Australian Capital Territory

defamation (amendment) act 1909
(new south wales) 
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Updated as at 9 December 1998
TABLE OF PROVISIONS
Section
Preliminary
	1.	Short title
	2.	Interpretation
Declarations, indictments, and criminal prosecutions
	3.	Obscene or blasphemous matter need not be set out in information etc.
	4.	No prosecution without order of Judge
Civil and criminal defences
	5.	Publication in newspaper of matters of public interest
	5A.	Publication of Parliamentary reports etc.
	6.	Privilege not affected by publication under contract
Mitigation of damages
	7.	Compensation in other actions provable in mitigation
Summary proceedings
	8.	Evidence before court of summary jurisdiction
	9.	Summary conviction for libel
Trial, costs, and execution
	10.	Consolidation of actions
Supplemental
	11.	Name of writer of article etc. to be disclosed

Australian Capital Territory

defamation (amendment) act 1909
(New south wales)
An Act to amend the law of defamation
Preliminary
1. 	Short title
	This Act may be cited as the Defamation (Amendment) Act 19091, and shall be construed with the Defamation Act 1901.
2. 	Interpretation
	In this Act, unless the context otherwise requires—
“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 in order 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, in the case of 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 manner representing or responsible for the other shares or interests therein, and no other person.

Declarations, indictments, and criminal prosecutions
3. 	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 such 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.
4. 	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.
Such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application.
Civil and criminal defences
5. 	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 such proceedings are preliminary or interlocutory or final, unless, in the case of proceedings which 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 such court as aforesaid;
	(e)	a copy or an abstract of any judgment, or of the entries relative to any judgment, which 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 Territory, 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 Territory for the discharge of public functions so far as the matter published relates to matters of public concern, except where 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 in the case of the publication of news.
In the case of 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.
5A. 	Publication 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 such a body;
	(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;
	(b)	either House of the Parliament;
	(c)	the Parliament, or a House of the Parliament, of a State; and
	(d)	the Legislative Assembly of the Northern Territory.
6. 	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 such publication is made in pursuance of a contract whereby such person or corporation undertakes for valuable consideration to supply information to the person to whom such publication is made, if—
	(a)	the publication is in answer to an inquiry made in pursuance of such contract;
	(b)	the matter published is relevant to the subject of the inquiry;
	(c)	the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion;
	(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
7. 	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 such action has been brought.
Summary proceedings
8. 	Evidence before court of summary jurisdiction
	Where 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 which under this or any other law in force in the Territory, or otherwise might be given in evidence by way of defence by the person charged on his trial on information or indictment, and such court if of opinion after hearing such evidence, that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case.
9. 	Summary conviction for libel
(1) 	If the court is, upon 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 by virtue of the powers of this section, such court shall cause the charge to be reduced into writing and read to the person charged, and shall then address a question to him 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 such person assents to the case being dealt with summarily, such court may summarily convict him and adjudge him to pay a fine not exceeding—
	(a)	if the offender is a natural person—5 penalty units; or
	(b)	if the offender is a body corporate—25 penalty units.
(2) 	In this and the last preceding section, “court” means the Magistrates Court.
Trial, costs, and execution
10. 	Consolidation of actions
	It shall be competent for the court or a judge, upon 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 such actions, so that they shall be tried together, and after such order has been made, and before the trial of the said 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 upon a joint application being made by such 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 last-mentioned defendants; and the judge at the trial, if the plaintiff is entitled to the costs of the action, shall make such order as he may deem just for the apportionment of such costs between and against such defendants.
Supplemental
11. 	Name of writer of article etc. to be disclosed
	The proprietor of any newspaper may upon 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 such person affected thereby the name and address of the person who supplied such article, letter, report, or writing to such newspaper, and in default of compliance with such request any person affected thereby may apply to a Judge of the Supreme Court who may if he sees fit, after hearing such proprietor, direct that such name and address be so supplied.

NOTES
1.	The Defamation (Amendment) Act 1909 of the State of New South Wales (No. 22, 1909) was one of the laws in force in the Australian Capital Territory before 1 January 1911 and was therefore continued in force by the Seat of Government Acceptance Act 1909 of the Commonwealth.
	The text of the Defamation (Amendment) Act 1909 of the State of New South Wales in its application in the Territory as at 10 August 1984 comprises Part 12 of Schedule 2 to the New South Wales Acts Application Act 1984 (No. 41, 1984) as amended, for details of those amendments see (a).
	The Defamation (Amendment) Act 1909 of the State of New South Wales in its application in the Territory has been amended since 10 August 1984 as indicated in the Tables below.
	Citation of Laws—The Self-Government (Citation of Laws) Act 1989  (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts.  That Act also affects references in ACT laws to Commonwealth Acts.
2.	The Legislation (Republication) Act 1996 (No. 51, 1996) authorises the Parliamentary Counsel in preparing a law for republication, to make certain editorial and other formal amendments in accordance with current legislative drafting practice.  Those amendments make no change in the law.  Amendments made pursuant to that Act do not appear in the Table of Amendments but details may be obtained on request from the Parliamentary Counsel’s Office.
Table 1
Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Magistrates Court Ordinance 1985	67, 1985	19 Dec 1985	1 Feb 1986 (see Gazette 1986, No. G3, p. 265)	—	
Self-Government (Consequential Amendments) Ordinance 1989	38, 1989	10 May 1989	Ss. 1 and 2:  10 May 1989
Remainder:  11 May 1989 (see s. 2 (2) and  Gazette 1989, No. S164)	—	
Self-Government day 11 may 1989

Table 2
Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

(Reprinted as at 31 July 1992)	
Public Sector Management (Consequential and Transitional Provisions) Act 1994	38, 1994	30 June 1994	Ss. 1 and 2:  30 June 1994
Remainder:  1 July 1994 (see Gazette 1994, No. S142, p. 2)	Ss. 3, 5-12, 15 and 19	
Statute Law Revision (Penalties) Act 1998	54, 1998	27 Nov 1998	Ss. 1 and 2:  27 Nov 1998
Remainder:  9 Dec 1998 (see Gazette 1998, No. 49, p. 1078)
	—	
	(a)	The Defamation (Amendment) Act 1909, in its application in the Territory, comprises the Defamation (Amendment) Act 1909 as amended by the New South Wales Acts Application Act 1984 as amended.  The amendments so made have been incorporated in the text of the Defamation (Amendment) Act 1909 in Part 12 of the Schedule to the New South Wales Acts Application Act 1984.
		Section 12 has not been included in the text of the Defamation (Amendment) Act 1909 as it amended the Defamation Act 1901, and the amendment so made has been incorporated in the text of the New South Wales Acts Application Act 1984 in Part 11 of the Schedule.
Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected

S. 5	am. No. 41, 1984 (as am. by No. 58, 1984); No. 38, 1989; Act No. 38, 1994
S. 5A	ad. No. 41, 1984 (as am. by No. 58, 1984); No. 38, 1989
S. 9	am. No. 67, 1985; Act No. 54, 1998