Statutory review - Defamation Act 2005

7 Jun 2018

This is the report of the statutory review of the Defamation Act 2005 (the Act), which implements the Model Defamation Provisions (MDP) in NSW. The MDP were developed by the Model Defamation Law Working Party (Defamation Working Party) established by the former Standing Committee of Attorneys-General (SCAG), and endorsed by SCAG in November 2004. Each state and territory has enacted legislation to implement the MDP, collectively referred to as the National Uniform Defamation Law (NUDL).

The Review involved consideration of submissions from a range of interested parties, consultation with key stakeholders, correspondence received from stakeholders between 2012 and 2017, and careful analysis of cases heard in NSW, other Australian and international jurisdictions. It has also involved a comparative assessment of other countries’ defamation frameworks and examining recent reforms and developments in defamation law in other countries, including the commencement of the Defamation Act 2013 (UK) in the United Kingdom on 1 January 2014. More information about the conduct of the Review is in Appendix 1, and a list of stakeholders who made a submission to the Review is provided in Appendix 2.

While the Review focuses on the NSW Act, because that Act forms part of the NUDL, the Review’s conclusions about the operation and effect of specific provisions are likely to also be relevant to other NUDL jurisdictions, which have adopted equivalent provisions. In light of this, and NSW’s commitment under the MDP IGA, the Review identifies specific concerns, but recommends that CAG reconvene the Defamation Working Party to address them more fully and develop any necessary amendments. The Review presents a first step towards further cooperative work at the national level to help ensure the NUDL remains modern, fit for purpose and nationally consistent, and that views and experiences of all NUDL jurisdictions inform any legislative reform.

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