Uniformity deadline passes as digital defamation deformation prevails

Articles Written by Kevin Lynch (Partner), Hamish Lennon (Associate)

The goal of uniformity for Australian defamation law is set to fall short again as a majority of jurisdictions fail to meet their own timeline for the proposed model Stage 2 defamation law reforms.

The Stage 2 reforms centre on issues affecting digital publications that are unrestrained by state boundaries. In the absence of uniform reform, Australia’s digital defamation laws are effectively “unreformed”, with a plaintiff able to bring a digital defamation action in the recalcitrant jurisdiction of their choice.

In September 2023, a majority of jurisdictions committed to using “best endeavours” to enact the Stage 2 reforms as framed in model amendments by 1 July 2024.

With only days to run on that deadline, where is each jurisdiction up to with Stage 2 reforms and why are these reforms posing a challenge for uniformity?

The Stage 2 model amendments

First, a quick recap on the Stage 2 reforms.

The “Stage 2, Part A” amendments focus on the position of online intermediaries in the publication of defamatory material. The Stage 2, Part A reforms include:

  • An exemption from liability for a digital intermediary for the publication of digital matter if:
    • its role in the publication is passive and limited to providing a caching service, conduit service or storage service (i.e. it is not actively initiating, promoting or editing the matter); or
    • it is a search engine provider with a role limited to providing an automated process for users to generate search results identifying or linking to a webpage on which the matter is located.
  • A defence for digital intermediaries in relation to defamatory digital matter posted by a third party so long as reasonable steps are taken to remove or prevent access to the matter within 7 days of a compliant complaint.
  • Provisions addressing specific concerns with the offer to make amends process and the service of notices in the digital age; and
  • Provisions enabling courts to make take-down orders against non-party digital intermediaries.

The “Stage 2, Part B” amendments extend the defence of absolute privilege to publications made to police while acting in their official capacity and provide guiding principles for how absolute privilege may also extend to material published to statutory bodies. These Part B reforms aim to ensure defamation laws do not indirectly deter individuals from reporting unlawful conduct / misconduct.

Where are the reforms up to?

Western Australia and the Northern Territory are well off the pace as they are yet to adopt the Stage 1 reforms, enacted by other jurisdictions in the second half of 2021. This means there are two jurisdictions yet to implement mandatory concerns notices, the single publication rule for electronic publications, the serious harm threshold, the public interest defence and other significant changes.

Reform champions NSW, followed by ACT and Victoria are the only ones on pace to enact the Stage 2 model amendments by the proposed uniformity deadline. The table below shows where each jurisdiction stands as at 24 June 2024:




Stage 2 model amendments enacted, to commence 1 July 2024.


Stage 2 model amendments enacted, substantive provisions are awaiting commencement. The ACT Government has confirmed its intention for the Stage 2 reforms to commence on 1 July 2024. Unless a commencement date is fixed by written notice, the provisions will commence by default on 24 November 2025.


Victoria is in the process of enacting the Stage 2 model amendments.

The reforms passed through the Legislative Assembly on 20 June 2024 under the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024 and will next go before the Legislative Council.


South Australia is yet to introduce draft legislation to enact the Stage 2 reforms.

At the September 2023 SCAG meeting, South Australia expressly set itself apart, only lending its support to “aspects” of the Stage 2, Part A reforms and making no promises to enact the amendments as it is still considering “how they might best apply to South Australian legislation”.


Tasmania is yet to introduce draft legislation to enact the Stage 2 reforms.


Queensland is yet to introduce draft legislation to enact the Stage 2 reforms.


Western Australia is yet to introduce draft legislation to enact the Stage 2 reforms (or catch-up on the Stage 1 reforms).


The Northern Territory is yet to introduce draft legislation to enact the Stage 2 reforms (or catch-up on the Stage 1 reforms).



These reforms are not about a local newspaper on the front lawn, a slander over the back fence or an attack pinned to a strata corkboard. The Stage 2, Part A reforms relate to online publication, where state-by-state disparity is an anachronistic nonsense.

As it is, the Stage 2 reforms date back to work undertaken in 2020, an eon in tech development, which means that the provisions predate the rise of AI, with no consideration of how liability or defences might apply to developments in publication that are testing so many areas of established law.

If the states do not get it together, either fragmentation and forum shopping will prevail, or the Commonwealth will step in.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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