Defamation law by state and territory: a comparison

Australia has eight defamation statutes, not one. The states and territories agreed in 2005 to enact model provisions in near identical terms, and from 2006 until the 2021 reforms the law was effectively uniform. Since 2021 the picture has fragmented. The Stage 1 reforms, including the serious harm element and the public interest defence, have been enacted everywhere except Western Australia. The Stage 2 reforms on digital intermediaries and reports to police have been enacted in full in six jurisdictions, in part in South Australia and not at all in Western Australia.

This article compares the eight jurisdictions on the points that most often matter in practice: which Act applies and how it is numbered, which reforms are in force, whether a jury is available, where the limitation period is found, the damages cap, and which courts hear defamation claims. It then explains how the choice of law rule decides which jurisdiction’s law governs a publication read across state borders.

The Acts and their numbering

The uniform defamation legislation was enacted as the Defamation Act 2005 in New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, as the Defamation Act 2006 in the Northern Territory, and as Chapter 9 of the Civil Law (Wrongs) Act 2002 in the ACT.¹ New South Wales, Victoria, Queensland, Western Australia and Tasmania share the same section numbers, so a reference to s 30 means the same provision in each. South Australia omitted the jury provisions, so its numbering shifts after s 20. The defences run from s 22 to s 30, with qualified privilege at s 28, and the damages provisions begin at s 32, with the cap at s 33.² The ACT provisions are numbered from s 115 to s 139O, with serious harm at s 122A, justification at s 135, absolute privilege at s 137, qualified privilege at s 139A and the cap at s 139F.³ The Northern Territory Act has its own numbering, with the tort of defamation at s 5, serious harm at s 9A, justification at s 22, qualified privilege at s 27 and the cap at s 32.⁴ Queensland places the digital intermediary definitions in the dictionary in Schedule 5 rather than in s 10B, where the New South Wales Act has them.

The Stage 1 reforms introduced the serious harm element, the mandatory concerns notice, the single publication rule, the public interest and peer review defences, the clarified damages cap and the repeal of triviality. The Stage 2 reforms added the exemptions and defence for digital intermediaries, orders against non party intermediaries, preliminary discovery factors and absolute privilege for reports to police. South Australia enacted the police privilege, the preliminary discovery provision and the non party order power but not the intermediary exemptions or defence.¹⁰ Western Australia’s Attorney General said in October 2026 that legislation to implement Stage 1 and Part A of Stage 2 was being prepared, but no bill had been introduced at the date of review.¹¹

Juries, limitation and the cap

Juries

In New South Wales, Victoria, Queensland, Western Australia and Tasmania either party may elect for trial by jury unless the court orders otherwise. In New South Wales, for example, the court may order trial without a jury where the trial requires a prolonged examination of records or involves a technical, scientific or other issue that cannot be conveniently considered and resolved by a jury. The Local Court of New South Wales has no defamation jurisdiction at all.¹⁵ Where a jury is used, it decides whether the matter was defamatory and whether any defence is established, while the judge determines damages (s 22). South Australia’s Act contains no jury provision, and the Juries Act 1927 (SA) provides that no civil trial is to be held before a jury.³⁵ Neither the ACT nor the Northern Territory defamation legislation contains a jury election provision, and the position is put beyond doubt by s 22 of the Supreme Court Act 1933 (ACT), under which every civil trial is by the court without a jury, and by s 6A of the Juries Act 1962 (NT), which requires civil proceedings for defamation to be tried without a jury.³⁵ In the Federal Court, s 39 of the Federal Court of Australia Act 1976 (Cth) provides that every trial is by a judge without a jury unless the court orders otherwise, and defamation trials in that court are in practice heard by a judge alone.²⁵

Limitation

Every jurisdiction imposes a one year limitation period running from the date of publication, with a court able to extend it to up to three years. In the reformed jurisdictions the limitation Acts also contain the single publication rule, under which time runs from the first publication of substantially the same matter by the same publisher, and an automatic extension of up to 56 days where a concerns notice is given near the end of the year.¹⁶ In New South Wales, for example, the one year period and the 56 day extension are in s 14B of the Limitation Act 1969, the single publication rule is in s 14C and the power to extend to three years is in s 56A.¹⁶ Western Australia’s Limitation Act 2005 retains the original one year period and the original extension test, which requires the court to be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced within the year, and has no single publication rule.²² Tasmania is unusual in placing its limitation period in the Defamation Act itself, at s 20A, rather than in its Limitation Act.¹²

The damages cap

The cap on damages for non economic loss is indexed annually by each jurisdiction’s Attorney General using the same formula based on average weekly earnings. As a result the figure is the same everywhere: $520,000 from 1 July 2026.²⁶ In the reformed jurisdictions the cap sets the upper end of a scale and s 35(2) provides that the maximum is “to be awarded only in a most serious case”, while aggravated damages are assessed separately and are not limited by it (s 35(2A) and (2B)). In Western Australia the unamended s 35 still applies, under which the cap may be exceeded only where aggravated damages are warranted, and the s 35(2) direction does not appear in the Act.¹¹

Which courts hear defamation claims

Every Supreme Court has unlimited jurisdiction in defamation. The intermediate courts differ. The District Court of New South Wales hears actions assigned to the Common Law Division up to its jurisdictional limit of $1,250,000, and the Local Court has no jurisdiction in defamation.²⁷ The District Court of Queensland hears personal actions where the amount claimed does not exceed its monetary limit of $750,000.²⁸ The County Court of Victoria has unlimited civil jurisdiction.²⁹ The District Court of South Australia has the same civil jurisdiction as the Supreme Court at first instance, apart from probate, admiralty and supervisory matters.³⁰ The District Court of Western Australia hears personal actions up to its jurisdictional limit of $750,000.³¹ Tasmania, the ACT and the Northern Territory have no intermediate court, and defamation claims there are generally brought in the Supreme Court.

