) or (2).

(4)If a journal has more than one editor, a reference in this section to the editor of the journal is to be read as a reference to the editor or editors who were responsible for deciding to publish the matter concerned.

(5)A defence established under this section is defeated if, and only if, the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education.".

34Defences of honest opinion

For section 31(5) of the Defamation Act 2005 substitute—

"(5)   For the purposes of this section, an opinion is based on proper material if—

(a)the material on which it is based is—

(i)set out in specific or general terms in the published matter; or

(ii)notorious; or

(iii)accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage); or

(iv)otherwise apparent from the context in which the matter is published; and

(b)the material—

(i)is substantially true; or

(ii)was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(iii)was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.".

35Defence of triviality

Section 33 of the Defamation Act 2005 is repealed.

36Damages for non-economic loss limited

(1)In section 35(1) of the Defamation Act 2005, for "Unless the court orders otherwise under subsection (2), the" substitute "The".

(2)For section 35(2) of the Defamation Act 2005 substitute—

"(2)   The maximum damages amount is to be awarded only in a most serious case.

(2A)Subsection (1) does not limit the court's power to award aggravated damages if an award of aggravated damages is warranted in the circumstances.

(2B)An award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies.".

37Giving of notices and other documents

(1)After section 44(1)(a)(iii) of the Defamation Act 2005 insert—

"(iv)sending it by email to an email address specified by the person for the giving or service of documents; or".

(2)In section 44(1)(b)(ii) of the Defamation Act 2005, for "corporate." substitute "corporate; or"

(3)After section 44(1)(b)(ii) of the Defamation Act 2005 insert—

"(iii)sending it by email to the email address specified by the body corporate for the giving or service of documents.".

38Heading to section 46 amended

In the heading to section 46 of the Defamation Act 2005 after "provisions" insert "for when Act originally enacted".

39New section 47 inserted

After section 46 of the Defamation Act 2005 insert—

"47   Transitional—Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020

An amendment made to this Act by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 applies to the publication of defamatory matter after the commencement of the amendment.".

Division 2—Amendment of Limitation of Actions Act 1958

40Contracts and torts

After section 5(1AAA) of the Limitation of Actions Act 1958 insert—

"(1AAB)The 1-year limitation period referred to in subsection (1AAA) is taken to have been extended as provided by subsection (1AAC) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires.

(1AAC)The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1‑year limitation period expires.

Example

Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.

(1AAD)In subsections (1AAB) and (1AAC)—

concerns notice has the same meaning as in the Defamation Act 2005;

date of publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.".

41New sections 5A and 5B inserted

After section 5 of the Limitation of Actions Act 1958 insert—

"5A   Defamation—single publication rule

(1)This section applies if—

(a)a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and

(b)the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same.

(2)Any cause of action for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when—

(a)the limitation period applicable under section 5(1AAA) to (1AAC) begins; or

(b)the 3-year period referred to in section 23B(2) begins.

Note

For extensions of time, see Division 2A of Part II.

(3)Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.

(4)In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to)—

(a)the level of prominence that a matter is given; and

(b)the extent of the subsequent publication.

(5)This section does not limit the power of a court under section 23B to extend the limitation period applicable under section 5(1AAA) to (1AAC).

(6)In this section—

associate of a first publisher means—

(a)an employee of the publisher; or

(b)a person publishing matter as a contractor of the publisher; or

(c)an associated entity (within the meaning of section 50AAA of the Corporations Act) of the publisher (or an employee or contractor of the associated entity);

date of first publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient;

public includes a section of the public.

5BDefamation—effect of limitation law concerning electronic publications on other laws

(1)This section applies in respect of any requirement under section 5(1AAA) to (1AAC) or 5A for the date of publication of a matter in electronic form to be determined by reference to the day on which the matter was first uploaded for access or sent electronically to a recipient.

(2)A requirement to which this section applies is relevant only for the purpose of determining when a limitation period begins and for no other purpose.

(3)Without limiting subsection (2), a requirement to which this section applies is not relevant for—

(a)establishing whether there is a cause of action for defamation; or

(b)the choice of law to be applied for a cause of action for defamation.".

42Section 23B amended

(1)In the heading to section 23B of the Limitation of Actions Act 1958, after "Defamation" insert
"—extension of limitation period".

