The 2021 defamation reforms explained

Australia’s defamation laws were overhauled on 1 July 2021 for the first time since the uniform Acts commenced in 2006. The changes, known as the Stage 1 reforms or the Model Defamation Amendment Provisions 2020, altered who can sue, what must be done before suing, how long a plaintiff has, which defences are available and how damages are capped. Anyone relying on advice or articles written before 2021 should assume that parts of them are out of date.

This article explains the background to the reforms, when they commenced in each jurisdiction, what changed, what did not, and how the courts have applied the new provisions in the five years since.

Background

The Defamation Act 2005 (NSW) and its counterparts in the other states and territories were enacted as uniform legislation following an agreement of the state and territory Attorneys General in 2004 and 2005, and commenced on 1 January 2006. A statutory review began in 2018 under the Council of Attorneys General, with New South Wales chairing a Defamation Working Party. The Council approved the Model Defamation Amendment Provisions 2020 on 27 July 2020, and the first five jurisdictions to enact them commenced their amending Acts on 1 July 2021.¹

The drivers were familiar. Defamation had come to be dominated by disputes about online publications and by claims over trivial matters; Australia was described as the defamation capital of the world; the media complained that the defences did not protect responsible journalism; and the damages cap had been read in a way that allowed awards well above it.

Commencement by jurisdiction

The Northern Territory enacted Stage 1 and Stage 2 together in 2025. Western Australia has announced that legislation is being prepared but had introduced no bill when this article was written.⁹

The transitional rule

The amendments apply only to the publication of defamatory matter after their commencement. Schedule 4 of the NSW Act provides that the 2020 amendments apply only in relation to the publication of defamatory matter after the commencement of the amendments, and the other jurisdictions adopted the same rule.¹⁰ A publication made on 30 June 2021 in New South Wales is governed permanently by the old law, including its limitation period, defences and cap. That is why Lehrmann v Network Ten Pty Ltd, concerning a February 2021 broadcast, was decided under the old version of s 30 even though judgment was given in 2024.¹¹

For material that remains online, each download after commencement is a new publication to which the new law applies. In practice the old law is now relevant mainly to historical publications and to Western Australia.

What changed

Serious harm

Section 10A makes it an element of the cause of action that the publication has caused, or is likely to cause, serious harm to the plaintiff’s reputation. For a corporation that is entitled to sue, harm is not serious unless it has caused or is likely to cause serious financial loss. The judicial officer, not the jury, decides the question, may do so before trial, and may determine on the pleadings alone that the element is not established if the particulars are insufficient.¹² For matter published after commencement, the common law presumption of damage no longer applies; the plaintiff must prove serious harm as a fact. Sackar J explained this in Newman v Whittington, an early decision on the section, where the serious harm pleading was struck out with leave to replead and the Court adopted much of the reasoning of the UK Supreme Court on the equivalent English provision.¹³ The presumption continues to apply to earlier publications and in Western Australia.

Mandatory concerns notice

Section 12A prescribes the content of a concerns notice, including the location of the matter, the imputations complained of and the harm the aggrieved person considers to be serious harm. Section 12B provides that proceedings cannot be commenced unless a concerns notice has been given, the imputations relied on were particularised in it, and the applicable period for an offer to make amends has elapsed. Leave to commence early is available only where the limitation period would otherwise expire or where it is just and reasonable.¹⁴ Courts have dismissed proceedings for non compliance, and the WA Court of Appeal has held the requirement to be substantive, so that it applies in any forum, provided the law of a reformed jurisdiction governs the publication.¹⁵

Offers to make amends

The offer to make amends regime was tightened to work with the mandatory notice. An offer cannot be made after the applicable period, which is 28 days from the concerns notice or, where further particulars are provided more than 14 days after the notice, 14 days from receipt of the particulars. The defence for an unaccepted reasonable offer requires that the offer be made as soon as reasonably practicable and within that period.¹⁶ The costs provision in s 40, which was not changed, continues to treat an offer to make amends that was reasonable when made as a settlement offer for the purpose of indemnity costs.¹⁷

Single publication rule and limitation

The limitation period in s 14B of the Limitation Act 1969 (NSW) remains one year, but the Act now contains a single publication rule in s 14C: where a publisher publishes matter and later publishes substantially the same matter, time runs from the first publication unless the manner of the later publication is materially different. The extension test in s 56A changed from whether it was not reasonable to have commenced within one year to whether it is just and reasonable to allow the action to proceed, and a concerns notice given within 56 days of expiry extends the period to allow the offer process to run.¹⁸

Public interest defence

Section 29A protects a publication where the matter concerned an issue of public interest and the defendant reasonably believed publication was in the public interest, having regard to a non exhaustive list of factors.¹⁹ It is modelled on the UK defence and is covered in detail in the companion article on the public interest defence.

