Western Australian Numbered Acts Western Australian Numbered Acts[s. 47]
Section 53 is
repealed.
Chapter XXXV is
repealed and the following Chapter is inserted instead —
“
Chapter XXXV — Criminal defamation
(1) A person who,
without lawful excuse, publishes matter defamatory of another living person
(the “victim” ) —
(a)
knowing the matter to be false or without having regard to whether the matter
is true or false; and
(b)
intending to cause serious harm to the victim or any other person or without
having regard to whether such harm is caused,
is guilty of a crime
and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for
12 months and a fine of $12 000.
(2) In proceedings for
an offence under this section the accused person has a lawful excuse for the
publication of defamatory matter about the victim if, and only if,
subsection (3) applies.
(3) This subsection
applies if the accused person would, having regard only to the circumstances
happening before or at the time of the publication, have had a defence for the
publication if the victim had brought civil proceedings for defamation against
the accused person.
(4) The prosecutor
bears the onus of negativing the existence of a lawful excuse if, and only if,
evidence directed to establishing the excuse is first adduced by or on behalf
of the accused person.
(5) On a trial before
a jury for an offence under this section —
(a) the
question of whether the matter complained of is capable of bearing a
defamatory meaning is a question for determination by the judge;
(b) the
question of whether the matter complained of does bear a defamatory meaning is
a question for the jury; and
(c) the
jury may give a general verdict of guilty or not guilty on the issues as a
whole.
(6) A prosecution
under this section must not be commenced without the consent of the Director
of Public Prosecutions.
(7) In this
section —
“publish” and “defamatory”
have the meanings that those terms have in the law of tort (as modified by the
Defamation Act 2005 ) relating to defamation.
”.
Defined Terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined Term Provision(s)
aggrieved person
12(1)
Australian court 4
Australian jurisdiction 4
Australian
jurisdictional area 11(5)
Australian tribunal
4
commentator 31(3)
concerns notice 14(2)
contextual imputations
26
conviction 42(4)
corporation 9(6)
country
4
document 4
electronic communication
4
existing law of defamation
48(4)
external Territory 11(5)
further
particulars notice 14(3)
general law
4
geographical area of Australia
11(5)
imputations of concern 14(2)
Jervis Bay
Territory 11(5)
law reform body
29(5)
learned society 29(5)
matter
4
matter in question
12(1)
maximum damages amount 35(1)
multiple
publications 11(5)
offer to make amends
4
ombudsman 29(5)
parliamentary body 4
periodical
41(3)
post-commencement action 48(2)
pre-commencement action 48(2)
proceedings of
public concern 29(4)
public body
9(6)
public document 28(4)
publisher
12(1)
recipient 30(1)
relevant objects 29(5)
settlement offer
40(3)
sport or recreation association 29(5)
substantially true 4
Territory
4
this jurisdiction 4
trade
association 29(5)