(2)For section 23B(2) and (3) of the Limitation of Actions Act 1958 substitute—

"(2)   The court may extend the limitation period applicable under section 5(1AAA) to (1AAC) to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

(3)In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—

(a)the length of, and the reasons for, the plaintiff's delay; and

(b)if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—

(i)the day on which the facts became known to the plaintiff; and

(ii)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and

(c)the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.".

43New section 23D inserted

After section 23C of the Limitation of Actions Act 1958 insert—

"23D   Transitional provisions—Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020

(1)Section 5 as amended by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 applies in relation to the publication of defamatory matter after the commencement of that amendment.

(2)Subject to subsection (3), section 5A as inserted by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 applies in relation to the publication of defamatory matter after the commencement of that section.

(3)Section 5A extends to a first publication before the commencement of that section, but only in respect of subsequent publications after the commencement.

(4)Section 23B as amended by the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 applies in relation to the publication of defamatory matter after the commencement of that amendment.".

Part 6—Amendment of Corrections Act 1986

Division 1—Amendments relating to certain orders

44Definitions

In section 3(1) of the Corrections Act 1986 insert—

"Commonwealth continuing detention order means a continuing detention order as defined in section 105A.2 of the Criminal Code of the Commonwealth;

Commonwealth interim detention order means an interim detention order as defined in section 105A.2 of the Criminal Code of the Commonwealth;

custodial sentence has the same meaning as it has in the Serious Offenders Act 2018".

45Order of imprisonment

After section 6(ca) of the Corrections Act 1986 insert—

"(cb)a Commonwealth continuing detention order or a Commonwealth interim detention order; or".

46When does legal custody of the Secretary cease?

(1)After section 6B(1)(a) of the Corrections Act 1986 insert—

"(aba)on the expiration of the person's sentence of imprisonment, or if the person is serving more than one sentence of imprisonment, on the expiration of all of those sentences of imprisonment, unless immediately upon that expiration the person becomes subject to a Commonwealth continuing detention order or a Commonwealth interim detention order; or".

(2)After section 6B(1)(ac) of the Corrections Act 1986 insert—

"(ad)on the expiration of a Commonwealth continuing detention order or a Commonwealth interim detention order in respect of the person, if—

(i)the person is not subject to any other order of imprisonment; and

(ii)the person is not serving a sentence of imprisonment; or".

47New Division 2A of Part 1A inserted

After Division 2 of Part 1A of the Corrections Act 1986 insert—

"Division 2A—Arrangements for detention of persons subject to certain orders

6JArrangements for detention of person subject to Commonwealth continuing detention order or Commonwealth interim detention order

For the purposes of section 105A.21 of the Criminal Code of the Commonwealth—

(a)the Attorney-General or the Minister, on behalf of the State of Victoria, may enter into an arrangement for the detention at a prison of a person in relation to whom a Commonwealth continuing detention order or a Commonwealth interim detention order is in force; and

(b)the Secretary to the Department is the chief executive officer authorised to detain the person at a prison while the Commonwealth continuing detention order or Commonwealth interim detention order is in force.

6KPersons detained under arrangement to be managed under this Act

(1)Subject to this Part, a person who is detained in prison under an arrangement mentioned in section 6J is to be managed under this Act.

(2)The person must be treated in a way that is appropriate to the person's status as a person not serving a sentence of imprisonment, subject to any reasonable requirements necessary to maintain one or more of the following—

(a)the management, security or good order of the prison;

(b)the safe custody and welfare of the person or other prisoners;

(c)the safety and protection of the community.

(3)Except as provided in subsection (4), the person must not be accommodated or detained in the same area or unit of the prison as persons serving custodial sentences.

(4)The person may be accommodated or detained in the same area or unit of the prison as persons serving custodial sentences if—

(a)it is reasonably necessary for the purposes of rehabilitation, treatment, work, education or general socialisation or for related purposes; or

(b)it is necessary for the safe custody or welfare of the person or other prisoners or the security or good order of the prison; or

(c)the person has elected to be so accommodated or detained; or

(d)it is reasonably necessary for the safety and protection of the community.

(5)This section does not apply to the person if the person is serving a sentence of imprisonment.

6LValidation

(1)This section applies if, before the commencement day, the Attorney-General or the Minister, on behalf of the State of Victoria, entered into or purportedly entered into an arrangement for the detention at a prison of a person in relation to whom a Commonwealth continuing detention order or a Commonwealth interim detention order is or was in force.