Peer review defence

Section 30A protects matter published in a scientific or academic journal where it relates to a scientific or academic issue and its scientific or academic merit was independently reviewed before publication by the editor, if the editor has expertise in the issue, or by one or more “persons with expertise in the scientific or academic issue concerned”, together with assessments written in the course of that review and fair summaries or extracts of such matter. The defence is defeated only if the matter was not published honestly for the information of the public or the advancement of education.²⁰

Statutory qualified privilege

The list of reasonableness factors in s 30(3) was shortened, the section now states expressly that the court need not consider every factor, and s 30(3B) provides that public interest is not a requirement of the defence.²¹

Contextual truth

Section 26 was reworded so that the defendant may rely on contextual imputations that include imputations of which the plaintiff complains, allowing a defendant to prove the truth of some of the plaintiff’s own imputations and argue that the plaintiff’s remaining imputations do no further harm to reputation.²²

Damages cap

Section 35 now provides that the maximum damages amount is to be awarded only in a most serious case, that the cap does not limit the court’s power to award aggravated damages, and that aggravated damages are to be assessed separately from damages for non economic loss (compensation for injury to reputation and feelings, often called general damages).²³ This reversed the approach under the old wording, where, as the Victorian Court of Appeal held in Bauer Media Pty Ltd v Wilson (No 2), the cap ceased to apply altogether once aggravated damages were warranted.²⁷ Under the amended s 35, general damages remain subject to the cap and aggravated damages are assessed separately and in addition to them. The Full Court of the Federal Court confirmed in Latham v Greenwich that this is how the new provision operates.²⁴

Triviality repealed

The defence of triviality in s 33 was repealed, the serious harm element having taken its place.²⁵

What did not change

The elements of publication, identification and defamatory meaning were not altered. The ordinary reasonable reader test, the rules on imputations, the law of publication (including the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller on page administrators, decided under the unamended Act) and the common law defences all continue. Justification, absolute privilege, public documents, fair report, honest opinion and innocent dissemination were left substantially as they were. Corporations with ten or more employees still cannot sue, exemplary damages remain unavailable, and the one year limitation period remains the starting point.

What the courts have done since

The serious harm element has had the largest effect. Courts have determined it as a preliminary question, struck out claims where the pleaded particulars could not establish serious harm, and insisted that plaintiffs prove actual or likely harm to reputation rather than hurt feelings. In June 2026 the Full Court of the Federal Court in Latham v Greenwich held that serious harm is an open textured concept to be given its plain and ordinary meaning, construed by reference to the text, context and purpose of the Australian provision rather than the language of English judgments. Serious harm may be inferred from the circumstances of the publication. The serious harm requirement attaches to the publication as a whole, not to each individual imputation.²⁴

The concerns notice requirement has generated a body of decisions on compliance and on its characterisation. Aguasa v Hunter settled, for Western Australia at least, that s 12B is substantive and travels with the governing law.¹⁵

The public interest defence was considered in Russell v Australian Broadcasting Corporation (No 3), where it failed, in Deeming v Pesutto (No 3), where it failed, and in Al Muderis v Nine Network Australia Pty Ltd, where in August 2025 it succeeded for the first time, subject to an appeal to the Full Court.²⁶

Differences between jurisdictions

The content of the Stage 1 reforms is the same in every enacting jurisdiction. The differences are in numbering and timing. South Australia’s provisions follow the model but are numbered differently (serious harm is s 10A, but qualified privilege is s 28 and the public interest defence s 27A), the ACT’s are in Chapter 9 of the Civil Law (Wrongs) Act 2002 (serious harm s 122A, public interest s 139AA), and the Northern Territory’s are in the Defamation Act 2006 (serious harm s 9A, public interest s 26A).⁶ The Tasmanian and Northern Territory commencement dates mean that publications in those jurisdictions between 1 July 2021 and their local commencement were governed by the pre 2021 law. Western Australia remains on the 2005 Act in full.

Getting advice

Which version of the law applies to a publication depends on where it was published and when, and the answer can change the elements, the defences, the time limit and the cap. Anyone considering a claim or facing one over material published around or before the commencement dates above should have the applicable law identified at the outset.