The Federal Court has become a significant forum for defamation, hearing recent high profile cases such as Lehrmann v Network Ten, Russell v Australian Broadcasting Corporation and Deeming v Pesutto. It has no general defamation jurisdiction and hears a claim only where the matter is within federal jurisdiction. In Crosby v Kelly the Full Court held that a claim over publication in the ACT fell within federal jurisdiction because s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) picks up the jurisdiction of the ACT Supreme Court as Commonwealth law.³² The same reasoning applies to publication in the Northern Territory. Federal jurisdiction can also arise where a federal claim, such as misleading or deceptive conduct, is joined, or where the parties are residents of different states. Whichever court hears the case, it applies the substantive law selected by s 11 of the relevant state or territory Act.

Choice of law: which jurisdiction’s law applies

Section 11 of each Act is the key to the whole system. Where matter is published wholly within one Australian jurisdiction, the substantive law of that jurisdiction applies. Where there is a multiple publication in more than one jurisdiction, the court applies the substantive law of the jurisdiction with which the harm occasioned by the publication as a whole has its closest connection, taking into account where the plaintiff was ordinarily resident, the extent of publication in each jurisdiction, the extent of harm in each and any other relevant matter.³³ The rule is the same in every Act, so a court in Brisbane hearing a claim about an article read mostly in Perth by a Perth resident will apply Western Australian law, including the unreformed defences and the triviality defence in s 33.

The practical consequences are significant. Serious harm, the concerns notice requirement in s 12B, the public interest defence, the digital intermediary exemptions and the repeal of triviality are matters of substantive law. In Aguasa v Hunter the Western Australian Court of Appeal held that s 12B of the NSW Act was substantive and had to be applied by a Western Australian court to a publication with its closest connection to New South Wales, so the proceedings were defective for want of a concerns notice.³⁴ The reverse is also true: a plaintiff in New South Wales suing over a publication with its closest connection to Western Australia need not prove serious harm, and the defendant may rely on triviality. The question of which law applies should be answered before a concerns notice is sent, because the applicable law determines what the notice must contain and whether one is required at all.

Differences between jurisdictions

New South Wales is the lead jurisdiction. Its Act carries the reference numbering, its Department of Communities and Justice runs the national review, and both stages of reform commenced there first.⁵

Victoria enacted both stages, Stage 2 commencing on 11 September 2024 by the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Act 2024 (Vic).⁷ Its numbering follows New South Wales. Jury trials are available in the Supreme and County Courts.

Queensland enacted Stage 1 on 1 July 2021 and Stage 2 on 26 December 2025, later than the other eastern states.⁹ Its numbering follows New South Wales except that the digital intermediary definitions are in Schedule 5. Its one year limitation period and single publication rule are in ss 10AA and 10AB of the Limitation of Actions Act 1974 (Qld), and the extension power in s 32A.²⁰

South Australia enacted Stage 1 but declined to join the majority on Part A of Stage 2. Its Act has no jury provisions and is numbered differently from s 21 onwards. The Stage 2 provisions it did adopt, police privilege at s 25(2)(ba), preliminary discovery at s 21A and non party orders at s 37A, commenced on 15 December 2025.¹⁰

Western Australia remains on the 2005 Act in its original form. There is no serious harm element, no mandatory concerns notice, no public interest defence, no single publication rule, no digital intermediary provisions and no police privilege, and the triviality defence in s 33 survives. The cap is indexed in the same way as elsewhere, but under the original s 35 it may be exceeded only where aggravated damages are warranted.¹¹

Tasmania enacted Stage 1 on 12 November 2021 and Stage 2 on 16 June 2025.¹³ Its numbering follows New South Wales, and its limitation period is in s 20A of the Defamation Act rather than in a separate limitation statute.

The ACT enacted Stage 1 on 1 July 2021 and Stage 2 on 1 July 2024, and extended absolute privilege beyond police to the bodies listed in Schedule 1A of the Civil Law (Wrongs) Act 2002 (ACT).¹⁴ Its provisions are numbered from s 115. There is no jury election provision.

The Northern Territory enacted both stages together on 11 August 2025 by the Defamation Legislation Amendment Act 2025 (NT), and was the last jurisdiction other than Western Australia to adopt Stage 1.⁴ Publications in the Territory before that date are governed by the unreformed Act. There is no jury election provision.

Getting advice

Where a publication was read, where the parties live and when it was published together determine which Act applies, what must be done before proceedings can start and which defences are available. Those questions should be worked through at the outset of any defamation dispute, because the answer can differ materially between jurisdictions.