(2)The arrangement has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences, as it would have if this Act as amended by Division 1 of Part 6 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 had been in operation when the arrangement was entered into or purportedly entered into.

(3)Any act or thing done or omitted to be done, or purportedly done or omitted to be done, whether under a power conferred by or under an enactment or otherwise, before or after the commencement day, in reliance on or in relation to the arrangement, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences, as it would have if this Act as amended by Division 1 of Part 6 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 had been in operation when the act or thing was done or omitted to be done or purportedly done or omitted to be done.

(4)A right or liability conferred or imposed by or in relation to the arrangement, or purportedly conferred or imposed by or in relation to the arrangement, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable, as if this Act as amended by Division 1 of Part 6 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 had been in operation when the right or liability was conferred or imposed or purportedly conferred or imposed.

(5)In this section—

commencement day means the day on which Division 1 of Part 6 of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 commences.".

48Regulations

After section 112(1)(ad) of the Corrections Act 1986 insert—

"(ae)the management, treatment, accommodation and detention of persons subject to a Commonwealth continuing detention order or a Commonwealth interim detention order;".

Division 2—Amendments relating to certain prisoners' letters and other items

49New section 47CA inserted

After section 47C of the Corrections Act 1986 insert—

"47CA   Certain letters and other items may be copied and disposed of

(1)A designated officer may make a true copy of any letter or other item capable of being copied that is sent to or received by a prisoner by or from any person not listed or referred to in section 47(1)(m).

(2)If a designated officer has made a copy under subsection (1), the officer—

(a)subject to this Division, must provide the copy to the prisoner; and

(b)must notify the prisoner as soon as practicable that the original letter or item has been forfeited to the State; and

(c)may dispose of the original letter or item in any manner the officer considers to be appropriate.

(3)If a letter or item is copied under subsection (1)—

(a)in the case of a letter, the copy may be dealt with under section 47D as if it were the original letter; and

(b)the original letter or item is forfeited to the State.

(4)For the purposes of subsection (1), the designated officer—

(a)must make a colour copy if the original letter or item appears in colour and it is reasonably practicable to make a colour copy; and

(b)may make a copy in an electronic form.

(5)In this section, designated officer means—

(a)a Governor; or

(b)a prison officer; or

(c)an employee in the public service working in a prison or with prisoners.".

50Letter and parcel register

After section 47E(c) of the Corrections Act 1986 insert—

"(caa)details of every letter or item copied and any subsequent disposal under section 47CA; and".

Part 7—Amendment of Forests Act 1958

51Secretary may enter into agreements and arrangements relating to the prevention and suppression of fires and recovery from fires

At the end of section 62C of the Forests Act 1958 insert—

"(2)The Secretary may enter into an agreement or arrangement with Fire Rescue Victoria to enable any specified person, in the circumstances specified in the agreement or arrangement—

(a)to exercise under section 32B(3)(a), (c), (d) and (e) of the Fire Rescue Victoria Act 1958 the powers of a senior member of the operational staff in relation to the scene of an alarm of fire in the Fire Rescue Victoria fire district, to the extent authorised by the agreement or arrangement; and

(b)to carry out activities relating to the exercise of powers under section 32B(3)(a), (c), (d) and (e) of the Fire Rescue Victoria Act 1958 in the Fire Rescue Victoria fire district, to the extent authorised by the agreement or arrangement.

(3)If the Secretary enters into an agreement or arrangement under subsection (2), each specified person, in the circumstances specified in the agreement or arrangement—

(a)has and may exercise under section 32B(3)(a), (c), (d) and (e) of the Fire Rescue Victoria Act 1958 the powers of a senior member of the operational staff in relation to the scene of an alarm of fire in the Fire Rescue Victoria fire district, to the extent authorised by the agreement or arrangement; and

(b)may carry out activities relating to the exercise of powers under section 32B(3)(a), (c), (d) and (e) of the Fire Rescue Victoria Act 1958 in the Fire Rescue Victoria fire district, to the extent authorised by the agreement or arrangement.

Note

The effect of this subsection is that the powers that may be exercised and the activities that may be carried out by a specified person depend on the existence and terms of an agreement or arrangement under subsection (2).

(3A)The Secretary must publish an agreement or arrangement entered into under subsection (2) on the Department's website.

(4)In this section—

alarm of fire has the same meaning as in section 32A of the Fire Rescue Victoria Act 1958;

Fire Rescue Victoria has the same meaning as in section 3(1) of the Fire Rescue Victoria Act 1958;

Fire Rescue Victoria fire district has the same meaning as in section 3(1) of the Fire Rescue Victoria Act 1958;

senior member of the operational staff, in relation to the scene of an alarm of fire, has the same meaning as in section 32B(6) of the Fire Rescue Victoria Act 1958;

specified person means any of the following—

(a)the Secretary;

(b)an authorised officer;

(c)a person employed under section 27 or 28 of the Parks Victoria Act 2018;

(d)a person employed in the Department under Part 3 of the Public Administration Act 2004 by the Department Head of the Department within the meaning of that Act;

(e)a person engaged by the Secretary under subsection (1).

(5)The operation of section 32B of the Fire Rescue Victoria Act 1958 is subject to this section.".

52Immunity provision

(1)In section 72(2) of the Forests Act 1958—

(a)in paragraph (b), for "activities." substitute "activities; or"

(b)after paragraph (b) insert—

"(c)for the purposes of carrying out fire management activities in accordance with an agreement or arrangement referred to in section 62C(2).".

(2)In section 72(4), in the definition of fire management activity—

(a)in paragraph (c), for "62AA." substitute "62AA; or";

(b)after paragraph (c) insert—

"(d)an agreement or arrangement referred to in section 62C(2).".

Part 8—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013

53Definition applying to pre-injury average weekly earnings—relevant period

(1)In section 154(2) of the Workplace Injury Rehabilitation and Compensation Act 2013, for "The" substitute "Subject to subsection (4), the".

(2)After section 154(3) of the Workplace Injury Rehabilitation and Compensation Act 2013 insert—

"(4)If the relevant period, in relation to the pre-injury average weekly earnings of a worker during the 52 weeks immediately before the worker's injury would otherwise include a period of time during the prescribed period and the worker's earnings during the period occurring in the prescribed period are reduced for a COVID-19 reason, the relevant period in relation to the worker does not include the period occurring in the prescribed period.

(5)In this section—

COVID-19 reason means, in relation to the reduction of earnings of a worker, that the reduction is a consequence of one or more of the following occurring during the prescribed period because of the COVID-19 pandemic—

(a)the ordinary hours of work of the worker are reduced;

(b)the nature of the work performed by the worker is altered;

(c)the earnings of the worker are reduced;

prescribed period means the period starting on 1 March 2020 and ending on 31 December 2020.".

Part 9—Amendment of Accident Compensation Act 1985

54Definitions applying to pre-injury average weekly earnings—relevant period

(1)In section 5AA(2) of the Accident Compensation Act 1985, for "The" substitute "Subject to subsection (4), the".

(2)After section 5AA(3) of the Accident Compensation Act 1985 insert—

"(4)If the relevant period, in relation to the pre‑injury average weekly earnings of a worker during the 52 weeks immediately before the worker's injury would otherwise include a period of time during the prescribed period and the worker's earnings during the period occurring in the prescribed period are reduced for a COVID-19 reason, the relevant period in relation to the worker does not include the period occurring in the prescribed period.

(5)In this section—

COVID-19 reason means, in relation to the reduction of earnings of a worker, that the reduction is a consequence of one or more of the following occurring during the prescribed period because of the COVID-19 pandemic—

(a)the ordinary hours of work of the worker are reduced;

(b)the nature of the work performed by the worker is altered;

(c)the earnings of the worker are reduced;

prescribed period means the period starting on 1 March 2020 and ending on 31 December 2020.".

Part 10—Repeal of this Act

55Repeal of this Act

This Act is repealed on 13 October 2022.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 14 October 2020

Legislative Council: 29 October 2020

The long title for the Bill for this Act was "A Bill for an Act to amend the Judicial Proceedings Reports Act 1958 in relation to publication of identification of victims, to amend the Victims of Crime Assistance Act 1996 in relation to delegation of certain powers, to amend the Victims of Crime Commissioner Act 2015 in relation to the Committee under that Act, to amend the Defamation Act 2005 and the Limitation of Actions Act 1958 to include further model provisions, to amend the Corrections Act 1986 in relation to certain detention orders and prisoner mail, to amend the Forests Act 1958 to enable specified persons to carry out specified activities in the Fire Rescue Victoria fire district, to amend the Workplace Injury Rehabilitation and Compensation Act 2013 and the Accident Compensation Act 1985 in relation to pre-injury average weekly earnings and for other purposes."